Adverse possession can be asserted positively as a legal claim, contrary to earlier limitations; proper evaluation of evidence is essential for declaratory relief.

JUDGMENT :

This appeal is preferred by the plaintiff in O.S No.189/2008 on the file of the Principal Munsiff’s Court, Kasaragod.

2. The brief facts necessary for the disposal of this appeal are as follows:-

The plaintiffs had filed a suit for declaration of title and injunction. According to the plaintiffs, the plaint A schedule properties were obtained by them as per document No.209/60 of SRO, Kasaragod. Item Nos.4 and 5 were obtained by them through the mother as per order in DR No.9383/66-67 Puthige. The Plaint A schedule property contains various cultivation and improvements done by the predecessors as well as plaintiffs. The plaint B schedule property is touching the plaint A schedule property and that the plaint B schedule property is in possession and enjoyment of the plaintiffs for more than 60 years. On 19.07.2008, the defendant, namely the Village Officials of Puthige Village, came to the suit property stating that the plaint B schedule property belongs to them and they are intending to assign the same to a third party and hence the suit was filed.

3. The defendant entered appearance and contended that the suit is not maintainable. 2.90 acres of property in R.S No.39/1 pt and 2 acres of property in R.S No.40/2 pt of Puthige Village was assigned in favour of the plaintiff’s mother as per DR 9383/66-67/Puthige dated 21.03.1979 and patta was issued on 12.05.1983. Later the plaintiffs trespassed into the plaint B schedule property. The plaintiffs have no right title and interest over the plaint B schedule properties and it is intended to be assigned in favour of the third parties, who are landless people. After considering the evidence on record, the Trial Court framed the following issues:-

1. Whether the plaintiffs are in possession of the property? If so from which date and whether to the knowledge of the defendant?

2. Whether the defendant has lost title to the plaint B schedule property ?

3. Whether the plaintiff is entitled to get a decree as prayed for?

4. Relief and cost? -

4. Ext.A1 to A22 documents were produced on behalf of the plaintiffs. Exts.C1 and C2 reports were marked. PW1 and PW2 were examined on behalf of the plaintiffs. On consideration of the evidence on record, the Trial Court found that the claims set up by the plaintiffs are not maintainable and accordingly, the suit was dismissed. Aggrieved by the judgment of the Trial Court dismissing the suit the plaintiffs preferred A.S No.85/2009 before the Sub-Court, Kasaragod. By the judgment dated 06.03.2014, the Sub-Court partly allowed the appeal and decreed the suit in part by passing a judgment and decree for injunction, restraining the respondent from dispossessing the appellants from the plaint B schedule property otherwise than in accordance with law. However, the prayer for the declaration was declined on the ground that the claim for declaration based on adverse possession cannot be raised as a shield. In support of the said findings, the First Appellate Court relied on the decision of the Hon’ble Supreme Court in Civil Appeal No.8244/2013 ( Gurudwara Sahib v. Gram Panchayath Village Sirthala ). It is aggrieved by the judgment of the First Appellate Court that the plaintiffs have approached this Court with the present appeal by raising the following substantial question of law:-

a) After having reversed the finding of the trial court regarding possession, was the lower appellate court justified in declining to grant declaratory prayer in the facts and circumstances of the case?.

5. Heard Shri.K.Ramakumar, the learned Senior Counsel assisted by S.M.Prasanth on behalf of the appellants and Shri.Denny Devassy, learned Seni