IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 1154 of 2006()
1. SARASWATHI,
... Petitioner
2. PADMAKSHI,
3. SANTHA,
4. SHEELA,
Vs
1. MANOHARAN, S/O.KESAVAN,
... Respondent
For Petitioner :SRI.P.GOPAL
For Respondent :SRI.P.B.SURESH KUMAR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :09/07/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No. 1154 OF 2006
............................................
DATED THIS THE 9th DAY OF JULY, 2007
JUDGMENT
Defendants 1 to 3 in O.S.109 of 1995 on the file of Munsiff
Court, Paravur are the appellants. Respondent is the plaintiff.
Respondent instituted the suit seeking a decree for fixation of
the boundaries separating plaint A and B schedule properties
and for recovery of possession of the property in the possession
of appellants after demolishing the huts in the plaint C schedule
property. Respondent in the plaint contended that plaint A and
B schedule properties were purchased by the respondent under
Ext.A1 sale deed and since then he has been in possession of the
property and the appellants trespassed into the plaint schedule
property and they have no right to do so and therefore the
boundaries are to be fixed separating plaint A and B schedule
properties and respondent is entitled to recover possession of
the property trespassed and reduced into possession by
appellants. Appellants in their written statement contended that
they are in possession of sixty cents of the property as per a
mortgage of 1087 ME and the mortgage was not redeemed by
the predecessor in interest to the respondent and therefore
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respondent is not entitled to the decree sought for.
2. Learned Munsiff on the evidence of PWs 1 to 6 on the
side of respondent and DW1 on the side of appellants and
Exts.A1 to A22 and Exts.B1 to B4, Ext.X1 and C1 and C2 held
that Commissioner has correctly demarcated plaint A and B
schedule properties in Ext.C1 and C2(b) plan and fixed the
boundaries in accordance with the demarcation of properties as
shown in Ext.C2(b) plan. Learned Munsiff also found that
respondent is entitled to recovery of possession of plaint A
schedule property from appellants after demolishing the hut in
plaint C schedule property. Appellants challenged the decree
and judgment before District Court, Kollam in A.s.147 of 2001.
Learned Additional District Judge, on reappreciation of evidence,
confirmed the findings of learned Munsiff and dismissed the
appeal. It is challenged in the second appeal.
3. Learned senior counsel appearing for appellants and
learned counsel appearing for the respondent who appeared
consequent to the notice issued before admission, were heard.
Learned senior counsel argued that though courts below relied
on the decree for redemption, there is no evidence to prove that
delivery was taken pursuant to the decree and even though
RSA 1154/2006 3
under Ext.A7 decree and Ext.A6 judgment it was declared that
respondent has been in possession of the property, appellants
were never dispossessed pursuant to the decree for redemption
and their possession was not disrupted and therefore respondent
is not entitled to get the decree granted by the courts below. It
was further argued that there is no evidence as to when
appellants allegedly trespassed into the property and on the
evidence courts below should have found that appellants have
been continuing in possession under the original mortgage of
1087 ME and respondent is not entitled to the decree sought for.
Learned counsel also argued that in any case identity of the
plaint A schedule property was not established and in such
circumstances courts below should not have granted the decree.
4. Learned counsel appearing for respondent argued that
in the light of Ext.A6 judgment respondent is not entitled to
contend that they continued possession of the property as that
was exactly the question decided in O.S.24 of 1966. It was also
argued that once it is found that respondent has been in
possession of the property and a decree declaring his possession
was granted and the title of respondent is established under
Ext.A1, it is for the appellants to establish that the title has been
RSA 1154/2006 4
barred by adverse possession and on the evidence courts below
rightly found that respondent has title and is entitled to the
decree for recovery of possession sought for. Learned counsel
also argued that identity of the property has been concurrently
found by the courts below and that factual finding cannot be
interfered in exercise of the powers of this court under Section
100 of Code of Civil Procedure.
5. On hearing learned counsel appearing for appellants, I
do not find any substantial question of law involved in the
appeal. As far as the identity of the plaint schedule properties
are concerned, the trial court as well as first appellate court, on
analysing the evidence, found that Commissioner has correctly
demarcated the property in Ext.C2(b) plan. That factual finding
cannot be interfered by reappreciating the evidence, as sought
for by the learned senior counsel. The title of respondent to the
plaint schedule properties under Ext.A1, as such, was not
disputed. What was contended was that though Ext.A3 decree
in O.S. 261 of 1956 was obtained, delivery of the property was
not taken as delivery receipt was not produced and as there is no
evidence to prove that delivery of the mortgaged property was
taken, and it is to be taken that appellants continued in
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possession. It was also argued that as there is no evidence to
prove that appellants were dispossessed it is to be found that
they continued their possession even after Ext.A7 decree and in
such circumstances, courts below should not have granted the
decree for recovery of possession. True, delivery receipt
evidencing delivery of possession pursuant to Ext.A3 decree was
not produced. But in the light of Ext.A6 judgment when the
possession of respondent was declared by the court in the suit
filed against appellants, they cannot be heard to contend that
they continued in possession of the property. Under Ext.A6 and
A7 decree and judgment in O.S.24 of 1966, competent court has
already declared that respondent has title and possession to the
property. Though it was challenged in A.S.255 of 1968, as
evidenced by Ext.A8 judgment, Ext.A6 judgment was confirmed
and that has become final. Appellants are therefore not entitled
to contend that in spite of the decree granted in O.S.24 of 1966
they continued their possession. If that be so, appellants could
not have been in possession of the property when even A.S.255
of 1968 filed by them was dismissed under Ext.A9 judgment.
6. Once respondent has established his title to the plaint A
schedule property, it is for appellants to prove that the title is
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barred by adverse possession. In a suit for recovery of
possession on the strength of title, plaintiff has no duty to prove
in addition to his title that he has been in possession of the
property within a period of 12 years as was the case with Article
141 of the Limitation Act 1908. Under Article 64 of Limitation
Act 1963, it is for defendants to establish that they have been in
possession of the property for more than the requisite period
and that too with the animus to possess against the true owner
and therefore the title of plaintiff has been barred by adverse
possession. The courts below on appreciating the evidence
entered a factual finding that appellants did not establish that
they have perfected their title by adverse possession. That
factual finding also cannot be interferred. There is no
substantial question of law involved in the appeal.
Appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-