In this second appeal, the Kerala High Court dismissed the plaintiff's challenge to lower courts' decisions refusing a declaration of title based on adverse possession. Relying on Mohini v. Thimmapa, the Court held such suits are not maintainable and noted the plaintiff failed to establish exclusive possession.
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. 305 of 2015 (C)
----------------------AGAINST THE JUDGMENT IN AS. NO.166/2011 OF DISTRICT COURT, KOLLAM DATED 18-12-2014. AGAINST THE JUDGMENT IN OS. NO.1069/2008 OF PRINCIPAL MUNSIFF COURT, KOLLAM DATED 12-04-2011.
APPELLANT/APPELLANT/PLAINTIFF:
DEVARAJAN, AGED 61 YEARS, S/O.KOCHUKUNJU, P.K. NIVAS, MUNDAKKAL CHERRY, MUNDAKKAL VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT.
BY ADVS.SRI.P.CHANDRASEKHAR, SRI.S.PRASANTH, SRI.SOORAJ T.ELENJICKAL, SRI.P.A.MOHAMMED SHAH, SMT.UMA, SRI.B.PRASANTH, SRI.T.S.SARATH.
RESPONDENTS/RESPONDENTS/DEFENDANT:
1. K. RAMESH BABU, AGED 57 YEARS, S/O.KOCHUKUNJU, VELIYIL VEEDU, MUNDAKKAL CHERRY, MUNDAKKAL VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT-691 010.
2. K. MURALEEDHARAN, AGED 67 YEARS, SREENILAYAM, SPACE GARDEN, CHAKKARA JUNCTION, SREEKARYAM, THIRUVANANTHAPURAM, PIN-695 017.
BY ADV. SRI.C.RAJENDRAN (CAVEATOR).
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rs.
P.B.SURESH KUMAR, J.
R.S.A. No.305 of 2015
Dated 12th January, 2016.
J U D G M E N T
The plaintiff in a suit for declaration and injunction is the appellant in this second appeal.
2. The defendants are the brothers of the plaintiff. The plaint A schedule property was obtained by the plaintiff as per Ext.A1 partition deed. The plaint B schedule property was allotted to defendants 1 and 2 jointly as per the very same partition deed. The plaint C schedule property is a building in the plaint A schedule property. The case of the plaintiff is that he is in possession of both the plaint A and B schedule properties right from the date of Ext.A1 partition deed and that he has perfected title over the plaint B schedule property by adverse possession and limitation. It is also his case that the first defendant was permitted to occupy the plaint C schedule building for doing business and though the permission was
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revoked, he is not surrendering vacant possession of the building to the plaintiff. The suit was, therefore, filed seeking a declaration of the plaintiff's title over the plaint B schedule property and for a mandatory injunction directing the first defendant to surrender the plaint C schedule building to the plaintiff. A decree of permanent prohibitory injunction restraining the defendants from trespassing into the plaint A and B schedule properties was also sought. The defendants resisted the suit by filing a written statement. They denied the case set up by the plaintiff that he is in possession of the plaint B schedule property. According to them, defendants are in exclusive possession of the plaint B schedule property. In the written statement filed by the defendants, they have raised a counter claim also for fixation of the boundary separating the plaint A and B schedule properties. There were other prayers in the counter claim which are not relevant in the context of this appeal. The trial court decreed the suit as also the counter claim in part. As far as the suit is concerned, the plaintiff was given a mandatory injunction directing the first defendant to
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vacate the plaint C schedule building. As far as the counter claim is concerned, the defendants were given a decree for fixation of the boundary separating the plaint A and B schedule properties. Though the plaintiff took up the matter in appeal, the appellate court, on a reappraisal of the materials on record, confirmed the decision of the trial court. The plaintiff, who is aggrieved by the decisions of the courts below to the extent the relief s were declined, has come up in this second appeal.
3. Heard the learned counsel for the appellant as also the learned counsel for the respondents/defendants.
4. The grievance highlighted by the plaintiff in the second appeal is as regards the decision rendered by the trial court as also the appellate court in respect of the plaint B schedule property. As noted above, as regards the plaint B schedule property, the plaintiff sought a declaration that he has perfected title over the same by adverse possession and limitation. It is asserted by the plaintiff that the materials on record are sufficient for the courts to infer that the plaintiff is in possession of the plaint B schedule property adverse to the
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interest of the defendants and thus he has perfected title over
the same by adverse possession and limitation. In Mohini v.
Thimmapa (2015(5) KHC 48) this Court held that a suit for declaration of title based on a plea of adverse possession and limitation is not maintainable. Further, the courts below held on facts that the plaintiff has not established exclusive possession over the plaint B schedule property. In the said circumstances, there is no merit in this 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 a suit for declaration of title based on a plea of adverse possession and limitation is maintainable.
Whether the plaintiff established exclusive possession over the plaint B schedule property to claim title by adverse possession.
Colour shows how this judgement treated each authority
Mohini v. ThimmapaRelied on¶33
(2015(5) KHC 48)
DEVARAJAN
K. RAMESH BABU
K. MURALEEDHARAN
P.B.SURESH KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
