IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933 OP(C).NO. 1083 OF 2011(O) ---------------------------------------- CMA.18/2010 OF DISTRICT COURT, COURT,THODUPUZHA OS.23/2010 OF SUB COURT,THODUPUZHA PETITIONER: -------------------- THOMAS JOSEPH, AGED 85, S/O.LATE JOSEPH, NELLANIKKAL HOUSE, THANNIKANDAM KARA, IDUKKI VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.ARJUN S.RAJ RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP.BY CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT COLLECTOR, IDUKKI DISTRICT, CIVIL STATION, PAINAVU, IDUKKI DISTRICT. 3. THE TAHSILDAR, THODUPUZHA TALUK, TALUK OFFICE, THODUPUZHA, IDUKKI DISTRICT. 4. THE VILLAGE OFFICER, IDUKKI DISTRICT, PAINAVU/KOCHU PAINAVU, IDUKKI DISTRICT. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) NO.1083 OF 2011 APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE REPORT SUBMITTED BY T.P. MATHEW DATED 19.10.2009. EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE COMMISSION REPORT DATED 16.12.2009 SUBMITTED BY ADVOCATE T.P. MATHEW. EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE ORDER PASSED BY IN I.A. NO.138 OF 2010 IN O.S. NO.23 OF 2010 OF SUB COURT, THODUPUZHA. EXHIBIT P4 TRUE PHOTOSTAT COPY OF COMMISSION REPORT IN I.A. NO.201 OF 2010 IN O.S. NO.23 OF 2010 ON THE FILES OF SUB COURT, THODUPUZHA SUBMITTED BY ADVOCATE T.J. SARA. EXHIBIT P5 TRUE PHOTOSTAT COPY OF JUDGMENT IN W.P(C) NO.1806 OF 2010 DATED 14.06.2010 OF THIS HONOURABLE COURT. EXHIBIT P6 TRUE PHOTOSTAT COPY OF JUDGMENT DATED 18.1.2011 IN C.M.A. NO.18 OF 2010 ON THE DISTRICT COURT, THODUPUZHA. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY P.S. TO JUDGE THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1083 of 2011 ==================================== Dated this the 21st day of July, 2011 J U D G M E N T This Original Petition arises from Ext.P6, judgment of the court of learned District Judge, Thodupuzha in C.M.A. No.18 of 2010 confirming Ext.P3, order dated March 03, 2010 passed by the leaned Sub Judge Thodupuzha on I.A. No.318 of 2010 in O.S. No.23 of 2010 of that court. That is a suit filed by petitioner for a declaration of title by adverse possession and for prohibitory injunction to restrain respondents from disturbing possession claimed by the petitioner and commission of waste in the suit property. Respondents contended that suit property is part of reserved forest which contention weighed with the learned Sub Judge and learned District Judge. Accordingly I.A. No.318 of 2010 was dismissed. Hence this Original Petition. Learned counsel for petitioner contended that materials on record is sufficient to indicate long possession of petitioner in the suit property and that the courts below have not considered that matter in the correct perspective. It is also pointed out that at least in a portion of the suit property there were fruit bearing coffee plants which was cultivated by some person other than Government Officials. It O.P(C) No.1083 of 2011 -: 2 :- is also submitted that there was a house which was destroyed by the forest officials. 2. On the other hand learned Government Pleader appearing for respondents contended that the suit property is part of reserved forest under Nagarampara forest range which admittedly belongs to the Government and that petitioner has not effected any improvement in the suit property. According to the learned counsel even the reports of the Advocate Commissioners bear testimony for the contention of respondents that it is part of reserved forest in that the Advocate Commissioners found dense forest like situation and evergreen trees in the suit property. It is also contended that even going by the case of petitioner the four acres on which petitioner has claimed right and possession as per a document said to be executed by one Mani, S/o.Varkery is far away from the rest of the property over which petitioner has laid claim. It is contended that even as per the document relied on by the petitioner it is executed by one Mani, S/o.Varkey in favour of Thomman, son of Varkey whereas petitioner is Thomas, S/o.Joseph. According to the learned Government Pleader there is no reason to interfere with the orders under challenge. It is also pointed out that suit O.P(C) No.1083 of 2011 -: 3 :- property is covered by serial No.50 of Ext.P1. 3. The Advocate Commissioners in Exts.P1 to P3 have reported the present condition of the suit property. It is not necessary for me at this interlocutory stage to go into the rival claims made by the parties before me as to ownership and possession of the suit property. But I must bear in mind that even according to the petitioner, property involved is Government land either revenue or forest over which he is claiming title only by adverse possession and limitation. These are matters which are to be established in the trial court and hence it is premature for me to make any opinion regarding the truth of the contentions raised by parties either way. I leave that matter for decision to the trial court. 4. But now it is necessary that some interim arrangements are made for preservation of the property until the suit is disposed of. Having heard counsel for petitioner and the learned Government Pleader I am inclined to think that the respondents could be directed not to commit waste in the suit property while I am not interfering with the statutory right they claim over the property. The Commissioners have reported about the present improvements, structures, etc., in the property O.P(C) No.1083 of 2011 -: 4 :- in Exts.P1 to P3. Those structures, trees, plants etc., shall be preserved until disposal of the suit. In the meantime it is directed that petitioner also shall not do any act to affect the present lie, condition and position of the suit property or interfere with its boundaries. 5. Leaned Public Prosecutor submitted that in view of the final Notification issued in the parent legislation of the present Kerala Forest Act petitioner cannot claim any right over the suit property. Leaned counsel for petitioner submits that petitioner wants an Advocate Commissioner to identify the four acres as also the boundaries of the entire extent. Learned counsel submits that it may require amendment of plaint also and it will take some time for disposal of the suit. Resultantly, the Original Petition is disposed of in the following lines: (a) Respondents are directed not to commit waste in the suit property by removing trees, plants, shrubs and structures reported by the Advocate Commissioners in Exts.P1 to P3 until disposal of the suit. (b) The said direction will not affect the O.P(C) No.1083 of 2011 -: 5 :- right of respondents to exercise the statutory right they claim over the suit property without violating the above said direction. (c) In the meantime petitioner is directed not to do any act in the suit property affecting its present lie, condition, position and boundaries. (d) Learned Sub Judge is directed to make every endeavour to dispose of the suit within nine months from this day. (f) Whatever pre-trial steps that petitioner is required to take in the suit shall be taken at the earliest (subject to the decision of learned Sub Judge) so that the learned Sub Judge could dispose of the suit within the time aforesaid. THOMAS P. JOSEPH, JUDGE. vsv