S. Marimuthu, J. 1. This appeal is directed against the judgment delivered by the Subordinate Judge, Badagara in A.S. No. 109 of 1986. In this second appeal, the plaintiff is the appellant. Defendants 1 to 9 are the respondents. The first defendant is the mother of the other defendants.
The husband of the first defendant and father of the other defendants by name Viruthan is the brother of the plaintiff-appellant. The appellant as plaintiff filed a suit in O.S. No. 5 of 1984 before the Court of Munsiff, Quilandy for recovery of possession of C Schedule property in the plaint and also for mesne profits.
2. The admitted case of both sides in short is as follows : Plaint A Schedule property is totally measuring 4 acres comprised in R.S. No. 31/6, 36/1 and 29/1 Arikkulam village in Kozhikode District, Quilandy Taluk. The A Schedule property was assigned to the plaintiff-Chankoyi alias Chekkayi by the original Jenmi under Ext. A1 a registered Verumpattam Kuzhikanam deed dated 7-11-1937. Out of the 4 acres on the western side, some extent of the said property was assigned by the plaintiff to some third party (the extent and the said document are not available). Then out of the remaining area in the 4 acres, the plaintiff assigned one acre and 11 cents under Ext. A2 registered Marupattam deed dated 28-2-1955 in favour of his brother Viruthan -- the husband of the first defendant and the father of the other defendants. The plaint A Schedule property is the entire property which was assigned to the plaintiff under Ext. A1. Plaint B Schedule property, 1 acre 11 cents is the property assigned to the plaintiff's brother under Ext. A2. The name of A Schedule property is known as Thanikuzhi Parambu which is a portion of Valiya Mala. The boundaries given in Ext. A2 are as follows :
East : Chappiamkunnathu Parambu; North-West : The properties of the assignor of Ext. A2; and South : Thanikuzhi Parambu, the same boundaries given in Ext. A2 are given in B Schedule plaint property. Therefore, B Schedule plaint property is the property assigned under Ext. A2.
3. Plaint C Schedule property measuring about 27 and odd cents is lying on the South of plaint B Schedule property. D Schedule property measuring one acre 40 and odd cents lying South of C Schedule property belongs to the plaintiff.
4. A Commissioner was appointed in the trial Court who first filed Ext. C1 plan and C2 report on 17-10-1984. The same Commissioner again visited the property and filed Exts. C3 plan and C4 report on 20-8-1985. The surveyor's plan is marked as Ext. C5.
5. Apart from the above common case of both the sides, the learned counsel Smt. Prabha Menon appearing for the appellant submitted that C Schedule property forms part of D Schedule property which has been trespassed into by the defendants in the month of July, 1983 and continued in possession of the same. Therefore, the plaintiff was constrained to file the above suit for recovery of C Schedule property.
6. On the other hand, M/s. U. K. Ramakrishnan and Mathew Nedumpara, the learned counsel appearing for the defendants, submitted that plaint C Schedule property is comprised in Sy. No. 41/ 4 which has been in the possession of the husband of the first defendant even prior to the execution of Ext. B10 Pattaseettu dated 23-2-1956. Ext. B10 was executed by the Jenmi by name Kelappa Marar. In continuation of the possession over the 29 cents comprised in Sy. No. 41/4 the husband of the first defendant moved the land Tribunal for purchase certificate even in the year 1976. The land Tribunal passed Ext. B2 order dated 19-6-1976 for the issuance of the purchase certificate. In pursuance of Ext. B2, the husband of the first defendant got Ext. B4 purchase certificate on 17-3-1983. In Ext. B2 proceedings the original Jenmi who executed Ext. B10 was the respondent. In these proceedings before the land Tribunal, the same property of 29 cents comprised in Sy. No. 41/4 in Ext. B10 was the subject-matter. The husband of the first defendant again moved the land Tribunal for the purchase of 1 acre 11 cents which was assigned to him by the plaintiff under Ext. A2. The land Tribunal passed Ext. B1 order on 25-2-1976. In pursuance of Ext. B1 order Ext. B3 purchase certificate was issued to the husband of the first defendant on 18-3-1983. Therefore, according to the definite case of the defendants, they are the owners of 1 acre 11 cents as per the purchase certificate Ext. B3, comprised in Sy. No. 31/6, 36/1 and 29/1 (which is described as plaint B Schedule property) and they are also the owners of 29 cents which they got under Ext. B4 certificate which is comprised in Sy. No. 41/4. Therefore, the total extent, according to the defendants comes to 1 acres 40 cents comprised in the above Sy. Nos.
