Dismissed

A.J.Shabu v. Jameskutty Jacob

Kerala HC24 Jul 2012RSA/200/2005

Case brief

AI extract

What is this about?

In a second appeal concerning land title and possession, the High Court upheld the trial and first appellate courts' identification of property schedules, affirmation of plaintiff's title, and rejection of adverse possession pleas advanced by defendants, dismissing the appeal.

What did the court decide?

Second Appeal dismissed; parties to bear their own costs; pending interlocutory applications dismissed.

A.J.Shabu Vs Jameskutty Jacob — Property and Title | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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TUESDAY, THE 24TH DAY OF JULY 2012/2ND SRAVANA 1934

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RSA.No. 200 of 2005 (F)

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----------------------AS.8/2000 of ADDL.DISTRICT COURT,KALPETTA OS.8/1992 of SUB COURT, SULTHAN BATHERY

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APPELLANT(S)/APPELLANTS 1 TO 4/DEFENDANTS 1, 2, 5 AND 8:

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A.J.SHABU, S/O.A.T.JOSE, RESIDING AT AZHAKAMTHARA, KOTTAPPADY AMSOM VYTHIRI TALUK, WAYANAD DISTRICT.

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A.T.JOSE, S/O.THOMAS, RESIDING AT DO.

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(*)3. MAKKOLI MATHEW, S/O.KURIAKOSE, CHARITTIYIL, KUNNATHIDAVAKA AMSOM, VYTHIRI TALUK WAYANAD DISTRICT. (DIED)

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ABBAS, S/O.MAMMY, RESIDING AT DO. DO.

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(**)ADDL.APPELLANTS 5 TO 9 IMPLEADED:

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ADDL.A5. K.P.THRESIAMMA, W/O.MATHEW (LATE), MAKKOLIL HOUSE, CHARITY, OLD VYTHIRI.

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ADDL.A6. JESSY MATHEW, D/O.M.K.MATHEW (LATE). AATTUPURATHU HOUSE, VYTHIRI, WAYANAD.

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ADDL.A7. MINI MATHEW, D/O.M.K.MATHEW (LATE), CHELAKKATHADATHIL HOUSE, KIZHUMURY P.O., RAMAMANGALAM, ERNAKULAM.

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ADDL.A8. SOPHY M.M., D/O.M.K.MATHEW (LATE), KARATHARA HOUSE, VYTHIRI P.O., WAYANAD.

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ADDL.A9. THANKACHAN MATHEW, S/O.M.K.MATHEW (LATE), MAKKOLIL HOUSE, CHARITY, OLD VYTHIRI, WAYANAD.

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(*)IT IS RECORDED THAT THE 3RD APPELLANT IS NO MORE VIDE ORDER DATED 13.11.2006.

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(**)ADDL.A5 TO 9 ARE IMPLEADED AS THE LRS' OF THE DECEASED 3RD APPELLANT VIDE ORDER DATED 17.2.2010 IN I.A.NO.1050/2007.

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BY ADVS.SRI.M.C.SEN (SR.)

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SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN

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RSA NO.200/2005

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RESPONDENT(S)/RESPONDENTS 1 TO 5/PLAINTIFF & DEFENDANTS 3, 4, 6 AND 7:

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JAMESKUTTY JACOB, S/O.CHACKO, VADAKKANADU HOUSE, CHARITTIYIL, KUNNATHIDAVAKA AMSOM & DESOM, VYTHIRI TALUK, WAYANAD DISTRICT.

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JOSEPH, CHARITTIYIL, KUNNATHIDAVAKA AMSOM AND DESOM, DO. DO.

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BABY, W/O.JOSEPH, DO. DO.

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R.MUTHAYYA, S/O.RAJENDRAN, CHARITTIYIL, DO.

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KARUVALLI YOUSAF, CHARITTIYIL, DO.

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ADV. SRI.K.BABU THOMAS - FOR R1

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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R.S.A. No.200 of 2005

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Dated this the 24^th day of July, 2012.

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JUDGMENT

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A litigation which virtually started in the year, 1986 is coming to this Court for the third time - on the first occasion in the form of a Civil Miscellaneous Appeal challenging an order of remand passed by the first appellate court and, on the second and third occasions, in the form of Regular Second Appeals. This time, the appeal is brought by the defendants 1, 2, 5 and 8. Parties are referred as plaintiff and defendants.

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The dispute concerns title and possession of the plaint B schedule which according to the plaintiff forms part of the plaint A schedule. Originally, the plaintiff prayed for a decree for prohibitory injunction to restrain the defendants 1 to 4 from trespassing into the plaint A schedule, described as eight (8) acres in re-survey No.338. After the Advocate Commissioner submitted reports and plans, the plaint was amended to incorporate a prayer for recovery of possession of the plaint B schedule alleging that after institution of the suit, the additional defendants 5 to 8 trespassed into portions of plaint A schedule. The additional defendants 5 to 8 were impleaded as per order dated 05.07.1991 on I.A.No.1035 of 1991. Thereafter in view of valuation of the property the plaint was returned for presentation before proper court. Accordingly, the plaint was presented in the Sub Court, Sulthanbathery where it was re-numbered as O.S.No.8 of 1992.

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The learned Sub Judge dismissed the suit against which the plaintiff filed A.S.No.5 of 1994. The first appellate court by judgment dated 11.04.1997 allowed the appeal by way of remand.

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The defendants 1 and 5 challenged that remand order in this Court in C.M.A.No.104 of 1997. That C.M.Appeal was dismissed.

¶42

After remand, the trial court remitted Exts.C1 to C3 to the Advocate Commissioner (DW3). He, after further inspection of the suit property as well as the adjoining items with the assistance of the Taluk Surveyor submitted Exts.C4 and C5. Based on Exts.C4 and C5 and other evidence, the trial court granted a decree in favour of the plaintiff. He was allowed to recover possession of the trespassed area on the strength of title.

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The contesting defendants challenged that judgment and decree in A.S.No.8 of 2000. The appeal was dismissed.

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The contesting defendants filed R.S.A.No.1130 of 2003 in this Court. This Court by judgment dated 17.05.2004 set aside the judgment and decree of the first appellate court and remitted A.S.No.8 of 2000 to the first appellate court for fresh decision with certain directions.

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The first appellate court thereafter heard the appeal afresh and again dismissed it in confirmation of judgment and decree of the trial court. That judgment and decree of the first appellate court are under challenge in this Second Appeal.

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The following substantial questions of law are framed for a decision:

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i. Whether the judgment and decree of the courts below are not liable to be set aside on the ground of failure to rely on the admissions made by PW1 regarding the right and possession of defendants 5 and 6 in respect of the property in their possession as reported by the Commissioner and wrongly noting the date of acquisition by 5^th defendant and wife of the property under Exts.A7 and A8?

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ii. Whether the judgment and decree of lower appellate court are not liable to be set aside for non-compliance of the directions contained in R.S.A.No.1130 of 2003?

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iii. Whether the plaintiff has discharged his burden in proving title and identity of property claimed by him by not taking steps to take up a further commission in spite of the opportunity given by this Court in R.S.A.No.1130 of 2003?

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iv. Whether the suit is not liable to be dismissed on the ground of adverse possession and limitation on the admitted facts even if it is assumed that plaintiff has proved title to plot C in Exts.C2 and C4?

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v. Whether the appellate court was justified in accepting the Commissioner's report and plan, Exts.C4 and C5 even after the observations of this Court in R.S.A.No.1130 of 2003 and the evidence of DW3, the Commissioner?

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It is contended by the learned counsel for the appellants/defendants 1, 2, 5 and 8 that there is no proper identification of the property claimed by the plaintiff. According to the learned counsel, Exts.C3 and C4 cannot be looked into and at any rate, objections preferred by the defendants 1, 2, 5 and 8 to Exts.C4 and C5 were not taken into account. It is contended that the first appellate court has not complied with the directions issued by this Court in the judgment in R.S.A.No.1130 of 2003. It is also contended that even as per available evidence, the trial and the first appellate courts ought to have found that there is no proper identification of the plaint A schedule. A further contention is that the plea of defendants 1, 2, 5 and 8 regarding adverse possession and limitation was not properly considered. The learned counsel contends that weakness of the case pleaded by the defendants 1, 2, 5 and 8 is not sufficient to uphold the claim of title made by the plaintiffs. Reliance is placed on the decisions in Jagdish Narain v. Nawab Said Ahmed Khan (AIR (33) 1946 Privy Council 59), Sayed Muhammed Mashur Kunhi Koya Thangal

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v. Badagara Jamayath Palli Dharas Committee and others (AIR 2004 SC 4365), State of J & K v. Hindustan Forest Co. and others ((2006) 12 SCC 198) and Corporation of City of Bangalore v. Zulekha Bi and others ((2008) 11 SCC 306) . The learned counsel contends that even the evidence given by PW1, the power of attorney holder on behalf of the plaintiff as to the possession of additional 5^th defendant as per Ext.A7, assignment deed dated 21.05.1979 was not given due weight by the trial and first appellate courts. It is argued that the additional defendants 5 to 8 having been impleaded in the suit on 05.07.1991, the suit must be deemed to have been instituted as against them only on that day and, if the version of PW1 as to possession of the additional 5^th defendant is accepted, it is clear that atleast as against the additional 5^th defendant the suit is instituted beyond the prescribed period of 12 years under Article 65 of the Limitation Act (for short, “the Act”).

