IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 RSA.No. 829 of 2011() ----------------------------- AS.82/2000 of SUB COURT, CHERTHALA OS.524/1988 of ADDL.MUNSIFF COURT,CHERTHALA .................... APPELLANTS/APPELLANTS 2 TO 5/4TH DEFENDANT AND LRS OF 2ND DEFENDANT: -------------------------------------------------------------------------- 1. KADUTHA RAJAPPAN, AGED 65 YEARS, S/O.KADUTHA PERUMBARAMBU NIKATHIL HOUSE, AROOR MURI, AROOR VILLAGE. 2. SARADA, AGED 55 YEARS, D/O.SUGUNAN, PERUMBARAMBU NIKATHIL HOUSE, AROOR MURI, AROOR VILLAGE. 3. PREETHA, AGED 30 YEARS, D/.SUGUNAN, PERUMBARAMBU NIKATHIL HOUSE, AROOR MURI, AROOR VILLAGE. 4. SANTHOSH, AGED 24 YEARS, S/O.SUGUNAN, PERUMBARAMBU NIKATHIL HOUSE, AROOR MURI, AROOR VILLAGE. BY ADV. DR.V.N.SANKARJEE RESPONDENTS/PLAINTIFF AND DEFENDANTS 5 TO 7 : ------------------------------------------------------------------------------- 1. JOSEPH GEORGE, AGED 84 YEARS, OTILKKATTIL, AROOR VILLAGE, AROOR MURI 688534. 2. KARTHYAYANI SARADA, AGED 55 YEARS, D/O.KADUTHA PERUMBARAMBU NIKATHIL HOUSE, AROOR MURI, AROOR VILLAGE, NONE OTHER THAN THE 2ND APPELLANT 688534. 3. KADUTHA REGHU, AGED 60 YEARS, S/O.REGHU, PUTHUVALLI NIKARTHIL, AROOR VILLAGE, AROOR MURI 688534. 4. MONY, AGED 48 YEARS, D/O.KARTHYAYANI, THAIPARAMBIL, AROOR VILALGE, AROOR MURI 688534. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ln M.SASIDHARAN NAMBIAR, J ........................................... RSA No.829 of 2011 ............................................ DATED THIS THE 3rd DAY OF NOVEMBER, 2011 JUDGMENT Fourth defendant and legal heirs of second defendant in O.S.524 of 1988 on the file of Munsiff Court, Cherthala are the appellants. First respondent is the plaintiff and other respondents, the other defendants. Suit was filed for declaration of title and recovery of possession. First respondent contended that including the plaint schedule property, 67 cents was obtained by Martin, son of first respondent under Ext.A1 assignment deed 1842/1986 it devolved on the first respondent as his father. Martin died on 30.7.1986. Thereby first respondent has title to the plaint schedule property. The defendants who are owners of the adjoining property trespassed into the plaint schedule property and reduced it into their possession. They have no right to continue in possession of the property. Therefore first respondent sought a decree for recovery of possession on the strength of title. Originally, there were only two defendants. They jointly filed a written statement contending that the plaint RSA 829/2011 2 schedule property does not form part of the property covered under document No.1842/86 by which first respondent claimes title to the property and 16 cents of land including the plaint schedule property belonged to Kambakkaran family. Father of the deceased first defendant obtained it on lease and has been in possession of the property. Subsequent to the death of the father, first defendant has been in possession of the property. He has effected improvements. He purchased jenmom right in 1966 by document No.4065/66. The plaint schedule property as well as the property on its west is in absolute possession and enjoyment of first respondent. Meanwhile deceased second defendant obtained three cents, out of the said property by Ext.B1 gift deed 533/1982 and is in possession of the property. There was no trespass as alleged. No notice was given by the Tahsildar about the resurvey. Coming to know about the resurvey measurements, defendants filed an objection before the Tahsildar. No boundary stone was fixed. As the plaint schedule property has been in the possession of the defendants and their predecessors for more than 100 years, even if first respondent has title, it was lost by adverse possession and limitation. On the death of first RSA 829/2011 3 defendant, additional defendants 3 to 7 were impleaded as his legal heirs. Only the 4th defendant filed a written statement reiterating the contentions raised in the original statement. On the death of 3rd defendant other defendants were recorded as her legal heirs. 2. Learned Munsiff, on the evidence granted a decree in favour of first respondent declaring his title to the plaint schedule property. It was found that he has title to plots 1 and 2 marked by the Commissioner in Ext.C1(a) plan. Defendants were directed to surrender vacant possession of the property, holding that defendants have not established adverse possession claimed by them. Defendants 2 to 4 challenged the decree before Sub Court, Cherthala in A.S.82 of 2000. Learned Sub Judge, on re- appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellants was heard. The argument of the learned counsel is that plea of adverse possession was not properly considered by the courts below. It was pointed out that even though an application under Order VI RSA 829/2011 4 Rule 17 of Code of Civil Procedure, to amend the written statement incorporating the necessary pleadings in support of the claim for adverse possession, was filed before the first appellate court, it was dismissed by the learned Sub Judge without proper appreciation of the facts and circumstances of the case. Learned counsel argued that report of the Commissioner establishes that there are old coconut trees in the plaint schedule property and evidence establish that defendants have been in possession of the property for more than 12 years prior to the institution of the suit and that possession was as true owners and therefore it should have been found that title of the first respondent was lost by adverse possession and limitation and therefore the decree is not sustainable. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Courts below on proper appreciation of the evidence rendered factual findings that plaint schedule property forms part of the property covered under Ext.A1 sale deed, by which deceased son of first respondent obtained title to the plaint schedule property. That title is not disputed. Though it was contended that plaint schedule RSA 829/2011 5 property is not part of the property covered under Ext.A1, courts below on the identification of the property under Ext.C1 report and C1(a) plan it was found that plaint schedule property is part of Ext.A1 property. That factual finding canot be disputed. Hence first respondent has title to the plaint schedule property. 5. Then the question is whether the title has been lost by adverse possession and whether defendants have established that they have perfected title by adverse possession. It is pertinent to note that what was contended by the defendants was that the plaint schedule property forms part of the 16 cents, which originally belonged to Kambakkaran family and obtained on lease by the father of the first defendant and subsequently jenmom right was purchased under document No.4065/66 and later under Ext.B1, three cents out of the said 16 cents was gifted in favour of second defendant, who is in possession of the said property. Appellants denied the title of the first respondent to the plaint schedule property. When defendants are setting up an adverse possession as against the first respondent, without admitting their title and without the necessary animus to possess the property against first respondent, the true owner, a plea of RSA 829/2011 6 adverse possession cannot be sustained. As rightly found by the courts below, the written statement filed by defendants establish that they never admitted title of the first respondent or his son and was setting up independent title on them under Kambakkaran family. It is also the case that plaint schedule property forms part of the property obtained on lease by the father of the first defendant and the jenmom right was purchased later in 1966. That document was also not produced. When the plaint schedule property does not form part of the leasehold property and in fact form part of the property covered under Ext.A1, case of defendants that they have been in possession of the plaint schedule property as absolute owners and asserting right against the first respondent or his son cannot be sustained. In such circumstances, as no substantial question of law is involved, the appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk