IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 SA.No. 979 of 1996() --------------------------- AS.27/1994 of SUB COURT, KASARAGOD OS.419/1989 of PRL.MUNSIFF, KASARAGOD .................... APPELLANT(S): APPELLANTS/PLAINTIFFS ----------------------- 1. VASUDEVA KARANTHA 2. SHANKARANARAYANA KARANTHA. BOTH ARE CHILDREN OF SUBRAYA KARANTHA, RESIDING AT KUKKEBETTU IN PAIVALIKE VILLAGE AND POST, KASARAGOD TALUK. BY ADVS.MR.K.G.GOURI SANKAR RAI RESPONDENT(S): RESPONDENTS/ DEFENDANTS ------------------------- 1. THE STATE OF KERALA, REP.BY THE DISTRICT COLLECTOR, KASARAGOD, P.O. KASARAGOD. 2. K.MOHAN KARANTHA, S/O. JANARDHANA KARANTHA, RESIDING AT KUKKEBTTU IN PAIVALIKE VILLAGE AND POST, KASARAGOD TALUK. 3. PALLIKUNHI BEARY, S/O. ABDULLA RESIDING AT PAIVALIKE VILLAGE AND POST KASARAGOD TALUK. R1 BY SR. GOVT. PLEADER MR.N.K.THANKACHAN R2 & R3 BY ADVS. MR.KRISHNA PRASAD MR.JOJI VARGHESE MR.M.HARISHARMA FOR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10 /07/ 2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.2188/1996 IN SA. NO.979/1996 DISMISSED 10/07/2009 SD/- P.S.GOPINATHAN, JUDGE TRUE COPY P.A. TO JUDGE TSS P.S.GOPINATHAN, J. == = = = = = = = = = = = = = = = = = SA.No.979 of 1996. = = = == = = = = = = = = = = = = = = Dated this the 10th day of July, 2009. J U D G M EN T The appellants are the plaintiffs in OS.No.419 of 1989 on the file of the Munsiff, Kasaragod. They instituted the suit seeking a decree for declaration stating that the plaint schedule property measuring 18 cents was in the absolute possession and enjoyment of the appellants for more than fifty years and that it was also part and parcel of Ext.A1 partition effected in their family. 2. The respondents contended that the property in dispute is a poramboke land and belongs to the government and was enjoyed by the public as such. There is a water tank also used by the public and that there is no exclusive possession by the appellants. 3. After raising the issues parties were sent for trial. On the side of the appellants Pws.1 and 2 were examined and Exts.A1 to A4 were marked. On the side of the respondents, Dw1 was examined and Exts.B1 to SA.No.979 of 1996. -: 2 :- B3 were marked. Exts.C1 and C2 report and plan submitted by the commissioner were also marked. The lower court on appraisal of evidence arrived at a finding that the appellants could not succeeded to establish exclusive adverse possession. Subsequently the suit was dismissed. 4. Assailing the judgment and decree an appeal as AS.No.27 of 1994 was filed before the Subordinate Judge, Kasaragod. By judgment and decree dated 3.9.1996 the lower appellate court concurred with the trial court. Consequently the appeal was also dismissed. Assailing the concurrent findings, this appeal was preferred. 5. The following are the substantial questions of law raised in the appeal memorandum. (i) In a suit for declaration of title by adverse possession if it is proved by evidence that the plaintiffs have been in possession and enjoyment of the suit property for more than the statutory period is not the suit to be decreed. If so is not the decision of the lower appellate court unsustainable. (ii) When the suit property is surrounded by the admitted property of the plaintiffs and is enclosed by a common enclosure, is it not evidence of the exclusive possession of the plaintiffs. If so is not the decision of the courts below unsustainable. (iii) When the suit property contains a tank which is claimed SA.No.979 of 1996. -: 3 :- by the panchayath as one vested in it, can such claim be sustained without any evidence to prove such vesting. (iv) When the suit property contains a tank and also other vacant land and in the other land surrounding the tank admittedly the plaintiffs have effected improvements which are proved to be aged more than 75 years and the surrounding land is enjoyed as part and parcel of their own land; are not the plaintiffs entitled to a declaration that the tank and the other land surrounding it belongs to the plaintiffs and that, they have perfected title thereto by adverse possession. (v) Have not the courts below committed an error of law in not following the Ruling in AIR 1981 SC page 707. Applying the principles therein should not have the courts below decreed the suit. (vi) In the facts and circumstances and evidence in the suit are the decisions of the courts below sustainable. 6. Having carefully gone through the substantial questions of law raised in the appeal memorandum and having heard either side and perusing the judgments of the courts below, I find that the claim of the appellants was based upon the assertion of adverse possession over the plaint schedule property which was denied by the respondents and contended that it is a poramboke property and was enjoyed by the public as such and that there is no exclusive possession with the appellants. Courts below had concurrently found that the appellants failed to prove the adverse possession pleaded. It SA.No.979 of 1996. -: 4 :- is on such finding the appellants were nonsuited. Possession of the disputed property is purely a question of fact and no question of law is involved. There is no merit in the appeal as no question of law is involved. It is only to be dismissed. In the result, the appeal is dismissed. No order as to costs. P.S.GOPINATHAN, JUDGE. Kvs/- SA.No.979 of 1996. -: 5 :- P.S.GOPINATHAN, J. ================== SA.No.979 of 1996. ================== JUDGMENT 10th July, 2009.