¶60

The learned counsel for the plaintiff/1^st respondent contended that the trial and first appellate courts, based on the evidence including Exts.C4 and C5 have correctly identified the plaint A and B schedules and found title with the plaintiff. It is argued that DW3, the Advocate Commissioner was examined only with reference to Exts.C1 to C3. Exts.C4 and C5 were obtained after remand (after examination of DW3) but, no effort was made by the defendants 1, 2, 5 and 8 and other contesting defendants to recall DW3 and cross examine him with reference to Exts.C4 and C5. It is pointed out that the Taluk Surveyor who prepared Ext.C4, plan was not examined. The learned counsel contends that though contesting defendants had preferred objection to Exts.C4 and C5, as

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rightly found by the first appellate court it was an objection for the sake of objection and that objection was not pursued. Hence the objection cannot be taken into account. The learned counsel contends that a perusal of Exts.C4 and C5 would show that the Taluk Surveyor has correctly identified and fixed the boundary survey stones and based on that, has identified the property. There is no reason why this Court should interfere with the finding of title entered by the trial and first appellate courts.

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As regards the plea of adverse possession, the learned counsel contends that there is no evidence to show that any of the contesting defendants were in possession of any portion of the suit property for the statutory period of 12 years be it preceding the institution of the suit in the year, 1986 or calculated from 05.07.1991 on which day the additional defendants 5 to 8 were impleaded. The learned counsel has invited my attention to the evidence to contend that the possession of contesting defendants in the suit property is only from 1986. It is pointed out that plaintiff was working in the Military during the relevant time and taking advantage of his physical absence from the suit property, the 2^nd defendant and others trespassed into it, set fire to the building in the suit property belonging to the plaintiff concerning which the Police registered Crime No.67 of 1986. These circumstances also, the learned counsel argues, would support the contention of the plaintiff that trespass was sometime during 1986 in which case the suit even as against the additional defendants is preferred within time. The learned counsel contends that at any rate, mere length of possession for whatever period it be, will not amount to

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adverse possession extinguishing title of the plaintiff. Reliance is placed on the decision in Makina Atchayya Patrudu v. Jalaluddin Sahib and others (AIR 1938 Madras 454) and Inder Singh and others v.Ujagar Singh (AIR 1983 Punjab and Haryana 83) .

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It is not very much in dispute that of the total extent of 271.39 acres in re-survey No.338, one Chacko Joseph acquired 25 acres as per document No.1926 of 1969 executed by M/s.AVT Company. The said Chacko Joseph assigned the said 25 acres to Chacko, Kurian and Thomas, the three brothers as per Exts.A1, A11 and A6, respectively, all dated 01.02.1973. As per Ext.A11, ten acres being the western portion of the 25 acres was assigned to Kurian. The seven acres being the eastern portion of the said 25 acres was assigned to Thomas as per Ext.A6. The middle portion - eight acres was assigned to Chacko as per Ext.A1, assignment deed No.1998 of 1973. According to the plaintiff, his father Chacko who acquired title and possession of the said eight acres as per Ext.A1, executed Ext.A3, gift deed dated 18.03.1986 in his favour conveying title and possession of the said eight acres to him. Plaintiff claimed to be the absolute owner in possession of the said eight acres as per Exts.A1 and A3. The said eight acres is the plaint A schedule. He claimed that he is in possession and enjoyment and that defendants 1 to 4 made attempt to trespass into the said property.

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Defendants 1 to 4 resisted the suit on various grounds. They denied title and possession claimed by the plaintiff over the plaint A schedule by virtue of Exts.A1 and A3. They claimed that they are in possession of a portion of the plaint A schedule. They also claimed that they have perfected title by adverse possession and limitation.

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Before the trial court, the parties adduced evidence, oral and documentary and Exts.C1 to C3 were marked. Ext.C2 is the plan prepared by the Advocate Commissioner with the assistance of the Surveyor. Exts.C1 and C3 are the reports. The Advocate Commissioner was examined as DW3. It is later that the suit was dismissed and ultimately, there was remand and later the trial court granted a decree in favour of the plaintiff which the first appellate court has confirmed from which this Second Appeal arises.

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After the remand as per the judgment in A.S.No.5 of 1994, Exts.C1 to C3 were remitted to the Advocate Commissioner (DW3). He, with the assistance of the Surveyor inspected the suit property and adjoining items several times and submitted Exts.C4 and C5, plan and report.

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The additional defendants 5 to 8 after their impleadment contended that the suit as against them is barred by limitation since they were impleaded in the suit after 12 years their taking possession of the respective portion of the plaint A schedule. At the same time, they denied the title claimed by the plaintiff.

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The points for decision are whether the suit property has been properly identified, whether the title claimed by the plaintiff over the suit property is established, whether the courts below are justified in acting upon Exts.C4 and C5, whether the first appellate court has complied with the directions issued by this Court in the judgment in R.S.A.No.1130 of 2003 and whether on the evidence the trial and first appellate courts are justified in concluding that the plaintiff is entitled to recover possession of plaint B schedule on the strength of title.

