IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 RSA.No.175 of 2008 (D) ---------------------------- A.S.28/04 & 29/04 OF SUB COURT, NEYYATTINKARA. O.S.573/02 ON ADDL. MUNSIFF-II, NEYYATTINKARA. .................. APPELLANT/APPELLANT/PLAINTIFF: -------------------------------------------- SARASAMMA, D/O. JAINAMMA, AGED 73 YEARS, RESIDING AT PLAVUNINNA MEKKE PUTHEN VEEDU, KANJIRAMKULAM DESOM AND VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.R.S.KALKURA RESPONDENTS: RESPONDENTS/DEFENDANTS: ------------------------------------------------------ 1. ROBINSON, AGED 48 YEARS, BETHEL MANDIRAM, KANJIRAMKULAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM. 2. MERCY, W/O. ROBINSON, AGED 40 YEARS, BETHEL MANDIRAM, KANJIRAMKULAM VILLAGE, NEYYATTINKARA TALUK,THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.175 of 2008 ------------------------------------------------ Dated this the 12th day of June, 2008 JUDGMENT The plaintiff in O.S.573/02 on the file of the Munsiff's Court, Neyyattinkara is the appellant in this R.S.A. She filed the said suit for declaration of title and possession and for injunction over seven cents of land comprised in Sy. No.34/01 of Kanjiramkulam desom obtained by her under Ext.A1 sale deed of the year 1965 contending that she is in exclusive possession of the said property which is having old mud wall on all its sides and she is paying tax for the same; that the defendants are having property on the eastern side; that on 15/08/02 defendants attempted to destroy the eastern mud wall and constructed a compound wall trespassing into the property of the plaintiff. R. S. A. No.175 of 2008 -2- 2. The defendants resisted the suit. According to them, the description of the scheduled property is not correct. The sale deed relied on by the plaintiff was never acted upon. The executant of the sale deed had right only over two cents of land. The scheduled property do not have boundaries as alleged. The defendants are in possession and enjoyment of 33 cents of land. The property originally belonged to one Soloman Nadar who sold 33 cents of land in favour of Jainamma/the mother of the plaintiff in 1114 M.E; that after the death of Jainamma, the plaintiff, her brothers and sisters and father sold the said property to Ludiya Joyce; that the said Joyce was in possession of 33 cents; that the said property was obtained by Samson Nadar who settled it in favour of his younger daughter and the defendants purchased the property from her in March 1995 and are in R. S. A. No.175 of 2008 -3- possession of the said 33 cents of land; and that if any fraudulent revenue records are created they are not binding on the defendants. The plaintiff filed the suit when defendants attempted to construct a boundary in their property. Plaintiff does not have title over seven cents as claimed. She is advancing claim to a portion of the defendants' property and the suit is liable to be dismissed with compensatory costs. However, as the plaintiff has disputed rights of the defendants it is necessary to declare the rights over their property. The said property is the counter claim property and defendants prayed for declaration of their title thereon and for a decree allowing putting up boundary thereto. 3. Plaintiff filed a written statement to the counter claim in which she reiterated that her grand father Saloman Nadar was left with R. S. A. No.175 of 2008 -4- seven cents of land after assignment in favour of Jainamma under Ext.B1 and the said property was obtained by her by virtue of Ext.A1 sale deed in 1965. She has also disputed the description of the counter claim property and the title of the defendants over the same. An alternative contention was also advanced that if at all the defendants are having title over the counter claim property, that is lost by adverse possession and limitation and she has perfected title to the entire property scheduled to the plaint. 4. On the above pleadings the trial court raised necessary issues for trial and considering the evidence in the case which consisted of oral evidence of PWs.1 to 3 and DWs.1 and 2 as also CW1/the Commissioner and documentary evidence of Exts.A1 to A5, Exts.B1 to B8 and Exts.C1 to C4, dismissed the suit of the plaintiff, but at the same time, R. S. A. No.175 of 2008 -5- decreed the counter claim advanced by the defendants declaring their title and possession over the plot ABCDEFGHIJK in Ext.C4 plan and allowing the defendants to put up boundary along the GIJ line shown in Ext.C4 plan at their expense. The plaintiff who is the appellant in this R.S.A filed A.S.28/04 and A.S.29/04 before the Sub Court, Neyyattinkara respectively against dismissal of her suit and against decreeing of the counter claim. Both the appeals were dismissed by the Sub Court. Hence, this R.S.A by the plaintiff. 