IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1121 of 2009()
1. JOSEPHIN BABU, D/O. VIRASI FERNADEZ,
... Petitioner
2. VIRASI FERNANDEZ,RESIDING AT TC71/1300-4
Vs
1. AGNUS GALY, RESIDINGAT TC 44/515,HUTS
... Respondent
2. JOSEPH FERNANDEZ, RESIDING AT LILLY
3. LUZZY FERNANDEZ, RESIDING AT LILLY
For Petitioner :SRI.THOMAS ABRAHAM
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :03/11/2009
O R D E R
THOMAS P. JOSEPH, J.
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R.S.A.No.1121 of 2009
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Dated this the 3rd day of November, 2009.
JUDGMENT
Second Appeal arises from judgment and decree of learned Additional
District Judge-I, Thiruvananthapuram inA.S.No.184 of 2007 confirming judgment
and decree of learned Additional Munsiff-I, Thiruvananthapuram in O.S.No.1654
of 2000. Parties are referred to as plaintiff and defendants as in the trial court for
convenience.
2. Initially, the suit was for fixation of boundary and it ended in
dismissal. Plaintiff appealed Learned District Judge remanded the case for
fresh disposal and thereafter, plaint was amended to incorporate a prayer for
declaration of title and recovery of possession along with fixation of boundary.
Suit property is 9 (nine) cents in survey No.2798. Plaintiff claimed that the
property belonged to her parents as per Ext.A1 and that they obtained purchase
certificate (Ext.A2) in respect of the said property. Her parents died in Srilanka.
Her brother also died about ten years back in ethnic violence in that country.
She claimed that she is in possession and enjoyment of the suit property having
inherited it from her parents. As per the amended plaint, it is stated that
defendants trespassed into the suit property and took possession. Defendants
contended that suit is not maintainable for non-joinder of necessary parties,
plaintiff has no title over the property and at any rate, defendants having been in
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possession and enjoyment of the suit property for the last 50 years they have
perfect title by adverse possession and by law of limitation. Evidence revealed
that the building constructed by defendants in the property admittedly belonged
to them trespassed into a portion of the suit property. Plaintiff stated that she is
not pressing her claim for recovery of possession of the portion of the suit
property occupied the building. Trial court answered the issues in favour of the
plaintiff and gave her a decree as prayed for excluding the portion occupied by
the building of defendants. First appellate court has confirmed that decree.
Hence this Second Appeal urging as substantial question of law whether finding
of the courts below regarding adverse possession is legal and proper and
whether the suit ought to have been dismissed for non-joinder of necessary
parties. It is contended by learned counsel that on both the above questions,
findings entered by the courts below are erroneous.
3. It is not disputed, or is proved by Exts.A1 to A3 and A15
series that property originally belonged to the parents of plaintiff. There is no
dispute that parents of plaintiff died in Srilanka. Plaintiff as PW1 has given
evidence regarding the death of her parents in Srilanka. She stated that she had
a sister born to her mother in her first marriage. Learned Munsiff has observed
that according to the plaintiff that step sister also died in Srilanka. But in the
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course of cross examination plaintiff stated that the step sister has share in the
property of the mother. Therefore learned counsel contended that step sister
ought to have been made a party to the suit.
4. There is no evidence to show that step sister of plaintiff is alive.
Assuming that she is also alive that does not in any way affect the maintainability
of the suit since one of the co-owner can recover possession of the suit property
from the trespasser. What could be said is that if the step sister is alive
recovery of possession of the suit property from the trespasser will be for and on
behalf of the step sister as well leaving it to the latter to work out her remedy
against the plaintiff. Therefore trial court as well as first appellate court are
correct in holding that suit is maintainable. No substantial question of law is
involved in that finding.
5. What remained is the question whether finding of the courts below
regarding adverse possession is legal and proper. It is contended that evidence
would show that atleast for the last 50 years defendants have been in continuous
possession of the suit property, that a portion of the building belonging to the
defendants is situated in a portion of the suit property is admitted by the plaintiff
also and hence courts below ought to have accepted contention of defendants
regarding their possession for the last 50 years. It is contended by learned
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counsel that payment of revenue as per Exts.A3 and A15 series was by the
grandmother of the plaintiff and that cannot be taken as a payment by the
plaintiff. It is also contended that the said payments after 2000 (suit was filed in
the year 2000).
6. On the other hand, what the defendants produced is Ext.B1,
possession certificate issued by the Village Officer. That Village Officer is not
examined and it is not clear on the strength of what, the Village Officer certified
possession of the defendants there being no document in favour of defendants
to prove their alleged possession for the period of 50 years. True that the
advocate commissioner found that a portion of the building belonging to the
defendants has trespassed into a portion of the plaint schedule property and the
plaintiff stated that she is not pressing her claim for recovery of possession of
that portion. Any length of possession of defendants is not by itself sufficient.
It must be with the hostile title against the real owner. There is nothing on
record to show that any hostile title was asserted by the defendants to the
knowledge of the plaintiff. It has come in evidence that plaintiff was also in
Srilanka for quite some time. Therefore, the contention that defendants have
perfected title by adverse possession cannot be sustained. Title of the plaintiff
over the suit property has been declared excluding the portion occupied by the
building of the defendants and accordingly t decree for recovery of possession
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was also granted and boundary was fixed. Courts below considered the
evidence and found in favour of the plaintiff.
7. On hearing learned counsel and going through the judgments
under challenge I do not find any substantial question of law involved requiring
admission of the Second Appeal and issue of notice to the respondents.
Resultantly, this Second Appeal fails. It is dismissed in limine.
I.A.No.2560 of 2009 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
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