IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 RSA.NO. 688 OF 2009() --------------------------------- AS.37/2005 OF ADDL. DISTRICT COURT (FAST TRACK) III, PALAKKAD OS.234/2002 OF MUNSIFF COURT, CHITTUR .................... APPELLANT – APPELLANT - 2ND DEFENDANT: ----------------------------------------------------------- SUBRAHAMANIAN, S/O. LATE KASU, AGED 52 YEARS, PANAGATTIRI, MANNATHUPARA, ELAVANCHERRY CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S) – RESPONDENTS – PLAINTIFFS - DEFENDANTS 3 TO 5 & 7 TO 9: -------------------------------------------------------------------- 1. KAMALADEVI D/O. LATE NARAYANAN NAIR, AGED 59 YEARS, PUTHAN VEEDU, CHITTILANCHERRY, ALATHUR TALUK, PALAKKAD DIST. 2. OMANA D/O. LATE NARAYANA NAIR, AGED 58 YEARS, PUTHAN VEEDU, CHITTILANCHERRY, ALATHUR TALUK, PALAKKAD DIST. 3. SARADHA D/O. LATE NARAYANAN NAIR, AGED 56 YEARS, PUTHAN VEEDU, CHITTILANCHERRY, ALATHUR TALUK, PALAKKAD DIST. 4. VIMALA, D/O. LATE NARAYANAN NAIR AGED 54 YEARS, PUTHAN VEEDU, CHITTILANCHERRY, ALATHUR TALUK, PALAKKAD DIST. 5. KOMALAM RAJANI, D/O. LATE NARAYANAN NAIR, AGED 53 YEARS, PUTHAN VEEDU, CHITTILANCHERRY, ALATHUR TALUK, PALAKKAD DIST. 6. JANU W/O. CHANDRAN, MAMANI, PAILOOR, KOLLENGODE VILLAGE, CHITTUR TALUK, PALAKKAD DIST. 7. VALLI W/O. MANI, THEVARAMANI, NENMARA VILLAGE, CHITTUR TALUK, PALAKKAD DIST. 8. SUMITHRA W/O. GURUVAYRAPPAN, MANNANGODE, NENMARA, CHITTUR TALUK, PALAKKAD DIST. ADV. SRI.SAJAN VARGHEESE K. FOR R1 TO 5 SRI.LIJU. M.P FOR R1 TO 5 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.688 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 15th day of December, 2009 J U D G M E N T --------------------- The Second Appeal is in challenge of judgment and decree of learned Additional District Judge (Fast Track-III), Palakkad in A.S. No.37 of 2005 modifying the decree for recovery of possession granted by learned Munsiff, Chittur in O.S. No.234 of 2002. Respondents are the children of Narayanankutty Nair in his first wife. After the death of his first wife, Narayanankutty Nair went to Malaysia. He married a second time in which two children are born. On the death of Narayanankutty Nair, his children and second wife inherited his property. At a time when they were staying at Malaysia respondents who are looking after the properties sued for a decree for prohibitory injunction later amended as one for recovery of possession as well stating that deceased defendant No.1 was helping Narayanankutty Nair in effecting cultivation in the suit property but later deceased defendant No.1 and his son, appellant trespassed into the property and took forcible possession. Appellant admitted that initially his father, defendant No.1 was helping Narayanankutty Nair in effecting cultivation in the property but he set up a claim of title by adverse R.S.A. NO.688 of 2009 -: 2 :- possession and law of limitation. That contention was not upheld by the trial court. Recovery of possession and injunction was granted. First appellate court held that it is not necessary to grant prohibitory injunction and accordingly set aside that part of the decree while decree for recovery of possession was confirmed. That is under challenge in this Second Appeal. 2. Substantial question of law urged in the memorandum of appeal concerned the claim of appellant that he perfected title by adverse possession and law of limitation. It is not disputed by the appellant also that initially occupation or even possession of deceased defendant No.1 in the suit property was permissive. If that be so, deceased defendant No.1 and the appellant had to shed their capacity as permissive occupants and claim to be in possession adverse to the title of Narayanankutty Nair and others. They were also required to state the date from which they assumed that character, holding property adverse to the title of the true owner to his knowledge and in that capacity they remained in possession for the statutory period. There is no plea from when onwards appellant or defendant No.1 held the property adverse to the title of the true owner. There is also no evidence of any such possession with hostile animus. In the circumstances courts below are justified in finding against the plea of R.S.A. NO.688 of 2009 -: 3 :- adverse possession and limitation raised by the appellant. There is no substantial question of law involved requiring admission of this Second Appeal. Second Appeal is dismissed in limine. Interlocutory Application No.1524 of 2009 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.688 of 2009 -: 4 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO.688 of 2009 =================== J U D G M E N T 15TH DECEMBER, 2009