RAJAMMA Vs. AMMINI AMMA

JUDGEMENT

(1.) Appellant herein is the plaintiff in OS No. 375 of 1990 on the file of the Munsiff's Court, Muvattupuzha and appellant in AS No. 10 of 1996 of Subordinate Judge's Court, Muvattupuzha. Respondents herein are the defendants in the said original suit and the respondents in the first appeal. The original suit was filed for declaration of title and for recovery of possession of plaint schedule properties.

(2.) Plaint averments in short are as follows. The plaintiff and the first defendant are sisters and they are parties to the family partition deed No. 2643/1959. As per that partition deed, plaintiff obtained 53 cents of property described in 'K' schedule. The first defendant obtained property in 'I' schedule. The said 53 cents of property consists of 30 cents in Sy. No. 158/8-C and 23 cents in Sy. No. 158/10A which are lying contiguously. The former item of property is lying on the western side of the latter. On 27/12/1988, the first defendant and her men cut open a new pathway through the 53 cents of property belonging to the plaintiff by trespassing therein. A portion of the said 53 cents of property is lying on the northern side of the pathway. The plaintiff filed OS No. 1 of 1989 for declaration of title and recovery of possession of property through which the pathway was constructed by the first defendant. While the suit was pending, the defendants enclosed the portion of the plaintiff's property lying on the northern side of the newly built pathway by putting up 'Kayyala' and reduced the same into their possession. A commission was taken out in OS No. 1 of 1989 for measuring out the plaintiff's property with the help of the surveyor. On measuring out the property, it has been revealed that 6 cents of property lying on the northern side of the pathway in Sy. No. 158/8C has been trespassed upon by the first defendant and another 9 1/2 cents of property lying on the northern side of the pathway in Sy. No. 158/8C was also trespassed upon by the second defendant. These items of properties are plaint scheduled item Nos. 1 and 2 in the original suit. The plaintiff sought a declaration of her title over plaint schedule properties and recovery of possession of the same.

(3.) The defendants jointly filed a written statement contending that even at the time of partition as per partition deed No. 2643/1959, there was a pathway lying on the northern side of the property in Sy. No. 158/8C obtained by the plaintiff and that the pathway runs to the eastern side to the paddy field. Defendants contended that the first defendant has property in Sy. No. 158/10A on the northern side of the plaintiffs property and on its western side lies the property belonging to the second defendant in Sy. No. 158/11. The defendants do not have any property in Sy. No. 158/8C and since there was no actual measurement of the properties and allotment of respective shares after the partition in 1959, if any portion of the plaint schedule property is found in possession of the defendants, the right of the plaintiff over it has been lost by adverse possession and limitation