## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH**
**THURSDAY, THE 1ST DAY OF NOVEMBER 2012/10TH KARTHIKA 1934**
## **SA.NO. 767 OF 2000 (G)**
**----------------------------------AS.56/1998 OF PRL.SUB COURT,KOTTAYAM OS.62/1983 OF MUNSIFF COURT, VAIKOM**
**APPELLANT/ADDL.2[ND] APPELLANT/LEGAL REPRESENTATIVE OF DECEASED 1[ST] DEFENDANT:**
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**P. KRISHNAN, ITHAKKUMCHERIL, VATTAKUNNAPUZHA, MULAKULAM VILLAGE, PERUVA P.O., KOTTAYAM DISTRICT.**
## **BY ADV. SRI.VARGHESE C.KURIAKOSE**
**RESPONDENTS/RESPONDENTS NOS.1 TO 3/ADDL. APPELLANT NOS.3 TO 8 PLAINTIFF/DEFENDANTS 2 AND 3:**
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**1. PARAMESWARAN RAMAYYAN, THEKKESASTHANKAL MADATHIL, KIZHAKKUMCHERIMEL NADUVILE MURI, NADUVILE VILLAGE, VAIKOM (DIED)**
**2. KUTTAPPAN JANAKI, ITHAKKUMCHERIL, KIZHAKKUMCHERIL NADUVILE MURI, NADUVILE VILLAGE, VAIKOM (DIED)**
**3. KUTTAPPAN REVI, ITHAKKUNCHERIL, KIZHAKKUMCHERIL NADUVILE MURI, NADUVILE VILLAGE, VAIKOM.**
## **S.A. No.767 of 2000**
**4. E.P. GOPALAN, ITHAKKUNCHERIL, VATTAKUNNAPPUZHA, MULAKULAM VILLAGE, PERUVA P.O.**
**5. K. NARAYANAN, THYPARAMBIL, IRUMPAYAM P.O., MEVALLOOR VILLAGE.**
**6. E.K. SASI KUMAR, ITHAKKUMCHERIL, VATTAKKUNNAPUZHA, MULAKKULAM VILLAGE.**
**7. E.P. JAYAPRAKASH, ITHAKKUMCHERIL, VATTAKKUNNAPUZHA, MULAKKULAM VILLAGE.**
**8. PADMAKSHY, MANARKKUNNEL, THATTAKOM P.O., VAIKOM.**
**9. NALINI, PULICKAL VEEDU, CHERUVARANAM, CHERTHALA.**
- **LEGAL REPRESENTATIVES OF DECEASED 1[ST] RESPONDENT:**
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**10. LAKSHMI AMMAL, AGED 70, W/O.PARAMESWARAN RAMAYYAN, THEKKESASTHANKAL MADATHIL, KIZHAKKUCHERIL NADUVILE MURI, NADUVILE VILLAGE, VAIKOM.**
**11. PARAMESWARAN IYER, AGED 45, S/O.PARAMESWARAN RAMAYYAN, DO. DO.**
**12. RUGHMINI AMMAL, AGED 38, D/O.PARAMESWARAN RAMAYYAN, DO. DO.**
**13. MEENAKSHY AMMAL, AGED 38, D/O.PARAMESWARAN RAMAYYAN, DO. DO.**
**THE LEGAL HEIRS OF DECEASED 1[ST] RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 10 TO 13 AS PER ORDER DATED 23.10.2003 IN CMP NO.215/2003.**
## **S.A. No.767 of 2000**
**LEGAL REPRESENTATIVE OF DECEASED 2[ND] RESPONDENT RECORDED**
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**SECOND RESPONDENT DIED AND 3[RD] RESPONDENT IS RECORDED AS THE ONLY LEGAL REPRESENTATIVE OF DECEASED 2[ND ] RESPONDENT AS PER ORDER DATED 21.6.2010 IN MEMO BEARING CF 2979/10 DATED 8.6.2010.**
**BY ADV. SRI.S.RADHAKRISHNAN ADDL. R10 TO 13**
**THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **THOMAS P.JOSEPH, J.**
**==================================== S.A. No.767 of 2000 ==================================== Dated this the 01[st] day of November, 2012**
## **J U D G M E N T**
The following substantial questions of law are framed for a decision.
