The duty of the defendant to establish adverse possession, the importance of consistent evidence, and the relevance of paying tax in the name of the title holder in negating adverse possession claims.

JUDGMENT :

This Regular Second Appeal has been filed by the appellant against the judgment and decree in A.S.No.110/2011 on the files of the District Court, Alappuzha, arose out of the judgment and decree in O.S.No.726/2009 on the files of the Additional Munsiff Court, Alappuzha. The appellant herein is the defendant in the above suit. The plaintiff is the sole respondent herein.

2. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondent.

3. I shall refer the parties in this appeal as 'plaintiff' and ‘defendant' for convenience.

4. As on 29.8.2019, my learned predecessor admitted this appeal raising the following substantial questions of law:

(i) Did not the plaintiff have the duty to give oral evidence when the dispute was whether plaint item no.2 property was part of the property of the plaintiff or the property of the defendant?

(ii) Was it proper to decree the suit, rejecting the claim of the defendant that he had perfected title by the law of limitation and adverse possession, on the sole ground that the defendant was paying tax in the name of the plaintiff?

(iii) When the defendant contended that he had no intention to sell any property, was it correct to grant the relief of injunction in a case where the plaintiff did not enter the witness-box to speak to the cause of action?

5. Originally, suit has been filed by the plaintiff, seeking the relief of recovery of possession of plaint Item No.1 property, after demolishing plaint Item No.2 shed situated therein on the strength of title viz., sale deed No.921/1961 of Mararikkulam S.R.O. in the name of the plaintiff. According to the plaintiff, as on 15.1.2009, the defendant trespassed upon the property and constructed a shed encroaching on the eastern portion of the plaint Item No.1 property and the same necessitated filing of the suit.

6. The defendant entered appearance and filed written statement and the contention in the written statement is by raising plea of adverse possession. The relevant paragraphs of the written statement are extracted hereunder:

“2. The averments in Para 2 of the plaint are not correct and hence denied. The plaintiff has no title on the plaint scheduled property. The plaint scheduled property forms part of the property held by the defendant for 4 decades. It is true that the property was purchased in the name of the plaintiff. The property on the East and North of the plaint scheduled property belongs to the defendant. The property lying adjoining on the plaint scheduled property on the east having an extent of 35 cents purchased by the defendant as per sale deed No.1521 dated 15-04-1965 along with the residential building therein. Thereafter the defendant started residence along with the mother and family. The property having an extent of 5 cents on the North was also held by him having obtained by the same by family partition. When he took up residence in the year 1966 he enclosed the plaint scheduled property which was lying adjoining to the 35 cents purchased by him on the east and 5 cents of property on the North obtained by the defendant as per family partition. Ever since the defendant exercised absolute possession and enjoyment of the same along with his adjoining properties having an extent of 40 cents. Ever since the plaint scheduled property is in absolute possession of the defendant which is open, hostile and continuous. The plaintiff has, after 1966, never exercised any act of possession or enjoyment of the same. All these years the defendant who is paying land tax. When resurvey was finalized in the year 1994 the plaint scheduled property was included in the T.P. Account No.3224 of the defendant and he is paying land tax for 18.80 Ares of land equivalent to 46.436 cents comprised in Re-Sy. No.331/12 in block No.3 of Komalapuram Village in the name of the defendant. The plaintiff has never objected to the resurvey proceedings by which the plaint scheduled property was mutated in the name of the