IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 RSA.No. 76 of 2010() -------------------- AS.97/2008 of SUB COURT,NEYYATTINKARA OS.206/1981 of I ADDL.M.C.,NEYYATTINKARA .................... APPELLANT/APPELLANT/1st DEFENDANT: --------------------------------------- PODIKUTTI NADAR CHELLASWAMI NADAR RESIDING AT MELEVEETTUVILA VEEDU, AYINKAMAM DESOM, PARASSALA PAKUTHY. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.M.AJAY (IRUMPANAM) RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS 2 TO 5 AND 7: ------------------------------------------- 1. MAYITTI PILLAI BHAGAVATHI PILLAI RESIDING AT KARIMPANA VEEDU, AYIRIKAMAM PARASSALA PAKUTHY. 2. BHAGAVATHI PILLAI INDIRA BAI AMMA RESIDING AT KARIMPANA VEEDU, AYIRIKAMAM PARASSALA PAKUTHY. 3. PODIKUTTI NADAR MUTHU NAYAKAM RESIDING AT MELEVEETTUVILA VEEDU, AYIRIKAMAM DESOM, PARASSALA PAKUTHY. 4. PODIKUTTY NADAR PAPPUKUTTY RESIDING AT MELEVEETTUVILA VEEDU, AYIRIKAMAM DESOM, PARASSALA PAKUTHY. 5. JNANAMUTHU MEENAKSHI RESIDING AT MELEVEETTUVILA VEEDU, AYIRIKAMAM DESOM, PARASSALA PAKUTHY. 6. PODIKUTTY NADAR HARIS RESIDING AT MELEVEETTUVILA VEEDU, AYIRIKAMAM DESOM, PARASSALA PAKUTHY. 7. JNANAMUTHU CHANDRAKUMARI RESIDING AT MELEVEETTUVILA VEEDU, AYIRIKAMAM DESOM, PARASSALA PAKUTHY. '' ADV. SRI.M.SREEKUMAR FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.76 of 2010A --------------------------------------- Dated this 21st day of January, 2010 JUDGMENT The second appeal is at the instance of defendant No.1 arises from judgment and decree of learned Sub Judge, Neyyatinkara in A.S.No.97 of 2008 confirming judgment and decree of learned First Additional Munsiff, Neyyattinkara in O.S.No.206 of 1981. Parties are referred to as plaintiffs and defendants as in the trial court for convenience. 2. The suit is for extinguishment of 1/3rd mortgage right over plaint schedule item No.3 and for recovery of possession of 1/3rd share of the defendants in plaint schedule item No.3. According to the plaintiffs, item No.1 of plaint schedule-81 cents belonged to their Tarwad and while the Tarwad was in possession and enjoyment of the property, item No.1 excluding a tamarind tree was mortgaged to Podikutty Nadar, predecessor-in-interest of defendant Nos.1 to 6. The said Podikutty Nadar created ottikuzhikanam right in favour of Sankara Pillai, husband of plaintiff No.1 and father of plaintif No.2. While so, Sankara Pillai filed O.S.No.289 of 1973 to put up boundary in between plaint schedule item Nos. 1 and 2 and obtained a favourable decree on 07-10-1977. Defendant No.1 challenged that judgment and decree in A.S.No.214 of 1979 but, failed. During the pendency of the suit, Sankara Pillai died and thereon his brother Vasudevan Nair and the R.S.A.No.76 of 2010 2 plaintiffs were impleaded as legal representatives. Even during the pendency of the suit, Vasudevan Nair released his 1/3rd right over plaint schedule item No.1 in favour of defendant No.1. The remaining 2/3rd right in item No.1 belonged to the plaintiffs. While so, there was partition in the family of plaintiffs and Vasudevan Nair as evidenced by Ext.A8. The jenm rights remained with the jenmi. Plaintiff No.1 executed a gift deed in favour of plaintiff No.2 regarding her right in plaint schedule item No.1 reserving a life interest for her. Thus, plaintiff No.2 acquired title over the plaint schedule item No.1. In A.S.No.214 of 1979, plaintiffs were allowed to take delivery of 2/3rd rights in plaint schedule item No.2. On the above allegation they prayed for extinguishment of the 1/3rd intermediary right of defendant No.1 over the suit property. Defendants contended that the suit is not maintainable as the decision in O.S.No.289 of 1973 operated as res judicata and in view of the bar under Order 2 Rule 2 of the Code of Civil Procedure (for short, “the Code”). They also contended that they are entitled to the protection of section 106 of the Kerala Land Reforms Act (for short, “the Act”). Claim of tenancy under section 106 was referred to the Land Tribunal but, found against. In the meantime, trial court dismissed the suit on 30-09-1989 upholding contention of defendants that the suit is not maintainable in view of decision in O.S.No.289 of 1973 and the bar under Order 2 Rule 2 of the Code. Judgment and R.S.A.No.76 of 2010 3 decree were challenged by the plaintiffs in appeal. The first appellate court reversed finding of the trial court and held that the suit is maintainable. That judgment and decree were challenged by defendant No.1 in this court in C.M.A.No.30 of 2000 but the C.M.A appeal was dismissed. After remand defendants amended their written statement by incorporating a plea that title of plaintiff is lost by adverse possession and limitation. That plea was found against by the trial court and upheld by the first appellate court. Hence, the second appeal urging by way of substantial question of law whether finding of the courts below regarding adverse possession is legally correct. Learned counsel for appellant/defendant No.1 would contend that the concurrent finding require interference. 3. It is pertinent to note that until the case came back to the trial court after remand contesting defendants raised a plea of commercial lease and protection under section 106 of the Act. Trial court has adverted to the plea of adverse possession raised by the contesting defendants in paragraph 19 of the judgment. Trial court referred to the evidence and observed that Exts.A1 and A5 show that defendants came into possession of property on the permission granted by plaintiff Nos.1 and 2. Trial court also observed that defendants have not adduced any evidence to show as against the permission granted as per Exts.A1 and A5 that at any point of time R.S.A.No.76 of 2010 4 they asserted hostile title against the plaintiffs, remained in exclusive possession of the property with such hostile animus during the statutory period and thus perfected title by adverse possession. I stated that initially defendants had raised a contention that they are entitled to the protection under section 106 of the Land Reforms Act. Courts below have adverted to the relevant aspects of the matter, assessed evidence and came to the conclusion that claim of defendants that they have prefected title by adverse possession and limitation cannot be sustained. Having gone through the judgment under challenge and hearing learned counsel for appellant/defendant No.1, I am satisfied that no substantial question of law is involved in the second appeal requiring interference. Accordingly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/