(i) Are the courts below right in turning down the defendant's claim based on the principles of adverse possession and limitation for the reason that the defendant has failed to mention the date and year on which the defendant came into possession or the date and year on which the plaintiff was dispossessed?
(ii) Are the courts below right in passing a decree for possession in respect of a property which has been identified by the Advocate Commissioner not on the basis of measurement of the defendant's property with reference to the document of title but only on the basis of a plan prepared by the Advocate Commissioner on the basis of plaint schedule description and a temporary fencing erected by the plaintiff?
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2. The legal representative of the deceased 1[st] defendant in O.S. No.62 of 1983 of the Munsiff's Court, Vaikom is aggrieved by the decree for recovery of possession on the strength of title granted in favour of the deceased 1[st] respondent (he died pending the appeal and his legal representatives are impleaded as additional respondents 10 to 13) over the suit property - 13.50 cents in Sy. No.397/7A,B,C and confirmation of that judgment and decree by the learned Sub Judge, Kottayam in A.S. No.56 of 1998. According to the deceased 1[st] respondentplaintiff, the 13.50 cents referred in the plaint schedule forms part of property belonging to him as per Exts.A3 and A4. On the east of the suit property is the property belonging to the deceased 1[st] defendant. He has 41 cents in Sy. No.396/6A and 47 cents in Sy. No.396/6B. Towards north-eastern side of the suit property is the Piravom-Kaduthuruthy road. There was an attempt on the part of the deceased 1[st] defendant to trespass into the suit property. Thereon the deceased 1[st] respondent filed a compliant to the Sub Divisional Magistrate, Kottayam who issued Ext.A1, order directing the deceased 1[st] respondent to approach the civil court for vindication of his grievance. That was followed by the deceased 1[st] defendant trespassing into the suit property in
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December, 1976 and taking forcible possession of the said property.
3. The deceased 1[st] defendant denied the title and previous possession claimed by the deceased 1[st] respondent over the suit property. He claimed that the canal towards eastern portion of property of the deceased 1[st] respondent is the natural boundary of his property and that the deceased 1[st] respondent has no property on the east of that canal. The property on the east of the canal belongs to the deceased 1[st] defendant. He also contended that title if any, of the deceased 1[st] respondent is lost by adverse possession and limitation.
4. The trial court, based on the evidence found title of the suit property with the deceased 1[st] respondent, rejected the plea of adverse possession and granted a decree for recovery of possession. That was confirmed by the first appellate court.
5. The learned counsel for the appellant has contended that finding of the courts below regarding title of the suit property is erroneous. According to the learned counsel, there is no reliable evidence to show that the deceased 1[st] respondent has any land on the east of the canal which according to the deceased 1[st] defendant formed natural boundary of the property
**S.A. No.767 of 2000**
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belonging to the deceased 1[st] respondent. Finding of the courts below on adverse possession is also under challenge.
6. The learned counsel for respondents 10 to 13 supported the finding of the courts below.
7. So far as title of the deceased 1[st] respondent is concerned, he relied on Exts.A3 and A4. According to him, the suit property - 13.50 cents forms part of the total extent covered by Exts.A3 and A4. Though as regards property on the east of the canal the deceased 1[st] defendant had made a claim of title, he did not produce his document of title. True, when recovery of possession is claimed on the strength of title it is for the deceased 1[st] respondent to prove his title.
8. Exhibits C1 and C2 are the report and plan submitted by the Advocate Commissioner. The suit properties were measured with reference to the relevant documents. The Advocate Commissioner has identified plots 1 to 5 as the entire property belonging to the deceased 1[st] respondent as per Exts.A3 and A4. Plots 1 to 3 are the suit property which according to the deceased 1[st] respondent was trespassed upon and taken possession by the deceased 1[st] defendant.
