KUNJI PARVATHY AMMA Vs. MARIYAMMA
LAWS(KER)-2003-11-155
HIGH COURT OF KERALA
Decided on November 05,2003

Kunji Parvathy Amma Appellant
VERSUS
MARIYAMMA Respondents

JUDGEMENT

- (1.) This Second Appeal is filed by the plaintiffs in O. S. No. 352/19 80 on the file of the Munsiff's Court, Perumbavoor. The suit was originally filed for injunction and it was later amended for recovery of possession of item No. 2 of Plaint A Schedule property. It was 9.200 cents of land. This Court ordered notice on the questions of law formulated which read as follows: i. Whether in a suit for recovery of property on the strength of tittle, it is necessary for the plaintiff to establish the fact of trespass by the defendant ii. Whether in a suit for recovery; of property on the strength of title, the court is not bound to consider the question whether the plaintiff has established title to the property and enter a specific finding. iii. Whether in a suit for recovery of possession on the strength of title, the court should not raise a point for determination, to the effect whether the plaintiff has title over the disputed property, and enter a finding thereon. iv. Whether the question whether the trespass alleged has been proved is not irrelevant in a suit for recovery of property on the strength of title. v. Whether the burden to establish that plaintiff's title has been lost by adverse possession and limitation is not on the defendant. vi. Whether the lower court's deduction that since the plaintiffs did not prove the alleged trespass, the plaintiffs have lost their title' by adverse possession, is not against accepted principles of law. vii. Whether the findings entered by the lower court are perverse." Out of the above questions of law formulated, what has been pressed before me are the questions Nos. 5 and 6 and both sides were heard on these two questions. I heard Sri. Vidyasagar, the learned counsel for the appellants and Sri S. V. Balakrishna Iyer, the learned counsel for' the respondents.
(2.) The plaint A schedule property which is shown as having an extent of 2.56 acres situated in R.S. No. 329/2 and 329/1 of Aikaaranad North village is claimed by the plaintiffs under Ext. A3 settlement dated 14-5-1954. Plaint B Schedule property is one acre of land situated in R. S. No. 329/1 and in on the northern side of the plaintiffs' property. That property originally belonged to Pyli as per Ext. B4 dated 21-4-1954. It was assigned to the defendants 2 and 3 by Exts. B6 and B7 dated 5-11-1980. According to the plaintiffs, the defendants trespassed into a portion of Plaint A schedule property on 2-12-1980 and dug pits for planting rubber plants. The plaintiffs who were in Madurai came to the property getting information on 5-12-1980, and when questioned, the defendants threatened to trespass into more areas, Originally the suit was only for injunction. The commissioner demarcated 5' cents in Ext. C2(a) plan as the excess land occupied by the defendants. It was shown in red colour. An extent of 4.20 cents is situated on further south of the above said 5 cents and is divided on the eastern and western side of the plaint A schedule property and the 2 plots are demarcated by the Superintendent of survey in Ext. C4 plan. It is thus the 9.20 cents of land which is sought to be recovered on the strength of title by the plaintiffs which in excess of one acre of land in the possession of defendants under the title deeds.
(3.) The defendants originally contended that A schedule and B schedule properties were not measured at any time. Pyli was the owner of the property in Sy. No. 329/1, 329/2, 333/6 and 338/9 measuring 5 acres 69 cents and this property was lying contiguous and there was a building in the property. Subsequently Pyli and the 1st defendant lived as man and wife and they resided together in the building situated in the property Pyli had executed a sale deed in favour of the 1st plaintiff for the entire property by Ext. B1. When the other relatives of Pyli came to know about the sale deed, there was a settlement talk and subsequently documents were executed. It is contended by the defendants that after the one Acre of property in Sy. No. 338/6 was reassigned by the 1st plaintiff in favour of Pyli and his sisters by name Ali and Mariam by document No. 2662, one acre of property lying in Sy. No. 329/1 was assigned in favour of Pyli by document No. 1333/54 and 12 cents of property was assigned in favour of Pyli's sister's husband Kuruvila in Sy. No. 338/6 by the plaintiff. The 1st plaintiff retained 3 acres 33 cents of property after the execution of the above documents and, by an agreement, the remaining 3.59 acres was divided into two and 2 acre 59 cents of property was retained by the 1st plaintiff and the rest was given to Pyli. It is also contended that from the date of the agreement, the properties were separated with boundary and fence. The property obtained by Pyli was assigned in favour of defendants 2 and 3 by document dated 5-11-1980. There are various permanent improvements in the defendants' property which are aged 15 to 20 years. It was the 1st plaintiff who attempted to trespass into the property of the defendants and the defendants had no intention to trespass into the plaintiffs' property.. Even if the plaintiffs have got any title over the property, the same is lost by adverse possession and limitation.;


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