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So far as Ext.C2 is concerned, plot 11 falling in plot C mentioned therein is stated to be part of the plaint A schedule. But, in Ext.C2, the total extent of property acquired by the three brothers as per Exts.A1, A6 and A11 is stated to be 20 acres. It is hence that the trial court originally dismissed the suit since according to the plaintiff, the three brothers acquired title and possession over 25 acres as per Exts.A1, A6 and A11.

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The learned counsel for the defendants 1, 2, 5 and 8 contends that in the light of the evidence given by DW3 and the admission made by PW1, the trial and first appellate courts were not justified in finding that the plaint A schedule is properly identified, that plaintiff has title over it and at any rate, that the claim of the contesting defendants based on adverse possession cannot be sustained.

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A reference to Exts.C4 and C5 is required. In Exts.C4 and C5 the Advocate Commissioner (DW3) with the assistance of the Surveyor after identification of the property has stated that of the 25 acres, 25 cents was used for construction of Poonchola road on the northern side of the 25 acres and the adjoining items. The Advocate Commissioner would say that from plot A in Ext.C4 (ten acres covered by Ext.A11), eight cents has been made use of for construction of Poonchola road, while from plots B and C (which the Advocate Commissioner and Surveyor identified as the plaint A schedule - eight acres covered by Exts.A1 and A3), five cents each have been used for construction of the said road. It is further stated in Exts.C4 and C5 that from plots D and E (which according to the Advocate Commissioner and the Surveyor is the seven acres covered by Ext.A6), seven cents is used for construction of the said road. Thus, the total extent of land which according to the Advocate Commissioner and the Surveyor was taken from plots A to E in Ext.C4 (covered by Exts.A1, A6 and A11) is 25 cents. The Advocate Commissioner reported that less the 25 cents, total extent available (plots A to E ) is 24.74 acres.

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It is seen from Ext.C5 that the Advocate Commissioner and the Taluk Surveyor identified plots A to E in Ext.C4 with the aid of Exts.A1, A6 and A11. The side measurements of the property are not given in Exts.A1, A6 and A11. Hence the only course open to the Advocate Commissioner and the Taluk Surveyor was to identify the property with reference to the boundaries and extent. It is also seen from Ext.C5 that the Taluk Surveyor identified the boundaries of plots A to E with reference to the demarcation stones (which are

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clearly marked in Ext.C4). According to the Advocate Commissioner and the Taluk Surveyor, plots B and C in Ext.C4 together make up 7.90 acres (as against the eight acres covered by Exts.A1 and A3, less the ten cents used for construction of Poonchola road on the northern side). It is also seen from Ext.C4 that on the southern side of plots A to C is a thodu. On that side also, the Advocate Commissioner and the Taluk Surveyor have identified demarcation stones.

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Based on the measurement as per Exts.A1, A6 and A11, the Advocate Commissioner and Taluk Surveyor have reported that plot C in Ext.C4 forms part of plot B ( which I said together makes up 7.90 acres as against the eight acres in Ext.A1, less the ten cents used for construction of road on the northern side). It is further stated in Exts.C4 and C5 that plots 1 and 2 (plot 1 forms part of plot C in Ext.C4) is in the possession of additional 5^th defendant while the additional 6^th defendant is in possession of plots 3 and 4 (plot 3 coming in plot C of Ext.C4). The additional 7^th defendant is in possession of plots 5 and 6 in Ext.C4 (plot 4 falling in plot C of Ext.C4). The additional 8^th defendant is found to be in possession of plots 7 and 8 (plot 7 falling in plot C of Ext.C4). In short, according to the Advocate Commissioner and the Taluk Surveyor, plots 1, 3, 4, 5 and 7 form part of plot C which again forms part of plot B (which is the plaint A schedule).

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Kurian to whom the ten acres towards western extremity of 25 acres belonged as per Ext.A11, sold five acres each to the defendants 1 and 2 as per Exts.A12 and A13. The 1^st defendant and his brother, A.T.Francis have a case that they had an agreement for sale with Chacko, the father of the plaintiff for sale of the eight acres covered by Ext.A1. Since the said Chacko did not (allegedly) perform his part of the said agreement for sale, the 1^st defendant and A.T.Francis filed O.S.No.178 of 1986 against the said Chacko and the plaintiff for specific performance. Ext.A14 is the copy of plaint in that case. There, the 1^st defendant and his brother alleged that the eight acres (allegedly) agreed to be sold to them belonged to Chacko as per Ext.A1.

