Ali Haji and Others vs Mangalpady Grama Panchayath, State of Kerala and The Tahsildar

Justice Thomas P. Joseph

The plaintiffs in O.S. No. 214 of 2007 of the Principal Munsiff''s Court, Kasaragod are aggrieved by the dismissal of that suit as confirmed by

the Sub Court, Kasaragod in A.S. No. 86 of 2008. Appellants claimed that the plaint A schedule property belonged to the late Ibrahim, the father

of appellants 1 to 4 and grandfather of appellants 5 to 10 as per Exts. A1 and A2, he having taken the said property on lease on 14.04.1958.

After death of the father, the appellants are the owners in possession of the plaint A schedule. Plaint B schedule is 16 cents described in the

revenue records as river puramboke but claimed to be in the possession and enjoyment of the late Ibrahim from 07.01.1960 onwards. The

appellants claimed that they have perfected title over the plaint B schedule by adverse possession and the law of limitation. When the first

respondent-local authority attempted to form a road through the plaint B schedule and one Abdulkhader and Andunhi tried to cut down trees from

the said property, appellants 1 to 3 filed O.S. No. 396 of 2004 against the said Abdulkhader and O.S. No. 433 of 2004 against the first

respondent. The cases were decided in favour of appellants 1 to 3. The first respondent filed appeal as A.S. No. 6 of 2006. The appellant are in

possession of the plaint B schedule property. Hence the suit for declaration of title by adverse possession and for injunction.

The first respondent contended that the appellants encroached into the river puramboke and thereon the first respondent issued notice to them

to evict them. To circumvent that, the present suit is instituted. It claimed that the plaint B schedule is a river puramboke vested with it. It also

claimed that the plaint B schedule is necessary for protection of the drinking water source.

Respondents 2 and 3, the State and the Tahasildar also raised similar contentions.

The trial court found that appellants are in possession of the plaint B schedule but the plea of adverse possession was found against. According

to the trial court mere length of possession of the plaint B schedule is not sufficient to confer title by adverse possession. The suit was dismissed.

The appellants challenged the dismissal of the suit in A.S. No. 86 of 2008. The respondents preferred a cross objection in part, against the

finding of the trial court regarding possession. The first appellate court allowed the cross objection found that the appellants have no possession

over the plaint B schedule and dismissed the appeal. That judgment and decree are under challenge in this second appeal.

The learned counsel contends that the law as it now stands is that the adverse possession can be pleaded and proved against the Government

property as well, of course showing adverse possession for a period of 30 years. The learned counsel has placed reliance on the decision in Chatti

Konati Rao and others Vs. Palle Venkata Subba Rao (2011 (1) KLT S.N. 17 (Case No. 21)). It is argued that the trial court has rightly found

that the appellants are in possession of the plaint B schedule but that finding is erroneously reversed by the first appellate court. It is further argued

that all the necessary ingredients to prove adverse possession has been established.

Exts. A1 and A2 relate to the plaint A schedule. Exts. A3 and A4 relate to O.S. Nos. 396 and 433 of 2004 referred above. Ext. A5 is the

copy of notice dated 01.06.2007 sent to the first respondent (preceding the institution of the suit. That, the plaint B schedule is a river puramboke

is proved by Ext. B1, sketch prepared by the Village Officer.

The appellants do not claim title over the plaint B schedule as per any document. Their claim is only that they have perfected title by way of

adverse possession and limitation.

So far as the claim of possession is concerned, according to the first respondent, appellants encroached into the plaint B schedule and thereon it

issued notice to the appellants. That cannot mean that the appellants have taken possession of the plaint B schedule. Possession'' is different from

occasional interference with another''s property. A trespass is an interference with another''s'' property. No document is produced to show

possession of the appellants over the plaint B schedule. The evidence available is that PW.1 alone. PW.1 has admitted that the 1st respondent

constructed a road in between the plaint A and B schedules. Plaint B schedule is situated on the side of the river and forms part of the river bank.

The report of the Advocate Commissioner of course reveal that the appellants and their predecessor-in-interest effected some improvements in the

plaint B schedule. The first appellate court held that there is no evidence to show that the appellants are in possession of the plaint B schedule, at

any rate, with the knowledge of the respondents.

The learned counsel has invited my attention to the various improvements found in the plaint B schedule. Assuming so, it is not as if that alone

will confer title over the plaint B schedule by adverse possession. The Supreme Court in Mandal Revenue Officer Vs. Goundla Venkaiah and

Another, has pointed out that any amount of vigilance by the Government officials will not prevent encroachers from trespassing and that in such

circumstances, the courts must be careful while considering the plea of adverse possession as against Government property. In Chatti Konati Rao

and others Vs. Palle Venkata Subba Rao ( 2011 (1) KLJ NOC 29 (page 34)) the Supreme Court again states that the courts always take an

unkind view towards adverse possession affecting property rights and that a plea of adverse possession has no equity in its favour. It is further held

that the plea is not a pure question of law, it is a blend of law and fact.

Though the appellants claimed that their predecessors-in-interest has been in possession of the plaint B schedule from 07.1.1960 onwards, not

a scrap of paper is produced to substantiate that contention. On the other hand, it is proved by Ext. B1 that the plaint B schedule is a river

puramboke. By the provisions of the Kerala Panchayat Act and the Panchayat Raj Act, river beds also stand transferred to and vest with the local

authority. Merely because of some improvements are found in the plaint B schedule, I am not inclined to think that the court should reach the

conclusion that the plaint B schedule was in possession of the appellants and their predecessor-in-interest nec vi nec clam nec precaria. That is

what the courts below have found. I must also notice that as contended by the first respondent, the plaint B schedule is river puramboke and it is

necessary for protection of the drinking water source. I am inclined to think that there is no equity in favour of the appellants; nor does any

substantial question of law arise from the judgments of the courts.

Second appeal is dismissed.