Santosh M. Philip v. Government of Kerala, represented by District Collector, Kottayam; Tahsildar, Meenachil Taluk Office, Civil Station, Pala; District Survey Superintendent, District Survey Superintendent Office, Kottayam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 21ST DAY OF JULY 2014/30TH ASHADHA, 1936** ## **RSA.No. 779 of 2014 ()** **----------------------.................** **AS.NO.21/2012 OF SUB COURT, PALA** **OS.NO. 24/2010 OF MUNSIFF -MAGISTRATE COURT, ERATTUPETTA ---------------** ## **APPELLANT/APPELLANT/PLAINTIFF:** **-----------------------------------------------------------** **SANTHOSH M. PHILIP, S/O. M.M.POTHAN, AGED 44 YEARS, MANNOORETTONNIL, MELAMPARA KARA,THALAPPALAM VILLAGE.** **BY ADV. SRI.P.C.HARIDAS** ## **RESPONDENT(S)/RESPONDENTS/DEFENDANTS:** **-------------------------------------------------------------------------** **1. GOVERNMENT OF KERALA, REPRESENTED BY DISTRICT COLLECTOR,** **KOTTAYAM-686 001.** **2. TAHSILDAR, MEENACHIL TALUK OFFICE, CIVIL STATION, PALA-686 577.** **3. DISTRICT SURVEY SUPERINTENDENT, DISTRICT SURVEY SUPERINTENDENT OFFICE, KOTTAYAM-686 001.** **BY GOVERNMENT PLEADER SMT. LILLY LESSLIE** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 779 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21[st] day of July, 2014 ## **JUDGMENT** Having been non-suited by both the courts below, the plaintiff in O.S.24 of 2010 of Munsiff's Court, Erattupetta has come up in appeal. The suit was one for declaration of title and consequential injunction. 2. The plaintiff claims title to the suit property by virtue of Exts. A1 and A2 which took in respectively 10 cents and 40.400 cents of property. He acquired the property from his father who acquired it under Ext.A3 document. The property is situated in Sy. Nos. 102/4, 102/6 and 102/5. As per Ext. A3, document of title of the father of the plaintiff, he obtained 13 cents in Sy. No.102/4, 15 cents in Sy. No.102/6 and 18 cents in Sy. No. 102/5. Thus he obtained 46 cents of land. He executed two gift deeds, namely, Exts. A1 and A2, the former one for 10 cents and the latter one for 40.400 which he obtained under Ext.A3. RSA.779/2014. 2 3. The plaintiff, complaining that the defendants are trying to interfere with his right to plaint item No.3 which is claimed to be a portion of plaint item No. 2, sued for declaration of title over item No.3 and consequential injunction. 4. The defendants resisted the suit by pointing out that the plaintiff could not claim more extent than 46 cents which his father obtained under Ext.A3. Father who had obtained only 46 cents could not have assigned 50.400 cents as per Exts.A1 and A2, the two documents on which reliance is placed by the plaintiff. Contending that the plaintiff claims right over puramboke land, they prayed for a dismissal of the suit. 5. On the above pleadings, issues were raised by the court below and parties went to trial. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Exts. A1 to A7 from the side of the plaintiff. Exts.C1 and C1(a) are the commissioner's report and plan. RSA.779/2014. 3 The defendants did not adduce any evidence. 6. The trial court found that 4.400 cents of land which is scheduled as item No.3 could not have formed part of the assignment under Exts. A1 and A2 since the assignor under that document had obtained only 46 cents as per Ext.A3. The trial court also found that going by the commission report, plaint item No.3 was lying separately from the other properties and there is nothing to show that the plaintiff was exercising any right over the same. Finding that the plaintiff had failed to prove title and possession to plaint schedule item No.3, the trial court also observed that since there was no plea for adverse possession and limitation, that need not be considered, the suit was dismissed. 7. Probably taking hint from the judgment, the plaintiff, in the appeal filed by him, sought amendment of the plaint by incorporating a plea that he perfected title to plaint item No.3 by adverse possession and limitation. The lower appellate court after having discussed the entire evidence in RSA.779/2014. 4 the case and relying on the decision of the Apex Court reported in Hanumaiah v. Secretary to Government of Karnataka, Revenue Department ((2010) 5 SCC 203) held that the suit for declaration of title by adverse possession and limitation will not lie and accordingly confirmed the judgment and decree of the trial court. 8. Learned counsel appearing for the appellant very vehemently contended that the courts below have misdirected themselves both on facts and in law and the decree cannot be sustained. According to the learned counsel, even going by the admission made in the written statement, the plaintiff has 50 cents of property over which he has title and possession and he had laid the suit only for that extent of property. Referring to the Commission report, which is extracted in paragraph 15 of the lower appellate court judgment, it is contended that item Nos.2 and 3 are lying contiguously and that is sufficient to show that the property was in the possession of the plaintiff. It is also contended that RSA.779/2014. 