IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 483 of 2008()
1. JAMES, S/O.THOMAS, POOVANNUMOOTTIL,
... Petitioner
Vs
1. P.T.MATHAI, S/O.THOMAS,
... Respondent
For Petitioner :SRI.LIJU.V.STEPHEN
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :15/01/2009
O R D E R
* *R.S.A.*RAMKUMAR,*J.* * * *
* *V. * * * * * * *
*
NO. 483 of 2008
*Dated, *15th*January, *2009*
* * * * * * * * * * * * *
JUDGMENT
The sole defendant in O.S. 442 of 2000 is the sole appellant
in this Second Appeal. The said suit instituted by the respondent /
plaintiff was one for declaration of his title and possession over the
plaint schedule item Nos. 1 and 3 and for fixation of boundary
and for a consequential prohibitory injunction.
2. The plaintiff is the younger brother of the
appellant/defendant. The defendant is the owner of plaint
schedule item No. 2 and 4. As per Exts. A2 to A5 documents
ranging between 1972 and 1999 the plaintiff obtained title over
plaint schedule items 1 and 3 . It is admitted that the plaintiff went
abroad to Canada in the year 1971 and he did not turned up for 32
years.
3. The suit was filed in year 2000 seeking the above
reliefs. The suit was resisted by the appellant/defendant
contending inter alia that he was in exclusive possession of the
plaint schedule items 1 and 3 belonging to the plaintiff and
hostile to the interest of the plaintiff. and that the title, if any, of the
plaintiff over plaint schedule items 1 and 3 was lost by adverse
possession and limitation.
4. On the side of the plaintiff, his power-of-attorney was
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examined as P.W.1 and Exts.A1 to 6 were marked. On the side of
the defendant/appellant he examined himself as DW1 and also
examined 9 other witnesses as DW2 to 10 and got marked Exts.
B1 to B10. Two Advocate Commissioners deputed by the trial court
submitted their reports and plan which have been marked as Exts.
C1 series , C2 series and C3 series.
5. The learned Munsiff, after trial, as per judgment and
decree dated 28-2-2004 decreed the suit after rejecting the
defence set up by the appellant. On appeal preferred by the
appellant as A.S. No. 119 of 2004 before the District Court,
Pathanamthitta, the learned Addl. District Judge as per judgment
and decree dated 15-1-2007 dismissed the appeal confirming the
judgment and decree passed by the trial court. Hence, this Second
Appeal.
6. The following are the questions of law formulated in the
memorandum of Second Appeal:-
i) Whether the Court can decree a suit for declaration of
title and possession after the expiry of period of
limitation as contemplated under Sec. 27 of the
Limitation Act ?
ii) Was the Court below justified in allowing the
plaintiff to fix the boundary as per the commissioner’s
report, and thereby ignoring the basic title deed by
which the plaintiff and defendant derived title to their
respective plaint schedule properties ?
7. I heard the learned counsel appearing for the appellants
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who re-iterated the contentions of the appellant to submit that the
evidence adduced by the appellant will unequivocally show that the
appellant has been in possession of plaint schedule items 1 and 3
to the exclusion of the plaintiff for more than 30 years, that the
respondent/plaintiff had not entrusted the defendant to look after
the property during his absence could have very well found out that
the appellant/defendant has been in open and uninterrupted
possession of his property for more than 30 years whereby his title
over the property stood extinguished under Sec. 27 of the
Limitation Act, 1963. The learned counsel also relied on the
decisions reported in 2004 (1) KLT SN Page 46 and 2005 (2) KLT SN
Page 51 (SC) to contend for the position that the finding recording
the adverse possession involved a question of law justifying the
interference by this Court under Sec. 100 C.P.C. and that were the
adverse possessor has has been in possession for more than the
statutory period, the court has no other alternative except to hold
that the title of the real owner is lost.
8. I am afraid that I cannot agree with the above
submissions. The lower appellate court has, while re-appreciating
the oral and documentary evidence considered the exhibits
produced by the appellant and has held that most of them do not
pertain to the plaint schedule items 1 and 3 which are situated
close to the properties of the appellant namely, plaint schedule
items 2 and 4. The appellant is none other than the elder brother of
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the respondent/plaintiff. If during the absence of the plaintiff, the
elder brother has been exercising acts of possession over the
plaint schedule item Nos. 1 and 3 belonging to the plaintiff, there
cannot be a presumption of any hostile animus in the conduct of
his brother. The evidence adduced by the plaintiff through his
power- of -attorney holder shows that after acquiring the title over
plaint schedule items 1 and 3, mutation over those items has also
been effected in his favour and he had paid tax even on the eve of
the filing of the suit. Even assuming that the appellant/defendant
had paid tax in respect of plaint schedule items 1 and 3 that can
only be to the account of the plaintiff in whose favour the
mutation had been effected in the revenue registers. The
appellant/elder brother paying tax, if any, to the account to his
younger brother who was in Canada cannot be characterised as an
act of adverse possession. The classic requirements of adverse
possession are nec vi nec clam and nec precario which are
conspicuously absent in this case. The Possession, however long,
cannot necessarily be adverse unless the possessor has brought it
to the knowledge of the real owner (who is abroad) that he has
been in possession with a hostile animus towards his own
younger brother. The findings recorded by the courts below, apart
from being pure findings of fact are fully in accordance with the
decision of the apex Court in P.T. Munichikkanna Reddy and
Others v. Revamma and Others – 2007 (6) SCC 59. No question of
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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 15 th January 2009.
V. RAMKUMAR,
(JUDGE)
ani.