IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 SA.No. 740 of 1995() -------------------- AS.3/1991 of DISTRICT COURT,THODUPUZHA OS.105/1983 of MUNSIFF'S COURT,THODUPUZHA ................... APPELLANTS/RESPONDENTS/PLAINTIFFS: ------------------- 1. JOSEPH, SON OF AVIRAH, RESIDING AT PUNNOLIKUNNEL HOUSE, KUDAYATHOOR, KEETTILA. 2. ULAHANNAN, S/O. AVIRAH OF -DO- -DO- 3. THOMAS, S/O. -DO- -DO- 4. AVIRAH, S/O. AVIRAH, -DO- -DO- 5. SEBASTIAN, S/O. AVIRAH, -DO- -DO- BY ADV. SRI.A.P.SUBHASH RESPONDENTS/APPELLANTS/DEFENDANTS: ---------------------- 1. GOVERNMENT OFKERALA, REPR3SENTED BY THE DISTRICT COLLECTOR, IDIKKI. 2. THE TAHSILDAR, THODUPUZHA. BY GOVERNMENT PLEADER SRI L.G.SURESH BABU THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/6/2009, THE COURT ON 05/08/2009, DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- S.A.NO.740 OF 1995 --------------------------- DATED THIS THE 5TH DAY OF AUGUST, 2009 JUDGMENT Plaintiffs in O.S.No.105/83 on the file of the Munsiff's Court, Thodupuzha are the appellants. This appeal is directed against the judgment and decree in A.S.No.3/1991 on the file of the District Court, Thodupuzha. The suit was filed for declaration of title and possession and for consequential injunction. The trial court decreed the suit declaring that the plaintiffs have perfected title by adverse possession over the plaint schedule property and consequently injunction order was passed restraining the defendants (State of Kerala and the Tahsildar) from dispossessing the plaintiffs therefrom. A.S.No.3/1991 filed by the defendants was allowed and dismissed the suit. Hence this second appeal. 2. The property in dispute is having an extent of 30 cents comprising Survey Nos. 545/7/1, 545/8A2 and 545/8B3 of -2- S.A.No.740/95 Kudayathoor Village. The property is a Government Puramboke land. It is the case of the plaintiffs that one Avirah, son of Joseph, occupied the property during the year 1940 and ever since that year he has been in continuous possession and enjoyment of the same till his death and that he had perfected title by adverse possession. He died on 9/8/1982. The plaintiffs 1 to 5 are the sons and the 6th plaintiff is the widow of the above said Avirah. They continued to possess and enjoy the plaint schedule property after the death of Sri Avirah. The deceased Avirah had effected valuable improvements in the property by planting coconut trees and rubber trees. The Tahsildar, Thodupuzha has registered a case against Avirah as L.C.No.89/80 for unauthorised occupation and issued a notice on 3/5/1982. Avirah had filed objection in L.C.No.89/80. Overruling his objection the Tahsildar passed an order under the Kerala Land Conservancy Act imposing fine for the unauthorised occupation and directed him to vacate the Government land. An appeal was preferred before the Assistant Collector, Idukki. While the said appeal was pending, Avirah died and without the -3- S.A.No.740/95 legal heirs on record as parties, the Assistant Collector, Idukki passed orders confirming the order of the Tahsildar. In the said circumstances, the plaintiffs issued a notice under Section 80 of the C.P.C. to stay the eviction proceedings and filed the suit for declaration and injunction. 3. The defendants filed a detailed written statement, in which it is contended inter alia that the plaint schedule property is Government puramboke land, that the same is set apart for the construction of the village office building, that late Avirah had never been in possession of the plaint schedule property from 1940 onwards, that Avirah encroached upon the schedule property about 15 years before and his possession was unauthorised and objectionable. It is further contended that the plaintiffs cannot claim adverse possession over the schedule property and they have not got perfected title over the property. 4. The 6th Plaintiff, who is the wife of Avirah and five other witnesses were examined as PWs. 1 to 6 and Exts.A1 to A8 were marked. Defendants examined two witnesses as DWs.1 and 2. Exts.X1and X1(a) to X1(f) were also marked as third party -4- S.A.No.740/95 exhibits. 5. The suit was decreed by the Munsiff's Court on 31- 3-1987 after relying on the oral evidence of PWs.1 to 5 and Exts.A1 to A7. The defendants did not choose to adduce any evidence and not cross-examined any of the witnesses. They preferred an appeal as A.S.No.15/1989 and the Appellate Court by judgment dated 16/12/1989 set aside the judgment and decree and remanded the suit with a direction to give an opportunity to the parties to adduce further evidence and allowing the defendants to cross-examine the witnesses already examined. After remand, PWs.1, 3, 4 and 5 were cross-examined. Plaintiff further examined PW-6 and Exts.A8, X1, X1(a) to X1(b) were marked. 