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Kunhilakshmi Ammal vs T.Vasumathi on 15 January, 2010 cites

P.T. Munichikkanna Reddy & Ors vs Revamma And Ors on 24 April, 2007

Trial court also found in favour of plea of adverse possession and limitation raised by the appellants holding that the alleged trespass on 06-03-1996 is absolutely false. Respondents challenged judgment and decree of the trial court in appeal. Learned District Judge found title of the disputed property in favour of the respondents and held that plea of adverse possession is not established. First appellate court has referred to the decision of the apex court in P.T.Munichikkanna Reddy & Others Vs. Revamma and Others (2007(6) SCC 59) to hold that plea of adverse possession and limitation raised by the appellants cannot stand. Accordingly respondents were given a decree for recovery of possession on the strength of their title. Accepting the case of the R.S.A.No.8 of 2010 3 appellants regarding value of the rose wood tree which admittedly was removed by them from the suit property, respondents were given a decree for damages to the tune of Rs.1000/-. That judgment and decree are under challenge in the second appeal at the instance of appellants/defendants raising by way of substantial questions of law whether in case of conflict between boundary and measurement which shall prevail to determine the identity, possession and title of the property, whether without examining the Advocate Commissioner his report is admissible in evidence and could be acted upon and whether finding of the first appellate court that appellants have not perfected title by adverse possession and limitation is legally correct. Learned Senior Advocate appearing for appellants contended that first appellate court was not legally correct in reversing judgment and decree of the trial court.
Supreme Court of India Cites 25 - Cited by 438 - S B Sinha - Full Document

Subhaga & Ors vs Shobha & Ors on 7 July, 2006

(a) should not have been accepted and acted upon since the Advocate Commissioner and Surveyor who prepared the same were not examined by the respondents. The further contention is that in a case of this nature where there is conflict between boundary and survey number, the first appellate court ought to have accepted boundary as the determining factor to decide title. Reliance is placed on the decision of the apex court in Subhaga and Ors. Vs. Shobha and Ors. (2006 (5) SCC 466) where in para 6 it is stated, "a property can be identified either by boundary or R.S.A.No.8 of 2010 4 by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail."
Supreme Court of India Cites 1 - Cited by 57 - P K Balasubramanyan - Full Document

Krishnamurthy S. Setlur Dead By Lrs vs O. V. Narasimha Setty & Ors on 23 February, 2007

6. So far as the claim of adverse possession is concerned, trial court observed that the contention of the respondents regarding trespass on 06-03-1996 is absolutely false and that plaint B schedule must have been in the possession and enjoyment of appellants for "many years" prior to the filing of the suit. That finding is based on the report of Advocate Commissioner that oldness of the boundary wall between plaint B schedule and the 1.79 acres on its north already sold is about 10 years. Trial court did not say that appellants are in possession of the disputed property for the statutory period. First appellate court has referred to the relevant circumstance to hold that the plea of adverse possession cannot be sustained. Assuming that trespass into plaint B schedule was on 06-03-1996 as pleaded by the respondents, that did not mean that respondents could not recover the property on the strength of title. Once title is proved the only defence available is that such title is lost by adverse possession and limitation. Here is a case where appellants claimed title for themselves and alternatively contended that title if any, of respondents is lost by adverse possession and limitation. The Supreme court had held in Krishnamurthy S. Setlur Vs. O. V. Narasimha Setty and Ors. (2007 (3) SCC 569) that when a plea of adverse possession is raised, the person concerned has to plead and prove that his possession was R.S.A.No.8 of 2010 10 continuous, exclusive and undisturbed to the knowledge of the real owner of the land. He has also to show a hostile title. He has to communicate his hostility to the real owner.
Supreme Court of India Cites 6 - Cited by 41 - Full Document

Ramzan And Ors. vs Smt. Gafooran And Ors. on 28 September, 2007

In Ramzan Vs. Gafooran (2008(2) KLT S.N..68- case No.82) the Allahabad High Court has held that when the possessor exercised right over the property as owner, it cannot be said that he claimed title adverse to the true owner. In the present case appellants did not admit title of the respondents over plaint B schedule. They claimed title for themselves in which case it cannot be said that they were holding the property adverse to the title of respondents or, with the necessary hostile animus to them. That a plea of adverse possession is raised alternatively is not by itself sufficient. Also, there is no oral or documentary evidence to prove that appellants have been in possession of plaint B schedule for the statutory period. The mere fact that Commissioner has reported oldness of the boundary wall between the 1.79 acres sold and plaint B schedule as about 10 years is not by itself sufficient to prove possession for the statutory period. In the circumstances first appellate court is justified in holding against the plea of adverse possession and limitation. Consequently respondents R.S.A.No.8 of 2010 11 were given a decree for recovery of possession on the strength of their title. The finding regarding damages is on admitted fact that the rose wood tree which was cut and removed by the appellants from the disputed property is valued at Rs.1000/-. Having heard learned Senior Advocate and gone through the judgment under challenge I am not satisfied that any any substantial question of law is involved in this appeal requiring its admission.
Allahabad High Court Cites 15 - Cited by 10 - P Krishna - Full Document

State Of Kerala vs Kottammal Mammeeriyakutty And Ors. on 5 July, 1984

3. One contention raised is that without examining the Advocate Commissioner and the Surveyor Exts.C2 and C2(a) could not have been admitted in evidence and acted upon. The Commissioner and Surveyor have inspected the property and measured the same with notice to the appellants. In that situation the report and plan prepared by the Advocate Commissioner and Surveyor form part of the records of the case and is evidence even without examining them in view of Order 26 Rule 10(2) of the Code of Civil Procedure (for short, "the Code") brought in by the amendment of 1976. If appellants had any objection to the report and plan it was for them to examine the Commissioner and Surveyor. It has been so held by a Division Bench of this court in State of Kerala Vs. Kottammal Mammeeriyakutty and Ors. (AIR 1985 Kerala 109). It is held, referring to sub rule (2) of Rule 10 of Order 26 of the Code that report of Commissioner and not merely the evidence shall form part of the record of the case, can be treated as evidence and that if the opposite party objected to the report it is for him to examine the Commissioner and elicit such R.S.A.No.8 of 2010 7 information as is required. Appellants have not examined the Commissioner or Surveyor to substantiate their objection if any to Exts.C2 and C2(a). Hence first appellate court is justified in acting upon Exts.C2 and C2(a) even without respondents examining the Commissioner or Surveyor.
Kerala High Court Cites 3 - Cited by 6 - Full Document
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