5. Heard arguments of the learned counsel for the appellant. It is contended before me by the learned counsel for the appellant that though under Ext.B1, 33 cents had been sold to her mother Jainamma by her grand father Saloman Nadar, an extent of seven cents remained in his possession and it was that, R. S. A. No.175 of 2008 -6- that was sold in her favour by the said Saloman Nadar in 1965 under Ext.A1; and that the plaintiff has got title over the said property which was sold to her under Ext.A1. It is further contended by the learned counsel that if at all Ext.A1 is found to be capable of assigning only two cents and not seven cents as contended by the defendants, the appellant has perfected title to the said entire seven cents covered by Ext.A1 by adverse possession and therefore, the counter claim should not have been decreed in full as prayed for and the suit should have been decreed in favour of the plaintiff. 6. It is worthy to note that Ext.B1 is sale deed executed in favour of the mother of the appellant/plaintiff by her grand father and it is the same executant Saloman Nadar who executes Ext.A1 in favour of appellant/ plaintiff long thereafter in 1965. It is not R. S. A. No.175 of 2008 -7- the case of either the plaintiff or the defendants that the total extent of property which was held by Saloman Nadar/the grand father of the plaintiff was having more extent than 35 cents. It is from out of the said 35 cents that 33 cents is sold to Jainamma/the mother of the appellant/plaintiff by Saloman Nadar in 1114 ME. Obviously, when 33 cents is sold what remains with him is only two cents and by executing a document as in the nature of Ext.A1 describing the property in his possession as seven cents, Saloman Nadar is not competent to transfer seven cents in favour of plaintiff and plaintiff cannot claim title over the seven cents on the basis of Ext.A1. She has therefore, got title to only two cents of property excluding the property covered by Ext.B1 which has by subsequent assignments come into the possession of the defendants. R. S. A. No.175 of 2008 -8- 7. To substantiate a claim of adverse possession, the appellant/plaintiff should have held the entire seven cents of property covered by Ext.A1 with the necessary animus of holding the said property to the exclusion of the real owner. The pleadings in this case show that even if the plaintiff was in possession of seven cents she was in possession on a mistaken notion that she was having title thereto under Ext.A1. A person who is in possession of certain extent of property under the wrong belief that he is having title to that portion of the property as well, cannot contend on realising that he has no title; that his possession was adverse to the real owner for the reason that the animus to hold the property adversely to the real owner is absent in such cases. Obviously, therefore, the plea of the appellant/ plaintiff of her having perfected title to the R. S. A. No.175 of 2008 -9- entire seven cents scheduled to the plaint by adverse possession over five cents of land which is in excess of two cents over which alone she is having title, is not tenable and was rightly being repelled concurrently by the courts below. 8. Finally it is contended before me by the learned counsel for the appellant that the resurvey authorities have shown the seven cents covered by Ext.A1 separately as being holding held by the plaintiff. If at all the resurvey authorities have done so, it is obviously a mistake as their enquiry probably revealed that the appellant/plaintiff who is having title under Ext.A1 for seven cents must be having possession of the seven cents. That does not confer title on the appellant/ plaintiff and the measurement by the survey authorities cannot confer any manner of right over the property for which the plaintiff had R. S. A. No.175 of 2008 -10- not acquired any title under Ext.A1. For all the above reasons, there is absolutely no merit in the Second Appeal and the Second Appeal deserves only to be dismissed as there is no question of law and much less any substantial question of law as is attempted to be made out by the counsel for the appellant. 9. In the result, I dismiss this R.S.A in limine refusing admission. K.P.BALACHANDRAN, JUDGE kns/-