IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941 RSA.No.193 OF 2006 AGAINST THE JUDGMENT & DECREE IN AS 17/2002 DATED 28-06-2005 OF THE DISTRICT COURT, KOLLAM AGAINST JUDGMENT & DECREE IN OS 115/1995 DATED 30-11-2001 OF MUNSIFF'S COURT, PARAVOOR APPELLANT/RESPONDENT/PLAINTIFF:

MOHANAN, S/O. GANGADHARAN, G.M. NIVAS, VETTUVILAMUKKU,KALACODE, KOONAYIL CHERRY,, POOTHAKULAM, PARAVUR, KOLLAM.

BY ADVS.

DR.K.P.SATHEESAN (SR.)

SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.T.K.KAMALJITH SRI.K.K.RAJEEV RESPONDENTS/APPELLANTS/DEFENDANTS:

1 SARASWATHY, D/O. KUNJAMMA, SARASWATHY MANDIRAM, KOONAYIL, POOTHAKULAM,, PARAVUR KOLLAM.

2 S.SAJEEV DO. DO.

3 S.BIJU DO. DO.

R1 BY ADV. SRI.V.V.RAJA R1 BY ADV. SRI.M.T.SURESHKUMAR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 16th day of December 2019 The plaintiff came up with this appeal aggrieved by the decree and judgment of the First Appellate Court dismissing a suit for fixation of boundary and recovery of possession. The suit was originally decreed by the trial Court, against which an appeal was preferred before the First appellate Court. The first appellate Court dismissed the suit based on the admission made by the plaintiff regarding the construction of a compound wall on the disputed place in the year 1984 immediately after the purchase of the said property under Ext.A3.

2. The decree granted by the trial Court was reversed by the first appellate Court, mainly on the reason that the plaintiff is estopped from maintaining a suit for recovery of possession as they have constructed a compound wall in the disputed place in the year 1984. Hence they are barred by doctrine of acquiescence. It is submitted by the learned counsel for the appellant that no pleading was raised in the written statement with respect to any acquiescence or estoppal.

3. It is true that there is no pleading anywhere in the written statement with respect to the doctrine of estoppel or acquiescence. But the doctrine of acquiescence should be understood as based on latches. A gross negligence in doing a particular act for a long time would attract doctrine of acquiescence. In the present case in hand, admittedly it is the plaintiff who has constructed a compound wall in the disputed place in the year 1984. But it was submitted that they were forced to construct such a compound wall because of the objection raised by the defendant with respect to the dividing boundary. But at the same time it was admitted by them that they have constructed a dividing boundary, a permanent structure, a compound wall, and maintained the same for a long period from the year 1984 and it was maintained there till the filing of the suit in the year 1995 for a period of more than 10 years.

Putting up of a permanent structure as that of a boundary separating the property of the plaintiff from that of the remaining property, maintaining the same for a long period of more than 10 years would attract the doctrine of acquiescence.

4. The decision relied on by the learned counsel, drawn by the Apex Court in State of Haryana Vs. Mukesh Kumar and others (2011 KHC 4876, has no much application in the instant case. In the present suit, in fact, the question of adverse possession is neither raised nor set up as a defence. A division bench decision of the High Court of Kerala is also brought to the notice of this Court drawn in Joy Kuriakose Vs. Kuriakkose (2015 KHC 20 : 2015 (1) KLJ 2017 : 2015 (1) KLT 324 regarding adverse possession. All these decisions are dealing with the question of adverse possession and limitation and not dealing with the rule of latches or doctrine of acquiescence. Of course in order to perfect a title, a hostile animus should be exercised openly for a period of 12 years. But that 12 year period cannot be imported in the matter of rule of latches which w