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So far as the additional 5^th defendant is concerned, he claimed to have acquired title and possession of four acres (out of the seven acres belonging to Thomas towards extreme eastern portion of the 25 acres (as per Ext.A6), as per Ext.A7, assignment deed dated 21.05.1979. The same day, Thomas assigned the remaining three acres (out of the total of seven acres) to the wife of the additional 5^th defendant as per Ext.A9 (referred in appellate court judgment as Ext.A8). It is by virtue of Ext.A7 that the additional 5^th defendant has claimed title and possession of plot 1 in Ext.C4 (which I stated, according to the Advocate Commissioner and the Taluk Surveyor formed part of plot C which is part of plot B – the plaint A schedule). The additional defendants 6 to 8 would contend that A.T.Francis, brother of the 1^st defendant has obtained purchase certificate with reference to the portion of the property (which I have already

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referred to above) and the said A.T.Francis has assigned his title, interest and possession of the said portions to them by virtue of assignment deeds beginning from 1984 onwards.

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So far as identification of the property is concerned, the learned counsel for defendants 1, 2, 5 and 8 has placed much reliance on the evidence of DW3, the Advocate Commissioner. DW3 stated that he had not seen any demarcation stones on the boundary of the 25 acres. That statement is made use of to challenge identification of the property and fixation of demarcation stones in Ext.C4. But I must notice that Exts.C4 and C5 were obtained much after the examination of DW3 (after remand by the judgment in A.S.No.5 of 1994). It is relevant to note that after Exts.C4 and C5 were filed, the contesting defendants made no effort to recall DW3 to further examine him with reference to Exts.C4 and C5 or touching their objection to Exts.C4 and C5. It is also relevant to note that no attempt was made to examine the Taluk Surveyor who prepared Ext.C4, plan.

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My attention is drawn to the objection preferred by the additional 5^th defendant onwards to Exts.C4 and C5. There, they contended in paragraph 4 that the identification made by the Advocate Commissioner and the Taluk Surveyor (as per Ext.C4) is wrong, that resurvey No.338 has a total extent of 271.39 acres and that the Advocate Commissioner has not identified the entire 271.39 acres. It is further stated in the objection that the Advocate Commissioner has not stated in Ext.C5 that the Field Map Book (FMB) which

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alone according to the contesting defendants is useful for identification of the property was made use of. Identification of the property can be made effectively and properly only if the outer boundaries of the entire 271.39 acres comprised in resurvey No.338 are identified. The learned counsel also invited my attention to the evidence of PW1, power of attorney holder of the plaintiff that no inch of land (from the plaint A schedule - plots B and C in Ext.C4) was made use of for formation of Poonchola road (on the northern side). Ext.A4 is the copy of the order of assignment passed by the Land Tribunal, Kalpetta on 05.11.1976 in favour of the father of the plaintiff. That concerns eight acres in R.S.No.338.

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I stated that though an objection was preferred to Exts.C4 and C5, neither was DW3 was recalled and further examined, nor the Taluk Surveyor examined at all. Merely raising some objection is not sufficient. It is true that DW3 in his evidence stated that he had not seen any demarcation stones on the boundary of the properties but that was with reference to Exts.C1 to C3. Ext.C2, the plan does not show that the Taluk Surveyor had identified the demarcation stones. That answer of DW3 cannot be made use of to challenge Ext.C4 where the Taluk Surveyor specifically shown the demarcation stones on the entire outer boundary of 25 acres covered by plots A to E.

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I must also notice that even in the objection preferred by the contesting defendants to Exts.C4 and C5 and as rightly pointed out by the first appellate court, there was no serious objection to identification of the eastern boundary of 25 acres (less the 25 cents used for formation of Poonchola road

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on the northern side). I stated that on the south of plots A to C in Ext.C4 is the thodu regarding which there is no serious dispute. Thus, there could be no much dispute regarding the southern boundary of plots A to C. What remained is only the northern boundary which is described in Ext.C4 as the Poonchola road.

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PW1 stated that no inch of land from plaint A schedule (plots B and C in Ext.C4) was made use of for formation of the Poonchola road. But, I must notice that PW1 is only the power of attorney of the plaintiff. True, he has given evidence on behalf of the plaintiff. It is seen from Exts.A1, A6 and A11 that the northern boundary of 25 acres is not mentioned as Poonchola road but, as registered holdings. Therefore, it is clear that Poonchola road came into existence after Exts.A1, A6 and A11. It is in the above circumstances, I must approach the report of the Advocate Commissioner and the Taluk Surveyor in Exts.C4 and C5 that a total extent of 25 cents was made use of from the 25 acres for formation of the Poonchola road. I find, in the above circumstances, no reason to reject that version of the Advocate Commissioner and the Taluk Surveyor.

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Once the outer boundaries of the 25 acres (less the 25 cents made use of for construction of Poonchola road on the northern side) is ascertained, there is no much difficulty for identification of the suit property as also the properties covered by Exts.A1, A6 and A11. I stated that Ext.A11 concerns the ten acres on the western extremity and Ext.A6 concerns the seven acres on the eastern extremity of the said 25 acres. I also stated that so far as the ten acres

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covered by Ext.A11 is concerned, the measurement made by the Taluk Surveyor in Ext.C4 revealed that less the eight cents used for formation of the Poonchola road, the extent available as per Ext.A11 (plot A in Ext.C4) is 9.92 acres while, so far as the seven acres on the eastern extremity covered by Ext.A6 is concerned, less the seven cents made use of for formation of the Poonchola road, the balance available (plots D and E in Ext.C4) is 6.93 acres.

