Kunjan S/o Kochol and others v. Karthiyani and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 31ST DAY OF JULY 2018 / 9TH SRAVANA, 1940** **RSA.No. 276 of 2017** **AGAINST THE JUDGMENT AND DECREE DATED 13.06.2016 IN AS 57/2014 OF III ADDITIONAL SUB COURT, ERNAKULAM AGAINST THE JUDGMENT AND DECREE DATED 14.07.2014 IN O.S.NO.740/1997 OF 1ST ADDITIONAL MUNSIFF'S COURT, ERNAKULAM** **APPELLANTS/APPELLANTS/DEFENDANTS 3 & 4 AND ADDITIONAL DEFENDANTS 11 & 12** **1 KUNJAN S/O.KOCHOL, AGED 75 YEARS, RESIDING AT MANAKKAMOLATH HOUSE, MANAKKAKADAVU, THENGODU KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.** **2 VELAYUDHAN, S/O.KOCHOL, AGED 74 YEARS, RESIDING AT MANAKKAMOLATH HOUSE, MANAKKAKADAVU, THENGODU KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. 3 ARAVINDAKSHAN, S/O.THORY, AGED 48 YEARS, RESIDING AT MANAKKAMOLATH HOUSE, MANAKKAKADAVU, THENGODU KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.** **4 THANKAMANY, D/O.THORY, AGED 48 YEARS, RESIDING AT MANAKKAMOLATH HOUSE, MANAKKAKADAVU, THENGODU KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.** **BY ADVS.SRI.M.R.ARUNKUMAR** **RESPONDENTS/RESPONDENTS/PLAINTIFFS & ADDL.DEFENDANTS 6 TO 10:** **1. KARTHIYANI,** **D/O.KUNJUKURUMBA, AGED 50 YEARS, RESIDING AT MANAKKAKUDI, THENGODU KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM-682030.** ## **RSA.No. 276 of 2017** **:2:** ## **2. SASI,** **S/O. KUNJUKURUMBA, AGED 48 YEARS, RESIDING AT MANAKKAKUDI, THENGODU KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM-682030.** ## **3. MARIA,** **W/O.KUNJAN, AGED 68 YEARS, MANAPPILLINJALIYIL, THENGODU KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT-682030.** ## **4. DEVAYANI,** **D/O.KUNJAN, AGED 42 YEARS, MANAPPILLINJALIYIL, THENGODU KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT-682030.** ## **5. BHANU,** **D/O.KUNJAN, AGED 40 YEARS, MANAPPILLINJALIYIL, THENGODU KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT-682030.** ## **6. VASU,** **S/O.KUNJAN, AGED 37 YEARS, MANAPPILLINJALIYIL, THENGODU KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT-682030.** ## **7. REJI,** **S/O.KUNJAN, AGED 34 YEARS, MANAPPILLINJALIYIL, THENGODU KARA, THRIKKAKARA SOUTH VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT-682030.** **R1,2 BY ADV. SRI.P.S.NARAYANA RAJA R4-R7 BY ADV. SMT.K.K.PREETHA R3 BY ADV. SMT.SMRUTHI SASIDHARAN** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 31-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SKS** ## **P.B.SURESH KUMAR, J.** =============== ## **R.S.A. No.276 of 2017** -------------------------------------------------- ## **Dated this the 31[st ] day of July, 2018** ## **JUDGMENT** Defendants 3 and 4 and the legal representatives of the deceased second defendant in the suit are the appellants in the second appeal. 2. The plaintiff claims title over the suit property, measuring 17 cents in terms of Ext.A6 patta. The case of the plaintiff is that the defendants have trespassed into the plaint schedule property. The suit was, therefore, for recovery of possession of the suit property from the defendants with mesne profits. The plaintiff had earlier instituted a suit as O.S. No.969 of 1981 for injunction against the defendants. Two properties including the suit property were involved in the earlier suit. That suit was dismissed insofar as it R.S.A. No. 276 of 2017 : 2 : relates to the suit property holding that the plaintiff has not established its identity. It is thereafter that the present suit is filed for recovery of possession of the suit property on the strength of the title of the plaintiff. The defendants resisted the suit contending that the property obtained by the plaintiff in terms of Ext.A6 patta is not identifiable and that they are in possession of only 7.77 cents of property obtained by them by way of kudikidappu from Kannamangalathu Mana. The trial court dismissed the suit holding, among others, that the suit is barred by _res judicata_ in the light of the decision in the earlier suit and also that the plaintiff has not established her title to the suit property. In A.S.No.252/2004 preferred by the plaintiff challenging the decision of the trial court, the appellate court though held that the plaintiff has established title to the suit property and that the suit is not barred by _res judicata,_ remitted the suit for fresh disposal on the ground that the plaintiff has not R.S.A. No. 276 of 2017 : 3 : established the identity of the suit property. An Advocate Commissioner was appointed thereafter by the trial court to locate and identify the suit