Thankaraj and others v. The Midland Rubber & Produce Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 RSA.No. 962 of 2007() --------------------AS.32/2004 of SUB COURT,KATTAPPANA OS.69/1997 of MUNSIFF COURT, PEERUMEDU .................... ## APPELLANTS : APPELLANTS/DEFENDANTS -------------------------------------- 1. THANKARAJ, S/O.DORAISWAMY, DEEPANE DIVISION, ARNAKKAL ESTATE, VANDIPERIYAR KARA, MANJUMALA VILLAGE, IDUKKI. 2. PONNAMMA, W/O.LATE DORAISWAMY, DEEPANE DIVISION, ARNAKKAL ESTATE, VANDIPERIYAR KARA, MANJUMALA VILLAGE, IDUKKI. 3. JAYARAJ, S/O.LATE DORAISWAMY, DEEPANE DIVISION, ARNAKKAL ESTATE, VANDIPERIYAR KARA, MANJUMALA VILLAGE, IDUKKI. 4. GLORY, D/O.LATE DORAISWAMY, INJAKKADA ATTORAM, VANDIPERIYAR KARA, MANJUMALA VILLAGE, IDUKKI. 5. KASTHURI, D/O.LATE DORAISWAMY, MANJUMALA PUTHUVAL, MANJUMALA VILLAGE, IDUKKI. BY ADV. SRI.M.P.MADHAVANKUTTY ## RESPONDENT:RESPONDENT/ PLAINTIFF -------------------------------------------- THE MIDLAND RUBBER & PRODUCE COMPANY LTD., REGISTERED OFFICE AT W-21/674, BEACH ROAD, ALLEPPEY-12. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.2053/2007 IN R.S.A.NO.962/2007 29.1.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge ORDER ON I.A.NO.2053/2007 IN R.S.A.NO.962/2007 29.1.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge ## **M.SASIDHARAN NAMBIAR,J.** =========================== R.S.A. NO. 962 OF 2007 =========================== Dated this the 29th day of January, 2008 JUDGMENT Defendants in O.S.69/1997 on the file of Munsiff Court, Peermade are the appellants. Plaintiff is the respondent. Respondent instituted the suit for recovery of possession contending that plaint schedule property belongs to the respondent company and second appellant was the supervisor under respondent Company and while he was in service he was residing in the estate line room and was also allowed to construct a cattle shed in the vacant land. After his retirement, appellant retained the cattle shed and respondent did not demand vacant possession immediately. First appellant the son of second appellant was living along with second appellant in the estate line room. After the retirement of second appellant some modifications were affected in the shed, which is the plaint schedule property. Appellants have no R.S.A.962/2007 2 right to continue in possession of the said shed. Eventhough appellants were directed to vacate the shed they claimed right over five cents of the property and refused to vacate. Respondent sought a decree for recovery of possession of the plaint schedule property on the strength of title with mesne profits. Appellants resisted the suit contending that respondent Company has no title to the plaint schedule property and plaint schedule property was taken possession by second appellant 50 years back and it is a puramboke land and they have been exclusive possession of the property since then and respondent Company was never in possession of the property and even if respondent has title to the property, it is lost by adverse possession and limitation. 2. Learned Munsiff on the evidence of Pws.1 and 2, Dw1 and Exts. A1 to A8 and Exts.B1 to B9 and Ext.C1 found that plaint schedule property forms part of the property belonging to respondent and second appellant, father of first appellant was R.S.A.962/2007 3 permitted to reside in one of the line rooms as an employee of the respondent and after retirement he has no right to continue his residence and while in employment second appellant was permitted to put up a cattle shed and after retirement he modified the cattle shed and started living therein and appellants have no right to continue their possession of the building and respondent has title to the property and is entitled to recovery possession. Claim for adverse possession was negatived and a decree for recovery of possession was granted. Appellants challenged the judgment before Sub Court, Kattappana in A.S.32/2004. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellants was heard. 4. The argument of the learned counsel is that Ext.C1 report establish that plaint schedule R.S.A.962/2007 4 building is numbered by the Panchayat and Exts.B1 to B5 establish that appellants have been residing in that building for the last more than 40 years and therefore even if respondent has title to the property, courts below should have found that title is barred by adverse possession and limitation. It was argued that evidence was not properly appreciated by the courts below and therefore the decree of recovery of possessions is not sustainable. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 6. Title of the respondent to the plaint schedule property was concurrently found by the courts below. It was found that it is not a puramboke land as contended by appellants but property of the respondent. There was no serious challenge on these factual findings. The only contention raised in the second appeal is that title of respondent was lost by adverse possession R.S.A.962/2007 5 and limitation. It is based on Exts.B1 to B5 and oral evidence of DW1 that the plea was pressed. Appellants case was that they have been in possession of the property for the last more than 40 years. Mere possession for howsoever length of time does not result in converting permissive possession into adverse possession. There should be an animus to possess it as against the true owner and that too to his knowledge. For that appellants have to admit and recognise the title of respondent. The crucial question is whether appellants recognized or admitted the title of respondent to the plaint schedule property so as to claim a title by adverse possession. 7. The position has been settled by a series of pronouncement of law by Apex Court in **Deva v. Sajjan Kumar (2003) 7 SCC 481, Anjanappa v. Somalingappa (2006) 7 SCC 570, and P.T.Munichikkanna Reddy v. Revamma (2007) 6 SCC 59).** R.S.A.962/2007 6 **8.** Appellants in the written statement disputed the title of respondent to plaint schedule property. An alternate contention was raised in the written statement that even if respondent has title, it is lost by adverse possession and limitation. As declared by the Apex Court, unless appellants recognised the title of respondent, they cannot prescribe a title by adverse possession as against them. When the case of appellants was that plaint schedule property is part of Government puramboke land and they have no case that at any point of time before filing of the written statement they acknowledged the title of respondent, there is no question of denying the title of respondent. Therefore they cannot succeed in the plea of adverse possession. The appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- ## M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006