IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 30TH SEPTEMBER 2011 / 8TH ASWINA 1933 RSA.No. 1050 of 2011() ---------------------- AS NO. 53 OF 2003 OF SUB COURT, CHERTHALA OS NO. 794 OF 1990 OF ADDITIONAL MUNSIFF COURT, CHERTHALA APPELLANT/APPELLANT/DEFENDANT: -------------------- LEELA, D/O. PANKIAMMA, RESIDING AT IVELIL, PATTANAKKADU MURI PATTANAKKADU VILLAGE. BY ADV. SRI.V.L.SHENOY BY ADV L JAYAWANTH RESPONDENT/RESPONDENT/PLAINTIF: --------------- BHAGEERATHI AMMA, D/O. DEVAKI AMMA, MOONAN VEEDU NIKARTHIL, PATTANAKKADU MURI, PATTANAKKADU VILLAGE PATTANAKKADU POST, PIN 688 536. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1050 of 2011 ............................................ DATED THIS THE 30th DAY OF SEPTEMBER, 2011 JUDGMENT Defendant in O.S.794 of 1990 on the file of Additional Munsiff Court, Cherthala is the appellant. Respondent is the plaintiff. Respondent instituted the suit seeking declaration of title and permanent prohibitory injunction restraining the appellant from interfering with his peaceful possession. Respondent would contend that the plaint schedule property having an extent of 1.740 cents is part of the property obtained by him under Ext.A1 and he has been in possession of the plaint schedule property and the appellant has no right over the same. It is contended that the plaint schedule property lies on the western portion of the entire property belonging to him in the east-west direction and there are four coconut trees and one cashew nut tree therein and he has been in possession of the property and appellant is not entitled to trespass into the property or interfere with his possession. It was also contended that if by re-survey measurement it is to be found that RSA 1050/2011 2 respondent has no title to the property, as it has been in his possession for the last several years, he has perfected title by adverse possession. Appellant resisted the suit contending that plaint schedule property does not form part of the property obtained under Ext.A1 and the property covered by Ext.A1 lies on the northern side of the plaint schedule property and the plaint schedule property is part of the property obtained by the appellant under Ext.B1 in 1990 and respondent is not entitled to the decree sought for. An additional written statement was subsequently filed contending that even if the respondent has title, it was lost by adverse possession and limitation. 2. Learned Munsiff on the evidence of PWs 1 and 2, DWs 1 and 2, Exts.A1 and A2, B1 to B3, C1 to C3 and Ext.X1, found that Commissioner has demarcated the plaint schedule property in Ext.C3 plan and the disputed plaint schedule property forms part of the property obtained by the respondent under Ext.A1 and he has been in possession of the property and appellant is not entitled to cause any obstruction to his peaceful possession and granted a decree declaring the title of the respondent to the plaint schedule property and restrained the appellant from RSA 1050/2011 3 trespassing into the plaint schedule property. Ext.C3 plan was made part of the decree. Appellant challenged the decree before Sub court, Cherthala in A.S.53 of 2003. Learned Sub Judge on re-appreciation of the evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. The argument of the learned counsel is that the courts below did not properly consider the identity of the plaint schedule property or the title of the respondent or the question whether the disputed plaint schedule property forms part of the property claimed by the appellant. Learned counsel relying on the decision of this court in (1972 KHC Case Notes 263, Case No.378) argued that in a suit for injunction, it is for the plaintiff to make available a comprehensive plan of the property, especially when the exact identity of the property and the extent are seriously disputed and as Ext.C3 is not a comprehensive plan, based on the same, courts below should not have granted the decree. Learned counsel also argued that the plaint shows that respondent has contended that he has title to the plaint schedule property under RSA 1050/2011 4 Ext.A1 and also set up title by adverse possession and that when both the case cannot go together and mutually destructive, courts below should not have declared the title of the respondent. Learned counsel also argued that identification of the plaint schedule property by the Commissioner with reference to Ext.A1 is not correct and as identified by the Commissioner, the extent is more than the extent available under Ext.A1 and therefore, the decree granted by the courts below is not sustainable. Learned counsel also relied on the decision of the Apex Court in Krishnamurthy S.Setlur V. O.V.Narasimha Setty & another (AIR 2007(2) SC 1788). 4. The suit was for declaration of title to the plaint schedule property and for permanent prohibitory injunction. Respondent would contend that he has title to the plaint schedule property under Ext.A1 title deed as the plaint schedule property forms part of the property covered under Ext.A1. True, it was also contended in the plaint that if in any case on resurvey it is found that it does not form part of the resurvey number of the property belonging to the respondent, as he has been in possession of the property believing himself to be the owner, he RSA 1050/2011 5 has perfected title by adverse possession. The argument of the learned counsel is that as both the claims are inconsistent and cannot go together, courts below should not have upheld the claim for title based on Ext.A1. It is for that purpose, the learned counsel relied on the decision of the Apex Court in