THOMAS v. KOLAZHY GRAMA PANCHAYATH

THOMAS P. JOSEPH, J.===================== R.S.A. No. 912 of 2012 ========================Dated this the 18th day of October, 2012 JUDGMENTThe second appeal arises from the judgment and decree ofthe IIIrd Additional Munisff's Court, Thrissur in O.S. No. 2735 of2004 dismissing the suit and allowing the counter claim,confirmed by the District Court, Thrissur in A.S. No. 347 of 2008.2. The Appellant/plaintiff sued for a decree for prohibitoryinjunction claiming that the plaint A schedule – 43 ¾ cents insurvey No. 241/2/1 and other items belonged to his father, thelate Lonappan as per Ext.A1, sale deed No. 912 of 1966. Thesuit properties were partitioned as per Ext.A3, partition deedNo.2872 of 1966 and accordingly the plaint A schedule came tothe absolute ownership and possession of the appellant. On thesouth of the suit property is the Panchayat road having width ofabout 10 meters. The appellant alleged that the respondent, thelocal authority is attempting to trespass in to the suit propertyand demolish the compound wall separating the suit propertyand the Panchayat road.3. The respondent resisted the suit and made a counter R.S.A. No. 912 of 2012 2claim. The plaint B schedule in the counter claim is thepuramboke land which the respondent claimed, belonged to itbeing land adjacent to the Panchayat road. The respondentcontended that the appellant trespassed into the counter claim Bschedule property comprised in re-survey No. 133 andconstructed a compound wall recently. Hence the counter claimfor a decree for mandatory injunction to vacate the plaint Bschedule and remove the compound wall. 4. The appellant replied to the counter claim denying theallegations and contending that he has perfected title over thedisputed property by adverse possession and limitation. 5. The trial court found that the counter claim B scheduleproperty which according to the appellant forms part of the suitproperty as per Exts.A1 to A3, is puramboke land. The plea ofadverse possession was found against and accordingly, the suitwas dismissed and the counter claim was allowed. The firstappellate court has confirmed that judgment and decree.6. It is contended by the learned counsel for the appellantthat the respondent has not proved the title claimed by it overthe plaint B schedule property. It is also contended by the R.S.A. No. 912 of 2012 3learned counsel that the finding of the courts below regardingadverse possession is erroneous.7. Exts. A1 to A3 are the documents relied on by theappellant. The property which the appellant got as per Exts. A1to A3 is 43 ¾ cents in old survey No. 242/1, corresponding tore-survey No. 132/6. Exts.C2 and C2(a), the report and plansubmitted by the Advocate Commissioner after measurement ofthe properties with the assistance of a Surveyor shows that thecounter claim B schedule property which according to theappellant is part of the suit property, is puramboke landcomprised in re-survey No.133/3. The courts below observedthat the appellant has no case that apart from the 43 ¾ centswhich he claims title and possession as per Ext.A1 to A3, he haspossession of any excess land. The courts below also referred tothe evidence of the appellant as PW.1 that he is in possession ofabout 9 to 10 cents of puramboke land. Thus, the appellant is inpossession of puramboke land - counter claim B scheduleproperty.8. So far as the contention that the respondent has notproduced documents to prove title over the plaint B schedule is R.S.A. No. 912 of 2012 4concerned, I have gone through copy of written statement andcounter claim filed by the respondent and the replication filed bythe appellant. In the written statement and the counter claim,the respondent has specifically alleged that the counter claim Bschedule property is puramboke land vested with it being landadjoining the Panchayat road. In the replication filed by theappellant, there is no denial of that claim. Instead, the plea isone of adverse possession and limitation. In other words,according to the appellant, by being in adverse possession of thecounter claim B schedule property, the title claimed by therespondent over the counter claim B schedule property is lostand the appellants has perfected title .9. I stated that there is no denial of right claimed by therespondent in the replication filed by the appellant. Under Rule3 of Order VIII of the Code of Civil Procedure (for short 'theCode'), a denial except in the matter of damages is to be specific.Rule 5 of the said Order states that every allegation of fact inthe plaint, if not denied specifically or by necessary implicationor stated to be not admitted in the pleading of the defendant,shall be taken to be admitted except against a person under R.S.A. No. 912 of 2012 5disability. The counter has to be treated as a plaint and thereplication as a written statement. Hence, failure of theappellant to deny the claim of title made by the respondent inthe written statement and counter claim amounts to admission oftitle. Under Sec.58 of the Evidence Act, a fact admitted is notrequired to be proved. Moreover, I must notice Sec.169 of theKerala Panchayat Raj Act, 1994 which states that the landadjacent to the roads mentioned therein not being privateproperty shall stand transferred to and vested with thePanchayat. That involves a transfer of title as well and not amere vesting for management. Hence the contention that therespondent has not proved title over the counter claim Bschedule property cannot be accepted. 10. I stated that claim of the appellant is only for 43 ¾cents in re-survey No. 132/6 as per Exts. A1 to A3. Exts. C2 andC2(a) shows that the counter claim B schedule property,admittedly in possession of the appellant is puramboke landcomprised in re-survey No.133/3. Obviously the appellantcannot lay hands on the counter claim B schedule property onthe strength of Exts.A1 to A3. Moreover, appellant admits as R.S.A. No. 912 of 2012 6PW.1 that he is in possession of 9 to 10 cents of puramboke land.Hence appellant cannot claim title over the counter claim Bschedule property.11. So far as the p,lea of adverse possession is concernedthe trial court found against that plea placed on the evidence andthat is confirmed by the first appellate court. A plea of adversepossession, it is held is a blend of fact and law. When a finding ismade on a question of fact and law it would involve a substantialquestion of law only when the finding is not supported by anyevidence is against the evidence or is based on a perverseappreciation of the evidence. None, none of such circumstancesarise in this case.12. In the light of the above, I do not find any substantialquestions of law involved in this second appeal requiring itsadmission.The second appeal is dismissed. Sd/- THOMAS P.JOSEPH, JUDGE //True copy//smv P.A. To Judge R.S.A. No. 912 of 2012 7