Ammukutty and others v. A.N. Krishna Kurup

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 11TH DAY OF MARCH 2014/20TH PHALGUNA, 1935** ## **RSA.No. 760 of 2012 ()** **----------------------AS 99/2009 OF DISTRICT COURT, ALAPPUZHA OS 477/1987 OF PRINCIPAL MUNSIFF COURT, ALAPPUZHA** **-----------------------** ## **APPELLANTS/APPELLANTS/ADDL. DEFENDANTS 3 TO 9 :** **------------------------------------------------------------------------------------** ## **1. AMMUKUTTY** **VADAKUZHICHIRA, KATTURMURI, KALAVOOR VILLAGE KALAVOOR P.O., CHERTHALA TALUK ALAPPUZHA DISTRICT.** ## **2. CHANDRAN** **VADAKUZHICHIRA, KATTUR MURI, KALAVOOR VILLAGE KALAVOOR P.O., CHERTHALA TALUK ALAPPUZHA DISTRICT.** ## **3. PARVATHY** **VADAKUZHICHIRA, KATTUR MURI, KALAVOOR VILLAGE KALAVOOR P.O., CHERTHALA TALUK ALAPPUZHA DISTRICT.** ## **4. PURUSHOTHAMAN** **VADAKUZHICHIRA, KATTUR MURI, KALAVOOR VILLAGE KALAVOOR P.O., CHERTHALA TALUK ALAPPUZHA DISTRICT.** ## **5. KAMALA** **VADAKUZHICHIRA, KATTUR MURI, KALAVOOR VILLAGE KALAVOOR P.O., CHERTHALA TALUK ALAPPUZHA DISTRICT.** ## **6. RADHAMANI** **VADAKUZHICHIRA, KATTUR MURI, KALAVOOR VILLAGE KALAVOOR P.O., CHERTHALA TALUK ALAPPUZHA DISTRICT.** ## **7. ANANDAVALLY** **VADAKUZHICHIRA, KATTUR MURI, KALAVOOR VILLAGE KALAVOOR P.O., CHERTHALA TALUK ALAPPUZHA DISTRICT.** **BY ADVS.SRI.P.S.KRISHNA PILLAI** **SMT.S.ANJUSHA** **...2/-** **RSA.No. 760 of 2012 () -2-** ## **RESPONDENTS/RESPONDENT/PLAINTIFF :** **---------------------------------------------------------------** **A.N.KRISHNA KURUP AMBIKA NIVAS, KATTOOR MURI, KALAVOOR VILLAGE KALAVOOR P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT-688 024.** ## **BY ADV. SRI. P. GOPALAKRISHNAN NAIR (CAVEATOR)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** ## **P.BHAVADASAN, J. ----------------------------------------------Regular Second Appeal No.760 OF 2012 ----------------------------------------------Dated this the 11[th] day of March, 2014.** ## **J U D G M E N T** This is a typical Indian litigation spanning over 43 years and the litigation which started in the year 1971 still goes on with same vigour and with no end in sight. Initially the litigation was for two cents. That ultimately resulted in a decree and to purchase peace, it is stated that the plaintiff in the present case assigned seven cents of property as per Ext.B3 dated 23.05.1974 to the defendants. Probably, the plaintiff and the defendants thought that that was the end of the litigation. But that was not so. Then the present case in 1987. 2. The plaintiff, alleging that subsequent to the assignment in favour of the defendants as per Ext.B3 document, the defendants have slowly encroached into further portion of the property belonging to the plaintiff, laid a suit for recovery of possession and fixation of boundary. 3. The defendants resisted the suit contending that they **R.S.A No.760/2012** **2** had not encroached into any portion of the property which belonged to the plaintiff and they were in actual possession and enjoyment of the property covered by Ext.B3 and purchase certificate was issued to them in respect of 12 cents of property which lies on the western side of the property covered by Ext.B3. 4. Issues were raised and the parties adduced evidence. The evidence consists of the testimony of PW1 and the documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendants examined DW1 and Exts.B1 to B12 were marked. CW1 is the Advocate Commissioner and Exts.C1 to C5 are the mahazar, commission reports and plan prepared by the Commissioner. 5. Shorn of unnecessary details, it is sufficient to say that initially the trial court dismissed the suit pointing out that there was no proper identification of the properties. The matter was carried in appeal as A.S.No.109/2001 before the lower appellate court, Alappuzha. The lower appellate court, on re-evaluation of the evidence, came to the conclusion that Ext.C4 report is acceptable. The lower appellate court also came to the **R.S.A No.760/2012** **3** conclusion that there was an encroachment to an extent of 3.520 cents by the defendants and the plaintiff was entitled to relief with reference to that property. Further the lower appellate court found that the defendants had raised a plea of adverse possession and limitation which had not been considered by the trial court and that vitiated the judgment and decree. The lower appellate court therefore raised an issue in that regard after entering a finding regarding identification. For considering the issue of adverse possession and limitation, the matter was remanded. The surprised defendants took up the matter before this Court in F.A.O.No.195/2003. This Court, after referring to