IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932 SA.No. 890 of 1997() ------------------ AS.11/1993 of ADDL.DISTRICT COURT-I, MAVELIKKARA OS.184/1980 of MUNSIFF COURT, KAYAMKULAM ............... APPELLANTS / APPELLANTS / DEFENDANTS 2 AND 3 : ------------------------------------------------------------------------------ 1. KOCHAYYAPPAN KARUNAKARAN, KANISSERILTHARAYIL, PERUNGALA MURI, KAYAMKULAM. 2. KARUNAKARAN SUMATHY OF -D0- -DO- BY ADV. SRI.R.RAJASEKHARAN PILLAI RESPONDENTS / RESPONDENTS / 2ND PLAINTIFF AND DEFENDANTS 4 TO 6. -------------------------------------------------------------------------------------------------------------- 1. KRISHNAN NAIR CHELLAPPAN NAIR, OODATHIL VEEDU, PERUNGALA MURI, KAYAMKULAM VILLAGE (*DIED) 2. K. GOPALAKRISHNAN NAIR -DO- -DO- 3. K. RAMACHANDRAN NAIR, -DO- -DO- (K. RAMACHANDRAN NAIR, A SIASTIC OXYGEN LTD., OLD POKHRAM ROAD, THANA, BOMBAY) 4. K. VISWANATHAN NAIR OF -DO- -DO- (K. VISWANATHAN NAIR, UNION STEEL, CAPITAL CINEMA BUILDING, 2ND FLOOR, REARSIDE, WANDBY ROAD, BOMBAY – 400 001) *ADDL. R5 TO R7 IMPLEADED *5. SARASWATHY AMMA, KRISHNA VIHAR (OODATHIL), PERUNGALA P.O., KAYAMKULAM. *6. LETHA S., SUB DIVISIONAL ENGINEER, BSNL MANNAR, RESIDING AT -DO- -DO- ...2/- SA.No. 890 of 1997() -2- *7. UMA S., CO-OPERATIVE ISPECTOR, CHENGANNUR, RESIDING AT -DO- -DO- *LR'S OF THE DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 5 TO 7 AS PER ORDER DT. 9/12/10 IN IA.NO. 911/08. BY ADV. SRI.R.RAMADAS THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn P.BHAVADASAN, J. ---------------------------- S.A.No. 890 of 1997 --------------------------------- Dated this the 8th day of March, 2011 JUDGMENT Defendants in O.S. No. 184/1980 before the Munsiff's Court, Kayamkulam are the appellants in this second round of litigation before this court. 2. There is no dispute regarding most of the facts. The plaintiff claims title and possession over the plaint Item Nos.1 and 2. According to the plaintiff, plaint item No.3 is sandwiched between plaint item Nos. 1 and 2 though it is a puramboke land. He has been in possession and enjoyment of the same. Defendants encroached into the portion of the puramboke land and put up a shed therein. The plaintiff also complained that a portion of the hut so put up extends into Item No.1 also. Therefore, the suit for declaration and other relief was laid. 3. The contesting defendants did not dispute the title of the plaintiff over the plaint items Nos.1 and 2. As regards the plaint item No.3 it is pointed out by them that it is comprised in survey No. 191/3 is a puramboke land. They had occupied to the property and put up a shed therein and have been residing there from February 1978. They had made improvements therein and the plaintiff have no manner of S.A.No. 890 of 1997 2 right over the same. The building has been numbered by the municipality. They would also contend that Item No.3 lies well separated from Item Nos. 1 and 2 obtained by the plaintiff as per the partition deed relied on by him. On the basis of these contentions, they prayed for a dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts. A1 to A5. Defendants had DWs 1 to 4 were examined and Ext.B1 marked. Exts. C1, C2 and C2(a) were the commission report and plan. 5. The trial court after an evaluation of the evidence decreed the suit by judgment dated 22.09.1981. The defendants carried the matter in appeal as A.S.62/1981 before the Sub Court, Mavelikara and the appellate court allowed the appeal relying on the Section 20 A of the Land Conservancy Act. This court in S.A.644/86 set aside the appellate court decree and remitted the case to the trial court for fresh disposal. After the remand the trial court on an evaluation of the evidence again found in favour of the plaintiff. The matter was carried in appeal as A.S.11/1994 before the District Court, Mavelikara. The lower appellate court concurred with the finding of the trial court and dismissed the appeal. S.A.No. 890 of 1997 3 6. Notice is seen issued on the following substantial questions of law: 1. Can a suit for declaration of title and recovery of possession be laid, without the Government on the party array in respect of puramboke property. 2. Can a person alleged to have paid prohibitory assessment under the land conservancy Act be termed as a person with possessary title. 3. Can it been said that the plaintiffs right of occupancy of plaint item No.3.in view of Ext.A2 and A4. 4. In view of the facts and evidence in this case, is not the suit is barred under Section 20 A of the Land Conservancy Act. 7. The learned counsel appearing for the appellants pointed out that being a declaratory suit in respect of the puramboke land State is a necessary party without whom no executable decree could be passed. 8. The learned counsel appearing for the respondents pointed out that suit is based on possession there is no necessity to implead the State. S.A.No. 890 of 1997 4 9. Whatever that be, the fact remains that the property shown as plaint item No.3 comprised in survey No.191/16 is the puramboke land. No reasons are shown to interfere with the judgment and decree of both the courts below. In case defendant applies for assignment, that shall be considered in accordance with law and this judgment will not stand in the way of taking appropriate decisions in the matter. Such decisions will be taken after hearing both sides. The second appeal is disposed of as above. P.BHAVADASAN, JUDGE. ln