Rudolf Greenson vs Cochin Thirumala Devaswom

N.K. Balakrishnan, J.—Defendant is the appellant. Plaintiffs filed a suit for recovery of possession, mandatory injunction and also for prohibitory injunction. The trial Court held that the plaintiff has title to the disputed property but the suit was dismissed stating that there is discrepancy with respect to the identity of the B schedule property which is sought to be recovered. The lower appellate Court had a re-appreciation of the evidence and found that the plaintiff has title to the property and that practically there could be no serious dispute regarding the identity of the property. Though the defendant/appellant contended that they have perfected title by adverse possession and limitation that was found against since the defendant himself requested the plaintiff for assignment of that property and that the defendant was not holding the property adverse to the interest of the real owner namely; the plaintiff and hence, the suit was decreed. The learned counsel for the appellant submits that the lower appellate court should not have decreed the suit; the northern boundary of the plaint B schedule property is shown as 4.8 metres (24 links) whereas the northern boundary in Ext. A11 and X1 is 11 links; the sub division number of the encroached portion is also different and hence, according to the appellant, relying on Ext. C1(a) sketch, no decree can be passed in favour of the plaintiff/respondent.

The plaint B schedule property is the property sought to be recovered which according to the plaintiff forms part of the plaint A schedule. The contention that the plaint B schedule property was not identified is incorrect. Since Ext. C1(a) sketch and the report filed by the Advocate Commissioner would leave no doubt that the B schedule property is part of the plaint A schedule property held by the plaintiff. The fact that the plaintiff has title to the plaint A schedule property of which the plaint B schedule is a part could not be denied at all. Not only that there is a concurrent finding of fact with respect to the plaintiff''s title to the said property. The trial Court happened to dismiss the suit holding that there is slight discrepancy in the description of the plaint B schedule property.

Plots A1, A2, A3, and A4 shown in Ext. C1(a) plan comprised in Sy. No. 304 and Plots B1 and B2 also fall in Sy. No. 304. The plaintiff Devaswom had shown a separate sub division of their own, only to make it clear that the properties were in the possession of the tenants and not in the direct possession of the Devaswom. Plot B1 and B2 are the plots which are sought to be recovered, which were trespassed upon by the defendant. The said property measures 9 Sq. metres and 14 Sq. metres respectively as shown in Ext. C1(a) plan. Since the property was measured by the Head Surveyor and it was accepted by the lower appellate court giving cogent reason, the contention that there is no proper identification of the plots is bereft of any merit.

The defendant/appellant contended before the courts below that he has perfected title by adverse possession. Adverse possession must commence from long. Since which date he started to possess the property in assertion of title against the plaintiff is not clear from the pleading or evidence. That a part, Exts. A5, A7 and A9 letters sent by the defendant to the plaintiff Devaswom would make it clear that he has admitted the plaintiff''s title and infact the defendant requested the plaintiff to assign to him the encroached area. That itself will demolish the entire case put forward by the defendant even with regard to the identity of the property. The trial court fell into an error regarding the appreciation of evidence regarding the identity of the property. When the Commissioner''s report and plan are very clear on the point there was no reasonable basis for having such a doubt in the mind of the court. The lower appellate court has clarified that position. It was found, based on reliable evidence including the Commissioner''s report, plan and other records that the plaint B schedule property forms part of the plaint A schedule property in respect of which the plaintiff has absolute title. Plaintiff''s title has not been lost by adverse possession and limitation as contended by the defendants. As such, the plaintiff is entitled to get recovery of possession of the encroached area shown as plots B1 and B2 in Ext. C1(a) plan. The lower appellate court was perfectly justified in granting a prohibitory injunction restraining the defendant/appellant from encroaching to the plaint A schedule property. Since Ext. C1(a) plan forms part of the decree, the plots B1 and B2 the encroached area having been separately shown, there could be no dispute regarding the identity at all. There is absolutely no merit in this appeal. No substantial question of law is involved. Hence, this appeal is dismissed in limine.

Dated this the 4th day of November, 2013.