High Court Kerala High Court

Cherikuzhy Parambil Raman vs P.T.Govindan on 4 February, 2009

Kerala High Court
Cherikuzhy Parambil Raman vs P.T.Govindan on 4 February, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA.No. 1294 of 2008()


1. CHERIKUZHY PARAMBIL RAMAN,
                      ...  Petitioner
2. CHERIKUZHY PARAMBIL VALLEESAN, 64 YEARS,
3. CHERIKUZHY PARAMBIL KASKHMANAN,
4. CHERIKUZHY PARAMBIL CHANDRAN (DIED)
5. CHERIKUZHY PARAMBIL GANESAN, 51 YEARS,
6. CHERIKUZHY PARAMBIL ANJANA, 48 YEARS,
7. CHERIKUZHY PARAMBIL ABHILASH,
8. CHERIKUZHY PARAMBIL VINOD, 25 YEARS, S/O
9. CHERIKUZHY PARAMBIL PONNY, 23 YEARS,

                        Vs



1. P.T.GOVINDAN, 66 YEARS, S/O. UNNIRAMAN,
                       ...       Respondent

2. ASHALATHA, AROUND 40 YEARS,

3. A.JANARDHANAN, AROUND 50 YEARS,

                For Petitioner  :SRI.T.RAVIKUMAR

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :04/02/2009

 O R D E R
                       V. RAMKUMAR, J.
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                     R.S.A.No.1294 of 2008
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            Dated this the 4th day of February, 2009

                            JUDGMENT

The plaintiffs in O.S.No.1 of 2005 on the file of the

Principal Munsiff’s Court, Kozhikode-I are the appellants in

this second appeal. The said suit was one for a declaration

that the plaintiffs have acquired right over the plaint schedule

property by adverse possession and limitation and also for a

perpetual injunction restraining the defendants from

constructing a compound wall or doing any acts of waste in

the plaint schedule property.

2. The suit was resisted by the defendants contending,

inter alia, that the plaintiffs had not perfected title by adverse

possession, that the possession of the plaintiffs was

permissive and that the rights of the defendants were not

extinguished by adverse possession.

3. During the stage of evidence, the 5th plaintiff

examined as PW1 admitted that the plaint schedule properties

R.S.A.No.1294 of 2008
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have been used for the purpose of the deities of the temple as

permitted by the predecessors of the defendants 1 and 2 and

that the permission given to the plaintiffs by Sundararajan,

Sarala,Vimala etc. was only on certain important days such as

Navarathri Pooja, Mandala Maholsavam, Sivarathri etc. It

was this permissive possession which was claimed to be

possession satisfying the requirements of nec vi, nec clam and

nec precario and to contend that the rights of the defendants

were lost by adverse possession and limitation. Both the

courts below have held that the permissive possession, if any,

of the plaintiffs could not extinguish the title of the

defendants. That apart, the courts below have observed that

the plaintiffs have failed to establish open, exclusive, hostile

and uninterrupted possession with requisite animus so as to

constitute acquisition of title by adverse possession within

the meaning of Section 27 read with Article 65 of the

Limitation Act. The said finding is a pure finding of fact and

is in complete accord with the decisions of the Apex Court in

T.Anjanappa and others v. Somalingappa and another

R.S.A.No.1294 of 2008
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(2006(7) SCC 570), M.Durai v. Muthu and others (2007(3)

SCC 114); P.T Munichikkanna Reddy v. Revamma (2007(6)

SCC 59) and Hemaji Waghaji Jat v. Bhikhabhai

Khengarbhai Harijan and others (2008(7) Supreme 11) .

No question of law, much less any substantial question of law

arises for consideration in this second appeal. The questions

of law formulated in the memorandum of appeal also do not

arise for consideration in this second appeal which is

accordingly dismissed in limine.

Dated this the 4th day of February, 2009.

V. RAMKUMAR, JUDGE

sj