Defendants 5 to 9 appealed a decree for possession against them. The High Court held that their written statement admitted the plaintiffs' title. Relying on precedent, the Court held that the plea of adverse possession could not be raised alternatively against admitted title. The second appeal was dismissed.
Second appeal dismissed; interlocutory applications closed.
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 P.B.SURESH KUMAR
TUESDAY, THE 12TH DAY OF JANUARY 2016/22ND POUSHA, 1937
RSA.No. 242 of 2015
AS 56/2009 OF SUB COURT, KASARAGOD OS 60/2008 OF ADDL. MUNSIFF, KASARAGOD
APPELLANT(S)/APPELLANTS/DEFENDANTS 5 TO 9:
1. LEELA, AGED 67 YEARS, W/O.MADARA, BELA VILLAGE & POST, VIA KUMBALA, KASARGOD TALUK & DISTRICT.
2. ACHUTHA, AGED 39 YEARS, S/O.MADARA, BELA VILLAGE & POST, VIA KUMBALA, KASARGOD TALUK & DISTRICT.
3. HARISHCHANDRA, AGED 37 YEARS, S/O.MADARA, BELA VILLAGE & POST, VIA KUMBALA, KASARGOD TALUK & DISTRICT.
4. KUSHALA, AGED 35 YEARS, D/O.MADARA, BELA VILLAGE & POST, VIA KUMBALA, KASARGOD TALUK & DISTRICT.
5. ASHOKA, AGED 33 YEARS, S/O.MADARA, BELA VILLAGE & POST, VIA KUMBALA, KASARGOD TALUK & DISTRICT.
BY ADVS.SRI.SURESH KUMAR KODOTH SRI.K.P.ANTONY BINU
RESPONDENT(S)/RESPONDENTS/PLAINTIFF/DEFENDANTS 1 TO 4:
1. SUSHEELA, AGED 63 YEARS, D/O.KORAGAPPA & UNDACHI, R/AT PERNADKA, KUDLU VILLAGE, P.O. RAMDAS NAGAR, KASARGOD TALUK & DISTRICT - 671 124.
2. GIRIJA, AGED 47 YEARS, D/O.KORAPALU & KARIYA, R/AT PERNADKA, KUDLU VILLAGE, P.O.RAMDAS NAGAR, KASARGOD TALUK & DISTRICT - 671 124.
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RSA.No. 242 of 2015
3. D.C.NARAYANAN @ CHOYI, AGED 76 YEARS, S/O.ANDRU, RESIDING AT DERBATHADKA, BELA VILLAGE & POST, VIA KUMBALA, KASARGOD TALUK & DISTRICT - 671 321.
4. D.KRISHNA DAS, AGED 51 YEARS, S/O.D.C.NARAYANAN, RESIDING AT DERBATHADKA, BELA VILLAGE & POST, VIA KUMBALA, KASARGOD TALUK & DISTRICT - 671 321.
5. VANAJA, W/O.D.KRISHNA DAS, AGED 51 YEARS, RESIDING AT DERBATHADKA, BELA VILLAGE & POST, VIA KUMBALA, KASARGOD TALUK & DISTRICT - 671 321.
6. GOPALA, S/O.D.C.NARAYANAN, RESIDING AT DERBATHADKA, BELA VILLAGE & POST, VIA KUMBALA, KASARGOD TALUK & DISTRICT - 671 321.
R1 & R2 BY ADV. SRI.P.K.MUHAMMED
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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P.B.SURESH KUMAR, J.
R.S.A. No.242 of 2015
Dated 12th January, 2016.
J U D G M E N T
Defendants 5 to 9 in a suit for recovery of possession and injunction are the appellants in this second appeal. The case of the plaintiffs is that the suit property was obtained by one Undachi by way of assignment from the Government. The first plaintiff is the daughter of Undachi and the second plaintiff is the daughter of one of the pre-deceased sons of Undachi. According to the plaintiffs, Undachi died on 30.10.1975 and they are the sole legal representatives of Undachi. It is the case of the plaintiffs that the defendants, who have no manner of right over the suit property, trespassed into a portion of the same, described as the plaint B schedule and are attempting to trespass into the remaining portion of the suit property described as the plaint C schedule. The defendants contested the suit by filing separate written statements. As far as defendants 5 to 9 are concerned, the contention raised by
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them in the written statement was that they are in possession of the suit property. Alternatively, they have also contended that they have perfected title to the suit property by adverse possession and limitation. The trial court accepted the case of the plaintiffs and decreed the suit directing defendants 5 to 9 to surrender the plaint B schedule property to the plaintiffs and restraining the defendants from trespassing into the plaint C schedule property. Defendants 5 to 9 alone challenged the decision of the trial court in appeal. The appellate court, on a reappraisal of the evidence on record, confirmed the decision of the trial court. Hence this second appeal by defendants 5 to 9.
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out that the title of the plaintiffs over the suit property was not established by the plaintiffs and therefore, the courts below acted illegally in decreeing the suit.
"It is true that the Patta in respect of the suit properties stood in the name of Undachi."
Defendants 5 to 9 have no case that the plaintiffs are not the legal representatives of Undachi. As such, in the light of the said sentence in paragraph 4 of the written statement filed by defendants 5 to 9, I do not think that there is any scope for the said defendants to contend that they have not admitted the title of the plaintiffs over the suit property. True, had
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defendants 5 to 9 contended that they had a better title over the suit property, this Court would have certainly appreciated the contention advanced by the learned counsel for the appellants that the plaintiffs have not produced their title deed. However, in the absence of any such contention, according to me, the admission of defendants 5 to 9 in the written statement as aforesaid is sufficient for this Court to conclude that the contesting defendants have admitted the title of the plaintiffs over the suit property. As regards the plea of adverse possession, in George v. Balakrishnan (2014(4) KLT 788), this Court has held that such a plea cannot be raised alternatively in a suit where the defendants do not admit the title of the plaintiffs. In the said view of the matter, there is no merit in the second appeal and the same is accordingly, dismissed. All the interlocutory applications in the appeal are closed.
Sd/P.B.SURESH KUMAR, JUDGE.
tgs
(True copy)
2 issues framed by the court
Whether the admission of title in the written statement by the appellants bars them from raising a fresh plea of adverse possession alternatively.
Whether the lower courts acted illegally in decreeing the suit without production of the original patta by the plaintiffs.
Colour shows how this judgement treated each authority
George v. BalakrishnanFollowed¶43
George v. Balakrishnan (2014(4) KLT 788)
Leela
Achutha
Harishchandra
Kushala
Ashoka
Susheela
P.B. Suresh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
P.B. Suresh Kumar
Parties & counsel
