HAMSA HAJI Vs. RABIA UMMA

JUDGEMENT

(1.) The defendant in a suit for recovery of possession and injunction is the appellant in the Second Appeal. The plaint schedule property is having an extent of 1 1/4 cents in R.S. 36/3 of Madayi amsom. The plaintiffs case is that she obtained the property as per Ext. A2 assignment deed from Kuttiyassantakath Abdulla Haji. In Ext. A2 plaintiff has obtained 21 cents in R.S. 36/3 of Madayi amsom. It is stated in the plaint that on the eastern portion of the plaint schedule property an extent of 12 x 12 carpenters koles was in possession of Kuttiali and two others as per document dated 3.10.1933. That land was acquired by Government for construction of a road. Subsequently the defendant has obtained a document and when he made preparations for constructing RCC pillars the plaint schedule property was got measured and it was found that the plot where the defendant was preparing for construction of RCC building belongs to the plaintiff. Thereafter the defendant was requested to remove the shop building and hand over possession. Since he refused to do so the suit was filed.

(2.) The defendant filed written statement denying the title of the plaintiff. It was stated that an extent of 12 x 12 koles was obtained by the defendants predecessor as early as in 1933 and a shop building was constructed therein. That building is in the possession of the defendant by transfer and plaintiff has no right over the said building. The construction of the building was almost over in the place where the old building was situated. Defendant also pleaded that even if the plaintiff has title to the property the same is lost by adverse possession and limitation. On these pleadings the Trial Court framed various issues including the issue on the title of the plaintiff and also the issue regarding adverse possession and limitation.

(3.) On the question of title the Trial Court found that though plaintiff has obtained rights over 21 cents in R.S. 36/3 there is no conclusive evidence to show that the said 21 cents is inclusive of the plaint schedule property. The said 21 cents of the plaintiff is not specifically shown in Ext. C2 plan. Since the document produced by the defendant related to R.S. 36/1 and since the Advocate Commissioner has reported that property on the three sides of the plaint schedule property is in the possession of the plaintiff the Trial Court came to the conclusion that plaintiff has got title to the disputed property also.