IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 FAO.No. 217 of 2009() --------------------- AS.51/2007 of ADDL. DISTRICT COURT-II, KOZHIKODE OS.53/1989 of PRL.M.C.,KOZHIKODE-II .................... APPELLANTS/RESPONDENTS/PLAINTIFFS ----------------------------------------------------- 1. V.C.SAROJINI, AGED 76 YEARS, D/O.UNICHAMAN, RESIDING AT THALAVATTA TAZHATH, THAZHAKODE AMSOM AND DESOM OF KOZHIKODE TALUK. 2. V.C.JAYAPRAKASAN, S/O.V.C.APPU, AGED 53 YEARS, RESIDING AT THALAVATTA TAZHATH, THAZHAKODE AMSOM AND DESOM OF KOZHIKODE TALUK. 3. V.C.SIVADASAN, S/O.V.C.APPU, AGED 49 YEARS, RESIDING AT THALAVATTA TAZHATH, THAZHAKODE AMSOM AND DESOM OF KOZHIKODE TALUK. 4. V.C.SATHYAVATHY, D/O.V.C.APPU, AGED 58 YEARS, RESIDING AT THALAVATTA TAZHATH, THAZHAKODE AMSOM AND DESOM OF KOZHIKODE TALUK. 5. V.C.GIRIJA, D/O.V.C.APPU, AGED 56 YEARS, RESIDING AT THALAVATTA TAZHATH, THAZHAKODE AMSOM AND DESOM OF KOZHIKODE TALUK. 6. V.C.JAGADAMBIKA, D/O.V.C.APPU, AGED 51 YEARS,RESIDING AT THALAVATTA TAZHATH, THAZHAKODE AMSOM AND DESOM OF KOZHIKODE TALUK. 7. V.C.URMILA DEVI, D/O.V.C.APPU, AGED 47 YEARS, RESIDING AT THALAVATTA TAZHATH, THAZHAKODE AMSOM AND DESOM OF KOZHIKODE TALUK. 8. V.C.SUJATHA, D/O.V.C.APPU, AGED 45 YEARS, RESIDING AT THALAVATTA TAZHATH, THAZHAKODE AMSOM AND DESOM OF KOZHIKODE TALUK. BY ADV. SRI.R.SUDHISH SRI. P.P. BALAN RESPONDENT(S): APPELLANTS/DEFENDANTS ------------------------------------------------------ 1. V.C.VASU, S/O.AYYAPPAN, AGED 60 YEARS, RESIDING AT IRINGAMPATTA CHALIL IN THAZHAKODE AMSOM AND DESOM OF KOZHIKODE TALUK. 2. BABY, W/O.VASU AND D/O.APPU, AGED 56 YEARS, RESIDING AT IRINGAMPATTA CHALIL IN THAZHAKODE AMSOM AND DESOM OF KOZHIKODE TALUK. 3. PARUTHOLI JANU, D/O.APPU, AGED 54 YEARS, RESIDING AT IRINGAMPATTA CHALIL IN THAZHAKODE AMSOM AND DESOM OF KOZHIKODE TALUK. ADV. SRI.MILLU DANDAPANI FOR R1 TO 3 SRI.SEBIN THOMAS FOR R1 TO 3 SMT.P.V.SHEETHAL FOR R1 TO 3 SRI.JITHIN PAUL VARGHESE FOR R1 TO 3 ADV. SMT. SUMATHI DANDAPANI FOR R1 TO R3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 217 OF 2009 = = = = = = = = = = = = = = = Dated this the 8th day of April, 2010. J U D G M E N T This appeal is preferred against the order of remand passed by the 2nd Addl. District Judge, Kozhikode in A.S.51/07. The said appeal was preferred against the judgment and decree in O.S.53/89 passed by the Principal Munsiff of Kozhikode-II. By the said judgment the learned Munsiff directed the defendants to surrender vacant possession of the D plaint schedule property which includes B and C schedule properties of the plaintiffs after demolishing the construction made by them within two months from the date of the decree. In appeal the learned District Judge felt that D schedule property is not properly identified and therefore remitted the case back to the trial court for fresh consideration. It is against that decision the plaintiffs have come up in appeal. F.A.O. 217 OF 2009 -:2:- 2. Heard the learned counsel appearing for both the sides. It is the case of the plaintiff that the plaint A schedule property was obtained by one Chekku @ Appu as per a partition deed of the year 1957. Item 4 of Ext.A1 is the plaint A schedule property. Plaint B schedule is a portion of the plaint A schedule property which according to the plaintiff was given to one Cherootty for permissible occupation by the predecessor in interest of the plaintiffs. After the death of Cherootty defendants 2 and 3 and others continued and it is remaining vacant since 1988. Then it is submitted that the defendants attempted to encroach into the property and constructed a latrine in the portion of the A schedule which is mentioned as C schedule property. D schedule property is the property which is claimed by the defendants as 'CDEFL' shown as Ext.C2 plan. This 'CDEFL' would take in plaint B as well as C schedule. 3. The defendants on the other hand would contend that the D schedule property belongs to them exclusively and it is in their possession for more than 50 years and therefore F.A.O. 217 OF 2009 -:3:- even if there is any right it is lost by adverse possession and limitation. 4. In the original written statement it is contended that they are claiming tenancy right over that property. In the earlier round of litigations the question of tenancy was raised and the matter was referred to the Tribunal and the Tribunal found that defendants are not entitled to fixity of tenure. Now the fact that they are not tenants of the property have become final. Then the question that arise for consideration before the appellate court at the final stage was that they had raised the contention of adverse possession and limitation and the appellate court in A.S.101/92 disposed of the case as follows. “In the result A.S.101/92 is allowed in part and A.S.41/92 is dismissed. The finding of the Land Tribunal regarding the tenancy right of the defendants is confirmed, while the decree of the Court below directing recovery of possession of plaint B and C schedule properties and disallowing the prayer of injunction are set aside and the F.A.O. 217 OF 2009 -:4:- suit is remanded to the trial court for framing issues regarding recovery of possession of plaint D schedule property which also includes plaint B and C schedule properties and the question of adverse possession and limitation raised by the defendants in their additional written statement. The parties are at liberty to adduce further evidence in support of their contentions.” 5. So the purport of the order of remand was to consider the question of recovery of possession of plaint D schedule property basically on the ground of defence raised as adverse possession and limitation. This order of remand was under challenge before this Court and it was confirmed by this Court as per RFA 347/04. Additional written statement was filed by defendants 2 and 3 after remand on 18.11.05 and the specific contention of the defendants in the additional written statement is that the property described as 'CDEFL' which is the D schedule does not belong to the plaintiffs. It is contended that the defendants and their F.A.O. 217 OF 2009 -:5:- predecessors-in-interest are continuously occupying the property with the knowledge of the plaintiffs hostile to their title and therefore the plaintiffs' claim is barred by adverse possession and limitation. The defendants have clearly understood and admitted that the property 'CDEFL' is the D schedule property and it has also to be stated since there was no dispute regarding the identity of the said property no issue was raised for the reason that it never arose for consideration. So the attempt made by the defendants in the appellate stage to dispute regarding the identity of the property cannot be accepted at all. Therefore the learned District Judge's decision regarding the identity of the property is improper. The matter that required consideration was regarding the adverse possession and limitation and entitlement of the plaintiffs to get recovery. 6. Here is a case where defendants to start with had raised the contention of a tenant and the tenant is a person who is in permissible occupation of the property. When a permissible occupation of the property is admitted adverse F.A.O. 217 OF 2009 -:6:- possession cannot be claimed. Regarding adverse possession, it is a right which accrues to a person when that person with the knowledge had acquired the right with hostile animus and exclusive possession of the said property for a period of 12 years as contemplated by law. Hostile animus means the possession with the knowledge of the real owner denying his right. Now the admitted pleadings to start with itself will deny the adverse possession. If they want to raise the plea of adverse possession they should have raised such a plea at least in the additional written statement stating from which date their possession became adverse to that of the true owner. It is absent in this case. Therefore the question of adverse possession also will not come to the help of the defendants. 7. Lastly the learned counsel for the respondents would contend before me that since the identity is not properly established and adverse possession has to be considered by the appellate Court the case may be remanded. The question of identity never arose for F.A.O. 217 OF 2009 -:7:- consideration or will arise for consideration and the question of adverse possession being a question of fact on which the defendants did not even bother to adduce evidence need not go back to the appellate court for that purpose. This Court on merits is totally satisfied from the pleadings and the materials that the plea of adverse possession and limitation has not been established in this case. Therefore I set aside the order of remand passed by the appellate court and confirm the judgment and decree passed by the trial court granting the decree in favour of the plaintiff. The defendants are given four months time to surrender vacant possession of the property to the plaintiffs and thereafter it can be executed through proper procedure known to law. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-