IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 756 of 1996()
1. GEORGE
... Petitioner
Vs
1. MATHEW
... Respondent
For Petitioner :SRI.T.M.CHANDRAN
For Respondent :SRI.C.RAMAN
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :26/05/2010
O R D E R
HARUN-UL-RASHID, J.
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S.A.No.756 Of 1996
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Dated this the 26th day of May, 2010.
J U D G M E N T
The defendants 1 and 2 in O.S.No.310 of 1988 on the file of
the Munsiff Court, Muvattupuzha, are the appellants. The suit
was filed by the first respondents/plaintiff for declaration of title,
recovery of possession and perpetual prohibitory injunction. The
trial court decreed the suit declaring that the plaintiff has got title
to plaint A, B & C schedule properties and also allowed to recover
plaint A,B & C schedule properties. The prayer for grant of
injunction was also allowed. The trial court ordered recovery of
plaint A schedule property from defendants 1 & 2 and recovery of
possession of B & C schedule properties from other defendants.
The other defendants did not chose to file appeal before this
Court. Therefore the dispute at this state relates only to plaint A
schedule property. In the appeal preferred by the defendants 1
to 4 as A.S.No.2 of 1991, the learned Sub Judge confirmed the
decree and judgment passed by the trial court. Parties are
hereinafter referred to as the plaintiff and defendants as arrayed
in the suit.
S.A.No.756 Of 1996
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2. The plaintiff claimed title to plaint A schedule property
on the strength of Exts.A1 & A2 deeds. The appellants disputed
the title of the plaintiff. According to the appellants plaint A
schedule property do not form part of the property covered by
Exts.A1 & A2 and they further contended that they are in
continuous possession and enjoyment of the plaint A schedule
property and that the plaintiff never acquired possession of plaint
A schedule property. As the defendants 1 & 2 disputed the title
of the plaintiff over plaint A schedule property, the trial court
proceeded and examined the issue as to whether the plaintiff is
entitled to a decree as prayed for. The trial court examined the
witnesses and rightly observed that the defendants 1, 3 & 5
disputed the plaintiff’s title to plaint schedule properties, the onus
is on the plaintiff to prove that the plaintiff is the title holder of
the plaint schedule properties.
3. On the side of the plaintiff PW1 was examined and
Exts.A1 to A10 were marked. DWs 1 to 5 were examined on the
side of the defendants and Exts.B1 and B2 were marked.
Commission report and plan were marked as Exts.C1 and C1(a).
S.A.No.756 Of 1996
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4. PW1 testified before the court that in the year 1982
when he was hospitalized the defendants trespassed into plaint A,
B & C schedule properties and reduced them into their unlawful
possession. At the instance of the plaintiff an advocate
commissioner was deputed to identify the plaint schedule
properties. A Taluk Surveyor was also deputed to assist the
advocate commissioner. Plaint A, B & C schedule properties are
shown as plot Nos.1 to 4 in Ext.C1(a). Ext.C1(a) will disclose the
fact that plaint A, B & C schedule properties form part of the
properties covered by Exts.A1 and A2. Though defendants 1, 3 &
5 disputed the plaintiff’s title to plaint A, B & C schedule
properties, they have not stated in the written statement as to
how they acquired title to B & C schedule properties. Appellants
in their written statement contended that plaint A, B & C schedule
properties are in their possession by virtue of Exts.A4 and B2 and
the first defendant is in possession for an on behalf of the second
defendant. The trial court observed that the defendants 1 & 2
never applied nor asked the commissioner to measure out the
plaint A schedule property on the basis of Ext.B2 sale deed
S.A.No.756 Of 1996
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No.1135 of 1983 to show that plaint A schedule property form
part of the said document. At the same time the trial court
accepted the report and plan prepared by the commissioner and
concluded that the property covered by Ext.C1(a) form part of
the property covered by Exts.A1 & A2. The trial court also noted
that the plaintiff had produced Ext.A6, copy of the survey plan to
show that the locational lie of the property shown in Ext.C1 and
Ext.A6 are same.
5. Trial court held that Ext.C1(a) shows that plaint
schedule properties covered by Exts.A1 & A2 do not form part of
Ext.B2 as contended by the appellants. Trial court also concluded
that though defendants 1, 3 & 5 filed objections to Exts.C1 and
C1(a). The objections were not substantiated. On facts, trial
court also concluded that the evidence tendered by the plaintiff
regarding the alleged trespass is true. The trial court also
examined the question as to whether the plea of adverse
possession set up by the appellants and other defendants are
true. The trial court concluded that the plaintiff has established
his title to the plaint schedule properties and the defendants
S.A.No.756 Of 1996
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failed to prove any right over plaint A, B & C schedule properties
and further held that the evidence tendered by the defendants is
not sufficient enough to hold that they had perfected the title to
the plaint schedule properties by adverse possession and
limitation. In the appeal preferred by the defendants 1 to 4, the
appellate court re-appreciated the evidence and held that no
grounds are made out by the appellants to interfere with the
findings recorded by the trial court.
6. I have examined the rival contentions of the parties
with reference to the oral and documentary evidence and grounds
raised in the second appeal. I do not find any reason to interfere
with the conclusions and findings recorded by the trial court
which was confirmed by the appellate court. No question of law
much less any substantial question of law arises for consideration
in the appeal.
In the result, the appeal fails and accordingly, dismissed.
There will be no order as to costs.
HARUN-UL-RASHID,
Judge.
bkn/-