7. To establish that plaint C Schedule property forms part of plaint D Schedule property comprised in the plaint Sy. No. stated ab'dve, on the plaintiffs side, Exts. Al to A5 were marked before the trial CouVt. In addition to the documenary evidence, the plaintiff has given evidence as P.W. 1 and he has also examined one Damodaran as P.W. 2. The Commissioner who visited the properties twice, as pointed out above, has filed Exts. C1 to C4 (plans and reports). Ext. C5 is the surveyor's plan as noted above.
8. To establish that the disputed plaint C Schedule property has been in continuous possession of the defendants for quite a long period and the said disputed property forms part of 29 cents for which Ext. B4 purchase certificate was issued, on the defendants' side, Exts. B1 to B10 were marked. The 7th defendant was examined himself as D.W. 1 and in addition to that they haveexamined one Raghavan as D.W. 2. It is also an alternative claim of the defendants over the plaint C Schedule property by the doctrine of adverse possession.
9. The trial Court on examining the above evidence, came to the conclusion that the plaintiff has failed to establish that he is the owner of plaint C Schedule property which was trespassed into by the defendants in July, 1983 and thereafter they have been in illegal possession of the same. Ultimately, taking the above views, the trial Court dismissed the suit.
10. Challenging the above judgment of the trial Court, the plaintiff filed A.S. No. 109 of 1986, as adverted to above, before the Subordinate Judge, Badagara who affirmed the judgment of the trial Court by dismissing the appeal.
11. The present second appeal has come up challenging the judgment of the Sub-Judge delivered in A.S. No. 109/86. The material points that were urged before me by both the learned counsel for consideration are as follows :
i. Whether the plaintiff-appellant is the owner of the plaint C and E Schedule properties or the respondents-defendants are the owners of the same?
ii. If the appellant is the owner of the plaint C and E Schedule properties whether the respondents-defendants have trespassed into the same in the month of July, 1983?
iii. Whether the respondents have alternatively perfected title over the plaint C and E Schedule properties by adverse possession by their long and uninterrupted possession?
iv. If the appellant is the owner of the plaint C and E Schedule properties whether he is entitled to recover the same from the respondents? Before considering the above points raised before this Court, I am of the view, whether this Court can interfere into the concurrent findings of both the Courts below. In this context, it is the submission of the learned counsel appearing for the respondents that the findings of both the Courts below are only in respect of fact and they are not relating to any substantial question of law. Therefore, when no substantial question of law arises, this Court cannot interfere in this second appeal into the judgments of the Courts below. On the other hand, the learned counsel appearing for the appellant submitted that in the additional written statement filed by the respondents they have set up a plea for adverse possession. Regarding this plea of the respondents raised in the additional written statement, some unperceivable answers are given by both the Courts below. When such plea of adverse possession is taken up by the respondents and when there are some findings in respect of the same in the judgments of both the Courts below, it can be rightly said that a substantial question of law is involved in this case and therefore this Court can interfere in this second appeal.
12. I examined the above submissions of both the learned counsel in accordance with the pleadings and the evidence of D.W. 1 (7th defendant), they manifestly would go to show that the plea of adverse possession has been raised by the defendants in the additional written statement and at the same time they have failed to establish the same as borne out in the evidence adduced on their side. Therefore, needless to say that a question of law is involved in this case and hence this Court can interfere in the judgments of the Courts below. Even in the absence of direct involvement of substantial question of law, when the findings of the Courts below rendered on facts are perverse, material aspects available on record are not properly assessed, and inconsequential substances have been given much importance, the High Court in this second appeal can interfere as if a question of law has arisen. Therefore, though I have held above that a question of law is involved in this case I also will discuss before leaving this judgment, by considering the contentions of both sides based on facts and give an additional finding whether the Courts below have committed the above infirmities or any one of them in the judgments.
Point Nos. 1 to 4 : Ext. A2 dated 28-2-1955 is a registered Marupattam executed by the appellant in favour of his brother Viruthan who is the husband of the first respondent and father of the other respondents, in respect of 1 acre 11 cents in the plaint Sy. numbers which has been described as B Schedule property in the plaint. Ext. C5 is the Surveyor's plan pertaining to the plaint survey numbers and also the adjacent Sy. No. 41/4 and its sub-divisions. Both the appellant and the respondents are bound by Ext. A2 and Ext. C5. After the amendment of the plaint, now the dispute is with reference to plaint C and E Schedule properties, both totally measure an extent of 36.09 cents. The submission of the learned counsel appearing for the appellant would be that the plaint C Schedule property was in his possession till they were trespassed into by the respondents in the month of July, 1983 and these two items are comprised in Sy. Nos. 31/6, 36/1 and 29/1 and these two disputed items form part of the properties of the appellant. On the other hand, it is the definite submission of the learned counsel appearing for the respondents that C and E plaint items form part of the plaint B Schedule measuring 1 acre 11 cents as well as 29 cents which their predecessors-in-interest obtained under Ext. B10 Pattaseettu of the year 1956. Ext. B10 was followed by Exts. B2 and B4 proceeding and purchase certificate of the land Tribunal.
