STELLUS NETTO Vs. STANLY ALBY AND ORS.

JUDGEMENT

(1.) THE appellant is the plaintiff in O.S. No. 112 of 2008 on the file of the Court of the Subordinate Judge of Attingal. The respondents are the defendants therein. The suit instituted by the appellant for a decree declaring that he has acquired right, title and interest over the plaint schedule property by adverse possession and for a decree of permanent prohibitory injunction restraining the defendants or their men from trespassing into the plaint schedule property and taking possession thereof and restraining defendants 1 and 2 from creating any document with respect to the plaint schedule property was dismissed after trial by judgment delivered on 16.8.2014. The appellant has aggrieved thereby filed this appeal. The brief facts of the case are as follows:

(2.) THE plaintiff and the defendants are near relations. The second defendant is the wife of the first defendant and the third defendant is their daughter. Defendants 4 and 5 are nieces of the first defendant namely, his sister's children. The second defendant is also the sister of the plaintiff's wife. Defendants 1 to 3 (respondents 1 to 3) are citizens of England. The plaint schedule property which is a parcel of land 2 acres in extent (82.60 acres) situate in Survey No. 32/1 of Kadinamkulam Village, Thiruvananthapuram Taluk, Thiruvananthapuram District was admittedly purchased by defendants 1 and 2 as per Ext. A1 sale deed dated 1.2.1961 registered as document No. 354 of 1961 of SRO, Kazhakootam. The appellant contended that he took actual possession of the plaint schedule property on 10.1.1962 when strangers tried to take possession of the plaint schedule property. He contended that defendants 1 and 2 have knowledge of his possession, that he got the original document of title from the document writer, that he was and is holding the plaint schedule property adversely against the real owners (defendants 1 and 2) uninterruptedly, openly and without any disturbance from 1962 onwards and that he is thus in possession and enjoyment of the plaint schedule property. He also contended that defendants 4 and 5 are on inimical terms with him for the reason that O.S. No. 145 of 1980 instituted by their mother against him was dismissed and that they are taking steps to get the plaint schedule property by creating false documents. It was also contended that the title of the original owners stands extinguished by adverse possession and limitation and therefore, the plaintiff is entitled to get his title over the plaint schedule property declared.

(3.) IN the trial court, the plaintiff examined himself as PW1 and two other witnesses as PWs. 2 and 3. He also produced and marked Exts.A1 to A7. On the side of the defendants, the power of attorney holder of defendants 1 to 3 appointed as per Ext. B1 power of attorney was examined as DW1 and Hamil Periera with whom the original of the title deed was entrusted was examined as DW2. They also produced and marked Exts.B1 to B9. The Advocate Commissioner who submitted Ext. C1 report and Ext. C1(a) rough sketch was examined as DW3. The letter produced by DW2 was marked as Ext. X1 and X1(a). The trial court on an analysis of the pleadings and the evidence oral and documentary available in the case held that the plaintiff has failed to prove his possession over the plaint schedule property. His contention that he has perfected title by adverse possession was also found against him. The trial court also held relying on the decision of the Apex Court in Gurdwara Sahib v. Gram Panchayat Village Sirthala [ : (2014) 1 SCC 669] that the suit for a declaration that the plaintiff has perfected file by adverse possession is not maintainable. The suit was accordingly dismissed. Hence this appeal.