SANTHAKUMARI v. KERALA WATER AUTHORITY

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 RSA.No. 471 of 2010() --------------------AS.52/2005 of I ADDL.SUB COURT,TRIVANDRUM OS.1691/2000 of II ADDL.M.C.,TRIVANDRUM .................... APPELLANT/ APPELLANT/PLAINTIFF --------------------------------------- SANTHAKUMARI, W/O.SADASIVAN NAIR, MANIKANDA MANDIRAM, T.C.27/1836-1, VANCHIYOOR, THIRUVANANTHAPURAM. BY ADV. SRI.SAJU.S.A SRI.K.C.KIRAN ## RESPONDENT/ RESPONDENT/ DEFENDANT ------------------------ KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, VELLAYAMBALAM, THIRUVANANTHAPURAM. ADV. SMT.AMBIKA DEVI, SC, KWA FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## M.SASIDHARAN NAMBIAR,J. --------------------------------------------- `R.S.A.NO.471 OF 2010` --------------------------------------------- `Dated 14[th] March, 2011` ## JUDGMENT Plaintiff in O.S.1691/2000 on the file of II Additional Munsiff Court, Thiruvananthapuram is the appellant. Defendant is the respondent. Appellant instituted the suit seeking a decree for mandatory injunction directing respondents to demolish the illegal construction contending that plaint schedule property originally belonged to Narayanan Pillai and from his daughter under Ext.A1 assignment deed appellant obtained the property and since then appellant has been in exclusive possession and enjoyment of the property. It is contended that even if respondent has any title it is barred by adverse RSA 471/10 2 possession and limitation as the property has been in the exclusive possession of the assignor of the appellant and the appellant from 1953 onwards. Respondents resisted the suit contending that appellant has no title to the plaint schedule property and as Narayana Pillai did not have title to the property, appellant did not get title and cannot claim title to the plaint schedule property. It was also contended that the plea of adverse possession will not lie as the appellant has never recognized the title of the respondent. Respondent also contended that Thiruvananthapuram water supply had begun when the first Willington water works was commissioned during the period of Royal Family during Rajabharanam period and from its source at Aruvikkara, water was being taken RSA 471/10 3 to Vellayambalam. Therefore, 33 inch C.I pipe was laid from Aruvikkara to Thiruvananthapuram and for that purpose land was acquired upto Vellayambalam and subsequently during 1967 to 1970, due to the increase in demand, a second line was laid from Aruvikkara to Thiruvananthapuram by 48 inch C.I pipe and during 1999 a third line was also commissioned, having a size of 1200 mm PSC dimension and the pipe line road is over the three water pipe lines, which are supplying drinking water to Thiruvananthapuram city and the plaint schedule property forms part of the property belonging to the respondent Water Authority. 2. Learned Munsiff on the evidence of PW1, Cws.1 and 2 and Exts.A1 to A11, B1 and B2 and C1 to C3 series, dismissed the suit finding that appellant neither established his title RSA 471/10 4 under Ext.A1 nor the title perfected by adverse possession. Appellant challenged the judgment before Sub Court, Thiruvananthapuram in A.S.52/2005. Learned Additional Sub Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant and the Standing Counsel appearing for the respondent to whom notice was issued , were heard. 4. Argument of the learned counsel appearing for the appellant is that the plea of title is based on Ext.A1 as well as adverse possession and though they are inconsistent it is not barred and even if the appellant did not succeed in establishing title under Ext.A1, as RSA 471/10 5 possession from 1953 onwards is established, courts below should have granted the decree sought for. Learned counsel argued that Exts.A2 and A3 series of tax receipts and Exts.A4 to A11 establish the uninterrupted possession of the appellant and her predecessors, it should necessarily be adverse the respondent also and therefore, the decree should have been granted. 5. Learned counsel appearing for the respondent pointed out that plaint schedule property as identified by the Commissioner is not the property covered under Ext.A1 and Ext.A1 does not establish the title of the assignor and therefore, appellant cannot claim title to the plaint schedule property. Learned counsel also pointed out that when it is the definite case of the appellant that she has RSA 471/10 6 got title and never recognized the title of the respondent, there cannot be a successful plea for title by adverse possession, as held by the apex Court in **Hemaji Waghaji Jat v.** ## **Bhikhabhai Khengarbhai Harijan (2008 (4) KLT** **357 (SC))** . Therefore, no substantial question of law arises for consideration. 6. Though appellant claimed title under Ext.A1, appellant could claim title only if Narayana Pilla, under whom the assignor of the appellant claim title to have title to the property. There is absolutely no evidence to prove that Narayana Pillai had title to the property. Therefore, under Ext.A1 appellant cannot claim title to the property as rightly found by the courts below. Then the question is whether appellant has established title perfected by adverse possession. As rightly RSA 471/10 7 found by the courts below, plea of adverse possession would lie against the respondent only if the appellant recognized the title of the respondent to the plaint schedule property. When case of the appellant, even when the suit was instituted, is that plaint schedule property originally belonged to Narayana Pillai and thereafter under Ext.A1, she has title to the property and never recognize the title of the respondent Water Authority at any point of law, in law, appellant cannot claim title by adverse possession against respondent. More over, the property claimed by the appellant is the property obtained under Ext.A1. Ext.A1 shows that the property thereunder lies to the west of Chithra Lane and to the north of 2 cents plot which was allegedly sold by Padmavathy Amma, daughter of Narayana Pillai. RSA 471/10 8 Appellant has not produced any document to prove the transfer of the said 2 cents of the property. Whatever it be, property which could be claimed by the appellant can only be the property, which lies to the west of Chithra Lane. Plaint schedule property as identified by the Commissioner lies to the north of that lane. Report of the Commissioner shows that plaint schedule property is part of the property belonging to Water Authority and there is no demarcating boundary with the remaining property. Though appellant claims that her predecessor interest has been in possession of the property with a building, the building referred to in Ext.A1 is T.C.1008. Report of the Commissioner shows that, though there is a dilapidated building, that building is T.C.1009. Therefore, even based on the report RSA 471/10 9 submitted by the Commissioner and existence of the existence of a dilapidated building, appellant cannot claim adverse possession, as that is not the property where building No.1008 is situated as stated by the appellant. In such circumstances, I find that both the courts below appreciated the evidence and rightly found that appellant did not establish her title by adverse possession also. Hence no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.