Polayankandy Thoduvayil Asmabi v. Thazhakathu Madathil Andru

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 14TH DAY OF SEPTEMBER 2012/23RD BHADRA 1934** ## **SA.NO. 390 OF 2001 ( )** **-----------------------------------** **A.S.NO.77 OF 1998, SUB COURT, THALASSERY O.S. NO.336 OF 1997, MUNSIFF'S COURT, KANNUR** ## **APPELLANT/APPELLANT/DEFENDANT:** **--------------------------------------------------------** **POLAYANKANDY THODUVAYIL ASMABI, D/O.HASSAN, AGED ABOUT 30 YEARS, HOUSEWIFE, KALLIADANPOYIL HOUSE, P.O. MUNDERI, MUNDERI AMSOM DESOM.** **BY ADVS.SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.P.VISWAMBARAN SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **------------------------------------------------------------** **THAZHAKATHU MADATHIL ANDRU, S/O.PAKKARKUTTY, AGED 55 YEARS, BUSINESS, NOORIYA, BAKERY, MUNDERI MOTTA P.O. MUNDERI, MUNDERI AMSOM DESOM.** **BY ADV. SRI.O.RAMACHANDRAN NAMBIAR BY ADV. SRI.CIBI THOMAS BY ADV. SRI.GEEN T.MATHEW** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== S.A. No.390 of 2001 ==================================== Dated this the 14[th] day of September, 2012 J U D G M E N T** In this Second Appeal arising from the judgment and decree of learned Munsiff, Kannur in O.S. No.336 of 1997 as confirmed by the learned Sub Judge, Thalassery in A.S. No.77 of 1998 the following substantial question of law is framed for a decision: “Whether the onus of proving adverse possession would be treated as discharged if the owner of the property is proved to have abandoned his right in favour of the person claiming adverse possession, forty years back and admits the fact before the court”. 2. Respondent-plaintiff sued the appellant-defendant originally for a decree for prohibitory injunction. The plaint was amended as per order on I.A. No.3764 of 1997 to incorporate a prayer for recovery of possession and mandatory injunction. The respondent claimed that the suit property belonged to him as per ## **S.A. No.390 of 2001** -: 2 :- Exts.A1 and A2, assignment deed Nos.36 and 978 of 1975. There happened to be a mistake in the re-survey number of the property referred in the said documents. The property is comprised in R.S. Nos.60/10 & 60/11 and not in 60/8/A. Building Nos.X1/486 to 488 situated in the schedule property also belong to the respondent. The property of the appellant with the building therein is situated on the south of the suit property. In between the suit property and property of the appellant, there is vacant space where the common stair case is situated. The appellant has no right over the said vacant space or to construct building in the said space. Hence the suit for mandatory and prohibitory injunction and recovery of possession. 3. The appellant contended that she is the owner of one cent as per Ext.B2, assignment deed No.16 of 1987. There is a building with upstair portion in the said property belonging to the appellant. She denied contention of the respondent that the vacant space belongs to him as per Exts.A1 and A2. A further contention raised by the appellant is that title if any of the respondent is lost by adverse possession and limitation. ## **S.A. No.390 of 2001** -: 3 :- 4. Trial court found that the disputed property belongs to the respondent as per Exts.A1 and A2. It also negatived the plea of adverse possession and limitation raised by the appellant. A decree was passed in favour of the respondent allowing him to recover possession of plot “KLMN” in Ext.C4. There was a decree for mandatory injunction directing her to restore the stair case removed by the appellant from the said plot (which is the disputed property). 5. Appellant challenged that judgment and decree in A.S. No.77 of 1998 but without success. Hence this Second Appeal. 6. So far as title of respondent over the disputed property (plot “KLMN” in Ext.C4) is concerned, no substantial question of law is framed by this Court for a decision. From Exts.A1 and A2 and Ext.C4 courts below found that the disputed portion comes within the property belonging to the respondent. The courts below referred to the boundary descriptions in Exts.A1, A2 and B2 and held that the appellant could not lay hands over the disputed property. Courts below also referred to the decisions which went to the effect that even when there is ## **S.A. No.390 of 2001** ## -: 4 :- discrepancy regarding extent, survey number, boundary, etc., there is no invariable rule that the one or the other should prevail over the other and that it is a mater of construction of the documents. Courts below referred to the boundary descriptions in the documents relied on by the parties and found that the disputed portion (plot 'KLMN' in Ext.C4) forms part of the suit property belonging to the respondent as per Exts.A1 and A2. That finding does not also involve any substantial question of law. 7. The only question raised for decision in this appeal is as to the finding of the courts below that the plea of adverse possession raised by the appellant over the disputed property cannot be accepted. The learned counsel for the appellant argued that finding entered by the courts below is not correct. Reliance is also placed on the decision in ## **D.N.Venkatarayappa v. State of Karnataka** ([1997] 2 SCC 567). It is also argued that in so far as it is the case of the appellant that the stair case situated in the disputed property is under common use, respondent cannot claim exclusive right over the stair case. ## **S.A. No.390 of 2001** ## -: 5 :- 8. Learned counsel for the respondent contended that courts below having regard to the evidence on record negatived the plea of adverse possession raised by the appellant. It is argued that there is no evidence to show that appellant got possession of the disputed portion in 1949 as contended by her in the written statement. It is argued that the appellant did not mount the witness box and instead, her brother gave evidence as D.W.1. According to the learned counsel, D.W.1 was not competent to give evidence of facts and circumstances leading to the plea of adverse possession raised by the appellant. ## 9. It is held by the Supreme Court in **Chatti Konati** ## **Rao & Others v. Palle Venkata Subha Rao** (2011 [1] KLJ NOC 29 (page 34) that a plea of adverse possession is not a pure question of law but a blend of fact and law. It is also held that the courts always take an unkind view towards status of limitation overriding property rights. 10. The plea raised by the appellant is that she is in adverse possession of the disputed portion of the property from the year 1949 onwards. It is relevant to note that none of the ## **S.A. No.390 of 2001** ## -: 6 :- documents produced by the appellant pertains to that year. Exhibit B1 is of the year 1933 while Exts.B3 and B4 are of the year 1951. It is by Ext.B2 dated 31.12.1987 that the appellant claims title over the property on the south of the suit property. In other words, none of the documents relied on by the appellant is of the year 1949 so that the appellant could claim that in the year 1949 she got possession of the disputed property as per a document of title. In short, the possession claimed by the appellant over the disputed property is not referable to any of Exts.B1 to B4 relied on by her. 11. It is not clear under what circumstance the appellant or her predecessor-in-interest allegedly got possession of the disputed property in the year 1949. The courts below also wondered what is auspicious with the year, 1949 as pleaded by the appellant. 12. A further fact I must notice is that so far as the alleged possession of the appellant from 1949 is concerned, what is available is only the evidence of the brother of appellant as D.W.1. How the appellant or predecessor-in-interest got ## **S.A. No.390 of 2001** -: 7 :- possession in the year 1949 (I stated none of the documents would support that claim) is a matter which is in the personal knowledge of the appellant. Appellant has not mounted the witness box to say that. In the above circumstances the plea of adverse possession raised by the appellant cannot be accepted. 13. The substantial question of law framed is answered accordingly. Second Appeal is dismissed. No costs. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv