KALLIANI AMMA Vs. MALLIKA

JUDGEMENT

(1.) The suit for recovery of possession on the strength of Ext. A20 title deed was decreed. That decree was confirmed by the lower appellate court. Therefore, this appeal by the defendant.

(2.) The defendant resisted the suit on various grounds including on the ground of adverse possession and limitation. Notice in the Second Appeal has been issued on the question of adverse possession alone. Therefore, only that aspect need be examined in this case. According to the defendant, he obtained title to the property as per Ext. B2 dated 28.1.1975 from one Narayani Amma who got the same property as per Ext. B1 dated 12.2.1969. Eversince 12.2.1969 thus the predecessor in interest of the defendant was in possession of the property and continuously thereafter on assignment as per Ext. B2, the defendant continued the possession and enjoyment of the property. The possession thus stretched the statutory period of 12 years, and therefore, the plaintiff could not have sought for recovery of possession as the defendant had perfected the title on the basis of adverse possession and limitation. The issue regarding the adverse possession was raised as additional issue No. 6 and the finding thereon by the Trial Court is as follows:

(3.) But at the same time, the Trial Court had found on the basis of Exts. A29 plan and A30 commission report filed in O.S. No. 56/86 between the present plaintiff and the defendant's mother with respect to the boundary in dispute of the properties in survey No. 68/8 and 70/6 that the northern boundary of survey No. 68/8 tallied with the measurement of northern boundary in Ext. C1 plan. Based on that evidence the Trial Court presumed that the plots A1 and A2 in R.S. No. 68/8 were trespassed after O.S. 56/86. This is not a matter of presumption, especially based on Exts. A29 plan and A30 commission report in a different suit concerning a different issue. Such documents could not have been pressed into service to find the plea of adverse possession against the defendant, without examining the commissioner who had submitted such report and plan in that suit. It is discernible from the Trial Court judgment that the dispute in that suit was with respect to the boundary of separate properties in Survey No. 68/8 and Survey No. 70/6. From Ext. C1 plan submitted by the Commissioner in this case it is discernible that the boundary of the property claimed by the defendant on adverse possession is within Survey No. 68/8 itself and that property in Survey No. 70/6 started far south of the boundary of the property claimed by the defendant. Then Ext. A29 plan and A30 Commission report were of no avail to determine whether the possession of the defendant was within 12 years or not. Another aspect considered by the Trial Court as well as the lower appellate court was the age of the coconut sapplings grown in the property. It cannot be taken that one will plant coconut trees immediately as and when he comes into possession of the property. But at the same time, the evidence of DW 1 and DW 2 had not been adverted to at all. DW 1 is the son of the predecessor in interest of the defendant. He was an attesting witness to Ext. B2 and according to him he had dug a channel in the property which has been reported by the commission. In such circumstances it was incumbent on the courts below to refer to that evidence to find out whether the plea of adverse possession can be allowed or not.