RAMAN Vs. S. DEVADASA MALLER

JUDGEMENT

(1.) SIMPLE question for consideration in the second appeal filed by the first defendant is whether his possession of the suit property for more than 40 years till the institution of the suit along with other portions as full owner under the impression that it belongs to him without being aware that it is part of the land belonging to the respondents (plaintiff and B defendants 2 to 9, who are coowners) will constitute adverse possession capable of acquiring title.

(2.) SUIT property is five cents of land. It is not in dispute that it is A-B-C-D plot in the plan attached to Ext. A2 decree in O. S. No. 323 of 1974 on the file of the Munsiff, Kannur. That was a suit for injunction filed by the predecessors of the respondents against the appellant in relation to the same property. In that case, there was a contention for the plaintiffs that there was permissive occupation of the land for construction of a shop building. Permissive occupation as tenant was found against and the appellant was found m possession on independent claim of title. The suit was dismissed and A. S. No. 155 of 1977 filed against it was also dismissed. It was then that the present suit, O. S. No. 314 of 1979, was filed by the first respondent for recovery of possession on the strength of title.

(3.) ACCEPTING the contentious of the appellant, the Trial Court dismissed the suit as the title of the respondents is lost by his adverse possession from 1115 ME. The appellate court also rejected the plea of permissive occupation put forward by the first respondent and found that the appellant was in possession from 1115 ME under independent claim of right. But the appeal was allowed and the suit was decreed for recovery of possession on the strength of title for the sole reason that the appellant's possession without the knowledge of ownership of the respondents cannot be hostile possession capable of acquiring prescriptive title. The factual conclusions of the two courts below and in the previous decision regarding possession on independent right have become final and cannot be reopened. There was some observation in the decision in O. S. No. 323 of 1974 that though the possession of the appellant was on independent claim and not permissive, it will not be adverse possession. Respondents rightly conceded that these observations will not be res judicata because that was only a suit for injunction in which title or adverse possession were not in issue and it was not necessary to consider those questions. Therefore, the only question to be considered is whether the title of the respondents is lost by adverse possession or not.