5 agricultural operations noticed in item No.3 is similar to the one in items No.2 and that further fortifies the claim of the plaintiff that plaint item No.3 was in his absolute possession and enjoyment. The courts below, according to the learned counsel, were not justified in coming to the conclusion that merely because Ext.A3 mentioned only 46 cents, the plaintiff cannot lay claim to item No.3. 9. The learned counsel then went on to point out that on a proper appreciation of the evidence in the case, it can be found that the judgment and decree of the courts below cannot be sustained. 10. Though the argument may seem to be convincing at first, it carries little merits. Admittedly as has been found by the courts below, Ext.A3 document by which the father of the plaintiff obtained rights over three items of properties comprised in three survey numbers come to a total extent of 46 cents. He as per Ext.A1 document gifted 10 cents to the plaintiff and thereafter by Ext.A2 gift deed gifted RSA.779/2014. 6 away 40.400 cents of land. Both the courts below have found that when the assignor had only rights over 46 cents of land, he could not have assigned 50 cents. Both the courts below on an appreciation of the evidence in the case held that item No.3 having an extent of 4.400 cents of land lies distinct and separate from the rest of the properties owned and possessed by the plaintiff and that is a clear indication of the fact that the said portion of the land was not taken in by the documents of title of the plaintiff. 11. It is significant to notice that the plaintiff never had a case that his father who obtained properties under Ext.A3 had a larger extent of land than what is stated in the document going by the boundaries mentioned in the document. The courts below on the basis of the commission report came to the conclusion that the properties obtained by the plaintiff are comprised in Sy. Nos. 530/7 and 530/7-1 and he had no property in Sy. No.530/5 and it was also found that 4.400 cents of land was comprised in Sy. No.530/5. RSA.779/2014. 7 12. Learned counsel for the appellant heavily relied on that portion of the commission report in which it is stated that plaint items 2 and 3 lies contiguously. But that can be of no aid to the plaintiff. The report further goes on to say that there is level difference between the two properties and item Nos.2 and 3 lie well separated and as distinct plots. The plaintiff has a case that the mistake might have arisen in the resurvey. This is a case which the plaintiff never had throughout and if he was aggrieved by the resurvey, he had to take necessary steps as are available under the appropriate law. 13. One cannot omit to note that at the appellate stage the plaintiff gave up his claim of title to item No.3 and then sought to amend the plaint seeking to incorporate a plea of having perfected title by adverse possession and limitation and the lower appellate court has found that it was a totally inconsistent plea and also found that in view of the recent decision of the Apex Court a declaratory suit on that basis RSA.779/2014. 8 cannot lie. The lower appellate court reappreciated the evidence and came to the conclusion that the plaintiff cannot succeed. 14. The inconsistent stand by the plaintiff at the trial court on title and the attempted amendment of the plaint at the appellate stage show that the finding of the trial court that 4.400 cents does not form part of the property acquired by the predecessor-in-interest of the plaintiff is justified. One may here again recollect the claim that the plaintiff has no case that his father by Ext.A3 had obtained a larger extent of land situated within the boundaries mentioned in the document, though the document mentioned only 46 cents. 15. Both the courts below have considered the evidence in considerable detail and have come to the conclusion that 4.400 cents cannot form part of item Nos. 1 and 2 and takes in the puramboke property as identified by the Commissioner. RSA.779/2014. 9 16. The findings of the courts below are based on appreciation of evidence and are essential questions of fact. It is not shown that the findings are either perverse or contrary to the evidence on record. Even assuming that a different view might be possible, this court will be justified in confirming the findings of the courts below which are of concurrent in nature. In the result, this appeal is dismissed in limine. **P. BHAVADASAN, JUDGE** sb.