IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 RSA.No. 736 of 2007() --------------------- RFA.37/2003 of SUB COURT, QUILANDY OS.163/2000 of MUNI-MAGI.COURT, PERAMBARA .................... APPELLANTS/RESPONDENTS/DEFENDANTS -------------- 1. SANKARAKURUP, RESIDING AT KURUKKAN KUNIYIL, MUYIPPOTH PO,KOYILANDY TALUK, KOZHIKODE DISTRICT. 2. JANU,D/O,POKKINI, RESIDING AT KURUKKAN KUNIYIL, MUYIPPOTH PO,KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.T.A.RAMADASAN RESPONDENTS: APPELLANT/PLAINTIFF: ------------------ CHEKKOTTY,S/O. KORAPPAN, EDAKKUDIITHARAMMAL HOUSE, VILAYATTUR AMSOM DESOM,IRINGATH PO KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... R.S.A.No. 736 OF 2007 ............................................ DATED THIS THE 14th DAY OF JANUARY, 2008 JUDGMENT Defendants in O.S.163 of 2000 on the file of Munsiff Magistrate Court, Perambra are the appellants. Plaintiff is the respondent. Respondent instituted the suit seeking a decree for recovery of possession and permanent prohibitory injunction. Respondent contended that plaint schedule property was one of the properties alloted to Valiyakandiyakunna Kizhakinikandi Chekkotti who was executant No.1 of Ext.A1 registered partition deed 1229/1958 and on the death of Chekkotti, it devolved on his wife Pennutti and under Ext.A2 assignment deed 1736/1976, it was obtained by respondent and since then respondent has been in possession of the property absolutely. It was contended that appellants have property on the western side of the plaint schedule property and they approached respondent to purchase the plaint schedule property and it was decided to sell the same for Rs.50,000/- and first appellant paid Rs.2000/- towards advance and Rs.10,000/- was agreed to be paid before 30.4.1996 and it was further decided that the transaction will be completed by 30.10.1996 and appellants renovated the house in their RSA 736/2007 2 property and the kitchen and fireshed was constructed in the plaint schedule property with the permission of respondent and though respondent approached appellants to perform the contract, they were not ready and though respondent demanded appellants to remove the constructions in the plaint schedule property, but they did not comply with the same and it was contended that there was a clear boundary to the plaint schedule property and as appellants extended the kitchen to the plaint schedule property, there is no boundary now and therefore respondents are entitled to get a decree for possession of a portion of the property in the possession of appellants and also for a mandatory injunction directing appellants to remove the construction. Appellants resisted the suit disputing the title. It was contended that the property does not belong to Chekkotti and Vilakkinakandi alias Kizhakkinkandi Chekkotti and Ottapilavullathil Chekkotty are not one and the same and Pennutti was not his wife and neither Chekkotti nor Pennutti had any right in the property and therefore respondent is not entitled to the decree sought for. It was further contended that RSA 736/2007 3 appellants have been in possession of the plaint schedule property for the last 25 years and their possession was with an hostile animus against everybody else and even if respondent has any title, it is lost by adverse possession and limitation. Appellants contended that there was no agreement for sale and they never agreed to purchase the property and the kitchen and fire-shed was not constructed with the permission obtained from respondent and therefore suit is to be dismissed. 2. After the plaint was amended showing the name of Chekkotti elaborately, appellants filed an additional written statement contending that both Chekkottis are not the same and Pennutti is not his wife and respondent has no title to the property. 3. Learned Munsiff, on the evidence of PW1, DW1 and Exts.A1 to A4, B1 to B3 and C1 and C2, dismissed the suit holding that respondent did not establish the title. Learned Munsiff found that from the evidence it is not proved that Pennutti had married Chekkotti and under Ext.A2, respondent did not obtain any title to the plaint schedule property. Learned RSA 736/2007 4 Munsiff also found the plea of adverse possession in favour of appellants. Respondent challenged the judgment before Sub Court, Quilandy in R.F.A. 37 of 2003. Before the first appellate court, respondent produced Ext.A5 to A7 registration copies of the documents to establish the claim that Pennutti was the wife of Chekkotti. Learned Sub Judge received the documents as additional evidence and marked them as Ext.A5 to A7. Learned Sub Judge, on reappreciation of evidence, found that trial court relied on Ext.B3 to find that Ext.A2 refers about Ext.B3 and it does not show that Pennutti is the wife of Chekkotti. Learned Sub Judge also found that reference about Ext.B3 in Ext.A2 is a mistake for Ext.A5 and the right obtained by the assignee under Ext.B3 was purchased by Pennutti under Ext.A5 and Ext.A6 and A7 assignment deeds obtained by close relatives of second appellant from Pennutti establish that Pennutti is the wife of Chekkotti. Learned Sub Judge, on the evidence found that Pennutti is the wife of Chekkotti and under Ext.A2 respondent has title to the plaint schedule property. The plea of adverse possession was found against appellants holding that appellants RSA 736/2007 5 did not establish title perfected by adverse possession and granted a decree in favour of respondent. It is challenging that judgment, this second appeal is filed. 