In a second appeal concerning a suit for boundary fixation and possession, the High Court of Kerala dismissed the appellant's appeal. The court held there was no substantial question of law and affirmed the lower appellate court's finding that the plaintiff retained possession and title.
The second appeal was dismissed in limine as no question of law arose.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE V.RAMKUMAR
MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930
RSA.No. 78 of 2009()
-------------------AS.124/2005 of ADDL.SUB COURT, IRINJALAKUDA OS.350/2001 of MUNSIFF COURT, CHALAKUDY
APPELLANT
----------------------------VILASINI, W/O.VILAYIL SUNDARAN, PARIYARAM VILLAGE AND DESOM, MUKUNDAPURAM TALUK.
BY ADV. SRI.K.S.BHARATHAN
RESPONDENT(S):
2
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
V. RAMKUMAR, J.
= = = = = = = = = = = = = R.S.A.No.78 of 2009
= = = = = = = = = = = = = = Dated this the 2nd day of February, 2009
JUDGMENT
The 1st defendant in O.S.No.350 of 2001 on the file of the Munsiff's Court, Chalakudi is the appellant in this second appeal. The said suit instituted by the predecessor-in-interest of respondent Nos.1 to 13 herein was one for fixation of boundary of the plaint schedule property and for a mandatory injunction to remove the shed put up therein and in the alternative for recovery of possession of the plaint schedule property admeasuring 9½ cents comprised in Survey No.452/5 of Pariyaram Village in Mukundapuram Taluk.
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Eventhough both the plaint schedule property admeasuring 9½ cents and the southern property of the 1st defendant admeasuring 47½ cents both comprised in Survey No.452/5 of
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Pariyaram village were sold to the plaintiffs as well as to the 1st defendant on the same day namely 20.8.82 as per Ext.A1 release deed and Ext.B1 sale deed respectively, going by the registration number of Ext.B1 it is anterior in point of time. Moreover, Ext.B1 specifically recites that the property covered by Ext.B1 namely 47½ cents has been put in possession of the defendant under an oral sale of 1.1.1969. Thus, right from 1.1.69 onwards the defendant has been in possession of the entire property. As against this Ext.A1 release deed does not recite any specific act of handing over of possession nor does it recite any anterior possession of the plaint schedule property with the plaintiff. It is in evidence that there is no boundary demarcating the plaint schedule property from the southern property covered by Ext.B1 sale deed. The appellant has specifically pleaded that right from 27.11.85 the date of death of Velai, the father of the plaintiffs the defendant has been in adverse possession of the plaint schedule property. The suit was filed only in the year 2001. Even assuming that the 1st defendant has been in possession of the plaint schedule property without realising whether it is covered by Ext.B1 sale deed, his possession will nevertheless be
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adverse as was held in Raman v. S. Devadasa Maller and others 1991(1) KLJ 377. The lower appellate court was, therefore, not justified in reversing the decree passed by the trial court.
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Ext.B1 sale deed has been in the possession of the 1st defendant from 1.1.1969 onwards. It cannot mean that the adjacent property on the north it which is the plaint schedule property is also in his possession. It was on the very same date of Ext.B1 that the very same assignors executed Ext.A1 release deed of the plaint schedule property admeasuring 9½ cents to the plaintiff. The very fact that Ext.A1 recites that the executants are in possession of balance extent after alienating the other portion of the property and that they are conveying all their rights over the property to the plaintiff under Ext.A1 will indicate that the possession of the plaint schedule property was not handed over to 1st defendant under Ext.B1. Therefore, there is every reason to assume that the excecutants under Ext.A1 were in possession of the plaint schedule property as recited in Ext.A1 and that it was this property which was assigned to the plaintiff.
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involves an admission of the title of the opposite party. The lower appellate court has held that the 1st defendant has not been able to prove his contention that title of the plaintiff has been lost by adverse possession and limitation. The said finding is clearly supportable by the recent decision of the Apex Court in P.T Munichikkanna Reddy v. Revamma (2007(6)SCC 59).
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appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this second appeal which is accordingly dismissed in limine.
Dated this the 2nd day of February, 2009.
V. RAMKUMAR, JUDGE
sj
3 issues framed by the court
Whether the lower appellate court failed to discharge its function as a court of first appeal under Section 96 of the CPC?
Whether reliance on original title deed alone negatives a claim of adverse possession when the plea is set up?
Whether reliance on a tax receipt alone to find possession is correct in absence of other indicia?
Colour shows how this judgement treated each authority
Raman v. S. Devadasa Maller and othersReferred¶49
Raman v. S. Devadasa Maller and others 1991(1) KLJ 377
P.T Munichikkanna Reddy v. RevammaRelied on¶59
P.T Munichikkanna Reddy v. Revamma (2007(6)SCC 59) · Who else cites this
1 provisions across 1 enactments
VILASINI
KALYANI
KARTHYAYANI
SANTHA
VIJAYAN
BABU
V. RAMKUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
V. RAMKUMAR
Parties & counsel
