IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 SA.NO. 777 OF 1996() -------------------- [AS.295/1990 OF THE 2ND ADDL.DISTRICT COURT, THRISSUR IN OS.254/1986 OF MUNSIFF'S COURT, VADAKKANCHERRY] .................... APPELLANT(S)/APPELLANT/PLAINTIFF: ------------------------------------------- NARAYANANKUTTY NAIR, S/O. KOOLIATTIL THONDIL PARUKUTTY AMMA, PAINKULAM VILLAGE, DESOM, TALAPPILLY TALUK. BY ADV. SRI.P.VIJAYA BHANU RESPONDENT(S)/RESPONDENTS/DEFENDANTS: ----------------------------------------------------- 1. SREEDEVI AMMA, D/O.PUTHENVEETTIL MEENAKSHI AMMA, PAINKULAM VILLAGE, DESOM, TALAPPILLY TALUK. 2. SATHISHKUMAR, S/O.SREEDEVI AMMA, PAINKULAM VILLAGE, DESOM, TALAPPILLY TALUK. 3. GOPALAKRISHNA MENON (DIED) H/O. SREEDEVI AMMA, PAINKULAM VILLAGE, DESOM, TALAPPILLY TALUK. R1 & R2 BY ADVS. SRI.N.SUBRAMANIAM & SRI.M.S.NARAYANAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. --------------------------------------- S.A.No.777 of 1996 --------------------------------------- Dated this the 31st day of August, 2010 JUDGMENT Plaintiff is the appellant. Her suit for recovery of possession on the basis of title was dismissed by the trial court, which was confirmed by the first appellate court dismissing her appeal. 2. Plaintiff claimed title over plaint A schedule property, having an extent of 3 acres 80 cents in Survey No.608/1 of Painkulam Village. After purchase when she carried out the measurement, it was found to be having lesser extent of nearly 1 acre and that area has been trespassed upon and reduced into possession by the neighbouring owners/the defendants, was the case advanced to claim recovery of that portion, allegedly trespassed upon, described as B schedule, on the basis of title. The defendants have title only in the property comprised in Survey No.608/2, and not 608/1 comprising the plaint property, was the case of the plaintiff. The first defendant alone resisted the suit, who in her written statement contended that an age old S.A.No.777 of 1996 :: 2 :: boundary separated her property with that of the plaintiff, and neither the plaintiff nor his predecessors in interest exercised any right or possession over her property at any point of time. Disputing the title of the plaintiff over B schedule property, alternatively, the first defendant contended that her continuous possession is adverse to the plaintiff, even if any portion of her property is found to be comprised in Survey No.608/1, and as such the right of the plaintiff has been lost by adverse possession and limitation. 3. On the pleadings of the parties as above, the trial court settled necessary issues for adjudication, which included questions as to whether the plaintiff has got title over B schedule property and if so, whether her title is lost by adverse possession,as contended by the 1st defendant, to consider whether the plaintiff is entitled to recover B schedule property on the basis of the title claimed. 4. The evidence consisted of PWs.1 to 4, Exts.A1 ro A4 for the plaintiff and Dws.1 and 2 and Exts.B1 to B6 for S.A.No.777 of 1996 :: 3 :: the first defendant. The report and sketch prepared by an advocate commissioner, after having a local inspection and measurement of the properties, were exhibited as Exts.C1 and C1(a). 5. On the materials placed, the learned Munsiff concluded that the plaintiff has established her title over 99 cents of property identified under C1(a) plan, which was found to be in possession and enjoyment of the first defendant, as lying contiguously with the rest of her property. However, the claim for recovery by the plaintiff over that property was negatived and the plaintiff was non- suited, holding that the evidence tendered in the case satisfactorily established that the first defendant in continuation of her predecessor has been in possession of the above property with a hostile animus, and she has prescribed title over that property by adverse possession. 6. Plaintiff challenged the decree of dismissal of her suit preferring an appeal as A.S.No.295/90 before the S.A.No.777 of 1996 :: 4 :: District Court, Thrissur. The 2nd Additional District Judge, Thrissur, after re-appreciation of the evidence, concurring with the findings entered by the learned Munsiff, held that the title of the plaintiff over the 99 cents described as B schedule, has been lost by adverse possession of the 1st defendant. The appeal was, therefore, dismissed. Plaintiff/appellant assails the concurrent finding entered by the two courts below negativing her claim for recovery of plaint B schedule on the basis of his title, as having been lost by adverse possession of the 1st defendant. 7. I heard the counsel on both sides. 