Krishnamurthy's case (supra) and argued that the same view has been taken by the Apex Court in several other cases also. What was considered by the Apex court was with regard to the acceptability of the plea of adverse possession. When a plea of adverse possession is raised, the person must admit title of the property of the person against whom adverse possession is claimed as without necessary animus to possess it against the true owner, a plea of adverse possession will not lie. It is in that way the Honourable Supreme Court held that when the person claiming adverse possession is setting up title in himself and alternatively plead that he has also perfected title by adverse possession, the plea are inconsistent and therefore the plea of adverse possession will not lie. That does not mean that because of raising a plea of adverse possession, the plea based on title, which if otherwise is available, will not stand. The question of RSA 1050/2011 6 title is to be decided based on the document of title produced to prove the title. If the document produced establishes the title, for the reason that he has also pleaded a possessory title by adverse possession, the claim for title cannot be rejected. In a case where the respondent plead that he has perfected title by adverse possession, after setting up title on himself, the plea of adverse possession will not stand. But that does not mean that the plea of title on adverse possession will defeat plea of title, if he has absolute title to the property for the reason that he also pleaded title by adverse possession. Therefore, I cannot agree with the submission of the learned counsel that for the reason that respondent has raised a contention in the plaint, that if in any case based on re-survey it is found that the disputed portion does not form part of the property of the respondent, he has perfected title by adverse possession, will destroy his title, if he has otherwise title to the property. 5. The appellant is claiming right and title under Ext.B1 and respondent under Ext.A1. It is admitted case that both the properties are portions of survey No.92/3 and the property is 'Aively Purayidom'. A reading of Ext.A1 shows that the property RSA 1050/2011 7 obtained by the respondent is the north-eastern corner, while the property claimed by the appellant under Ext.B1 is the south- eastern corner. Therefore both the properties are different. Though learned counsel vehemently argued that boundaries shown in Ext.A1 does not tally with the boundaries of the plaint schedule property as demarcated by the Commissioner, it is to be borne in mind that there is no dispute with regard to the red coloured plot marked by the Commissioner in Ext.C3 plan, which is the north-eastern corner of survey No.92/3. Appellant has no case that it is not the property obtained by the respondent, under Ext.A1. Therefore appellant cannot be heard to contend that as the boundaries differ, the plaint schedule property cannot be part of that property as the undisputed portion is part of the property covered under Ext.A1. The only question is whether the plaint schedule property forms part of the property covered under Ext.A1. 6. Learned Munsiff on proper appreciation of the evidence rendered a factual finding that plaint schedule property forms part of the property covered under Ext.A1. That decision was based on the identification of Ext.A1 property by the RSA 1050/2011 8 Commissioner, in Ext.C2 report and Ext.C3 plan. First appellate court also on re-appreciation of the evidence accepted the factual finding. The argument of the learned counsel is that though a petition was filed to set aside Ext.C2 and C3 and the petition was dismissed, it was challenged before this court by filing a CRP, but because of the limited scope of a revision petition, it was dismissed and that is not a ground to accept Ext.C2 and C3 as correct. The learned counsel made available the appeal memorandum of the first appeal. Though, along with the final judgment, a defendant is entitled to challenge the interlocutory orders passed in the suit by the learned Munsiff, the order in the application filed by the appellant to set aside the report and plan submitted by the Commissioner was not specifically challenged. So also exept alleging in the appeal memorandum that court has not properly considered the measurement in Ext.C3 plan, it was not disputed that Commissioner has not properly identified the plaint schedule property. When these facts are taken into consideration, based on the evidence, it cannot be found that the factual finding of the courts below that the plaint schedule property forms part of the property covered under Ext.A1 and RSA 1050/2011 9 therefore respondent has title to the plaint schedule property and he has been in possession of the property is perfectly correct. Though the learned counsel argued that the appellant has pleaded adverse possession and it was not properly considered by the courts below, when the finding of the courts below is that it is the respondent who is in possession of the plaint schedule property, question of adverse possession of the appellant who is not in possession of the property does not arise. Even otherwise, when the suit is for injunction, if it is to be found that defendant is in possession of the plaint schedule property or plaintiff is not in possession of the property, suit could only be dismissed and there is no necessity to consider the plea of adverse possession. On going through the judgments of the courts below, on the facts and evidence, I find no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk