IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 SA.No. 579 of 1996() -------------------- AS.57/1990 of SUB COURT, OTTAPPALAM OS.88/1986 of MUNSIFF COURT, OTTAPPALAM .................... APPELLANT/ RESPONDENT/ DEFENDANT: ------------------------------------------- RAMAN, S/O.ARAKKAL PARANGODAN, RESIDING AT KOOMATHARA AMSOM AND DESOM IN OTTAPPALAM TALUK BY ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SRI.P.RAMACHANDRAN SMT.PRABHA R.MENON RESPONDENT/ SUPPLEMENT SECOND APPELLANT/ PLAINTIFF: ------------------------------------------------------------------- * E.P.RAMACHANDRAN, ADVOCATE-RECEIVER IN O.S NO.26/1965 SUB COURT, OTTAPPALAM RESIDING AT OTTAPPALAM AMSOM, ARIYOORTHEKKUMURI DESOM IN OTTAPPALAM TALUK. * K.P.MOHANKUMAR, ADVOCATE, RECEIVER OF KAVALAPPARA ESTATE, APPOINTED BY THE HON'BLE SUB COURT, OTTAPPALAM BY ORDER DT.15/11/2000 IN O.S.26/05 NOW RESIDING AT SWAMI NIVAS, THOTTAKARA, OTTAPPALAM IS SUBSTITUTED IN THE PLACE OF E.P.RAMACHANDRAN AS RESPONDENT AS PER ORDER DT.8/2/10 IN IA 1320/09 ADV. SRI.K.RAMACHANDRAN SRI.KRISHNAKUMAR MANGOT THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A.NO.579 OF 1996 ------------------------------------------ Dated 8th February 2010 JUDGMENT Defendant in O.S.88/1986 on the file of Munsiff's court, Ottapalam is the appellant. Respondent as advocate receiver filed the suit for recovery of possession on the strength of title. Plaint schedule property is 7.35 cents in R.S.No.129/1 of Kunathara village of Ottapalam Taluk. Plaint schedule property admittedly originally belonged to Kavalappara Mooppil estate. Respondent would contend that appellant trespassed into the property and reduced into his unlawful possession and he has no right to continue in possession of the property and therefore, property is liable to be recovered on the strength of SA 579/96 2 title. Appellant resisted the suit contending that plaint schedule property forms part of the property obtained by him under Ext.B1 assignment deed dated 21/12/1956 and since then he has been in possession of the property continuously and he had constructed a shop building consisting of two rooms which was set fire by some miscreants and there was no trespass as alleged and respondent has no title to the property and is not entitled to seek recovery of possession. It was also contended that even if it is found that respondent has title to the property, it is lost by adverse possession. 2. Learned Munsiff on the evidence of PW1, Dws.1 and 2 and Exts.A1 to A3, B1, C1 and C2 found that property obtained by SA 579/96 3 the appellant under Ext.B1 is the property in survey No.129/4 and plaint schedule property is in survey No.129/1 and property in R.S.No.129/1 belongs to Kavalappara estate and therefore, as respondent receiver was appointed to manage the said estate, respondent has title to the property and as property in R.S.No.129/1 does not form part of the property covered under Ext.B1 and appellant has no title to the property. But, accepting the case of the appellant that he has been in possession of the property continuously for more than thirty years, learned Munsiff dismissed the suit holding that title of the respondent was lost by adverse possession and limitation. Respondent challenged the decree and judgment before Sub court, SA 579/96 4 Ottapalam in A.S.57/1990. Learned Sub Judge on re-appreciation of evidence found that title of the respondent having been proved, burden is on the appellant to establish that he has perfected title by adverse possession and evidence do not establish that he has perfected the title and therefore, set aside the findings of the learned Munsiff and held that respondent is entitled to the decree for recovery of possession and also realise Rs.3,540/- ,being the damages caused by cutting trees from the plaint schedule property. It is challenged in second appeal. 3. Second appeal was admitted without formulating substantial questions of law. Only notice was ordered. Learned counsel appearing for the appellant and respondent were heard. SA 579/96 5 4. Though there was change of receivers during the pendency of the appeal as well as second appeal, the successor receiver was allowed to be impleaded as additional appellant in A.S.757/1990 and additional respondent in the second appeal. 5. Learned counsel appearing for the appellant argued that as the suit is one for recovery of possession on the strength of title, respondent could get a decree only on establishing the title and no decree could be passed for the failure of the appellant to prove his title or even for the weakness of the defence case. It was argued that respondent did not produce any record to prove that respondent has title to the property and Ext.B2 is only a notice issued by the Taluk Land Board which shows SA 579/96 6 that R.S.No.129/1 is also included in the property of Kavalappara estate and it is insufficient to prove the title. Learned counsel also argued that there was no proper identification of the property and the evidence of PW1, who was examined on the side of the respondent establish that he has not denied the case of the appellant that foundation now found in the property was that of the shop building which was constructed by the appellant and not the foundation of shed constructed as alleged in the plaint. It was also argued that appellant had produced documents evidencing payment of tax and those records were received subject to proof but were not marked by the trial court and if they were accepted, it would have been found that SA 579/96 7 appellant had perfected the title by adverse possession, even if respondent has title to plaint schedule property. 6. Learned counsel appearing for the respondent pointed out that appellant is claiming right only under Ext.B1 and the right transferred under Ext.B1 is the right obtained under Ext.A1 and Exts.A1 and B1 establish that subject matter of the lease was only to the east of Kuthuparamba and the property in R.S.No.129/1 is Kuthuparamba and property to its east is R.S.129/4 which is the subject matter of Exts.B1 and A1 and therefore, the demarcating boundary separating the property under Ext.B1 is the survey boundary line of R.S.No.129/1 and 129/4 and the disputed portion forms part of 129/1 and SA 579/96 8 courts below rightly found that respondent has title to the property. It was argued that when appellant is setting up title perfected by adverse possession, burden is on the appellant to establish that he has been in continuous possession of the property adverse to the true owner and when appellant is setting up tenancy under Ext.B1, he cannot prescribe title by adverse possession over the remaining property of the landlord and hence the very plea of adverse possession will not lie. It was argued that though appellant contended that he has got receipts obtained from Panchayat establishing that he had paid tax for the shop building, no document was produced to establish that fact. It was also argued that though appellant alleged that the shop SA 579/96 9 building was set fire by his enemies before 1985 and he had lodged a police complaint, no material is produced in support of the claim and on the evidence first appellate court rightly found that appellant did not perfect title by adverse possession and therefore, there is no reason to interfere with the decree and judgment passed by the learned Sub Judge. 7. As no substantial questions of law was formulated, it is to be considered whether any substantial question of law is involved. True, in a suit for recovery of possession on the strength of title, burden is on the plaintiff to establish title and neither the weakness of the defendant's case nor his failure to establish title, will enable a plaintiff to get a decree for SA 579/96 10 recovery of possession on the strength of title. But question is whether title has been denied and if denied, whether title of the respondent has been established. 8. Though in the written statement there is a vague averment that respondent has no title to the plaint schedule property, what was contended in the written statement was that he obtained the property including the disputed plaint schedule property under Ext.B1 and since then, he has been in possession of the property. What was obtained under Ext.B1 is the right which was obtained by his predecessors from Kavalappara estate under Ext.A1 lease hold. Ext.B1 specifically re-iterates the title, as the title originally obtained under Ext.A1 namely, document No.48/1926. SA 579/96 11 Therefore, there is no dispute to the fact that property in R.S.129/1 of Kuthuparamba does belong to Kavalappara estate. On the other hand, what is contended is that plaint schedule property was obtained by the appellant under Ext.B1 which in turn is the right obtained under Ext.A1. Right under Ext.A1 is only the lease hold right. Therefore, even if appellant has been in possession of any other property of the same landlord and that too believing that it forms part of the leasehold property, appellant cannot prescribe adverse possession as against his landlord so as to perfect his title, unless title of landlord has been disclaimed or denied at a certain point of time, from which date onwards there could be possibly a plea for adverse SA 579/96 12 possession. Appellant has no case in the written statement or even when he was examined that at any point of time, he has denied title of the appellant over the plaint schedule property. Therefore, when the plaint schedule property admittedly, belonged to Kavalappara and the only claim raised by the appellant is that he obtained the property under Ext.B1 and that too on Ext.A1 lease created by Kavalappara, appellant cannot deny title of the respondent. Therefore, finding of the courts below that respondent has title to the plaint schedule property is perfectly correct. 9. Then the question is whether that title has been barred by adverse possession and limitation. As stated earlier SA 579/96 13 when the appellant is only claiming right obtained under Ext.B1 which is the leasehold right under Kavalappara estate, there cannot be a valid plea of adverse possession as against Kavalappara estate. If that be so, appellant cannot resist the claim for recovery of possession. On the facts, I find no substantial question of law involved in the appeal. Appeal is dismissed. No cost. M.SASIDHARAN NAMBIAR, JUDGE. uj.