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Having identified the property covered by Exts.A6 and A11, it is possible to identify the property covered by Ext.A1, the eight acres and which Chacko gifted in favour of the plaintiff as per Ext.A3. I stated that as per Ext.C4, the eight acres takes in plots B and C and less the five cents each made use of for formation of the Poonchola road, the rest is 7.90 acres which has been identified by the Taluk Surveyor in Ext.C4.

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The learned counsel for the contesting defendants has invited my attention to the judgment of this Court in R.S.A.No.1130 of 2003. The learned counsel contends that the first appellate court was required, if necessary to remit Exts.C4 and C5, or, call for fresh report and plan for proper identification of the property. I am afraid, no such interpretation could be given to the judgment in R.S.A.No.1130 of 2003. On going through the judgment in R.S.A.No.1130 of 2003, it is seen that this Court made reference to Exts.C1 to C3 and the evidence of DW3, the Advocate commissioner. This Court was actually referring to the contention raised on behalf of the contesting defendants that the Advocate Commissioner and the Taluk Surveyor have shown in Ext.C4 imaginary lines as

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the boundary of various items as shown by the plaintiff. In fact, on going through Exts.C1 to C3 and the evidence of DW3, what I can understand is only that the representative of the plaintiff told DW3, the Advocate Commissioner that there are specific boundaries on the west and east of the plaint A schedule (plots B and C in Ext.C2) and the said boundaries were shown to the Advocate Commissioner. The Advocate Commissioner stated in Ext.C3, report and deposed as DW3 that there was no such physical boundaries for the plaint A schedule on the east and west and that he has shown imaginary lines in Ext.C2 as indicating the eastern and western boundary of plaint A schedule. In short, it is not as if DW3, the Advocate Commissioner admitted that he has drawn imaginary lines as boundary of the plaint A schedule in Ext.C2 as pointed out by the plaintiff or his representative.

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It is seen from the judgment in R.S.A.No.1130 of 2003 that one of the main reasons for this Court remitting the case is that originally, the Advocate Commissioner had submitted plan (Ext.C2) showing the total extent of the property covered by Exts.A1, A6 and A11 as 20 acres (as against 25 acres less the 25 cents made use of for formation of the Poonchola road as referred to in Exts.C4 and C5). It is also seen from the judgment of this Court in R.S.A.No.1130 of 2003 that this Court referred to the evidence of PW1 in cross examination as if the additional 5^th defendant is in possession of the property claimed by him as per Ext.A7, assignment deed dated 21.05.1979 in which case the case of the additional 5^th defendant as to adverse possession as he was impleaded in the case only on 05.07.1991. The first appellate court was required

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to reconsider the issue regarding adverse possession so far as additional 5^th defendant since as against him the suit could be deemed to have been instituted only on 05.07.1991. This Court in the concluding portion of the judgment observed that the evidence of PW1 is required to be considered for the purpose of identification also and further that the first appellate court is to reconsider the entire issue afresh. This Court directed that if the first appellate court desires, it can call for a fresh report and plan by the same Commissioner or by another Commissioner. I am not inclined to think the the same is a direction to the first appellate court to obtain a fresh report and plan through DW3 or another Commissioner. This Court was only giving liberty to the first appellate court, if found necessary to call for a fresh report and plan. The first appellate court having reconsidered the matter found that Exts.C4 and C5 are sufficient to find in favour of the identity (which I have already referred to above), title claimed by the plaintiff and the plea of adverse possession. It is pertinent to note that this Court in the operative portion of the judgment in R.S.A.No.1130 of 2003 stated:

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“................... I also make it clear that the

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observations made in this judgment are only for the purpose of showing that the discussions and conclusions are wrong and they will not stand in the way of the first appellate court in coming to its own conclusions after getting the further report from the Commissioner.”

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(which I stated was not obligatory on the first appellate court even as directed by this Court in this case).

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I was taken through the evidence of PW1 for the purpose of challenging the identity as well as finding on adverse possession. When PW1 was in box, he stated that the property which the additional 5^th defendant holds is the one acquired as per Ext.A7 from the paternal uncle of PW1 (Thomas). It was suggested to PW1 that it is the said property which the Advocate Commissioner (DW3) has shown as plot 1 in Ext.C1 (plots 1 and 2 in Ext.C4). PW1 answered in the affirmative. He further stated that his brother (the plaintiff) got the suit property as per Ext.A3 (gift deed dated 18.03.1986) and that the property in the possession of additional 5^th defendant is situated towards east of the property covered by Ext.A3. It was further put to PW1 in cross examination that the property thus in the possession of the additional 5^th defendant takes in the property covered by Ext.A3 as well. PW1 answered that on the Advocate Commissioner measuring the property (as shown in Ext.C2) the portion of the property covered by Ext.A3 was also found to be in the possession of the additional 5^th defendant. He also referred to the eastern boundary of the property covered by Ext.A3 as stated in Ext.A3 as belonging to Thomas. Though by the time Ext.A3 was executed on 18.03.1986, property on the east of the property covered by Ext.A3 was in the possession of the additional 5^th defendant (as per Ext.A7 dated 21.05.1979 ).

