High Court Kerala High Court

Saraswathi vs Manoharan on 9 July, 2007

Kerala High Court
Saraswathi vs Manoharan on 9 July, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 1154 of 2006()


1. SARASWATHI,
                      ...  Petitioner
2. PADMAKSHI,
3. SANTHA,
4. SHEELA,

                        Vs



1. MANOHARAN, S/O.KESAVAN,
                       ...       Respondent

                For Petitioner  :SRI.P.GOPAL

                For Respondent  :SRI.P.B.SURESH KUMAR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :09/07/2007

 O R D E R
                 M.SASIDHARAN NAMBIAR, J.
                    ...........................................
                   R.S.A.No. 1154               OF 2006
                   ............................................
         DATED THIS THE 9th DAY OF JULY, 2007

                               JUDGMENT

Defendants 1 to 3 in O.S.109 of 1995 on the file of Munsiff

Court, Paravur are the appellants. Respondent is the plaintiff.

Respondent instituted the suit seeking a decree for fixation of

the boundaries separating plaint A and B schedule properties

and for recovery of possession of the property in the possession

of appellants after demolishing the huts in the plaint C schedule

property. Respondent in the plaint contended that plaint A and

B schedule properties were purchased by the respondent under

Ext.A1 sale deed and since then he has been in possession of the

property and the appellants trespassed into the plaint schedule

property and they have no right to do so and therefore the

boundaries are to be fixed separating plaint A and B schedule

properties and respondent is entitled to recover possession of

the property trespassed and reduced into possession by

appellants. Appellants in their written statement contended that

they are in possession of sixty cents of the property as per a

mortgage of 1087 ME and the mortgage was not redeemed by

the predecessor in interest to the respondent and therefore

RSA 1154/2006 2

respondent is not entitled to the decree sought for.

2. Learned Munsiff on the evidence of PWs 1 to 6 on the

side of respondent and DW1 on the side of appellants and

Exts.A1 to A22 and Exts.B1 to B4, Ext.X1 and C1 and C2 held

that Commissioner has correctly demarcated plaint A and B

schedule properties in Ext.C1 and C2(b) plan and fixed the

boundaries in accordance with the demarcation of properties as

shown in Ext.C2(b) plan. Learned Munsiff also found that

respondent is entitled to recovery of possession of plaint A

schedule property from appellants after demolishing the hut in

plaint C schedule property. Appellants challenged the decree

and judgment before District Court, Kollam in A.s.147 of 2001.

Learned Additional District Judge, on reappreciation of evidence,

confirmed the findings of learned Munsiff and dismissed the

appeal. It is challenged in the second appeal.

3. Learned senior counsel appearing for appellants and

learned counsel appearing for the respondent who appeared

consequent to the notice issued before admission, were heard.

Learned senior counsel argued that though courts below relied

on the decree for redemption, there is no evidence to prove that

delivery was taken pursuant to the decree and even though

RSA 1154/2006 3

under Ext.A7 decree and Ext.A6 judgment it was declared that

respondent has been in possession of the property, appellants

were never dispossessed pursuant to the decree for redemption

and their possession was not disrupted and therefore respondent

is not entitled to get the decree granted by the courts below. It

was further argued that there is no evidence as to when

appellants allegedly trespassed into the property and on the

evidence courts below should have found that appellants have

been continuing in possession under the original mortgage of

1087 ME and respondent is not entitled to the decree sought for.

Learned counsel also argued that in any case identity of the

plaint A schedule property was not established and in such

circumstances courts below should not have granted the decree.

4. Learned counsel appearing for respondent argued that

in the light of Ext.A6 judgment respondent is not entitled to

contend that they continued possession of the property as that

was exactly the question decided in O.S.24 of 1966. It was also

argued that once it is found that respondent has been in

possession of the property and a decree declaring his possession

was granted and the title of respondent is established under

Ext.A1, it is for the appellants to establish that the title has been

RSA 1154/2006 4

barred by adverse possession and on the evidence courts below

rightly found that respondent has title and is entitled to the

decree for recovery of possession sought for. Learned counsel

also argued that identity of the property has been concurrently

found by the courts below and that factual finding cannot be

interfered in exercise of the powers of this court under Section

100 of Code of Civil Procedure.

5. On hearing learned counsel appearing for appellants, I

do not find any substantial question of law involved in the

appeal. As far as the identity of the plaint schedule properties

are concerned, the trial court as well as first appellate court, on

analysing the evidence, found that Commissioner has correctly

demarcated the property in Ext.C2(b) plan. That factual finding

cannot be interfered by reappreciating the evidence, as sought

for by the learned senior counsel. The title of respondent to the

plaint schedule properties under Ext.A1, as such, was not

disputed. What was contended was that though Ext.A3 decree

in O.S. 261 of 1956 was obtained, delivery of the property was

not taken as delivery receipt was not produced and as there is no

evidence to prove that delivery of the mortgaged property was

taken, and it is to be taken that appellants continued in

RSA 1154/2006 5

possession. It was also argued that as there is no evidence to

prove that appellants were dispossessed it is to be found that

they continued their possession even after Ext.A7 decree and in

such circumstances, courts below should not have granted the

decree for recovery of possession. True, delivery receipt

evidencing delivery of possession pursuant to Ext.A3 decree was

not produced. But in the light of Ext.A6 judgment when the

possession of respondent was declared by the court in the suit

filed against appellants, they cannot be heard to contend that

they continued in possession of the property. Under Ext.A6 and

A7 decree and judgment in O.S.24 of 1966, competent court has

already declared that respondent has title and possession to the

property. Though it was challenged in A.S.255 of 1968, as

evidenced by Ext.A8 judgment, Ext.A6 judgment was confirmed

and that has become final. Appellants are therefore not entitled

to contend that in spite of the decree granted in O.S.24 of 1966

they continued their possession. If that be so, appellants could

not have been in possession of the property when even A.S.255

of 1968 filed by them was dismissed under Ext.A9 judgment.

6. Once respondent has established his title to the plaint A

schedule property, it is for appellants to prove that the title is

RSA 1154/2006 6

barred by adverse possession. In a suit for recovery of

possession on the strength of title, plaintiff has no duty to prove

in addition to his title that he has been in possession of the

property within a period of 12 years as was the case with Article

141 of the Limitation Act 1908. Under Article 64 of Limitation

Act 1963, it is for defendants to establish that they have been in

possession of the property for more than the requisite period

and that too with the animus to possess against the true owner

and therefore the title of plaintiff has been barred by adverse

possession. The courts below on appreciating the evidence

entered a factual finding that appellants did not establish that

they have perfected their title by adverse possession. That

factual finding also cannot be interferred. There is no

substantial question of law involved in the appeal.

Appeal is dismissed in limine.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-