IMPORTANT POINT
Truth and validity of a Will cannot be questioned by a stranger who is not claiming under testator or in any way interested in suit property.

JUDGMENT

The Regular Second Appeal has been directed against the judgment and decree passed in A.S.No.64/2018 on the file of Subordinate Judge’s Court, Kochi, which arose out of the judgment and decree in O.S.No.169/2015 on the file of Principal Munsiff’s Court, Kochi.

2. Parties would hereinafter be referred as per their status before the trial court.

3. The appellant is the first defendant. The suit was one for fixation of boundary, recovery of possession as well permanent prohibitory injunction and mandatory injunction. First plaintiff is the Church who is the owner in possession of the plaint schedule property. The church property is under the administration of the 2nd plaintiff. The 2nd plaintiff, the Bishop of Kottappuram diocese, has given power of attorney to the Vicar of the first plaintiff church to file the suit. By virtue of Settlement Deed No.22/2007 of SRO Narakkal, one Joseph Rajan, a parishioner, settled the plaint schedule property having an extent of 2.075 cents comprised in survey No.443/25 (re-survey No.356/1) in favour of the church. Mutation was effected and the first plaintiff is in possession and enjoyment of the property therefrom.

4. Before 8 months of the institution of the suit, defendants 1 and 2 started conducting the business of fruits and vegetables, erecting stall in the plaint schedule property after committing trespass. While so, the brother of the second defendant, who is the third defendant and his friend 4th defendant claiming to be the office bearers of the taxi car drivers union installed two sign boards of ‘Taxi Car Drivers Union CITU’ in the schedule property. Thereafter, the suit has been filed.

5. Respondents 1 to 4 filed written statement disputing the ownership of first plaintiff over the plaint schedule property for the reason that the executant Joseph Rajan has no right to execute the Settlement Deed No.22/2007. The father of the first defendant had been conducting the fruit shop for about 25 years and for the last 10 years first defendant has been conducting the same. Defendants 3 and 4 are in possession of the schedule property for more than 30 years and the sign boards were installed on concrete foundation in the year 1991. Nobody objected the same. It is also contended that if all the appellants had any right over the plaint schedule property it is lost by adverse possession and limitation since the respondents have been in continuous, open and hostile possession of the schedule property for more than 35 years. So, according to them, the right of the owners of the property, if any, is barred by limitation.

6. The 5th defendant, Elamkunnappuzha Panchayat, remained exparte.

7. PWs 1 to 3 examined and Exts.A1 to A8 marked from the side of the plaintiffs. DWs 1 to 5 examined from the side of the defendants.

8. After trial, the learned Munsiff found against the plea of adverse possession set up by the defendants. However, it has been found that the plaintiffs failed to prove the execution of Ext.A8 Will, the original of which is produced at the time of examination and consequently it was held that the plaintiffs have not established title over the schedule property and accordingly the suit was dismissed. Against which, the plaintiffs filed appeal before the Subordinate Judge’s Court, Kochi and by the impugned judgment the first appellate court found that the execution of the Will has been satisfactorily proved. It is also found that defendants 1 to 4 have no legal right to challenge or raise suspicion over execution of Ext.A7 Will since they are strangers. The first appellate court concurred with the finding of the trial court with respect to the plea of adverse possession set up by the defendants and further found that the plaintiffs proved their title over the plaint schedule property and decreed the suit as prayed for.

9. Aggrieved by the same first defendant alone approaches this Court in second appeal. Caveat has been filed by the respondents/plaintiffs. Lower court records w