R.S.A No.27 of 2007

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **FRIDAY, THE 8[TH] DAY OF AUGUST 2022 / 17TH ASHADHA, 1944 RSA NO. 27 OF 2007** **AGAINST THE JUDGMENT AND DECREE IN OS 2025/1990 OF PRINCIPAL MUNSIFF COURT ,THIRUVANANTHAPURAM AS 116/1997 OF III ADDITIONAL DISTRICT COURT,** ## **THIRUVANANTHAPURAM** ## **APPELLANTS/RESPONDENTS 1 TO 4 & 6/DEFENDANTS 1 TO 4 & 6** - 1 BADARUDEEN,KALLAMOOTU VEEDU, KESAVADASAPURAM, THIRUVANANTHAPURAM. - 2 ABDUL KARIM, KALLAMOOTU VEEDU KESAVADASAPURAM, THIRUVANANTHAPURAM. - 3 BASHEER, KALLAMOOTU VEEDU KESAVADASAPURAM, THIRUVANANTHAPURAM. - 4 THAJUDEEN, KALLAMOOTU VEEDU KESAVADASAPURAM, THIRUVANANTHAPURAM. - 5 MUHAMMED SUJA,KALLAMOOTTU VEEDU, KESAVADASAPURAM, THIRUVANANTHAPURAM. - 6 ADDL A6 S.R.EDUCATIONAL AND CHARITABLE TRUST, REGISTRATION NO.IV/61/2002, DIVYA PRABHA, MARAPPALAM, PATTOM, THIRUVANANTHAPURAM, PIN 695004, REPRESENTED BY ITS MANAGING TRUSTEE MR.R.SHAJI(ADDL APPELLANT 6 IMPLEADED AS PER ORDER DATED 24/11/2021 IN IA.1/2021) - BY ADVS.SRI.N.SUBRAMANIAM SRI.C.MURALIKRISHNAN (PAYYANUR) SRI.M.S.NARAYANAN SMT.USHA NARAYANAN ABRAHAM GEORGE JACOB AKSHAY R ## **RESPONDENTS/APPELLANTS&5TH RESPONDENT/PLAINTIFFS & 5TH** ## **DEFENDANT:** - 1 THANKAMMA MATHUNNI,KADAVIL VEEDU, DEWASWOM LANE, KESAVADASAPURAM,, THIRUVANANTHAPURAM. - 2 JOHN OOMMEN MALAYIL,VAYALARIKATHU MURI, ULLOOR HEADNOTE -: 2 :- VILLAGE, THIRUVANANTHAPURAM. 3 LEELAMMA SCARIAH,THOPPIL VEEDU, CHEMBAKASSERY LANE, ULLOOR VILLAGE, THIRUVANANTHAPURAM. 4 JALALUDEEN KALLAMOOTU VEEDU KESAVADASAPURAM, THIRUVANANTHAPURAM. BY ADVS. SRI.P.T.GIRIJAN - R4 SRI.V.SURESH – R1 & R3 SRI.G.SUDHEER THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Sathish Ninan, J. ============================== R.S.A No.27 of 2007 ========================== Dated this the 8[th] day of August, 2022** ## **JUDGMENT** This Appeal is by the defendants 1 to 4 and 6 in a suit for declaration of title and possession, and for fixation of boundary. The suit was dismissed by the trial court. The decree was reversed in Appeal. 2. The plaintiffs claim title over the plaint A schedule property as per Ext A1 Sale Deed of the year 1985. On the southern side of the plaint A schedule property is the plaint B schedule property belonging to the defendants. It is the plaintiffs' case that, a total extent of 16 cents was divided by the original owner of the property, into four equal plots having 4 cents each, and that the plaint A schedule is the 3[rd] plot from the northern side towards the south, and the plaint B schedule is the 4[th] plot. The plaintiffs allege attempt on the part of the defendants to trespass into the plaint A schedule property. It is accordingly that the R.S.A No.27 of 2007 -: 2 :- suit has been filed for declaration of title and possession, and fixation of boundary. There is also an alternate relief for recovery of possession of the plaint A schedule property, on the strength of the plaintiffs' title. 3. The defendants denied the title of the plaintiffs over the plaint A schedule property. They claimed that they are in exclusive possession of 9 cents of property including the plaint A schedule. It was pleaded that they have prescribed title over the 9 cents by adverse possession and limitation. 4. The trial court negatived the plea of adverse possession. However, the suit was dismissed holding that the plaintiffs have not proved title over the plaint A schedule and that the property has not been properly identified. The plea of adverse possession was left open as consideration of the same was unnecessary since the suit was being dismissed. The plaintiffs preferred R.S.A No.27 of 2007 -: 3 :- appeal challenging the dismissal. Before the first appellate court, the plaintiffs produced the prior deed of Ext A1. The first appellate court accepted the document and marked the same as Ext A3. The first appellate court upheld the claim of title and possession of the plaintiffs, and also the identification of the plaint schedule property as done in Ext C1 report and C1(a) plan. A decree was granted declaring the title and possession of the plaintiffs over plaint A schedule property and also for fixation of boundary. It is aggrieved thereby that this Regular Second Appeal has been filed. 5. Heard the learned counsel Sri.Murali Krishnan on behalf of the appellants/defendants and Sri. V.Suresh, learned counsel for the respondents/plaintiffs on the following Substantial Questions of Law: _(i) Was the first appellate court right in holding that the plaint schedule properties have been properly identified under Ext C1(a) plan?_ R.S.A No.27 of 2007 -: 4 :- _(ii) When Ext C1 report and Ext C1(a) plan identified the existence of a building in the plaint A schedule property, and the description of the property in the plaint A schedule did not contain any building/structure, was the first appellate court correct in granting a decree for declaration of possession, especially on the defence contention that they had constructed building in the 9 ½ cents of property including the plaint schedule and that they are in possession of the same?