IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 RSA.NO. 740 OF 2010() --------------------- {OS.18/2002 OF MUNSIFF COURT, PARAVUR AS.9/2008 OF ADDL. DISTRICT COURT, PARAVUR} .................... APPELLANT(S):/RESPONDENTS/DEFENDANTS ----------------------------------------------------- 1. VIJAYAN, AGED 48, S/O.KORAN, KILIKODAN HOUSE, CHERAI KARA, PALLIPPURAM VILLAGE, KOCHI TALUK. 2. KRISHNAN, AGED 55, S/O.KANDAN KORAN, KILIKODAN HOUSE, CHERAI KARA, PALLIPPURAM VILLAGE, KOCHI TALUK. 3. KRISHNAN, AGED 54, S/O.GANAPATHI, KILIKODAN HOUSE, CHERAI KARA, PALLIPPURAM VILLAGE, KOCHI TALUK. 4. SIVARAMAN, AGED 51, S/O.KUTTAPPAN, KILIKODAN HOUSE, CHERAI KARA, PALLIPPURAM VILLAGE, KOCHI TALUK. 5. SUDHAKARAN, S/O.GANAPATHI, KILIKODAN HOUSE, CHERAI KARA, PALLIPPURAM VILLAGE, KOCHI TALUK. BY ADV. SRI.K.V.SADANANDA PRABHU RESPONDENT(S): APPELLANTS/PLAINTIFFS ------------------------------------------------ 1. SETHUMADHAVAN, AGED 54, S/O.VILASINI AMMA, EDAMURI HOUSE, CHERAI KARA, PALLIPPURAM VILLAGE, KOCHI TALUK. RSA.NO. 740 OF 2010 :: 2 :: 2. RAGHUNATHAN, AGED 52, S/O.VILASINI AMMA, EDAMURI HOUSE, CHERAI KARA, PALLIPPURAM VILLAGE, KOCHI TALUK. 3. PRASANNAKUMARI, AGED 50, D/O.VILASINI AMMA, EDAMURI HOUSE, CHERAI KARA, PALLIPPURAM VILLAGE, KOCHI TALUK. 4. RAMES, AGED 48, S/O.VILASINI AMMA, EDAMURI HOUSE, CHERAI KARA, PALLIPPURAM VILLAGE, KOCHI TALUK. 5. VINOD, AGED 42, S/O.VILASINI AMMA, EDAMURI HOUSE, CHERAI KARA, PALLIPPURAM VILLAGE, KOCHI TALUK. 6. KAVITHA, AGED 38, D/O.VILASINI AMMA, EDAMURI HOUSE, CHERAI KARA, PALLIPPURAM VILLAGE, KOCHI TALUK. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31/08/2010, THE COURT ON 06/09/2010 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN,J. ---------------------------------------- R.S.A.No.740 of 2010 ----------------------------------------- Dated this the 6th day of September, 2010 JUDGMENT The defendants in O.S.No.18/02 on the file of the Munsiff's Court, North Parur have filed this appeal challenging the judgment of the first appellate court (Additional District Court, North Parur) allowing the appeal preferred by the respondents/plaintiffs and granting them a decree for recovery of possession and injunction, both prohibitory and mandatory, in reversal of the dismissal of their suit by the trial court. 2. The plaintiffs claimed recovery of possession of B and C schedule properties from the defendants, which formed part of A schedule on the basis of their title. C schedule property was brought in by way of amendment, after inspection by the Advocate Commissioner R.S.A.No.740 of 2010 2 and filing of a report alleging subsequent trespass over that portion of the property by the defendants. The title over the property was claimed by the plaintiffs as the children of Vilasini to whom the property was allotted as part of her share under Ext.A1 partition deed. The defendants resisted the suit contending that there is a temple in the plaint property and it was situate in the land which had been given to their predecessors in recognition of their services as agricultural workers by the predecessors of the plaintiffs, some hundred years ago. According to the defendants the suit has been filed to annex the property comprising the temple. They further contended that the right of the plaintiffs, if any, over the property is lost by adverse possession and limitation. The maintainability of the suit was also impeached on the ground R.S.A.No.740 of 2010 3 that a committee elected from the community members of the defendants is in management of the temple and since all the members thereof have not been impleaded, the suit is bad for non-joinder of necessary parties. 3. The evidence consisted of Pws.1 and 2 and Ext.A1 for the plaintiffs and Dws.1 to 3 and Exts.B1 to B12 for the defendants. The reports and plans prepared by an Advocate Commissioner deputed by the court for local inspection and measurement were also exhibited in evidence as Exts.C1 and C2 series. The learned Munsiff, after appreciating the pleadings and also the evidence let in, non- suited the plaintiffs solely for the reason that the allotment made in Ext.A1 partition deed in favour of Vilasini, the mother of the plaintiffs was for a larger extent of 84 cents in the survey number relating to A schedule R.S.A.No.740 of 2010 4 property and so much so, when declaration of title is sought for A schedule having a lesser extent of 26 cents, the plaintiffs were bound to prove with precision the alienations admitted to have been effected with respect to the properties already disposed of by them. As the plaintiffs have not produced the materials proving the portions of the property alienated from the total extent of 84 cents, according to the trial court, a declaration of their title over A schedule could not be granted, and in that view of the matter, the reliefs canvassed for the recovery of B and C schedule and injunction were not allowable. In that view of the matter, the plaintiffs were non-suited by the trial court. The first appellate court, in the appeal preferred by the plaintiffs challenging the dismissal of the suit, after re-appreciation of the materials tendered in R.S.A.No.740 of 2010 5 the case and taking note not only that there was no specific denial of title of the plaintiffs over A schedule by the defendants, but implied admission of such title by the defendants in their written statement in setting forth a defence as to having obtained possession from the predecessor of the plaintiffs over portions of the land, which at present is stated to be comprising a temple, concluded that the title of the plaintiffs over A schedule property is established in the case. It was not a case of denial of title of the plaintiffs over the scheduled properties, but admitting such title the defendants were resisting the suit setting up defences including a plea of adverse possession was the conclusion arrived at by the lower appellate court. The plea of adverse possession raised by the defendants on the materials placed in R.S.A.No.740 of 2010 6 the case was found unworthy of any merit. The trial court has also negatived the plea of adverse possession canvassed by the defendants and against that finding they have preferred a cross objection as well, though such a challenge against the finding when there was no decree thereof could not have been entertained under Order XLI Rule 22 of the Code of Civil Procedure. Whatever that be, that cross objection was dismissed, and the appeal was allowed decreeing the suit in favour of the plaintiffs in reversal of the dismissal of the suit by the trial court. 4. Going through the memorandum of appeal challenging the decree granted by the lower appellate court, it is seen, the challenge is based on the existence of a temple stated to be situate in the property sought to be recovered contending that the deity of the R.S.A.No.740 of 2010 7 temple has not been made a party in the suit, and so much so, the decree granted in favour of the plaintiffs is liable to be set aside. 5. Learned counsel for the appellants argued before me that there is an endowment of the property comprising the temple in favour of the deity. The materials produced in the case and also the admissions made by the plaintiffs, according to the counsel, have clearly established the existence of the temple and so much so, when the deity of the temple has not been made a party in the suit, no decree could be granted for recovery of property comprising the temple. It is further contented that the defendants have raised a plea of non-joinder of parties in the suit and it was not considered by the two courts below. 6. Copy of the written statement filed by the defendants in the suit was made R.S.A.No.740 of 2010 8 available for my perusal. Perusing the written statement,I find that the defendants have not set up any case that the property comprising the temple which formed part of the plaint A schedule was, at any point of time, dedicated to a deity, nor even any portion of the A schedule is a debuttar property. On the contrary, what they have contended was that in recognition of the services rendered by the predecessors of the defendants as agricultural workers, some portions of the land had been given to them by the predecessors of the plaintiffs. Such a case pleaded by them to resist the reliefs canvassed in the suit has not been proved by any material. Plea of non- joinder of necessary parties in the suit was raised contending that a committee is in management of the temple situate in the property and all the members of the committee, R.S.A.No.740 of 2010 9 which are stated to be formed from the members of the community of the defendants, have not been made parties to the suit. There is no case that any portion of A schedule was dedicated to the deity, and that such deity is a necessary party and in view of the non- impleadment of such deity the suit is bad for non-joinder of necessary party. 7. The plea attempted to be canvassed in the appeal to challenge the decree granted in favour of the plaintiffs evidently was not raised in the written statement of the defendants, nor set forth as a challenge to resist the decree applied for by the plaintiffs. The Advocate Commissioner has reported, after local inspection, that there is no idol in the structure situate in the property, which according to the defendants, is a temple, as seen from the judgment of the R.S.A.No.740 of 2010 10 lower appellate court. The existence of a structure used as a place of worship by the defendants in the property by itself would not indicate that there has been any dedication in favour of a deity and the property comprising such structure is a debuttar property. There is absolutely no merit in the challenge canvassed that the suit was bad, in view of the non-impleadment of the deity, especially when the defendants have not pleaded in their written statement that there has been a dedication of any portion of the property in favour of the deity. 8. The judgment rendered by the lower appellate court, after re-appreciation of the evidence, demonstrate that the issues involved have been properly examined with reference to the settled position of law in analysing the disputed facts involved in the case. As R.S.A.No.740 of 2010 11 correctly noted by the court below, there was no serious challenge against the title of the plaintiffs, but, in fact practicably conceding such title, over a portion of the property alone comprising a structure used by them as a place of worship, the defendants have set up a plea of adverse possession. That plea of adverse possession raised lacked even the material particulars necessary to sustain such a defence to resist the title holder from recovering possession of the property. The finding entered by the court below that the defendants who claimed permissive possession over the property tracing their possession through their predecessors admitting that they had obtained such possessions from the predecessors of the plaintiffs, are not entitled to canvass the plea of adverse possession, is proper, valid and correct. R.S.A.No.740 of 2010 12 There is no substantial question of law for entertaining this appeal and, in fact, the appeal is found to be devoid of any merit, and it is dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.