6. It is not disputed that the plaint schedule property was originally Government puramboke land. The plaintiffs claimed that late Avirah occupied the property about 40 years prior to the date of suit and he has been cultivating the property and improved the same by planting coconut trees, rubber trees etc. They have adduced evidence to prove that late Avirah was -5- S.A.No.740/95 in uninterrupted, continuous and open possession of the property ever since he had entered the land. PW-1, who is the wife of Avirah, testified before the court below that the coconut trees in the property are 45 years of age and that the rubber trees are of 15 years of age. She also testified that 15 years old rubber trees are the rubber trees replanted, after cutting and removing the earlier planted rubber trees. She further testified that she, her husband and other family members began residence in the registered land adjoining this property somewhere in 1940 and that the land was purchased from one Chummar Devassia. She stated that on receipt of notice in the L.C.No.89/90 objections were preferred in writing to the effect that they have been in possession of the properties as of right and that the the plaintiffs are taking yield from the property. PW-3 also speaks about the occupation and the improvements made by late Avirah. PW-3 also supported the case of the plaintiff that the rubber trees now standing in the property are replanted rubber trees. It has also come out in evidence that the adjoining registered land is occupied by the plaintiffs for the past several decades. PW-3 is a -6- S.A.No.740/95 man of aged 70 years, when he was examined in 1987. PW-4 is another person residing nearby and he was aged more than 60 years and PW-5 was aged more than 65 years at the time of examination. They have testified that Avirah and his family were residing in the adjacent property and their long continued possession. PW-6 is the son of Avirah. He deposed about the uninterrupted, continuous and open possession of Avirah and regarding his overt acts of possession including planting and replanting of rubber trees and taking yield therefrom. He also testified that the coconut trees found in the property had been planted by Avirah. 7. The Tahsildar, Thodupuzha was examined as DW-1. He has no knowledge regarding the possession and enjoyment of the property by Avirah and his family members. He speaks that there is an extent of 1acre 55 cents of puramboke land and the plaint property is 30 cents from out of the said extent. DW-1 could not say as to the present condition of the remaining 1 acre and 25 cents of puramboke land. He categorically stated that he had not made any enquiry regarding the disputed property and -7- S.A.No.740/95 the remaining extent of puramboke land. DW-2 is the Taluk Surveyor. Ext.X1 is the file relating to L.C.No.89/80. Ext.A7 is the order passed by the Assistant Collector, Idukki in the Land Conservancy Appeal. The legal heirs of deceased Avirah were not impleaded in the appeal, though Avirah died during the pendency of the appeal. 8. The trial court found that Ext.A7 order was passed without impleading and hearing the appellant or the legal heirs of late Avirah. Ext.A7 order is to be treated as nonest. Ext.A1 is a notice dated 24/4/1982 issued by the Tahsildar under the Kerala Land Conservancy Rules. In Ext.A1 notice the Tahilsdar informed deceased Avirah that he had encroached upon the Government land by about 16 years prior to the date of the notice. Ext.X1(b) shows that prohibitory assessment and fine have been imposed against the deceased Avirah, that the deceased Avirah had filed a statement admitting the encroachment and setting up a claim of adverse possession against the State stating that he has been in possession of the property for more than 40 years prior to that date and that he has -8- S.A.No.740/95 effected valuable improvements and he is enjoying the property. The Tahsildar without any basis has estimated the period of encroachment as 16 years against the claim of the deceased for 40 years. The Appellate Authority, namely the Assistant Collector, Idukki observed that in the encroached area there are improvements of 35 years of age as estimated and recorded in the mahazar prepared by the Village Officer. After elaborately considering the unshaken testimonies of PWs.1 to 6, the other facts that the improvements are made more than 35 years will undoubtedly prove that the encroachment was done long before the LC proceedings in the suit. From the evidence it is seen that late Avirah came into possession of the property between 35 and 40 years prior to the date of filing of the suit. The trial court in detail discussed the evidence recorded in the case and the legal principles. It was held that the plaintiffs had perfected title