the law on the point, held as follows: “10. In my opinion, the order of remand passed by the lower appellate court, is one in favour of the defendants. It gives the defendants, an opportunity to substantiate their plea that the right of the plaintiff to recover possession of the disputed land has been lost by adverse possession and limitation. In the light of the law laid down by the Apex Court in **Narayanan** v **Kumaran** (supra), this Court cannot in this appeal go into the merits of the finding of the lower appellate court that the plaintiff **R.S.A No.760/2012** **4** is entitled to have the boundary fixed as shown by the Surveyor in Ext.C4 plan. In these circumstances, I am persuaded to hold that the appellants cannot said to be aggrieved by the order of remand. The order of remand in fact enables them to contest the suit on the ground that the right of the plaintiff to recover possession of the area allegedly encroached upon by them, has been lost by adverse possession and limitation”. 6. The matter went back and further evidence was adduced. The trial court felt that the remand was a close remand confined to the sole issue of adverse possession and limitation and addressed itself to that question. The trial court found that the pleadings in the written statement were contradictory and evidence totally insufficient. It justified the conclusion that 3.520 cents of property has been trespassed upon by the defendants and it had not proved that the title of the plaintiff had been lost by adverse possession and limitation. It declined to accept the plea of the defendants and granted a decree in favour of the plaintiff holding that the plaintiff is entitled to fix the boundary as per Ext.A1 and Ext.C4 and recover the trespassed area. **R.S.A No.760/2012** **5** 7. The matter was carried in appeal as A.S.No.99/2009 before the District Court, Alappuzha. The District Court, on re-appreciation of the evidence in the case, found no reason to disagree with the trial court and confirmed the judgment and decree. Hence the defendants have approached this Court by filing this R.S.A. 8. The following questions of law are seen formulated in the memorandum of appeal. 1. The Commissioner's Report and Plan being remitted by the trial court as per its order dated 12.8.1997 calling for a detailed report from him, the commissioner sticking on that very same plan remitted to him as evidenced by the extract from his subsequent report dated 16.12.1997 quoted in para 3 of the statement of facts above, and the trial court having non suited plaintiff after considering Exhibits C3, C3(a) and C4 holding that he has not given details of his property for enabling it to be identified and demarcated, was the lower appellate court correct or justified in setting aside those judgment and decree dated 2.1.2001 of the trial court upholding plaintiff's claim for title over the plaint item based on Exts.C3, C3(a) and C4 and in **R.S.A No.760/2012** **6** thereafter remanding the case to the trial court only for considering the alternative contention of defendants regarding adverse possession and limitation? 2. Considering the nature, level and lie of the 3.520 cents shown as plot No.5 in Ext.C3 and the age of the trees standing thereon, are the courts below correct or justified in rejecting defendants' contention that they have been in possession and enjoyment of that portion as part of their property covered by the Sale Deed and Certificate of Purchase in their favour openly, continuously and uninterruptedly for over the statutory period and that therefore, plaintiff's title, if any, over the same, has been lost by adverse possession and limitation? 9. It is sad to note that the litigation is being carried on by the second generation for extent of 3.520 cents. How much money and time must have been spend on this litigation. 10. Coming to the merits of the case, Sri.P.S.Krishna Pillai, learned counsel appearing for the appellants contended that no decree could have been granted to the plaintiff much less for recovery of possession and laying of boundary in the light of the schedule shown in the plaint. It is virtually impossible for **R.S.A No.760/2012** **7** anybody to identify the property and it is not possible to understand how the Commissioner identified the properties. Apart from that, learned counsel pointed out that the definite case of the defendants was that the property now said to have been trespassed upon is a portion of the property assigned to them under Ext.B3 and they were holding the property covered by Ext.B3 namely, 19 cents and they did not trespass into any portion of the property which belonged to the plaintiff. 