IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1144 of 2010()
1. UNNIKRISHNAN,S/O.APUCHAMY,RESIDING AT
... Petitioner
Vs
1. CHAMUNNI,S/O.APPUCHAMY,RESIDING AT
... Respondent
For Petitioner :SRI.P.B.KRISHNAN
For Respondent :SRI.M.B.PRAJITH
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :24/01/2011
O R D E R
S.S.SATHEESACHANDRAN, J
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R.S.A No.1144 OF 2010
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Dated this the 24th day of January 2011
ORDER
The defendant is the appellant. Suit initially filed as one for
injunction was later amended seeking recovery of possession as
well on the strength of title, by the respondent/plaintiff. The trial
court decreed the suit, which in appeal was confirmed by the lower
appellate court. Concurring decision so rendered by the two courts
below is challenged in the Second Appeal.
2. Parties to the suit are direct brothers. Two items of
properties are involved, item No.1 having an extent of 20 cents
and item No.2, 26.5 cents. So far as item No.1 property, though
some disputes had been raised impeaching the title of the
respondents, the learned counsel for the appellant fairly conceded
that in view of the concurrent finding entered by both the courts
below, no further challenge could be canvassed over the title found
in favour of that item and recovery ordered thereof. However, in
respect of item No.2 property, the learned counsel for the
appellant contended that the claim raised over that property by
the respondents that it formed part of item No.4 and 5 of the
R.S.A No.1144 OF 2010 – 2 –
settlement deed he obtained from another brother, namely
Pazhanimala, was seriously challenged. Though the item No.2 had
been identified through the advocate commissioner under the plan
prepared by him there was no material nor any finding by the court
below that item No.2 property formed part of the aforesaid item
Nos.4 and 5 obtained by the plaintiff under the settlement deed.
When recovery of possession of that property was claimed on the
basis of title, according to the counsel, it is imperative to prove the
title over such property with plaintiff identifying such property as
forming part of item Nos.4 and 5 of the settlement deed as claimed
by him, and, without which no decree could have been granted. So
much so, the decree granted in favour of the respondent allowing
recovery of item No.2 property is liable to be annulled, according to
the counsel. Overlooking the identification of item No.2 with
reference to the challenge raised by the defendant disputing that it
did not form part of item Nos.4 and 5 under the settlement deed
canvassed by the plaintiff the courts below have passed the
decree, and that being so, a substantial question arise for
consideration whether the decree of recovery of possession
granted is sustainable under law, is the submission of the counsel.
R.S.A No.1144 OF 2010 – 3 –
3. Per contra, the learned counsel appearing for the
respondent/plaintiff to whom notice on admission had been issued
submitted that the finding of fact concurrently arrived by both the
courts below even with respect to the identity of the suit property,
on the materials placed, does not suffer from any infirmity
whatsoever, and so much so, the second appeal challenging the
decree granted in favour of the plaintiff allowing recovery of
possession is not entertainable.
4. Perusing the judgments rendered by both the courts below
with reference to the submissions made by the counsel on both
sides, it is seen, the plea now canvassed by the counsel for
appellant to assail the concurrent decision rendered by the courts
below was raised by way of an additional written statement. Suit
initially filed, as already indicated, was one for injunction, but in
view of the contentions raised by the appellant/defendant it was
amended for recovery of possession. It is noticed that title claimed
by the plaintiff was disputed by the appellant raising various
contentions including a plea of adverse possession. Though the
plea of adverse possession was canvassed, in the alternative, it
could be seen from the judgment rendered by both the courts that
R.S.A No.1144 OF 2010 – 4 –
was also pressed into service and the parties joined issues thereof,
to consider the entitlement of the plaintiff for the reliefs applied for.
In evidence, the defendant, who was examined as DW1,
unequivocally admitted that he does not have any ownership right
over the property. He also conceded that he was under the
bonafide belief that the property belonged to him but, later,
realised that it actually belongs to his brother. The defendant also
did not plead and prove the essential ingredients to sustain the
claim of adverse possession. Relationship of the parties as
brothers and that the plaintiff was employed as a police official,
and in the nature of service rendered by him posted at distant
places, was taken into account by the trial court to conclude that
even if the plaintiff continued in possession of the suit property, it
could be only on behalf of his brother. Rejection of the plea of
adverse possession canvassed, which by his own evidence was
shown to be devoid of any merit, is sufficient to negate his
challenges raised over the identity of the property as well. After
setting forth a case of adverse possession and after that being
agitated and turned down, the challenge raised against the decree
granted on the ground that the plaintiff has not proved the identity
R.S.A No.1144 OF 2010 – 5 –
of the property with reference to item No.4 and 5 in the settlement
deed, his title deed, is meritless. The findings entered,
concurrently, on the materials placed by both the courts, to grant
the decree of recovery of possession to the respondent do not
suffer from any infirmity leave alone any illegality. No substantial
question of law is involved in the appeal, and it is dismissed.
Sd/-
S.S.SATHEESACHANDRAN
JUDGE
//True Copy//
P.A to Judge
vdv