IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 RSA.No. 1294 of 2008() JUDGMENT DATED 30.8.2008 IN A.S.NO.138 OF 2006 IN THE COURT OF SUBORDINATE JUDGE, KOZHIKODE JUDGMENT DATED 29.8.2006 IN O.S.NO.1 OF 2005 OF THE PRINCIPAL MUNSIFF, KOZHIKODE-1 APPELLANTS/APPELLANTS/PLAINTIFFS ---------------------------------------------------------------- 1. CHERIKUZHY PARAMBIL RAMAN, 67 YEARS, S/O. GOPALAN, ELATHUR.AMSOM, PUTHIYANGADI DESOM, KOZHIKOODE TALUK. 2. CHERIKUZHY PARAMBIL VALLEESAN, 64 YEARS, S/O.GOPALAN, ELATHUR AMSOM, ELATHUR AMSOM, PUTHIYANGADI DESOM, KOZHIKKODE TALUK. 3. CHERIKUZHY PARAMBIL KASKHMANAN, 61 YEARS, S/O. GOPALAN, ELATHUR AMSOM, PUTHIYANGADI DESOM, KOZHIKKODE THALUK. 4. CHERIKUZHY PARAMBIL CHANDRAN (DIED) HIS WIFE ANJANA, AGED 48 YEARS,ELATHUR AMSOM, PUTHIYANGADI DESOM, KOZHIKKODE TALUK. 5. CHERIKUZHY PARAMBIL GANESAN, 51 YEARS, S/O. LATE CHANDRAN, ELATHUR AMSOM, PUTHIYANGADI DESOM, KOZHIKKODE TALUK. 6. CHERIKUZHY PARAMBIL ANJANA, 48 YEARS, D/O. LATE CHANDRAN, ELATHUR AMSOM, PUTHIYANGADI DESOM, KOZHILLIDE TALUK. 7. CHERIKUZHY PARAMBIL ABHILASH, 28 YEARS, S/O. LATE CHANDRAN, ELATHUR AMSOM, PUTHIYANGADI DESOM, KOZHIKODE TALUK. RSA No.1294 of 2008 2 8. CHERIKUZHY PARAMBIL VINOD, 25 YEARS, S/O GOPALAN, ELATHUR AMSOM, PUTHIYANGADI DESOM, KOZHIKKODE TALUK. 9. CHERIKUZHY PARAMBIL PONNY, 23 YEARS, D/O. LATE CHANDRAN, ELATHUR AMSOM, PUTHIYANGADI DESOM, KOZHIKKODE TALUK. BY ADV. SRI.T.RAVIKUMAR RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------------------------------------------------ 1. P.T.GOVINDAN, 66 YEARS, S/O. UNNIRAMAN, PALLITHODI HOUSE, PUTHIYAPPA, ELATHUR AMSOM, PUTHIYANGADI DESOM, KOZHIKKODE TALUK. 2. ASHALATHA, AROUND 40 YEARS, W/O. JANARDHANAN, KINATTINGALAKATH, PUTHIYAPPA, ELATHUR, AMSOM, PUTHIYANGADI DESOM, KOZHIKKODE TALUK. 3. A.JANARDHANAN, AROUND 50 YEARS, S/O.ACHUTHA, KINATTINGALAKATH, PUTHIYAPPA, ELATHUR AMSOM, PUTHIYANGADI DESOM, KOZHIKKODE TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.1294 of 2008 = = = = = = = = = = = = = = Dated this the 4th day of February, 2009 JUDGMENT The plaintiffs in O.S.No.1 of 2005 on the file of the Principal Munsiff's Court, Kozhikode-I are the appellants in this second appeal. The said suit was one for a declaration that the plaintiffs have acquired right over the plaint schedule property by adverse possession and limitation and also for a perpetual injunction restraining the defendants from constructing a compound wall or doing any acts of waste in the plaint schedule property. 2. The suit was resisted by the defendants contending, inter alia, that the plaintiffs had not perfected title by adverse possession, that the possession of the plaintiffs was permissive and that the rights of the defendants were not extinguished by adverse possession. 3. During the stage of evidence, the 5th plaintiff examined as PW1 admitted that the plaint schedule properties R.S.A.No.1294 of 2008 2 have been used for the purpose of the deities of the temple as permitted by the predecessors of the defendants 1 and 2 and that the permission given to the plaintiffs by Sundararajan, Sarala,Vimala etc. was only on certain important days such as Navarathri Pooja, Mandala Maholsavam, Sivarathri etc. It was this permissive possession which was claimed to be possession satisfying the requirements of nec vi, nec clam and nec precario and to contend that the rights of the defendants were lost by adverse possession and limitation. Both the courts below have held that the permissive possession, if any, of the plaintiffs could not extinguish the title of the defendants. That apart, the courts below have observed that the plaintiffs have failed to establish open, exclusive, hostile and uninterrupted possession with requisite animus so as to constitute acquisition of title by adverse possession within the meaning of Section 27 read with Article 65 of the Limitation Act. The said finding is a pure finding of fact and is in complete accord with the decisions of the Apex Court in T.Anjanappa and others v. Somalingappa and another R.S.A.No.1294 of 2008 3 (2006(7) SCC 570), M.Durai v. Muthu and others (2007(3) SCC 114); P.T Munichikkanna Reddy v. Revamma (2007(6) SCC 59) and Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and others (2008(7) Supreme 11) . No question of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this second appeal which is accordingly dismissed in limine. Dated this the 4 th day of February, 2009. V. RAMKUMAR, JUDGE sj