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Josephin Babu vs Agnus Galy on 3 November, 2009

Kerala High Court
Josephin Babu vs Agnus Galy on 3 November, 2009
       

  

  

 
 
  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.
                             --------------------------------------
                               R.S.A.No.1121 of 2009
                             --------------------------------------
                     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

RSA No.1121/2009

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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

RSA No.1121/2009

3

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

RSA No.1121/2009

4

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

RSA No.1121/2009

5

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.

cks

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