9. It is seen from Ext.C2 that the property comprised in
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Sy. No.397/7A,B,C are situated on either side of the canal. That dislodges contention of the deceased 1[st] defendant that on the east of the canal, the deceased 1[st] respondent did not have any property as per Exts.A3 and A4.
10. I stated that in Ext.C2, plots 1 to 3 are identified and located by the Advocate Commissioner as the suit property which as per Exts.A3 and A4 and other relevant documents form part of the property belonging to the deceased 1[st] respondent.
11. The learned counsel for the appellant has pointed out that in the foot note of Ext.C2 it is stated by the Advocate Commissioner that the 10 cents is noted as property claimed by the deceased 1[st] defendant as in his possession. It is also submitted by the learned counsel that survey number of property of the deceased 1[st] defendant is shown in Ext.C2 wrongly.
12. Even as per claim of the deceased 1[st] defendant, his title is over the 41 cents comprised in Sy. No.396/6A and 47 cents in Sy. No.396/6B. But going by Exts.C1 and C2, the Advocate Commissioner has found a total extent of 93 cents as in the possession of the deceased 1[st] defendant. That according to the learned counsel for the appellant takes in the excess land as well.
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13. So far as title claimed by the deceased 1[st] respondent over plots 1 to 3 in Ext.C2 is concerned, that is proved by Exts.C1, C2, A3 and A4. I stated that the deceased 1[st] defendant has not produced his document of title to claim title over the disputed property. Therefore finding of the courts below regarding title with the deceased 1[st] respondent has to remain.
14. So far as plea of adverse possession is concerned, the contention raised is that the deceased 1[st] respondent had to show that he was dispossessed within a period of 12 years immediately preceding institution of the suit. That contention cannot stand in view of Article 65 of the Limitation Act, 1963 as the deceased 1[st] respondent sought recovery of possession on the strength of his title. When Article 65 applies and title is proved, the only defence available to the opposite party is adverse possession and limitation. In such a situation it was for the deceased 1[st] defendant to show that he has been in possession of the disputed property for the statutory period with the necessary hostile animus. It is only when Article 64 applies and recovery of possession is sought on the strength of previous possession that the plaintiff is obliged to show that he has filed
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the suit within 12 years of his disposition This position, as against the earlier provisions of the Limitation Act, 1908 is clarified by the Supreme court in **M. Durai v. Muthu & Others** (2007 [3] SCC 114).
15. The courts below have observed while considering the plea of adverse possession by the deceased 1[st] defendant that he has not stated when he came into possession of plots 1 to 3 of Ext.C2, plan. There is also no evidence to show that he has been in possession of the disputed property for the statutory period much less to say, with the necessary hostile animus. Evidence shows that complaining of trespass by the deceased 1[st] defendant into the suit property, the deceased 1[st] respondent has filed a complaint to the Sub Divisional Magistrate who passed Ext.A1, order dated 30.06.1977. The only document which the deceased 1[st] defendant has produced and relied upon are Exts.B1 and B2 which concerned some other litigation between the deceased 1[st] defendant and others and which have no much bearing on the issue involved in this case. In the above circumstances the finding of the courts below against the plea of adverse possession also requires no interference.
16. I referred to the contention the learned counsel for
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the appellant has advanced as to the 10 cents said to be in the possession of the deceased 1[st] defendant. Assuming so, what is required is to make it clear that the recovery of possession will be of plot Nos.1 to 3 in Ext.C2, plan,
17. The substantial questions of law framed are answered as above.
In the light of the discussion I have made above it is clarified that the decree granted for recovery of possession by the trial court and confirmed by the first appellate court is concerning plots 1 to 3 marked by the Advocate Commissioner in Ext.C2, plan.
Resultantly, with the clarification made above, this Second Appeal is dismissed without any order as to costs.
All pending Interlocutory Applications will stand dismissed.
## **THOMAS P. JOSEPH, JUDGE.**
vsv