by adverse possession since the uninterrupted possession for more than a statutory period of 30 years. Ext.A7 order passed by the Appellate Authority was also relied on by the trial court. It shows that the plaintiffs are in possession for more than 50 -9- S.A.No.740/95 years. It has also come out in evidence that in Ext.A7 the Appellate Authority directed the Tahsildar, Thodupuzha to take necessary action against the Village Officials, who failed to give and bring to the notice about the encroachment. The Trial court, after analysing the circumstances, nature of improvements in the property, location of the property and withholding of material documents by the defendants, held that all these factors will lead to the irresistible conclusion that the plaintiffs and their deceased father had been in open, continuous, uninterrupted and hostile possession of the land for more than the statutory period. The trial court decreed the suit as prayed for. 9. The Appellate Court also noted that in the report of the Village Officer it is stated that the the improvements are aged upto 35 years, that the plaintiffs sought for production of the report, but it was not produced and was suppressed. The Appellate Court observed that this conduct was not rightly appreciated by the trial court and the trial court was not justified in drawing an adverse inference against the defendants, that the possession of Avirah during his lifetime and the continuation of -10- S.A.No.740/95 possession by the plaintiffs, after his death are unauthorised, that Ext.A7 order of the Assistant Collector passed on 11/3/1983 wherein Avirah is shown as alive, is one passed against a dead person and therefore a nullity and that therefore the plaintiffs had no obligation to file a revision against Ext.A7 appellate order. But the Appellate Court relying on certain decisions of this Court stated that Section 20 A(2) of the Kerala Land Conservancy Act bars suits against the State or any of its officials for anything done or intended to be done under the Act in good faith. The Appellate Court observed that the suit was in respect of an order passed under the provisions of the Kerala Land Conservancy Act and the Rules and therefore it was held that the plaintiff's case that the bar of suit under the provisions of the Kerala Land Conservancy Act is not attracted. The approach of the Appellate Court that the suit was barred by the provisions of the Land Conservancy Act cannot stand. It is true that the cause of action arose for filing the suit on the issuance of Ext.A1 notice dated 20/2/1982. The suit was filed for a declaration that the plaintiffs -11- S.A.No.740/95 have perfected title by adverse possession and injunction. The challenge is not against Ext.A1 notice but sued for the declaration of title over the property for the reason that the appellants had been in continuous possession and enjoyment of the property. The Appellate Court also appreciated the oral evidence of the parties and in the facts and circumstances of the case, according to me, the decision is negative in all respects. The Appellate Court find fault with the trial court in passing a decree in favour of the plaintiffs. The finding that the defendants had adduced reliable evidence to show that Avirah was not in possession of the property is without any basis and is against the evidence in this regard. As stated supra, the evidence tendered by PWs.1 to 6 stands uncontroverted and unshaken. Therefore, there is no justification for the Appellate Court in reversing the decree and judgment passed by the trial court. The Appellate Court finds that absolutely there is no scope for holding that the title of the Government land on account of adverse possession is not sustainable, based on a negative consideration of the evidence on record. The Appellate Court further observed that -12- S.A.No.740/95 the plaintiffs are aware of the order of injunction as well as the statutory appeal therefrom. The remedy should be worked out by exhausting the statutory revision under Section 16 of the Kerala Land Conservancy Act is equally fallacious. The remedy open under the Land Conservancy Act by way of revision is not sufficient to declare title and possession of the plaintiffs. 10. In the circumstances, the reasons stated by the Appellate Court for non-suiting the plaintiffs are bad in law and were recorded by misreading and overlooking the evidence on record. In the result, the appeal is allowed. The judgment and decree passed by the Lower Appellate Court is set aside and the decree and judgment passed by the trial court is restored. No order as to costs. HARUN-UL-RASHID, Judge. kcv. -13- S.A.No.740/95 HARUN-UL-RASHID,J. -------------------------- S.A.NO.740 OF 1995 -------------------------- JUDGMENT 5th August, 2009