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. 63 of 2009() -------------------- AS.26/2005 of SUB COURT, IRINJALAKUDA OS.1720/2003 of M.C.,IRINJALAKUDA .................... APPELLANTS/APPELLANTS 2 TO 8/DEFENDANTS 2 TO8 ---------------------------------------------------------------- 1. JYOTHISH, AGED 43, S/O.VYKKATHADAN - VELAYUDHAN, THORAVU VILLAGE,PUDUKKADU DESOM MUKUNDAPURAM TALUK. 2. LAKSHMI, AGED 65, W/O.VYKKATHADAN - VELAYUDHAN, THORAVU VILLAGE, PUDUKKAD DESOM, MUKUNDAPURAM TALUK. 3. DESAN, AGED 47, KRISHNAN KUTTY, THORAVU VILLAGE, PUDUKKADU DESOM, MUKUNDAPURAM TALUK. 4. VIJI, AGED 34, W/O.VYKKATHADAN JYOTHISH, THORAVU VILLAGE, PUDUKKADU DESOM, MUKUNDAPURAM TALUK. 5. VAIGA, AGED 12, (MINOR), D/O.VYKKATHADAN JYOTHISH, REP. BY HER FATHER AND GUARDIAN JYOTHISH, AGED 39, S/O.VYKKATHADAN KRISHNANKUTTY, THORAVU VILLAGE PUDUKKADU DESOM, MUKUNDAPURAM TALUK. 6. ANU, AGED 10, (MINOR), D/O.VYKKATHADAN JYOTHISH, REP. BY HER FATHER AND GUARDIAN JYOTHISH, AGED 39, S/O.VYKKATHADAN KRISHNAN KUTTY THORAVU VILLAGE, PUDUKKADU DESOM, MUKUNDAPURAM TALUK. 7. ANJALY, AGED 10 MINOR), D/O.VYKKATHADAN JYOTHISH, REP. BY HER FATHER AND GUARDIAN JYOTHISH, AGED 39, VYKKATHADAN KRISHNAN KUTTY, THORAVU VILLAGE, PUDUKKADU DESOM, MUKUNDAPURAM TALUK BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN RESPONDENT(S): ------------------------- USHA, AGED 57 , W/O THERUVATH HAREENDRAN, D/O CHAKUNGATHODIYIL JANARDHANAN, THORAVU VILLAGE , PUDUKKAD DESOM, MUKUNDAPURAM TALUK REPRESENTED BY POWER OF ATTORNEY HOLDER, JANARDHANAN AGED 45, S/0 CHAKUNGATHODIYIL JANARDHANAN, THORAVU VILAGE, PUDUKKAD DESOM, MUKUNDAPURAM TALUK THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 104 OF 2009 IN R.S.A. NO. 63 OF 2009 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 8.7.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 63 of 2009 ---------------------------------------- Dated this the 8th day of July, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. 26 of 2005 on the file of the Sub court, irinjalakuda which arises from the judgment and decree in O.S. No. 1720 of 2003 on the file of the Munsiff's court, Irinjalakkuda. The suit was filed for recovery of possession on the strength of title. The suit was decreed and confirmed in appeal by the lower appellate court. Hence the Second Appeal. Defendants 2 to 8 in the suit are the appellants herein. The parties hereinafter referred to as plaintiff and defendants. 2. The plaintiff has purchased the plaint schedule property as per Ext.A1 sale deed. The title as well as possession is conveyed to the plaintiff as per Ext.A1. The assignor in Ext.A1 is the 1st defendant. As per Ext.A1 the plaintiff purchased an extent of 29 ¼ cents of land together with residential house for a valuable consideration of Rs. 4,400/- on 25.11.1977. Ext.X1 shows that the plaintiff did not effect mutation in the revenue records. The defendants 1 and 2 moved application for effecting mutation pursuant to settlement deeds No. 4537/2001 and 4538/2001. The mutation in the revenue records till 2000 stands in the name of 1st defendant. Thereafter the registry transferred the name in favour of 2nd defendant . The 1st defendant paid tax till 2001-2002. Thereafter the 2nd defendant paid the tax in the year 2003. Since the plaintiff lodged complaint disputing the title of the 2nd defendant, the Village Officer decided R.S.A No. 63 of 2009 -2- not to accept the basic tax till the dispute is adjudicated. 3. The defendants denied the title of the plaintiff and further contended that Ext.A1 is in fact only a mortgage deed that the 1st defendant continued as the title holder of the plaint schedule property . 4. The trial court found that the 1st defendant already conveyed the property as per Ext.A1 and therefore he can convey the property as per two settlement deeds only if he has perfected title by adverse possession. The defendants have no explanation for non- production of the said two settlement deeds. The trial court also held that since the title is already conveyed as per Ext.A1, subsequent execution of settlement deeds are not binding on the plaintiff. 5. The evidence in this case consists of oral testimonies of PW1 to PW3, DW1 to DW3 and the documentary evidence consists of Exts.A1 to A6(a) and X1. 6. The main contention raised in the suit is that the defendants have perfected their title to the plaint schedule property by adverse possession. The trial court held that the only witness who can speak about the adverse possession is the 1st defendant who failed to examine himself as a witness. After examining all the available evidence, the trial court held that the occupation of the defendants is only permissive. 7. The trial court also relied on Ext.A6 Commissioner's report and Ext.A6(a) Commissioner's plan. The trial court noted that while examining DW1, he conceded that the defendants are in need of residential house at the time of Ext.A1 and that he has no explanation R.S.A No. 63 of 2009 -3- with regard to the non-execution of the mortgage deed instead of a sale deed. The trial court accepted the contentions of the plaintiff and held that since the defendants are in need of residential house, it is fair to infer that the plaintiff and her father permitted the defendants to continue in the property, that such occupation can only be treated as a permissive one which will not mature into an indefeasible right of adverse possession. 8. After relying on Exts.A1 , A5 and A6 and the oral evidence tendered by DW1, the trial court concluded that the plaintiff is entitled to recovery of possession on the strength of title. Therefore the trial court directed the defendants to surrender vacant possession of the plaint schedule property within a period of six months from the date of decree. 9. The contentions raised in the suit were re-agitated before the lower appellate court by the defendants. The lower appellate court also examined the contentions on the basis of the oral and documentary evidence adduced by the respective parties and held that the only inference that can be drawn is that since the defendants have been residing in the plaint schedule property they had paid tax for the residential house in the plaint schedule property and that they have no right to claim adverse possession over the plaint schedule property. The lower appellate court also relied on the oral evidence of PW1 which shows that after the execution of Ext.A1 sale deed the plaintiffs have got possession of the plaint schedule property and with the permission of PW1 the defendants have been residing in the house situated in the plaint R.S.A No. 63 of 2009 -4- schedule property, that when the plaintiff withdrawn her permission given to the defendants to reside in the plaint schedule property, the defendants have filed the suit. The lower appellate court also rightly agreed with the findings of the trial court and held that there is no evidence to prove that the defendants have perfected title by adverse possession and limitation 10. I have examined the reasonings, findings and conclusions of both the trial court and the lower appellate court. The courts below considered and examined the evidence on record and held that the contentions raised by the defendants are untenable and therefore not sustainable in law. I find no reasons to take a different view other than the views taken by the courts below in the given circumstances. No grounds are made out in this Second Appeal to invoke the 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 Second Appeal. This Second Appeal fails and accordingly dismissed in limine. (HARUN-UL-RASHID, JUDGE) es HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 63 of 2009 ---------------------------- JUDGMENT 8th July, 2009