The main legal point established in the judgment is that the possession follows title, and in cases of vacant property, the person able to establish title is considered to be in possession. The court emphasized the need for a proper evaluation of evidence and the misconstruction of evidence by lower courts.

JUDGMENT :

M.R. ANITHA, J.

1. This Regular Second Appeal has been directed against the judgment and decree in A.S. No. 43/2015 on the file of Additional District Court-II, Alappuzha which in turn arise out of the judgment and decree in O.S. No. 628/2012 on the file of Munsiff's Court, Alappuzha.

2. Plaintiff is the appellant. Suit is one for permanent prohibitory injunction. (Parties will hereinafter be referred as per their status before the trial court).

3. Plaint schedule property having an extent of 8 cents originally belonged to the father of the plaintiff who obtained the same as per partition deed No. 2401/1983 of S.R.O. Alappuzha. After the death of father, property devolved upon the plaintiff and his brother Madanappan. Whereabouts of brother is not known for the last more than 25 years. Plaintiff is the absolute owner in possession of the plaint schedule property. It is lying with well defined boundary stones and fence in its north and east. Plaintiff is residing 8 kms away from the plaint schedule property. 2nd defendant is the daughter of the paternal uncle of the plaintiff. The first defendant is her husband and the third defendant is her son. Second defendant has got some property on the western side of the plaint schedule property. The boundary fence separating the plaintiffs and the second defendant's property got damaged due to old age and the properties are now separated with boundary stones. Defendants have no manner of right over the plaint schedule property. The relationship between the plaintiff and the defendants are not cordial.

4. First defendant had filed O.S. No. 25/1993 before the Munsiff's Court, Alappuzha for specific performance of contract against father of the plaintiff, but it was dismissed on 21.12.1995 and the appeal preferred against it also stood dismissed on 12.06.2018. Taking advantage of the situation that the plaintiff is residing away from the plaint schedule property, defendants are attempting to trespass upon the plaint schedule property and raising illegal claims over the schedule property. Hence the suit.

5. Defendants entered appearance and filed written statement contending that the suit has been filed to take forcible possession of the plaint schedule property from the defendants who are in possession of the property even prior to the execution of partition deed. Plaintiff or his brother have no right over the plaint schedule property. Defendants are residing in four cents of property situated on the western side of the plaint schedule property. During the lifetime of plaintiff's father, he approached the defendants and agreed to sell the property to the first defendant and executed an agreement for sale for a total consideration of Rs. 29,000/- and received an advance of Rs. 15,000/- and hence the property is in the possession of the defendants. The brother of the plaintiff is in Mumbai and is residing with family. Plaint schedule property is lying contiguous with 4 cents of property of defendants. There is no fence or wall separating the properties. The possession of the defendants over the schedule property turned adverse to the title holders including plaintiff from 21.12.1995 when the suit for specific performance was dismissed. So, the defendants are in hostile possession of the schedule property openly continuously and adversely for the last 17 years. Now, after the period of limitation the title of the defendants over the plaint schedule property is matured by adverse possession. Defendants never attempted to trespass to plaint schedule property since they are already in possession of the schedule property. Hence plaintiff has no cause of action in filing the suit.

6. PW-1 examined and Exts.A1 to A4 marked from the side of the plaintiff. DW-1 to DW-3 examined from the side of the defendants. Advocate Commissioner was examined as CW-1. Exts.C1 series and C2 series were also marked. Thereafter, on appreciating the facts and circumstances and evidence adduced, trial court found t