13. Now, let me look into the evidence whether the 1 acre 11 cents assigned to the predecessors-in-interest of the respondents under Ext. A2 is lying adjacent to or contiguous to the 29 cents assigned to the predecessors-in-interest under Ext. B10. A reading of Ext. B10 would go to show that the 29 cents thereunder is comprised in Sy. No. 41 /4, and this property is not a portion of Thanikuzhy Parambu belonging to the appellant comprised in the plaint survey numbers. The same matter was the subject-matter before the land Tribunal in Ext. B2 proceedings. Ext. C5 is the copy of survey plan prepared by the Surveyor. There is no dispute in respect of the location of the properties shown in Ext. C5. Ext. C5 survey plan cannot be questioned as it is a copy of a public document, unless and until a contra reliable and substantial evidence is let in to discard the same. In this instant case, both sides have not disputed Ext. C5 plan. I also do not find any evidence on the respondents side to discard Ext. C5 survey plan. Ext. C5 survey plan would evince that R.S. No. 41/4 is lying on the south far away from the plaint survey numbers. In between the suit Sy. Nos. and R.S. 41/4 and another sub-division R.S. No. 41/3 is lying on the east and on the west of 41/3 some other property is located. Therefore, it is very difficult to accept the submission of the learned counsel for the respondents that the property conveyed under Ext. A2 and the property assigned under Ext. B10 are lying contiguous or they are adjacent properties. When that be the real situation, the disputed items, namely, C and E are obviously lying in the plaint survey number.
14. Now, the next question to be answered would be whether the disputed two plaint items C and E are taken in by the property 1 acre 11 cents assigned to Viruthan the brother of the appellant under Ext. A2, or these two items belong to the appellant. To decide the aspect namely, who is the owner of the disputed two items, in my view, the boundaries and the relevant documents play main role. Now look into the boundaries in the relevant documents. In Ext. A2, the following boundaries are given : East :-- Property by name Chappiamkunnathu parambu; North West :--The properties of the assignor; South :--Thanikuzhi parambu and within these bounaries an area of 29 cents comes which was the subject-matter in Ext. B10 comprised in Sy. No. 41/4. The boundaries given in Ext. B4 also would indicate that the 29 cents are lying separately from the property of the assignor under Ext. A2.
15. It is the submisson of the learned counsel for the appellant that the respondents trespassed into his property to an extent of 36 and ood cents on the northern side which is on the southern side of the property conveyed under Ext. A2. On the other hand, it is the submission of the learned counsel for the respondents that the disputed items are lying on the north of the property which was covered by Exts. A2 and B3 (both exhibits relate to same property). I have clearly arrived at a conclusion on the basis of the documents discussed above in detail, Exts. B4 and B10 that the property (same property) is not the property conveyed under Ext. A2, which is described as B Schedule in the plaint. Therefore, necessarily.