property. The Advocate Commissioner appointed by the court located and identified the suit property with the assistance of a Surveyor. In the report, the Advocate Commissioner, however, mentioned that out of the property identified and located, a trivial portion, viz, 0.10 Ares comes under a survey number not mentioned in Ext.A6 patta. In the course of the trial, the plaintiff conceded that she is confining her relief in the suit in respect of the suit property as identified by the Advocate Commissioner as falling under the survey number mentioned in Ext. P6 patta. The trial court granted the plaintiff a decree for recovery of possession of the plaint schedule property as identified by the Advocate Commissioner as falling in the survey number mentioned in Ext. P6 patta and the appellate court, on a reappraisal of the materials on R.S.A. No. 276 of 2017 : 4 : record, confirmed the decision of the trial court. Defendants 3 and 4 and the legal representatives of the deceased second defendant in the suit are aggrieved by the decisions of the courts below. 3. Heard the learned counsel for the appellants. 4. As noted, the suit is one for recovery of possession of the suit property on the strength of the title of the plaintiff. The suit was resisted by the defendants mainly on three grounds, viz, (1) that the suit is barred by _res judicata_ ; (2) that the plaintiff has no title to the suit property and (3) that the suit property is not identifiable. In the appeal preferred against the decision rendered by the trial court initially, the appellate court found that the plaintiff has established title to the suit property and that the suit is not barred by _res judicata_ . The suit was remitted by the appellate court for fresh disposal as it was found that the plaintiff has not R.S.A. No. 276 of 2017 : 5 : established the identity of the suit property. The said decision of the appellate court has become final. The only question before the trial court after the remand was as to whether the plaintiff has established the identity of the suit property. It is seen that after the remand, the defendants have raised a plea of limitation as well. It is seen that the courts below in the circumstances have considered the aforesaid points in the impugned judgments. I shall, therefore, examine the correctness of the said points. 5. The issue relating to the identity of the suit property being a pure question of fact, I do not think that the contesting defendants are entitled to canvass the correctness of the findings rendered by the courts below on the said issue. Further, it is also not demonstrated before me that the findings rendered by the courts below on the issue of identity is perverse in any manner. It is seen that the property covered by the title deed of the R.S.A. No. 276 of 2017 : 6 : plaintiff has been identified by the Advocate Commissioner with the aid of a Surveyor. The only anomaly found in the identification made by the Advocate Commissioner was as regards the inclusion of a trivial portion of property therein, not falling within the survey number mentioned in the title document of the plaintiff. The courts below rightly excluded the said extent and a decree has been granted to the plaintiff only in respect of the remaining property. I do not, therefore, find any infirmity in the findings rendered by the courts below as regards the identity of the suit property. 6. As regards the plea of limitation, the contention of the defendants is that in O.S. No.969 of 1981, it was alleged by the plaintiff that the defendants have trespassed into the suit property and that the present suit filed after twelve years of the institution of the earlier suit is barred by limitation. Article 65 of the Limitation Act is the relevant article dealing with the R.S.A. No. 276 of 2017 : 7 : prescription of limitation for a suit for possession of immovable property based on title. As per the said article, the period of limitation begins to run when the possession of the defendant becomes adverse to the plaintiff. The defendants have no case that their possession of the suit property is adverse to the plaintiff. In so long as there was no plea of adverse possession by the defendants, there is no merit in the contention raised by the defendants that the suit instituted by the plaintiff based on title is barred by limitation [See **C. Natrajan v. Ashim Bai and Anr** ., (2007) 14 SCC 183]. In the said view of the matter, there is no merit in the second appeal and the same is, accordingly, dismissed. **Sd/P.B. SURESH KUMAR, JUDGE** SKS