OUSEPH VARGHESE Vs. K.K. THAMPI AND OTHERS

JUDGEMENT

(1.) Defendant Nos.1 to 5 came up with this appeal aggrieved by the decree and judgment rendered by both the Principal Sub Court, Alappuzha in A.S. No. 87 of 2003, dated 30.11.2005, and the Munsiff's Court, Alappuzha in O.S. No. 1130 of 1997, dated 12.4.2002.

(2.) The suit is for recovery of possession of encroached portion of property belonged to the plaintiff and also alleging violation of requirement under Rule 15 of the Kerala Building Rules by the defendants while constructing a building over their property, abutting to plaint schedule. A survey commission was deputed, who in turn filed a report locating the plaint schedule property as well as the property owned by the defendants. Item No. 1 is the property owned by the plaintiff having an extent of five cents. The commissioner who visited the property located the plaint schedule item No. 1 property and the property belonged to the defendants. The structures constructed over the property was also located by drawing the portion wherein the encroachment was made. It was accepted by the lower court and allowed recovery of possession of encroached portion without specifying the portion in which the relief was granted and without annexing Ext.C1(b) plan as part of the decree. The matter was taken up in appeal and the appellate court dismissed the appeal confirming the decree and judgment of the lower court which is under challenge in this second appeal.

(3.) The only contention raised by the defendants is that the encroached portion, which is belonged to the plaintiff, was possessed by them in derogation of the interest of its lawful owner, the plaintiff, in a hostile manner. Admittedly, there is no boundary fencing, boundary wall or any other structure separating the property of the plaintiff from that of the defendants. Even if it is accepted, in the absence of a structure separating the properties which were in possession of the plaintiff from that of the remaining property of the defendants, there cannot be any question of adverse possession unless the same is capable of giving notice of possession in a hostile manner in derogation of the right of the lawful owner. There cannot be any adverse possession in secrecy. It must be capable of giving notice to all concerned or interested persons and it should be open and hostile. In other words, holding of property in secrecy will not satisfy one of the crucial ingredients which constitute possession adverse to the title of the landlord. Since there is no boundary fence or structures or compound wall separating the property possessed by the defendants from that of the plaintiff, it cannot be said the said possession is open. In the absence of open assertion capable of giving notice there cannot be any adverse title.