the learned counsel appearing for the respondents has to restrict his argument that the disputed items are lying south the property assigned under Ext. A2. Now the dispute is coming within a narrow compass. In this context, I feel that Ext. C3 plan would be useful for deciding the main issue in respect of the disputed items. In Ext. C3 plan the Commissioner has given the letters 'C' and 'E' for the disputed items. Admittedly, the respondents are the owners of the northern property for which the letter 'B' is given by the Commissioner in Ext. C plan. The extent of B property in Ext. C3 as per the side measurements cannot be ascertained since the length of the southern boundary from east to west is not given in Ext. C3. Admittedly, the property shown as 'D' in Ext. C3 belongs to the appellant. Therefore, the disputed items are lying on the north of the appellant's property. When this aspect is examined, the argument of the learned counsel appearing for the respondents as adverted above, that the disputed items are lying on the north of the property conveyed under Ext. A2 is not correct. Because, north of the northern property for which the letter 'B' given in Ext. C3 is a pathway. Now the question is whether the plaint items C and E, as I have pointed out above, comes within the property of the appellant or within the property of the respondents assigned under Ext. A2. As per the available materials on record it would indicate that the total extent of 'D', 'C' and 'E' shown in Ext. C3 comes to 1 acre 76 cents. It is an admitted case that 4 acres was assigned to the appellant even in the year 1937 under Ext. A1, out of which a portion on the western side was assigned to some strangers and in the remaining area, one acre 11 cents was assigned under Ext. A2 and the balance has been in the continuous possession of the appellant. It is very unfortunate that it could not be ascertained the total extent of the portions which were assigned by the appellant to the strangers as those documents executed in favour of the strangers are not produced. Therefore, in this juncture, I feel it difficult in ascertaining as to the exact extent of the property owned by the appellant after executing the assignments deeds in favour of the strangers as well as executing Ext. A2 in favour of his brother. The appellant is not questioning the one acre 11 cents assigned to his brother under Ext. A2. Therefore, in the absence of the documents said to have been executed by the appellant in respect of some portions of 4 acres conveyed under Ext. Al, in favour of so many strangers. I have to necessarily, take up Ext. A2, to which both the appellant and his brother the predecessor-in-interest of the respondents are parties. In Ext. A2 an extent of 1 acre 11 cents admittedly was assigned. Therefore, to put an end to the controversy arising between the appellant and the respondents, the main question to be answered is whether the disputed items come in one acre 11 cents or not. For this purpose, no doubt, we have got the oral evidence on either side as well as the Commissioner's plans and reports. Exts. Cl to C4 (two plans and two reports) have been prepared by the same Commissioner on his visit to the suit properties on two occasions. In Ext. C3 plan, the length of the southern boundary of B plot is not given by the Commissioner. But in Ext. Cl plan he has given the length of the southern boundary of B property as 51 koles. There is no dispute that the property lying north of 'E' shown in Ext. C3 or the property lying north of 'C' shown in Ext Cl belongs to the respondents and it has been in their continuous possession. On account of my findings above, the property shown as 'B' in both Exts. Cl and C3 should not be less than one 1 acre 11 cents which was assigned under Ext. A2. As per the side measurements the extent of B plot in Ext. Cl comes to more than one acre 20 cents which, in fact, is more than the extent of the property assigned under Ext. A2. Therefore, it can be rightly concluded that the respondents have no paramount title over the plaint C and E Schedule properties. On the other hand, as I have pointed out above, there is also no sufficient matrial to decide the exact extent of the property owned by the appellant after executing Ext. A2 and some assignment deeds in favour of some strangers. There is also nothing on record in favour of the respondents as to how they are in possession over the excess area of 1 acre 20 cents and odd as found by the Commissioner in Ext. C1 plan. However, in the excess area in plot B in Ext. C1, the appellant is not claiming any right or title. The appellant is claiming only plaint C and E Schedule properties. Before answering the main point, let me look into whether the respondents have let in reliable evidence that they have perfected title over the disputed items by their long and continuous possession over the statutory period of 12 years as contemplated in Article 65 of the Limitation Act, 1963 and no doubt, this plea in respect of adverse possession is taken by the respondents in their additional written statement filed on 9-1-1986. A reading of the additional written statement would go to show that they have perfected title by adverse possession over the disputed items which come within the property described as plaint B Schedule. In other words, the disputed items form part of a portion of the property conveyed under Ext. A2. Even if it does not form part of Ext. A2 property, they have perfected title over the same by adverse possession. Therefore, in short, now the burden lies heavily upon the respondents to establish that they have perfected title over the suit items C and E by adverse possession. For establishing adverse possession, it is also the duty of the respondents that the property over which they are claiming such right belongs to a particular third party and however that third party did not disturb their possession for more than the statutory period. In this case when I look into the evidence and circumstances in respect of the plea of adverse possession set out by the respondents in their additional written statements, they have impliedly admitted that the disputed items belonged to the appellant and however they have perfected title over the same by adverse possession. The proof of adverse possession is not an easy matter in a civil suit. For, a stranger in possession is claiming a right or title over the property of the real owner and therefore, he is expected to prove beyond all reasonable doubt that he has been in possession for continuous and uninterrupted period of more than 12 years. In the instant case, I do not find reliable and acceptable evidence on the side of the respondents that they have perfected title over the suit property by adverse possession. Even D.W. 1 the 7th defendant has not spoken about adverse possession in his evidence though they have set out such plea in the additional written statement. In this context, it is essential to look into Ext. B5 a certified copy of the judgment delivered by the Judicial First Class Magistrate, Quilandy in S.T. No. 876/83. Because, it is a case on the complaint of the appellant that some of the present respondents trespassed into the suit property in June, 1983 and they have been in illegal possession of the same. The substance in Ext. B5 would go to show that some of the respondents armed with deadly weapon's destroyed the northern boundary of the appellant's property and trespassed into his property and that occurrence was in the month of June, 1983. No doubt, Ext. B5 case ended in acquittal. However, the allegation with regard to the occurrence in that complaint of the year 1983 would probabilise the present version of the appellant that in the month of July, 1983 the respondents trespassed into the suit property. Apart from that P.W. 1 the plaintiff would speak that the respondents dismantled his northern boundary and trespassed into the suit property in the month of July, 1983. The above evidence of P.W. 1 in respect of trespass over the disputed items, in fact, is corroborated by ocular testimony projected by P.W. 2 one Damodaran who is an eye-witness to the alleged occurrence. When the above evidence and the surrounding circumstances in respect of the trespass are examined even on the footing of preponderance of probability which has to be necessarily acted upon by the Civil Court in deciding a civil dispute in the absence of direct evidence it lends sound support to the appellant's case. Despite the probability . which is emerging from the surroundings of this case, as I have pointed out above, the appellant has got the direct evidence of himself as P.W. 1 and P.W. 2 in respect of the trespass. I do not find any reason in the cross-examination to reject their evidence. Therefore, I have to necessarily hold that the respondents have not established the title over the disputed items by adverse possession.