8. The essential ingredients to constitute adverse possession have not been pleaded in the written statement of the 1st defendant and, further, the specific contention taken by her repudiating any claim over the property in survey No.608/1, wherein the plaint A and B schedule properties are situate, which was reiterated even when the 1st defendant was examined as DW.1, according to the learned counsel for the S.A.No.777 of 1996 :: 5 :: appellant, was not taken into account by both the courts in appreciating the sustainability of the defence built upon adverse possession to resist the recovery of possession claimed on the basis of the title. Where the plaintiff has established his title over the property 'B schedule', as concurrently held by the two courts below, declining the relief of recovery of that property, when there was no specific plea of adverse possession nor even any convincing evidence that the defendant has been possessing such property with hostile animus for the prescribed period, it is urged by the counsel, is wholly unjust and unsustainable under law. So, in reversal of the dismissal of the suit, recovery of B schedule on the basis of the title proved by the plaintiff, according to the counsel, has to be granted allowing the appeal. 9. Per contra, learned counsel for the first defendant urged that the finding concurrently entered by both the courts that the plaintiff has lost title over by B schedule property by virtue of the possession of the first S.A.No.777 of 1996 :: 6 :: defendant and her predecessors. which was found to be open, notorious and with hostile animus, is amply supported by the materials tendered in the case. Even the father of the plaintiff examined as PW.2 has given evidence that he executed a sale deed in favour of his son long after putting up a fencing on the western side of his property, according to the counsel. That fencing, according to PW.2, was put up in 1969. His evidence unmistakably demonstrated that the property on the western side of the fence, at least after it was put up in 1969, continued under the enjoyment of the predecessor of the first defendant and later, after conveyance of that property, by that defendant. Even at the point of time when Ext.A1 was executed in favour of the plaintiff, there was a common boundary separating his property with that of the 1st defendant on its western side is proved by the materials, including the commission report, submits the counsel. After having worsted by the dismissal of the suit, it is submitted by the counsel, the plaintiff has assigned the S.A.No.777 of 1996 :: 7 :: property in favour of another, and when a reference was made by this court for mediation since the assignor did not turn up no effective mediation could be made to settle the dispute, and such efforts fructified. At any rate, the plaintiff as of now is having no subsisting title over the property to claim recovery of B schedule. On that count also no interference with the dismissal of his suit is called for, is the further submission of the counsel. 10. Perusing the judgments rendered by the courts below, with reference to the pleadings of the parties and the materials produced, in the back drop of the submissions made by the counsel on both sides, I find, challenge against the concurrent decision of the courts below by the appellant/ plaintiff, declining his claim for recovery of possession over B schedule property must fail. Recovery of B schedule is sought for alleging that it formed part of plaint A schedule covered by Ext.A1 sale deed. The executants of Ext.A1 sale deed are the father of the plaintiff and the S.A.No.777 of 1996 :: 8 :: brothers and sisters of his father. PW.2 is the father of the plaintiff. The evidence of PW.2 would indicate that long before execution of Ext.A1 sale deed, a fence separated the property covered by Ext.A1 deed from that of the adjoining western property. According to PW.2, he had put up such a fence separating the property in his possession with that of the western property on the basis of the possession then exercised over the property covered by A schedule. His evidence would show that the fencing was put up in 1969 on a rough estimation of the property in his possession. That fencing was not interfered with or tampered at a later point of time by the defendants or their predecessors is practically conceded in the case. Subsequent to the putting up of such fencing and long thereafter assignment was made in favour of the plaintiff under Ext.A1 sale deed. Ext.A1 sale deed is of the year 1980 and even on the admitted version of PW.2 fence separating the western property was put up in 1969. The case of the plaintiff that defendants trespassed upon A S.A.No.777 