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So far as title of the plaintiff is concerned, I referred to the identification of the Advocate Commissioner (plots B and C) as per Ext.C4. In the light of the evidence on record, there is no reason why I should discard the identification made by the Advocate Commissioner in Ext.C4 and particularly when no attempt was made to substantiate the objection the contesting defendants had preferred to Exts.C4 and C5 by recalling DW3 for further examination and/or by examining the Taluk Surveryor. Thus the first appellate court has rightly found that title of plaint A schedule (plots B and C in Ext.C4) is with the plaintiff as per Ext.A1.

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Now what remained is the claim of the contesting defendants for title by adverse possession. Much was argued by the learned counsel on both sides as to the burden of proof.

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The position of law is that when recovery of possession is sought on the strength of prior possession coming under Article 64 of the Act, it is for the plaintiff to show that he has instituted the suit within 12 years of his dispossession. When the plaintiff is claiming recovery of possession on the strength of title falling under Article 65 of the Act, once the title of the plaintiff is admitted or proved the only defence available to the defendant is by way of adverse possession and limitation - where, it is for the defendant to show that he is in adverse possession of the property for the statutory period. In the present case, since the plaintiff has claimed recovery of possession of plaint B schedule on the strength of title, and as I found in favour of the finding entered

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by the trial and first appellate courts that the plaintiff has title over the plaint A schedule, it follows that the contesting defendants can succeed only if they prove that they have been in possession of the respective plots (plots 1, 3, 4, 5 and 7) falling in plot C in Ext.C4 for the statutory period and that too with sufficient hostile animus to the title of the plaintiff.

¶133

So far as the additional 8^th defendant is concerned, he is claiming title over plot 7 in Ext.C4 (forming part of plot C) as per assignment deed executed by A.T.Francis (brother of the 1^st defendant). I referred to the contention additional defendants 6 to 8 have raised that A.T.Francis obtained purchase certificate over the portion of property which he later assigned in favour of the additional defendants 6 to 8, but that purchase certificate is not in court. I must also notice that the claim of title made by the additional defendants 6 to 8 is from the year, 1984. The suit even if it is treated as filed against the additional defendants 5 to 8 on 05.07.1991, is brought within 12 years from the year, 1984. Therefore the additional 8^th defendant cannot successfully claim that he has perfected title over plot 7 of plot C in Ext.C4 by adverse possession and limitation.

¶134

So far as the defendants 1 and 2 are concerned, Ext.C4 does not show that any portion of plot C in Ext.C4 is in their possession. I stated that they are claiming title over five acres each as per Exts.A12 and A13 executed by Kurian who acquired the ten acres (less the eight cents made use of for formation of the Poonchola road) as per Ext.A11.

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What remained is the claim of adverse possession and limitation pleaded by the additional 5^th defendant. I have referred to the evidence of PW1 which is pressed into service by the learned counsel for the additional 5^th defendant to contend that the additional 5^th defendant is in possession of plot 1 of Ext.C4 from the time of Ext.A7 (dated 21.05.1979). If it is taken that the additional 5^th defendant has come into possession of plot 1 in plot C of Ext.C4 as per Ext.A7 dated 21.05.1979, certainly, the suit which must be deemed to have been filed against him on 05.07.1991 is beyond the period of 12 years.

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I referred to the evidence of PW1 to say that it is not as if he has admitted that the additional 5^th defendant got possession of plot 1 of Ext.C4 as per Ext.A7. He claimed that the plaintiff got possession of the property covered by Ext.A3, (which takes in plot 1 of plot C of Ext.C4 as well) and that on the east of the said property is the property belonging to the additional 5^th defendant (though, in Ext.A3, the eastern boundary of the property referred to therein is described as the property in the possession of Thomas, the vendor of the additional 5^th defendant).

¶139

Reading the evidence of PW1, it is clear that what he asserted is that the plaintiff got possession of eight acres as per Ext.A3, I must also notice that a particular sentence alone from the evidence of PW1 cannot be culled out to hold in favour of adverse possession pleaded by the additional 5^th

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defendant. Reading the evidence of PW1 as a whole I find myself unable to accept the contention that PW1 has admitted that the additional 5^th defendant got possession of plot 1 of plot C of Ext.C4 as per Ext.A7 dated 21.05.1979.

