IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 RSA.No. 833 of 2010(G) --------------------------------- (AS.NO.72/2007 OF SUB COURT, KASARAGOD, OS.NO.257/2006 OF PRINCIPAL MUNSIFF'S COURT, KASARAGOD) .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------------- B.BALAKRISHNA MOOLYA, S/O.PAKKEERA MOOLAYA, RESIDING AT PAJWA HOUSE, KODLAMOGARA VILLAGE & POST, KASARAGOD TALUK AND DISTRICT. BY ADVS. SRI.K.SHRIHARI RAO, SMT.N.SHOBHA, SRI.K.S.BALAKRISHNAN. RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. GOPALAKRISHNA, S/O.RAMA MOOLYA, RESIDING AT PAJWA HOUSE, KODLAMOGARA VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT. 2. JAYALAXMI, W/O.GOPALAKRISHNA, RESIDING AT PAJWA HOUSE, KODLAMOGARA VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- RSA No.833 of 2010-G ------------------------------------- Dated 10th August 2010 Judgment Aggrieved by the concurrent findings against him, the plaintiff in OS No.257/06 before the Munsiff's Court, Kasaragod, has come up in appeal. 2. According to the plaintiff, the plaint schedule property belongs to him, which he obtained under Ext.A1 partition deed dated 03.09.1980. The property mentioned in D schedule was allotted to his sister Smt.Girija. The second defendant is an assignee of Smt.Girija. The second defendant purchased the property on the southern side of the plaintiff's property. The plaintiff claims that plaint B schedule property is a portion of the property comprised in RS No.136/D, which he came into possession by virtue of Ext.A1 deed. He also claims to have converted plaint A and B schedule properties into Areca gardens and has made various other improvements in the properties. RSA No.833/10 2 According to him, plaint A and B schedule properties are situated as a compact plot and those properties fall within the very same boundaries. The specific claim put forward by the plaintiff in the suit was that even if the defendants had any manner of right over the B schedule property, it has been lost by adverse possession and limitation. Since the defendants were trying to interfere with the rights of the plaintiff, the suit was laid for declaration of title and consequential reliefs. 3. The defendants resisted the suit, pointing out that the description of the plaint B schedule property and its boundaries are wrong. According to them, the plaintiff is not in possession of the property comprised in RS No.136/D. The claim of adverse possession and limitation is without any basis. According to them, 48 cents of property comprised in RS No.136/D and one acre of property in RS No.137/1 were allotted to Smt.Girija as per Ext.A1 partition deed. Smt.Girija sold the 48 cents and one acre of land in favour of the second defendant. In the RSA No.833/10 3 counter claim, the said property is shown as X schedule property. They also pointed out that there is a pathway going through plaint A schedule property to X schedule property and also a water channel towards the southern side of the pathway. According to them, the pathway and the water channel are reserved for common use by the sharers and so, they are entitled to use the pathway and the water channel. It was, therefore, pointed out that the plaintiff cannot claim exclusive right over the pathway and the water channel. The defendants prayed for a dismissal of the suit, on the above grounds. 4. Based on the above pleadings, the Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A4. The defendants did not adduce any evidence. Exts.C1 and C3, which are respectively the Commissioner's report and plan, were also marked. 5. The Trial Court found that in the earlier suit filed by the plaintiff as AS No.280/04, he had not put RSA No.833/10 4 forward the claim of adverse possession and limitation in respect of plaint B schedule property. The Trial Court was of the opinion that since the plaintiff came to know about his possession over the plaint B schedule property only in the year 2006 i.e., after Exts.A3 and A4 decree and judgment, he cannot claim adverse possession over plaint B schedule property. The suit was dismissed by the Trial Court. The matter was carried in appeal as AS No.72/07 before the Sub Court, Kasaragod. The lower Appellate Court, on an independent consideration of the evidence, concurred with the Trial Court in its findings and dismissed the appeal. Hence the Second Appeal. 6. The learned counsel for the appellant contended that the courts below have erred both on facts and in law in dismissing the suit. It is pointed out that the Commissioner's report is very clear to the effect that the nature of improvements made in plaint A and B schedule properties is identical and the properties belonging to the defendants are lying at a lower level than B schedule RSA No.833/10 5 property. He also pointed out that the earlier suit was filed by him in respect of the pathway and the water channel and that has nothing to do with the present suit. According to the learned counsel, it is clear from the evidence and materials on record that the improvements seen effected in B schedule property by the plaintiffs are same as those seen in plaint A schedule property. Viewed from that angle, the claim of the plaintiff ought to have been allowed, it is contended. 7. Though the argument may look very forceful, it is without any basis whatsoever. The earlier suit was laid by the plaintiff himself as OS No.284/04 which was in respect of the very pathway and the water channel, running through plaint A and B schedule properties. There, the plaintiff had conceded that it was mentioned in the partition deed that it was kept for common use by the sharers in Ext.A1 document. In OS No.280/04, of which the Judgment and decree are produced as Exts.A4 and A6, the only grievance of the plaintiff was that the defendants in the RSA No.833/10 6 suit obstructed his use of the pathway and the water channel. It is not in dispute that the very same pathway and the water channel in respect of which, the earlier suit was filed, are comprised in B schedule in the present suit. Both the courts below have noticed that the plaintiff had no claim in the earlier suit that plaint A and B schedule properties belong exclusively to him and that the defendants have no manner of right over the said properties. In fact, he conceded that the pathway and the water channel were kept for common use. 8. What is significant is to notice that the claim is pertaining to 0.674 acres of land. It is mentioned in the Commissioner's report that there is a level difference between plaint A and B schedule properties. But, that by itself is not a ground to find in favour of the plaintiff. After having conceded the right of sharers to use the pathway and the water channel in common, it comes with little grace from the plaintiff now to say that plaint B schedule property belongs to the plaintiff since he has acquired title by RSA No.833/10 7 adverse possession and limitation. 9. May be that the plaintiff is in actual possession of B schedule property. He moved for amendment of the plaint after the trial of the suit was completed and was taken up for judgment, whereby the relief was reduced to one for permanent injunction alone. The Trial Court was not inclined to allow the amendment of the suit as the amendment will change the nature of the suit. 10. Even assuming that the above observation made by the Trial Court may not be quite correct, the claim of adverse possession cannot be entertained. As rightly noticed by the courts below, after having conceded that the pathway and the water channel are reserved for common use by the sharers, the plaintiff cannot now be heard to say that he has perfected title of adverse possession over the pathway and the water channel also. 11. The lower Appellate Court has also noticed the pleadings in this regard. It is pointed out that there is no RSA No.833/10 8 admission by the plaintiff that the title belong to the defendants and that they have lost it by adverse possession and limitation. According to the first Appellate Court, the pleadings were not sufficient to attract adverse possession and limitation. In fact, it would appear from the pleadings that the plaintiff claimed plaint B schedule property as a portion of the property obtained by him under Ext.A1. There is nothing to show that the courts below have erred in coming to their conclusions. Moreover, it is not shown that the findings of the courts below are either perverse or unwarranted by the evidence on record. No substantial questions of law arise for consideration in this appeal. The appeal is without merits and it is dismissed in limine. P.BHAVADASAN, JUDGE sta RSA No.833/10 9 RSA No.833/10 10