IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 396 of 2007()
1. MAMMU, S/O.LATE SEEDIKUNHI,
... Petitioner
2. AISAMMA, D/O.LATE SEEDIKUNHI,
3. MARIYAMMA, D/O.LATE SEEDIKUNHI,
Vs
1. MOHAMMAD @ S.A.AMOO HAJI,
... Respondent
2. KHADEEJAMMA, W/O.LATE ABDULLA,
3. ISMAIL, S/O.LATE ABDULLA,
4. ABBAS, S/O.LATE ABDULLA,
5. ABDULRAHIMAN, S/O.LATE ABDULLA,
6. AISHA, W/O.MOHAMMED, MAIPPADY,
7. NABEEZA, W/O.ABDULLA,
8. MUSTAFA, S/O.LATE ABDULLA,
9. SHAFI, S/O.LATE ABDULLA, MAIPPAY,
For Petitioner :SRI.V.V.ASOKAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :16/07/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No. 396 OF 2007
............................................
DATED THIS THE 16th DAY OF JULY, 2007
JUDGMENT
Plaintiffs in O.S.136 of 2000 on the file of Munsiff Court,
Kasargod are the appellants. Defendants are respondents.
Appellants instituted the suit seeking a decree for recovery of
possession of the plaint schedule property contending that they
have title to the property under Ext.A1 patta whereunder title
was assigned by the Government in their favour and respondents
have no manner of right over the same and therefore they are
entitled to recover possession of the same on the strength of
title. Respondents in their written statement contended that
they got assigned the property in their possession under Ext.B1
and the disputed portion of the property forms part of the
property which was enclosed in a compound wall constructed in
1980 and they have title to the property and even if appellants
have title to the property it is barred by adverse possession and
limitation.
2. Learned Munsiff on the evidence of PW1 and Dws 1 and
2 and Exts.A1 to A4, Exts.B1 & B2 and Exts.C1 and C2,
dismissed the suit holding that though the disputed property
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forms part of the property assigned to the appellants under
Ext.A1, their title has been lost by adverse possession and
respondents have established that they have perfected their title
by adverse possession. The suit was dismissed. Appellants
challenged the decree and judgment before Sub Court, Kasargod
in A.S. 118 of 2002. Learned Sub Judge, on reappreciation of
evidence, confirmed the findings of learned Munsiff and
dismissed the appeal. It is challenged in the second appeal.
3. Learned counsel appearing for the appellant was heard.
Learned counsel, relying on the written statement filed by
respondents where they admitted that they did not claim any
right over the property in Survey No.162/4 and 161/2 of Kannur
Village, argued that as seen from Ext.C2 plan submitted by the
Commissioner, the disputed portion of the property falls in
Survey No.162/4 and as per the written statement respondents
did not claim any right to that property and as courts below
found that appellants have title to that property under Ext.A1 a
decree for recovery of possession should have been granted. It
was argued that a plea of adverse possession is not sustainable
when respondents did not recognise the right of appellants. It
was also argued that when in the written statement it was
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contended that they have been in possession of the property
from 1980, what was deposed by DW1 was that they have been
in possession of the property from 1967 onwards and this
inconsistent case should not have been accepted by the courts
below. Relying on the decision of Apex Court in Karnataka
Board of Wakf V. Government of India and others (2004
SAR Civil 535) learned counsel argued that without establishing
from which date onwards respondents have been in possession of
the property and that too adverse to the true owner, they are not
entitled to claim a title perfected by adverse possession and
findings of the courts below are unsustainable.
4. On hearing learned counsel appearing for appellants
and going through the judgments of the courts below and in the
light of the factual finding of the courts below, I do not find any
substantial question of law involved in the appeal. True, in order
to succeed the plea of adverse possession, as declared by the
Apex Court in Karnataka Board of Wakf’s case (supra)
defendants have to prove when their possession started adverse
to the true owner. The plea of adverse possession is not a pure
question of law but a blended one of fact and law. A person
pleading adverse possession has no equities in his favour and
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has to establish that he has been in possession of the property
for the requisite period with the animus possidanti adverse to
the owner and that too open and exclusive possession, hostile to
the true owner.
5. Though learned counsel appearing for appellants argued
that as respondents did not claim any right or title to the
property in Survey No.162/4 and the disputed property is in
Survey No.162/4, the plea of adverse possession is not
sustainable. The written statement has to be read as above. The
contention raised in the written statement is that the property
assigned in favour of the defendants, which lies to the east and
the property belonging to the appellants which lies to the west
were all government lands and were assigned in favour of
appellants and respondents in 1980 respectively. The specific
contention in the written statement was that plaint B schedule
property which is the disputed portion, has been in their
possession and enclosed by a compound wall constructed in
1980 and they have effected improvements and planted
cashewnut and coconut plants and they have been in possession
of the property asserting hostile title to the knowledge of the
plaintiffs openly, uninterruptedly and peacefully and thereby
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they have perfected the title. Therefore what was contended by
defendants was that they have been in uninterrupted and
peaceful possession of the plroperty which lies to the east of the
compound wall from 1980 onwards and it is to the knowledge of
the appellants and that too asserting hostile title to their
knowledge and thereby they have perfected their title. Ext.C1
report and C2 plan show that there is a compound wall
separating the disputed property which is marked as 162/4A and
the remaining property which admittedly is in the possession of
the appellants, marked 162/4 and separating the two plots there
is an old mud bund. The report also shows that the property to
the east of the said old mud bund was being enjoyed along with
the remaining property which lies to the east of the disputed
plot. Therefore a reading of the written statement would
establish that, what was claimed by respondents was that they
have been in possession of the disputed property from 1980
onwards openly and peacefully and to the knowledge of the
appellants and that too adverse to the appellants and thereby
they have perfected their title by adverse possession.
6. The trial court as well as first appellate court on
appreciation of evidence found that respondents have been in
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possession of the disputed plot for more than the requisite
period and it was with the required animus and asserting the
hostile title. In such circumstances, that factual finding cannot
be interfered in exercise of the powers of this court under
Section 100 of Code of Civil Procedure.
Appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-