IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 RSA.No. 1144 of 2010() ---------------------- AS.9/2007 of I ADDL. DISTRICT COURT, PALAKKAD OS.98/2005 of MUNSIFF COURT, ALATHUR .................... APPELLANT IN A.S.DEFENDANT IN SUIT. ------------------------------------------------------- UNNIKRISHNAN,S/O.APUCHAMY,RESIDING AT KARIPPANKULANGARA,THENKURISSI AMSOM, DESOM,ALATHUR TALUK. BY ADV. SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN RESPONDENT(S): RESPONDENT IN A.S.-PLAINTIFF IN SUIT. ------------------------------------------------------------------------------------ CHAMUNNI,S/O.APPUCHAMY,RESIDING AT KARIPPANKULANGARA,THENKURISSI AMSOM, DESOM,ALATHUR TALUK,PIN-678671. ADV. SRI.M.B.PRAJITH FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RSA.No. 1144 of 2010() ORDER IN I.A No.2657/2010 DISMISSED. 24/01/2011 Sd/- S.S.SATHEESACHANDRAN JUDGE P.A To Judge S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.1144 OF 2010 -------------------------------- Dated this the 24th day of January 2011 ORDER The defendant is the appellant. Suit initially filed as one for injunction was later amended seeking recovery of possession as well on the strength of title, by the respondent/plaintiff. The trial court decreed the suit, which in appeal was confirmed by the lower appellate court. Concurring decision so rendered by the two courts below is challenged in the Second Appeal. 2. Parties to the suit are direct brothers. Two items of properties are involved, item No.1 having an extent of 20 cents and item No.2, 26.5 cents. So far as item No.1 property, though some disputes had been raised impeaching the title of the respondents, the learned counsel for the appellant fairly conceded that in view of the concurrent finding entered by both the courts below, no further challenge could be canvassed over the title found in favour of that item and recovery ordered thereof. However, in respect of item No.2 property, the learned counsel for the appellant contended that the claim raised over that property by the respondents that it formed part of item No.4 and 5 of the R.S.A No.1144 OF 2010 - 2 - settlement deed he obtained from another brother, namely Pazhanimala, was seriously challenged. Though the item No.2 had been identified through the advocate commissioner under the plan prepared by him there was no material nor any finding by the court below that item No.2 property formed part of the aforesaid item Nos.4 and 5 obtained by the plaintiff under the settlement deed. When recovery of possession of that property was claimed on the basis of title, according to the counsel, it is imperative to prove the title over such property with plaintiff identifying such property as forming part of item Nos.4 and 5 of the settlement deed as claimed by him, and, without which no decree could have been granted. So much so, the decree granted in favour of the respondent allowing recovery of item No.2 property is liable to be annulled, according to the counsel. Overlooking the identification of item No.2 with reference to the challenge raised by the defendant disputing that it did not form part of item Nos.4 and 5 under the settlement deed canvassed by the plaintiff the courts below have passed the decree, and that being so, a substantial question arise for consideration whether the decree of recovery of possession granted is sustainable under law, is the submission of the counsel. R.S.A No.1144 OF 2010 - 3 - 3. Per contra, the learned counsel appearing for the respondent/plaintiff to whom notice on admission had been issued submitted that the finding of fact concurrently arrived by both the courts below even with respect to the identity of the suit property, on the materials placed, does not suffer from any infirmity whatsoever, and so much so, the second appeal challenging the decree granted in favour of the plaintiff allowing recovery of possession is not entertainable. 4. Perusing the judgments rendered by both the courts below with reference to the submissions made by the counsel on both sides, it is seen, the plea now canvassed by the counsel for appellant to assail the concurrent decision rendered by the courts below was raised by way of an additional written statement. Suit initially filed, as already indicated, was one for injunction, but in view of the contentions raised by the appellant/defendant it was amended for recovery of possession. It is noticed that title claimed by the plaintiff was disputed by the appellant raising various contentions including a plea of adverse possession. Though the plea of adverse possession was canvassed, in the alternative, it could be seen from the judgment rendered by both the courts that R.S.A No.1144 OF 2010 - 4 - was also pressed into service and the parties joined issues thereof, to consider the entitlement of the plaintiff for the reliefs applied for. In evidence, the defendant, who was examined as DW1, unequivocally admitted that he does not have any ownership right over the property. He also conceded that he was under the bonafide belief that the property belonged to him but, later, realised that it actually belongs to his brother. The defendant also did not plead and prove the essential ingredients to sustain the claim of adverse possession. Relationship of the parties as brothers and that the plaintiff was employed as a police official, and in the nature of service rendered by him posted at distant places, was taken into account by the trial court to conclude that even if the plaintiff continued in possession of the suit property, it could be only on behalf of his brother. Rejection of the plea of adverse possession canvassed, which by his own evidence was shown to be devoid of any merit, is sufficient to negate his challenges raised over the identity of the property as well. After setting forth a case of adverse possession and after that being agitated and turned down, the challenge raised against the decree granted on the ground that the plaintiff has not proved the identity R.S.A No.1144 OF 2010 - 5 - of the property with reference to item No.4 and 5 in the settlement deed, his title deed, is meritless. The findings entered, concurrently, on the materials placed by both the courts, to grant the decree of recovery of possession to the respondent do not suffer from any infirmity leave alone any illegality. No substantial question of law is involved in the appeal, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv