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
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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
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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