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The circumstances also do not persuade me to accept that contention. For, a perusal of Ext.A7 shows that the four acres (immediately on the east of eight acres) assigned in favour of the additional 5^th defendant by Thomas as per Ext.A7 is part of the seven acres covered by Ext.A6. It is relevant to note that the remaining three acres belonging to Thomas as per Ext.A6 was assigned the same day in favour of the wife of the additional 5^th defendant as per Ext.A9. Thus, what is assigned to the additional 5^th defendant and his wife as per Exts.A7 and A9 is the seven acres acquired by the said Thomas as per Ext.A6. If that be so, question of the additional 5^th defendant getting possession of portion of the property which belonged to the father of the plaintiff as per Ext.A1 (which was gifted in favour of the plaintiff as per Ext.A3) cannot be accepted. The boundary descriptions in Ext.A7 also do not justify the contention of the additional 5^th defendant that by Ext.A7 or at the time of Ext.A7 he got possession of plot 1 of plot C of Ext.C4. Reason persuades me to hold that what came into possession of the additional 5^th defendant as per Ext.A7 is only the four acres situated on the east of the eight acres belonging to the father of plaintiff as per Ext.A1 ( which came into the possession and ownership of the plaintiff as per Ext.A3).

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Though, Exts.C1 to C3 were remitted to DW3 and later Exts.C4 and C5 are submitted, evidence of DW3, the Advocate Commissioner as to what he found at the time of the first inspection on 15.03.1990 (followed by on 16.03.1990 and 17.04.1990) is not washed out from Ext.C1. The Advocate Commissioner has reported in Ext.C1 the oldness of cultivation in plot 11 of Ext.C2 (corresponding to plots 1 and 2 of plot C of Ext.C4) as having a maximum oldness of 5-8 years. The Advocate Commissioner also found a house bearing door No.MP.IV/526 in the said plot. It is specifically stated in Ext.C1 that the oldness of that house is about eight years. In otherwords, at the time of the inspection by DW3 first on 01.11.1990, possession of the additional 5^th defendant of plot 11 of Ext.C2 (corresponding to plots 1 and 2 of plot C of Ext.C4) - plot 2 falls outside plots B and C, the plaint A schedule) can, at the best be said to be having an oldness of about eight years, ie., from 1982 onwards. Even if it is treated that as against the additional 5^th defendant the suit was filed only on 05.07.1991, the suit is filed within nine years of the additional defendants allegedly coming into possession of plaint B schedule in the year, 1982.

¶147

It is relevant to note that even the additional 5^th defendant has no case that he got possession of any item of property prior to Ext.A7 dated 21.05.1979. It is interesting to note from the documents produced by the contesting defendants that the earliest document produced by them after Ext.A7 dated 21.05.1979 is Ext.B30, tax receipt dated 26.07.1979. Assuming for the worst that the additional 5^th defendant got possession of the disputed property by

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26.07.1979 (which itself is not supported by any evidence), even then, the suit filed as against the additional 5^th defendant on 05.07.1991 is within 12 years from 26.07.1979. Therefore, even if the worst is accepted, still , the claim of adverse possession for the statutory period cannot be accepted.

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Along with that, there is evidence of PW1, the power of attorney holder of the plaintiff that the plaintiff who was serving in the Military was out of station for about nine years (before PW1 gave evidence on 17.01.1994). Ext.A3, gift deed is dated 18.03.1986 where it is stated that title and possession of the donor over the eight acres covered by Ext.A1 is transferred to the plaintiff. There is no reason why a false recital should be made in Ext.A3. Reason persuades me to hold that the plaintiff got possession of the entire property covered by Ext.A3 on 18.03.1986. Along with that, there is evidence of PW1 that the house in the suit property was set fire to and concerning that a case was registered against the 2^nd defendant and others as Crime No.67 of 1986. True, that case ended in acquittal for want of evidence. But, fact remained that the Police after investigation charge sheeted the 2^nd defendant and others for setting fire to the structure in the property covered by Ext.A3 in the year, 1986. That also supports version of the plaintiff that the trespass was sometime in the year, 1986 in which case also, question of adverse possession and limitation does not arise.

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I referred to the decisions the learned counsel for the contesting defendants has adverted to. In the light of my above findings and facts and

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evidence those decisions have no application to the facts of the case.

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The above discussion leads me to the conclusion that the trial and first appellate courts were correct in identifying the plaint A and B schedules, finding title of the same with the 1^st respondent/plaintiff and holding against the plea of adverse possession raised by the additional defendants 5 to 8.

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The substantial questions of law framed are answered as above. Resultantly,

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i. The Second Appeal fails. It is accordingly dismissed.

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ii. Parties shall bear their costs.

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All pending interlocutory applications will stand dismissed.

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THOMAS P.JOSEPH, Judge.

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cks

A.J.Shabu v. Jameskutty Jacob

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A.J.Shabu v. Jameskutty Jacob

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