IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932 SA.No. 743 of 1999(E) ------------------------------- AS.9/1997 of SUB COURT,KATTAPPANA OS.253/1996 of MUNSIFF COURT,KATTAPPANA .................... APPELLANT/APPELLANT/PLAINTIFF ---------------------------------------------------- M/S. HARRISONS MALAYALAM LIMITED, A COMPANY INCORPORATED UNDER THE COMPANIES ACT, HAVING ITS REGISTERED OFFICE AT BRISTOW ROAD, WILLINGDON ISLAND, KOCHI 682 003, REPRESENTED BY ITS CHIEF MANAGER (LEGAL, MR.V. VENUGOPAL. BY SRI.E.K.NANDAKUMAR, SENIOR ADVOCATE SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE RESPONDENT/RESPONDENT/3RD DEFENDANT -------------------------------------------------------------------- PAULRAJ, SON OF ANNAMALAY KANGANI, AGED ABOUT 49 YEARS, CHENKARA KARA, KUMILY VILLAGE. ADV. SRI.S.K.MURALEEDHARA KAIMAL THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P.BHAVADASAN, J. ------------------------------------- SA No.743 of 1999-E ------------------------------------- Dated this the 1st day of January 2011 Judgment The plaintiff in OS No.253/96 before the Munsiff's Court, Kattappana, who failed to obtain a decree against the third defendant, is the appellant. 2. The plaintiff laid the suit against the defendants, labelling them as trespassers over the suit property and seeking to have them evicted. 3. The defendants resisted the suit and put forward the claim of adverse possession and limitation. Among them, the third defendant alone was the serious contestant to the plea of adverse possession and limitation. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and document marked as Ext.A1 from the side of the plaintiff. The defendants had DWs 1 SA 743/99-E 2 and 2 examined and Exts.B1 to B6 series marked. Exts.C1, C1(a) and C1(b) are the commissioner's report and plan. It appears that the second and fifth defendants gave up the chase in between and the decree was passed against defendants 1 and 4. The suit against the third defendant was dismissed. It was found by the trial court that the third defendant had been running a tea shop in the suit property for a long time and he had perfected his title by adverse possession and limitation. 5. The plaintiff carried the matter in appeal as AS No.9/97 before the Sub Court, Kattappana. The lower appellate court, on an independent evaluation of the evidence, came to the conclusion that the trial court was perfectly justified in its conclusion that the third defendant had perfected title by adverse possession and limitation and had rightly declined to grant reliefs against him. Holding so, the appeal was also dismissed. 6. Notice is seen issued on the following questions of law raised in the second appeal : SA 743/99-E 3 1.Whether the courts below were justified in finding adverse possession in favour of the third defendant when the admitted case of the third defendant was that he was not aware of the title of the plaintiff upto 1990 ? 2.Whether the courts below were justified in finding adverse possession in favour of the third defendant on the basis of Exts.B1 to B6 documents, especially when the documents by itself show substantial discrepancies ? 3.In the absence of any evidence to show that the third defendant was in possession of the property with an intention to exclude the original owner from exercising any right, whether the courts below were unjustified in dismissing the suit ?” 7. The learned counsel for the appellant contended that the evidence of DW1 was sufficient to show that the third respondent could not claim adverse possession and limitation. In his deposition, he has categorically stated that he came to know about the plaintiff's title to the property only in 1990. If that be so, his SA 743/99-E 4 possession can be treated as adverse, only from that day onwards and in that case, the third defendant cannot proceed on a plea based on adverse possession and limitation. 8. The definite case of the third defendant is that he and his predecessor-in-interest have been in possession of the property from 1968 onwards and they had put up structures in the property and were running a tea shop therein. He has produced several documents to show that the structure had been put up by him and that he was running a tea shop there. 9. In the above circumstances, it cannot be said that just because the third defendant was not aware of the true owner, his possession cannot be in the nature of adverse possession and limitation. It was not necessary for him to ascertain the true owner of the property and then proclaim that “ I am holding the property adverse to your interest.” The manner, character and nature of possession determines the intention of the person. It is clear from the SA 743/99-E 5 evidence that the third defendant and his predecessor-in- interest had the intention to treat the land as their property, adverse to the interest of all others. The test of nec vi nec clam nec precario is fully satisfied. 10. The trial court has considered Ext.B series of documents produced by the third defendant and has come to the conclusion that the defendant has been in occupation of the property for a long time and has been conducting a tea shop therein. True, as rightly pointed out by the learned counsel for the appellant, mere possession, however long it may be, does not mean that he has the right of adverse possession and limitation. It is clear from the evidence that the third defendant and his predecessor- in-interest had animus possidendis to hold the property as their own and they did so, as would be evident from their conduct and the various documents produced by them. The commissioner's report also gives ample support to the claim made by the third defendant. SA 743/99-E 6 11. The trial court, on an evaluation of the evidence, came to the conclusion that the third defendant and his predecessor-in-interest have been in possession long before 1978 and the claim of the plaintiff that the third defendant trespassed into the property cannot be true. It is seen that the third defendant had paid the building tax, electricity charges etc. He has produced documents evidencing such payments, which relate to the years 1976- 77. The lower appellate court has, after narrating the law correctly regarding adverse possession and limitation, found that the trial court was perfectly justified in holding that the third defendant had perfected title of adverse possession and limitation. The lower appellate court, on an independent evaluation of the evidence, came to the conclusion that it is crystal clear that the third defendant had been running a tea shop with all amenities including electricity connection, at least from the year 1976 and that the plaintiff was fully aware of the activities and conduct of the third defendant. Thus, the lower appellate court was SA 743/99-E 7 also of the view that the plaintiff had lost their title by adverse possession and limitation. The findings arrived at by the courts below are based on evidence on record and they are findings of fact. No substantial questions of law arise for consideration in this second appeal. The second appeal is devoid of any merits and it is accordingly dismissed. There will be no order as to costs. P.Bhavadasan, Judge sta SA 743/99-E 8