IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 RSA.No. 819 of 2008() --------------------- AS.400/2006 of .DISTRICT COURT, ERNAKULAM OS.1637/2002 of I ADDL.M.C.,ERNAKULAM .................... APPELANT/ APPELLANT/DEFENDANT --------------------------------------- V.V.JOSEPH, AGED 82 YEARS, S/O.VAKKO, VELITHEDAN HOUSE, PONNARIMANGALAM, MULAVUKAD KARA, ERNAKULAM. BY ADV. SRI.JOSE PALLATTUKARAN RESPONDENT: RESPONDENT/PLAINTIFF ----------------------------------- V.SESHAGIRI PAI, AGED 65 YEARS, S/O.VENKITESWARA PAI, RESIDING AT MANJABHAGAVATHY LANE, NORTH CHERLAI, KOCHI.2. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 819 of 2008 ---------------------------------------- Dated this the 8th day of July, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in in A.S. No. 400/2006 on the file of the District Court, Ernakulam which arises from the judgment and decree in O.S. No. 1637/2002 on the file of the First Additional Munsiff's Court, Ernakulam. The suit was filed for recovery of possession , damages and permanent injunction The suit was decreed in part directing the defendant to surrender vacant possession of orange shaded portion in Ext.C2 plan and a permanent prohibitory injunction was issued restraining the defendant from trespassing into the plaint schedule property and from interfering with the peaceful possession and enjoyment of the plaint schedule property . The judgment and decree was confirmed in appeal. Hence the Second Appeal. The parties hereinafter referred to as plaintiff and defendant as arrayed in the suit. 2. It is the case of the plaintiff that out of the total extent having 52 cents which is in his possession , 10 cents around the homestead was purchased by the defendant as per order in O.A. 220/1973 of the Land Tribunal Vypin, that the remaining property of 42 Cents is in the possession and enjoyment of the plaintiff, that he obtained pattayam for the said 42 Cents of land as per the Purchase certificate No. 1114/1995 dated 6.6.1995 of Ernakulam Land Tribunal and that he is the title holder R.S.A. No. 819 of 2008 -2- of the said 42 Cents. The plaintiff is residing far away from the plaint schedule property . He got information that the the defendant has cut and removed some trees standing on the plaint schedule property and attempted to put up a boundary wall encroaching upon his property. Being found that some trees were already cut and removed by the defendants, that a portion of his property was encroached upon and started work of construction of boundary wall the suit was filed for recovery of possession damages and permanent injunction. 3. The defendant contended that the plaintiff was never in possession of 42 cents as alleged in the plaint, that the property has not been measured at any point of time and that the defendant got title over 10 cents of property by way of kudikidappu right available to his deceased father. It is further contended that he is in continuous possession and enjoyment of the property following his father for the last more than 100 years without any hindrance and that the possession of the defendant was continuous, uninterrupted, open , peaceful , notorious and as of right. 4. On the side of the plaintiff , PW1 was examined. Exts. A1 to A9 , C1 and C2 were marked. On the side of the defendant DW1 was examined. Exts. B1 to B9 were marked. 5. Ext.A1 purchase certificate shows that the plaintiff has got title and interest over the plaint schedule property i.e 42 Cents A2 is the tax receipt which also shows that the plaintiff is paying tax for 42 cents R.S.A. No. 819 of 2008 -3- The trial court considered the contentions of the defendant and held that the defendant is in possession of 10 cents of land and is paying tax for the said extent. Exts.B2 to B5 are the tax receipts. Another contention raised by the defendant before the trial court is that he has perfected title by adverse possession and limitation The trial court found that since no independent evidence was adduced on the side of the defendant to prove adverse possession, that mere claim of possession without anything more to substantiate the same cannot amount to adverse possession, and that the Commissioner has identified correctly the plaint schedule property with reference to Ext.A1 and the trespassed portion in orange shade in Ext.C2 plan . The trial court concluded that since the defendant failed to prove that the plaintiff's title is lost by adverse possession,the plaintiff is entitled for recovery of possession of orange shaded area in Ext.C2 plan. 6. The defendant challenged the findings of the trial court before the lower appellate court. The lower appellate court agreed with the findings of the trial court finding that there is no proof to show that the defendant has perfected title by adverse possession and limitation The lower appellate court also held that the pleading regarding the adverse possession and limitation in his written statement was not specific and clear that during the cross-examination the defendant made clear that the plaintiff is the owner of the property and the defendant is raising the R.S.A. No. 819 of 2008 -4- claim of adverse possession and limitation against the plaintiff. The lower appellate court also rightly held that the occupation of kudikidappukaran is permissive occupation, that except the interested testimony of DW1 there is nothing in evidence to substantiate the defendant's claim of prescription of title by adverse possession and limitation. The lower appellate also agreed that the finding of facts recorded by the trial court is correct. I do not think that there is any reason for taking a different view other than the views taken by the courts below in the given circumstances The question whether the defendant has perfected his title by adverse possession and limitation is correctly decided by the courts below on the basis of oral and documentary evidence. The concurrent findings entered by the courts below on the basis of facts evidence and circumstances, are not liable to be interfered with in this Second Appeal and no grounds are made out to invoke my jurisdiction under Section 100 of the C.P.C.. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and accordingly dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 819 of 2008 ---------------------------- JUDGMENT 8th July, 2009