Defendants failed to prove adverse possession over disputed property, emphasizing that mere reduction in property extent does not grant title.

JUDGMENT :

1. This appeal arises out of the judgment and decree in O.S.No.480/1994 by the Munsiff Court, Karunagappally, as confirmed in A.S.No.233/2006 by the Addl. District Court-I, Kollam.

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

The litigation has a long chequered history. Initially, the plaintiffs/appellants herein filed a suit for declaration of right of easement and injunction restraining the defendants from obstructing their right to take over D schedule property. The suit was decreed in part by fixation of boundary in the southern and eastern side of the plaint A scheduled property in accordance with Ext.C3 plan. Aggrieved, the plaintiffs preferred A.S.No.137/2000 before the III Additional District Court, Kollam. The First Appellate Court found that during the course of adducing the evidence, it has come out that certain portion of the plaint scheduled property which comprises of 47 cents is in the possession of the defendants based on a claim for adverse possession. This finding was rendered presumably based on the reduction in the extent of property in the hands of the plaintiffs after a re-survey was conducted in the year 1980. But, however, the First Appellate Court found that as regards the plea of adverse possession, the defendants were not even sure with regard to the extent of property they were in possession adverse to the plaintiffs. Nonetheless, a plea was taken in the written statement by stating that any such extent found to be in their possession after measurement is lying with the defendants adverse to the plaintiffs and their predecessors. The First Appellate Court was of the opinion that the evidence adduced by the parties were not considered properly and discussed by the judgment and that the defendants did not prove when the possession started adversely to the plaintiffs/appellants herein. Hence, the appeal was allowed and the judgment and decree was modified and the matter was remanded back for a fresh consideration. On remand, the Trial Court framed an additional issue as follows:

“Whether the plaintiff’s right over 10.426 cents of property which is part and parcel of the plaint A schedule is lost due to adverse possession and limitation ?”

On remand, on behalf of the defendants, DW4 to DW6 were examined and DW1 was re-called and re-examined. The Trial Court, though, came to conclusion that the evidence of DW6 was insufficient to prove the hostile animus possession of the defendants over 10.426 cents of property, nevertheless decreed the suit, by allowing the plaintiffs to fix boundary only up to 36.574 cents as shown in the Ext.C3 plan. But, however, declared that 10.426 cents of property is lost due to adverse possession and limitation. Aggrieved, the plaintiffs preferred A.S.No.233/2006 before the Addl. District Court-I, Kollam, which was dismissed by judgment dated 29.10.2011 and hence, the present appeal.

3. While admitting the appeal on 31.10.2013, this Court framed the following substantial question of law:

“Did the courts below go wrong in holding that the defendants have prescribed the title by adverse possession and limitation based on the pleadings and evidence available in the case?”

4. Heard, Sri.Leo George, the learned counsel appearing on behalf of the appellants and Sri.P.U.Shailajan, the learned counsel appearing for the respondents 1, 8 and 10.

5. Sri.Leo George, the learned counsel appearing for the appellants, asserted before this Court that the findings rendered by the courts below as regards the question of adverse possession is not only perverse, but vitiated by material irregularities and contrary to the evidence on r