4. Learned counsel appearing for appellants was heard. The argument of the learned counsel is that first appellate court was not justified in reversing the findings of learned Munsiff and the evidence relied on by the first appellate court did not establish that Pennutti is the wife of Chekkotti and therefore finding that respondent has title to the plaint schedule property under Ext.A2 is not sustainable. Learned counsel also argued that in any case finding on the plea of adverse possession is not sustainable as first appellate court found that appellants had set up title on them and this finding is against the facts as appellants did not set up title on them and only contended that they have perfected title by adverse possession and in such circumstances, the judgment is not sustainable. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. The fact that plaint schedule property is item No.1 of the property covered RSA 736/2007 6 under Ext.A1 partition deed was not disputed. What was contended by appellants was that executant No.1 Valiyakandiyakunna Kizhakinikandi Chekkotti has not married Pennutti and therefore under Ext.A2, respondent cannot claim title to the property. Learned Munsiff, relying on Ext.A2 where reference was made about document 1561/43 as the document obtained by Pennutti, found that Ext.B3 was executed by Parameswaran in favour of Chankaran and not in favour of Pennutti and upheld the case of appellants that Pennutti was not the wife of Chekkutti and she had no title to be transferred to respondent. First appellate court, on the evidence found that reference about Ext.B3 in Ext.A2 is clearly a mistake. Under Ext.B3, it was Chankaran who obtained the property from Parameswaran in 1943. Under Ext.A5, the said assignee, Chankaran, assigned the property in favour of Pennutti. As rightly found by the first appellate court, it is clear that instead of document 1561/43, reference made in Ext.A2 is in respect of Ext.A5, which is document No.803/1946. Therefore on that basis, it is not possible to hold that Pennutti is not the wife of RSA 736/2007 7 Chekkotti. Apart from Ext.A5, Ext.A6 and A7 were relied on by the first appellate court. Both these sale deeds were executed by Pennutti in favour of close relatives of second appellant. In both Ext.A5 and A6, Pennutti traced out the title as obtained from Chekkotti and referred Chekkotti as her husband. In such circumstances, finding of first appellate court that Pennutti is wife of Chekkotti is perfectly in accordance with evidence. 6. The argument of learned counsel is that as Pennutti was not examined, first appellate court was not justified in coming to that conclusion. In the nature of the evidence and pleading, I do not find that non-examination of Pennutti was fatal. When the only case advanced by appellants was that Pennutti was not the wife of Chekkotti and evidence establish otherwise and the only evidence adduced by appellants was that of DW1 and he expressed ignorance about that fact and deposed that he is only deposing as instructed by second appellant, with whom he is living, though he is not her husband, on the evidence, first appellate court was perfectly justified in holding that under Ext.A2, respondent has title to the plaint schedule property. RSA 736/2007 8 7. Then the question is whether appellants have succeeded in establishing that they have perfected the title by adverse possession. The argument of the learned counsel is that though appellants did not set up title on themselves, first appellate court rejected the claim for adverse possession on that basis. True, the written statement filed by appellants do not show that they have set up title on themselves. On the other hand, what was contended in the written statement was that they have been in possession of the property adverse to everybody for the last 27 years. It cannot be disputed that appellants cannot perfect their title as against respondent without recognising the title of respondent. Appellants in their written statement specifically denied the title of not only respondent but also Pennutti and even Chekkotti. Even at the time of evidence, title of respondent was not admitted or recognised. First appellant, who was examined as DW1, did not depose that he trespassed into the property and has been in possession of the property adverse to the respondent or his predecessors for the requisite period. On the other hand, the evidence of DW1 was that that property has RSA 736/2007 9 been in possession of father of second appellant and on his death second appellant, came into the possession with whom first appellant is living, though he has a legally wedded wife and children elsewhere. Second appellant was not examined to prove her animus to possess it either as against respondent or against Pennutti or Chekkotti. In such circumstances, finding of first appellate court that appellants have not succeeded in establishing a title perfected by adverse possession is perfectly correct. It is for appellants to prove that they have been in possession of the plaint schedule property for the requisite period with the necessary animus to possess it against respondent, the true owner. In the absence of reliable and satisfactory evidence, finding of first appellate court that respondent is entitled to the decree is perfectly correct. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR, JUDGE lgk/-