16. As I have found above, a substantial question of law has arisen in this appeal. For, in the additional written statement of the respondents, they have taken the plea of adverse possession and however, it is very unfortunate that no issue or point was framed either by the trial Court or by the lower appellate Court in respect of the pleading of adverse possession set out by the respondents. The learned counsel appearing for the respondents in this context would advance an argument that additional issue No. 5 is relating to adverse possession though it does not contain the words adverse possession. The finding on this additional issue No. 5 by the trial Court is not in Tespect of the adverse possession. On the other hand, he has made some accusation on the appellant and decided the issue in favour of the respondents and against the appellant. If really this additional issue No. 5 directly or indirectly takes in the requirements contemplated under Art. 65 of the Limitation Act, 1963 or the settled principle in respect of adverse possession laid by various High Courts as well as by the Apex Court, the discussions on Issue No. 5 by the trial Court must be with reference to adverse possession. As I have pointed out above, there is no piece of evidence on the side of the respondents, particularly, from D.W. 1 the 7th defendant and D.W. 2 one Raghavan to establish adverse possession. In this view of the matter, therefore, as I have pointed out above, a substantial question of law has arisen in this case with regard to adverse possession and hence this Court can interfere into the concurrent findings rendered by the Courts below. Apart from the substantial question of law involved for the sake of alternative argument, if we look into the facts culled out from the judgments of both the Courts below, I have no hesitation to say that both the Courts have miserably failed to examine the material evidence. Therefore, it can be rightly observed that the judgments are perverse, for eg:-- the findings of the Courts below would be that the respondents have been in possession of the disputed items right from the year 1956, the date of Ext. B10, forgetting the real fact that the suit disputed items are not comprised in Sy. No. 41/4 which is the property assigned under Ext. B10. Therefore, I do not think it necessary to make further comments upon the judgments of the Courts below in respect of S. 100, C.P.C. I have made it very clear in my above discussions that this Court has clothed with the jurisdiction in this instant case to interfere into the concurrent findings arrived at by both the Courts below.
17. On account of my foregoing detailed discussions on the basis of the evidence, both oral and documentary, placed by both sides, I have not even a little amount of doubt to hold on point No. 1 that the plaintiff-appellant is the owner of the disputed plaint items C and E and not the respondents. On point No. 2, I hold that the respondents have trespassed into the disputed items in the month of July, 1983.OnpointNo. 3, I hold that the respondents have not established that they have perfected title over plaint C and E Schedule items by adverse possession and on point No. 4, I hold that in view of my findings on the above points, the appellant-plaintiff is entitled to recover the Plaint C and E Schedule items from the respondents.
18. One more submission of the learned counsel appearing for the appellant was that the appellant could have derived income from the disputed items as borne out in the Commissioner's report and therefore an observation can be made in respect of claiming mesne profits from the respondents. I agree with the above submission of the learned counsel. Further, it is my definite conclusion that the respondents are the trespassers of the properties of the appellant. Therefore, necessarily, they must pay mesne profits or compensation to the appellant.
In the result, the judgment of both the Courts below are set aside and the suit in O.S. No. 5/84 on the file of one of the lower Court, namely, the Munsiff, Quilandy is decreed as prayed for in the plaint. The claim of the appellant with reference to mesne profits from the plaint items C and E will be decided in the execution proceedings under Order 20, Rule 12, C.P.C. Considering the close relationship between the appellant and the respondents, I direct them to suffer their own costs.