11. Learned counsel for the appellants went on to point out that the trial court was in error in holding that after remand, the sole issue that remained to be considered was regarding adverse possession and limitation. In fact, it was an open remand as would be evident from the judgment in the FAO already referred to. Learned counsel pointed out that the trial court was obliged to re-consider all the issues, re-appreciate the evidence and arrive at a fresh findings. That having been not done, the decree and judgment of both the courts below are only to be set aside. Learned counsel also pointed out that after remand, at the instance of the defendants, the Commissioner who had prepared **R.S.A No.760/2012** **8** the plan and sketch again visited the property and made mention of the improvements as seen by him in the property which is alleged to have been trespassed upon by the defendants. 12. Learned counsel for the appellants then invited the attention of this Court to the objection filed by the plaintiff to the suit and pointed out that it vitiates the findings of the courts below. At any rate, according to the learned counsel, the courts below have not properly understood the case put forward by the defendants and have not appreciated the evidence in that perspective. Learned counsel would point out that no decree for recovery of possession of 3.520 cents of property would have been granted to the plaintiff. 13. Sri.Sreekumar, learned counsel appearing for the respondent in this appeal, on the other hand, pointed out that the claim made by the defendants that the remand was an open remand cannot be countenanced in view of the observations made in the FAO confirming the remand order of the lower appellate court. By no stretch of imagination, according to the learned counsel, the order in the FAO could be treated as an open **R.S.A No.760/2012** **9** one. The remand remains confined to the sole issue regarding the claim for adverse possession and limitation. It is not an open remand which enabled the trial court to re-appreciate the evidence and enter into fresh findings on each of the issues. According to the learned counsel, the trial court was perfectly justified in confining itself to the question of adverse possession and limitation. 14. As regards the plea of adverse possession and limitation, it is pointed out that the definite stand taken by the defendants was that a portion of the property now found to have been trespassed upon is beyond the 7 cents assigned to them and if one goes by the pleadings of the defendants and also the stand taken by the defendants that they had not trespassed into any portion of the property other than the 7 cents in Ext.B3 the case of the defendants appears to be that the plaintiff is trying to grab a portion of the property under the guise of trespass. Learned counsel also pointed out that the commission report Ext.C5 prepared after the remand shows that several trees were standing in the property. True, the plaintiff had filed an objection **R.S.A No.760/2012** **10** assailing the report. But that does not help the defendant. The defendants at the time of giving further evidence had no case that the trees that were found standing in the alleged trespassed portion were either planted by them or they were taking income from that property. Learned counsel went on to point out that there is no assertion of possession or enjoyment in this case as regards the 3.520 cents alleged to have been trespassed by the defendants. Under these circumstances, the courts below were justified in granting a decree as prayed for by the plaintiff. 15. As rightly pointed out by the learned counsel for the respondent, it is extremely difficult to accept the contention taken by the appellant that the scope of remand is wider than what actually is and it can be treated only as a close remand. The lower appellate court while considering A.S.No.109/2001 against the dismissal of the suit found that Ext.C4 is acceptable and the property is properly identified. It took objection to the finding of the trial court that the properties were not identifiable and the plaint schedule description was vague and general. The lower appellate court was of the opinion that the properties have **R.S.A No.760/2012** **11** been properly identified and that there is no ambiguity in that identification. It then went on to find out an extent of 3.520 cents shown in yellow colour in Ext.C4 which is made as portion of the decree belonged to the plaintiff. However, the lower appellate court found that there was a plea of adverse possession and limitation which was not considered by the trial court. Being a mixed question of law and fact, the lower appellate court found that the trial court needs to consider that issue. Therefore, for that purpose, the lower appellate court raised an issue regarding adverse possession and limitation and remanded the case for determining that issue. 