A declaration of title is only necessary when both parties claim the same property; if properties are distinct, recovery of possession can proceed without such a declaration.

J U D G M E N T

The judgment and decree appealed against are passed in Appeal Suit No.66 of 2003 on the files of the District Court, Palakkad as well as in Original Suit No.359 of 2000 on the files of Munsiff's Court, Alathur, whereby the Original Suit stands decreed, as prayed for. Thus, the appellant herein is the defendant, who is confronting with the judgment and decree passed concurrently against her by the courts below. [The parties are referred to as in the Original Suit.]

2. The plaintiff filed the aforesaid Original Suit for recovery of possession of 'B' schedule property, alleging that it forms a part of 'A' schedule property. According to her, she obtained 'A' schedule property, by virtue of assignment deed No.1007 of 1964 and 'A' schedule property is item No.06 in the said document. After the purchasing of the said property, he has been in possession and enjoyment of the said property. But, she was residing at Thajore District in Tamil Nadu and in her absence, they have entrusted the property to one Ramakrishnan and he was residing in the building in the plaint schedule property and he was managing the property for and on behalf of the plaintiff. On 01.12.2000, when the plaintiff measured the property, it came to her notice that the defendant had encroached upon 'B' schedule property, which forms a part of 'A' schedule property. The defendant has neither title nor possession over the said property. But, she trespassed into the property and took possession over the 'B' schedule property. She is in illegal possession of 'B' schedule property and therefore, the suit is filed for recovery of possession of 'B'

schedule property.

3. The defendant resisted the claim for recovery of possession and denied all the averments asserting title to and possession of, the property made by the plaintiff. According to the defendant, there is no such property as described in the 'A' or 'B' plaint schedule property. Neither the plaintiff nor her children has possession over the said properties. Further, it is contended that plaint 'B' schedule property is 10 cents of property purchased by her, by virtue of sale deed of the year 1992 and that property is comprised in Sy.No.97/06. The jenmi of the said property is Thrikkanapuram Bhagavathi Devaswom subsequently purchased by Manickan residing at Mangalam Amsom as per Kanom right. On his death, the property devolved on his wife, Kalyani and children. Since there was no oral partition, the property was in possession of one Krishnan, the third son of Kalyani. In the year 1992, the defendant purchased the property by assignment deed No.2275 of 1992 and thereafter, she has been in possession and enjoyment of the said property and she constructed a kayyala, after purchasing the said property. In short, plaint 'B' schedule property belongs to her, by virtue of assignment deed No.2272 of 1992. So, the plaintiff is not entitled to the recovery of 'B' schedule property. Even if the plaintiff had any right, that has been lost by adverse possession and limitation.

4. On the aforesaid rival pleadings, both parties adduced evidence, which consists of the oral testimony of PWs.1 and 2, Ext.A1 on the part of the plaintiff and the oral testimony of DWs.1 to 3 and Exts.B1 and B2 from the part of the respondent, Ext.C1 commission report, Ext.C2 survey plan and Ext.C2(a) survey plan were marked as court exhibits. After considering the aforesaid evidence on record, the Munsiff's Court decreed the suit, as prayed for. Though the defendant had preferred the aforesaid appeal,the Appellate Court also concurred with the findings of the trial court and dismissed the suit. The legality, propriety and regularity of the concurrent findings, whereby the suit stands decreed against the defendant are assailed in this Regular Second Appeal.

5. Heard the learned counsel for the appellant and the learned counsel for the respondent.

6. The learned counsel for the appellant advanced arguments mainly contending that the absence o