of 1996 :: 9 :: schedule property and reduced 'B' schedule into their possession in 1975-76 canvassed to sustain the claim of recovery of possession over B schedule, can be hardly given any merit where it is established even by the admission of PW.2, the father and one among the previous title holders of the property that the plaintiff and the defendants are enjoying their respective properties as separated by the fence put up in 1969. PW.2, the father of the plaintiff, and his sisters, at least, till that property was conveyed to the plaintiff under Ext.A1 sale deed had no objection whatsoever over the possession of the property to the west of the fence by the predecessor of the first defendant, is a material circumstance discrediting the claim of recovery of possession canvassed by the plaintiff alleging a trespass over B schedule property five or six years prior to the conveyance of the property in his favour under Ext.A1 sale deed. The 1st defendant in her written statement did not claim any right over the property S.A.No.777 of 1996 :: 10 :: covered by survey No.608/1 and that was reiterated in her evidence, when examined as DW.1, would not enure to the benefit of the plaintiff where she had set up a claim over B schedule property of having prescribed title over such property by way of adverse possession. True, she had title only over the property situate in Survey No.608/2 as per her title deed. Bur the materials collected in the case indicate that at present she is in enjoyment of a larger extent of more than that covered by her deed. That circumstance would not incapacitate her in sustaining the claim over B schedule by adverse possession where it is amply demonstrated that at least from 1969 onwards the parties have been enjoying the respective properties to the west and east of a fence reporting their holdings, both of them believing and accepting that they have title to the respective holdings. Possession of the defendants in continuation of that of her predecessor over the property situate to the west of the fence put up by PW.2, in the given facts of the case, has to be S.A.No.777 of 1996 :: 11 :: considered as having been exercised as full owner repudiating the claim or right of any other person over such property. The fence put up was not in tune with the measurement covered by the title deed, is not of much moment where the owners on both sides of the fence accepted it as the dividing line separating their holdings. Suit was filed in 1986, six years after Ext.A1 sale deed was executed in favour of the plaintiffs, that too with a case that B schedule was reduced into possession by the defendants in 1975-76. Even at the time when Ext.A1 was executed, it is clear, the executant had lost title over B schedule property. That being so, the concurrent finding entered by both the courts upholding the claim of adverse possession of the 1st defendant over B schedule property and on that basis, declining the claim for recovery of possession of that property by the plaintiff is unassailable. 11. The appellant/plaintiff, during the pendency of the appeal, has assigned the suit property in favour of S.A.No.777 of 1996 :: 12 :: another, is not disputed. True, such assignment, during the pendency of the litigation, would not debar the appellant in seeking the relief for recovery of possession on the basis of his title, as that question essentially has to be considered with reference to the date of institution of the suit. However, whether there is any reservation in the assignment deed enabling the plaintiff to continue the litigation for recovery of B schedule property, and if such recovery is allowed, then, to convey such benefit to his assignee, or the assignment related only to A schedule ignoring B schedule, as the two courts below have concurrently negatived the claim for recovery of possession may have some significance, but, any answer thereof is possible only if the assignment deed has been produced. Non-production of the assignment deed executed by the plaintiff/appellant over the suit property in the present appeal, in the back drop that the claim of adverse possession over B schedule in favour of the 1st defendant had been upheld by two courts concurrently cannot be S.A.No.777 of 1996 :: 13 :: considered as of no consequence. However, ignoring that aspect, since the appellant has failed to sustain the claim for recovery of possession over B schedule property, even on merits, his challenge against the dismissal of his suit, has to be negatived as it is bereft of any value. The appeal is devoid of any merit, and it is dismissed directing both sides to suffer their costs. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.