16. The defendants brought up the matter before this Court in F.A.O.No.195/2003. This Court confirmed the remand and the parties were given an opportunity to adduce further evidence. The finding of this Court in the F.A.O has already been extracted. Going by the order in the FAO, it is extremely difficult to come to the conclusion that it is an open remand. What this Court seems to have done is to confirm the order of remand which, as already stated, remains to a single issue i.e. adverse possession and **R.S.A No.760/2012** **12** limitation. This Court found no infirmity in the judgment of the lower appellate court and affirmed the remand order. 17. It is true that the defendants amended the written statement incorporating the plea of adverse possession and limitation. However, the case remains almost the same that their plea seems to be that they have not trespassed into any portion of the property which belonged to the plaintiff and they are in possession of the property assigned to them under Ext.B3 and acquired by them by purchase certificate. Their definite case seems to be that under the guise of trespass, the plaintiff is trying to regain a portion of the property assigned under Ext.B3. 18. The above contention cannot be countenanced. The Commissioner in Ext.C4, which is accepted by the lower appellate court to find that there is trespass, has stated that apart from the 7 cents assigned as per Ext.B3 and 12 cents acquired as per the purchase certificate, defendants are in possession of an excess area of 3.520 cents. The Commissioner has categorically stated that that portion forms part of the plaintiff's property. **R.S.A No.760/2012** **13** 19. In the light of the report of the Commissioner and also the plan appended thereto, it is difficult to accept the plea of the defendants that there is an attempt from the side of the plaintiff to regain a portion of the property. 20. Coming to the plea of adverse possession and limitation, even assuming that there are sufficient pleadings in the written statement, the evidence is found lacking. The Commissioner had reported several improvements in the property. Quite surprisingly enough after remand when further evidence was adduced, there is no whisper by the defendants that either the improvements have been effected by them or they are taking income from there. Even more surprising is the fact that there is no definite assertion that the defendants are in actual possession and enjoyment of the area alleged to have been trespassed upon. They continued to harp upon the contention that it is a portion of their property covered by Ext.B3. 21. The classic definition of adverse possession is 'nec vi, nec clam, nec precario'. It is also trite that the burden is on the person who asserts adverse possession to establish the same. **R.S.A No.760/2012** **14** There has to be specific pleadings and evidence in that regard. As already stated, even assuming that there are pleadings to suggest a plea of adverse possession and limitation, evidence is absolutely wanting. The trial court is therefore justified in declining to accept the plea of adverse possession and limitation and in decreeing the suit. 22. The lower appellate court, on re-appreciation of evidence, found no grounds to interfere with the finding of the trial court. This Court too on a re-evaluation of the materials finds no ground to take a different view especially when the views taken by the trial court and the lower appellate court cannot be said to be perverse or contrary to the evidence on record. Probably, a different view may be possible. But in exercise of the jurisdiction under Section 100 of the Code of Civil Procedure, it will not be proper for this Court to interfere with the findings of the courts below since the findings are essentially based on appreciation of evidence and also since they are findings of fact. This appeal is without merits and it is accordingly dismissed. However, it is made clear that the actual eviction of the **R.S.A No.760/2012** **15** defendants shall be only after four months from the date of this judgment subject to the condition that the defendants file an affidavit undertaking before the trial court to vacate the property without raising any claim whatsoever on or before expiry of the said four months. Affidavit shall be filed before the trial court within a period of three weeks from today. Sd/- **P.BHAVADASAN JUDGE** smp // True Copy // P.A. to Judge.