The court affirmed that a suit for title by adverse possession necessitates inclusion of all parties with interest; failure to do so justifies dismissal.

JUDGMENT

The appeal arises from the judgment and decree in O.S No.200 of 2002 of Munsiff Court, Ettumanoor as affirmed by the Principal District Court, Kottayam in A.S No.239 of 2009.

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

The plaintiff instituted a suit for declaration of title and also for permanent prohibitory injunction. According to the plaintiff, item No. 1 property was obtained as A schedule of the partition deed No.411/1098 ME by one Parameswaran, who is the grandfather of the plaintiffs. It is stipulated in the deed that the scheduled property can be used by all parties in the partition deed. The grandfather of the plaintiffs obtained possession of item No.2 property by a mortgage deed executed by one Kotha Elaichi 120 years ago. Since the mortgage was not redeemed, grandfather of the plaintiffs Sri.Sankaran Parameswaran obtained absolute title over the property. While so, the 3^rd defendant made a complaint to the revenue authorities stating that the survey number of the property is required to be corrected and therefore the second defendant issued a notice dated 01.10.02 directing the parties to be present at the Taluk office on 28.08.2002. Even though the plaintiffs were present with the necessary documents, without giving a copy of the complaint given by defendant no. 3, an order was passed to make necessary changes in the survey plan. Defendants 1 and 2 entered appearance and resisted the case and contented that the plaint schedule properties situated in the old Survey No. 159/9 was not obtained by the grandfather of the plaintiffs as per partition deed No. 411 of 1098 ME. It was set as a common property for Vadakkedath family and there is a “Sarppakkavu” in that property and that it is the common property of the successors of Vadakkedath family. The grandfather of the plaintiffs was the fifth party to the partition deed and had only a right to reside in that property. It was further stated that, plaintiffs 1 and 2 and one Manoharan had appeared for the hearing notified as per the notice issued to them based on the complaint of the 3^rd defendant.

But, they did not produce any document to show that the property belonged to Neelakandan. Thus, proceedings were initiated to correct the resurvey records after hearing the plaintiffs. The 3^rd defendant appeared before the court, but no written statement was filed by him. During pendency of the suit, the 3^rd defendant expired and the legal heirs were impleaded as defendant Nos. 4 to 10, who also did not file any written statement. The plaintiff examined PW1 and PW2 and also produced Ext A1 to Ext A9 documents. Based on the documentary evidence, the trial court framed the following issues:

“1. Whether the declaration sought for over the plaint schedule item No.3 property is allowable?

2. Whether the defendants are having any right to make change in resurvey plan prepared in 1987?

3. Is the plaintiff entitled to the injunction sought for?

4. Reliefs and costs.”

3. The trial court found that in as much as a declaration on the title of the plaint schedule property is sought on the ground that the property is in exclusive possession with the plaintiffs and that they are entitled to hold the property by adverse possession without impleading the members of the tharavad, the suit cannot be maintained. Accordingly, the suit was dismissed. Aggrieved, the plaintiff preferred A.S No. 239 of 2009, which was also dismissed on 27.10.2010. Aggrieved by the dismissal of the appeal, the present Second Appeal was preferred.

4. The appeal was preferred with an application to condone the delay and notice was ordered in the application and it was lying as such. On 28.10.2025, this Court condoned the delay and listed the matter today for admission.

5. Heard Sri. Rajeev V. Ku