_ 6. According to the plaintiffs, an extent of 12 cents of property was divided into four plots of 4 cents each by the original owner, and the plaintiffs obtained the 3[rd] plot from the northern side and the defendants obtained the 4[th] plot. Ext A1 Sale Deed in favour of the plaintiffs relates to 4 cents. Ext A3 is the prior title deed. The defendants have not produced their title deed. They urge a plea of adverse possession. Exts C1 and C1(a) are the Commissioner's report and plan where under plaint A schedule property has been identified with reference to the plaintiffs' title deed. Ext C1(a) has R.S.A No.27 of 2007 -: 5 :- identified the 16 cents and the four plots with 4 cents extent each including the plaint A schedule property. But for a plea of adverse possession, there is no rival claim of title by the defendants. Though the appellants – defendants would challenge the identification of the property in Exts C1 and C1(a), the said challenge is unsustainable. As noticed, Exts C1 and C1(a) were prepared based on the title deeds of the plaintiffs. Though the Commissioner was examined by the defendants as DW2, a reading of his evidence shows that there is not even a suggestion to the Commissioner that he has not identified the plaint schedule properties, nor is any question put challenging the mode of or correctness of the identification. The 16 cents which was divided into four plots of 4 cents each has been identified. There is nothing to indicate any error in the identification of the property. Thus it can only be found that the plaint schedule properties have been R.S.A No.27 of 2007 -: 6 :- correctly identified in Ext C1 report and Ext C1(a) plan and that the plaintiffs have established their title over the plaint A schedule property. substantial question of law No.(i) is answered accordingly. 7. Ext C1 report and Ext C1(a) plan indicates that on the western portion of the plaint A schedule property there exists a building facing the west. The plaint schedule description does not contain a building. There is no averment in the plaint with regard to the building. On the other hand, it is the definite contention of the defendants that they have put up a building in the plaint A schedule property and that they have prescribed title over A schedule property by adverse possession and limitation. The factum of existence of a building in the plaint A schedule property as identified in Ext C1(a) plan has been overlooked by the first appellate court. No finding has been entered into by the first appellate court with R.S.A No.27 of 2007 -: 7 :- regard to the building, its construction, ownership, possession etc. In India, one could be the owner of the building situated in another person’s property (see _**Ismail Hajee Essa Trust v. Muslim Educational Society 2017 (1) KLT 843))**_ . These aspects have not been considered by the first appellate Court. Therefore, the decree granted in favour of the plaintiffs cannot be sustained. Substantial question of law number (ii) is answered accordingly. 8. The learned counsel for the respondents – plaintiffs drew the attention of this Court to the description of the property in Ext A1 Sale Deed which includes a building. Referring to the same, the learned counsel would contend that the non mentioning of the building in the plaint could only be a bonafide omission. Anyhow, as noted above, there has been no adjudication with regard to the building. R.S.A No.27 of 2007 -: 8 :- 9. Thus, while holding that the plaintiffs have established their title over the plaint A schedule property, the description of which as of now does not include the building, it needs to be considered with regard to the title and possession of the building. The issue regarding possession of the plaint A schedule property and also the claim for adverse possession needs to be considered afresh. The matter needs to be sent back to the trial Court for consideration of the aforesaid aspects. I deem it only proper to afford opportunity to the plaintiffs to have the pleadings amended, if they so choose. Needless to say that, in such event, the defendants shall be afforded opportunity to file additional written statement. Both parties shall be permitted to adduce further evidence. It is made clear that it shall not be open for the defendants to rake up challenge on the identity of the plaint A schedule property and title over the A schedule except R.S.A No.27 of 2007 -: 9 :- the building. It is made clear that this Court has not expressed anything on the merits of the rival claims of title over the building, possession of the A schedule property, and also the defendants claim of adverse possession. 10. Accordingly, the Regular Second Appeal is allowed. The decree and judgment of the courts below are set aside. The suit is remanded back to the trial court for disposal afresh in the light of the findings as above. Parties to appear before the trial court on 31.08.2022. Sd/- **Sathish Ninan, Judge** vdv