IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 RSA.No. 1054 of 2007(Y) ---------------------------------------- AS.29/2001 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.219/1995 of SUB COURT, THIRUVALLA .................... APPELLANTS/DEFENDANTS: 1. TAHSILDAR,TALUK OFFICE, MALLAPPALLY. 2. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA. BY GOVERNMENT PLEADER RESPONDENTS/PLAINTIFFS: 1. KURIAN,S/O. KURUVILLA, AGED 49 YEARS KARACKAL VEEDU, KEEZHVAYPUR MURI, MALLAPPALLY VILLAGE.689 587. 2. SOSAMMA KURIAN,W/O. KURIAN, AGED 48, DO. DO. 3. SOSAMMA CHANDY,AGED ABOUT 61, CHERAKUNNEL VEEDU, ANICKADU MURI, ANICKADU VILLAGE 689 585. BY ADV. SRI.R.GIREESH VARMA FOR R3 SRI.SIBY MATHEW FOR R1 & 2 SRI.PHILIP J.VETTICKATTU FOR R1 & 2 SRI.A.A.MOHAMMED NAZIR FOR R1 & 2 SMT.ANEY PAUL FOR R1 & 2 SMT.LAKSHMI.V. FOR R1 & 2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No. 1054 of 2007 --------------------------- JUDGMENT Defendants 1 and 2 in O.S.No.219/95 on the file of the Sub Court, Thiruvalla are the appellants and the respondents are the plaintiffs and the third defendant. This Regular Second Appeal is filed by the appellants/defendants 1 and 2 aggrieved by the decree passed by the first appellate court in A.S. No.29/01, whereby the first appellate court decreed the suit in part, in reversal of the dismissal of the suit by the trial court. 2. The plaintiffs/Respondents 1 and 2 filed O.S.No.219/95 for declaration of title and possession over an extent of 5.25 acres of land scheduled to the plaint and for putting up of boundary and for injunction. According to the plaintiffs, the scheduled property was purchased by them as per Exhibits A1 and A2 in the year 1982 and they are ever thereafter in possession and enjoyment of the same. Till 1986, the first RSA 1054/07 2 plaintiff had been blasting the rocks in the scheduled property and when he was about to instal a metal crusher in the property, the third defendant and some others instituted a suit for preventing the blasting operations and installation of metal crusher. Plaintiffs were paying the tax for the scheduled property in the name of their assignors and when they initiated steps to effect mutation in the village records, it could not be got done on account of the objection by certain people of the locality. 3. The entire scheduled property is rocky area and the plaintiffs had obtained permits for blasting the rocks. The area is known as Manthattupara. The scheduled properties were allotted to the share of predecessor-in-interest of the plaintiffs, viz., their assignors in partition deed No.853/1095. Altogether eights families were residing in this rocky area and after the purchase, the plaintiffs got them evicted giving them alternate sites. On receipt of a complaint that the RSA 1054/07 3 scheduled property takes in also Government puramboke, the Sub Collector, Thiruvalla measured the property according to the village records and got convinced that the property belonged to the plaintiffs and a report was submitted to this Court. When the property was measured by the Deputy Director of Surveys on the basis of resurvey records on 27.8.1987, he was also convinced that the properties belonged to the plaintiffs. But, due to misunderstanding created by some political enemies of the plaintiffs, the R.D.O., Thiruvalla reported to the District Collector that either the plaintiffs or his assignors did have no right over the properties and that complaint was accepted by the Collector on 3.8.1988. That action of the District Collector was challenged by the plaintiffs in O.P.No.1273/89. Therein, the proceedings of the District Collector were set aside and the plaintiffs were directed to establish their rights in the properties. RSA 1054/07 4 4. In the meanwhile, the third defendant filed O.S.No.75/85 against the plaintiffs for fixation of boundary between her properties and the plaintiffs' properties and that was decreed and the appeal preferred by the plaintiffs was also dismissed. The Government had no right over the scheduled properties. The defendants are not co-operating for fixing the boundary of the scheduled properties in the possession of the plaintiffs. Defendants 1 and 2 had not issued any reply to the notice issued under Section 80 of the Civil Procedure Code and the third defendant had sent a reply raising untenable contentions. In the circumstances, the title of the plaintiffs over the scheduled property and their possession thereof are to be declared and the boundary of the scheduled properties are to be fixed and the defendants are to be restrained by a prohibitory injunction from trespassing into the scheduled properties causing any obstruction to the peaceful enjoyment of the same by the plaintiffs. RSA 1054/07 5 5. The suit was resisted by defendants 1 and 2 by filing a joint written statement and the third defendant by filing a separate written statement. Defendants 1 and 2 contended that in view of the provisions in the Kerala Land Assignment Act, the suit is not maintainable and the court has no jurisdiction to entertain the suit. Mutation was not effected in the village records as requested by the plaintiffs, as on enquiry, in was revealed that the vendor of the plaintiffs had no ownership or assignable right over the scheduled properties. Since the first plaintiff was found blasting rocks illegally, he was prevented from doing such acts as per order dated 4.8.1986 and the suit filed by them as O.S.No.573/86 against that order was dismissed by the Munsiff's Court, Thiruvalla. 6. The third defendant and some others filed O.P.No.5537/86 against the blasting operations done by the plaintiffs and this Court directed the District Collector, Pathanamthitta to take a decision on the right of the plaintiffs to carry RSA 1054/07 6 out the blasting operations and the original petition was dismissed on 15.6.1987. As per the direction of this Court the District Collector conducted a detailed enquiry and on 3.8.1988 an order was passed by him holding that the plaintiffs have no right in the rocky area and they were prevented from doing blasting operations. The plaintiffs filed O.P.No.1273/89 challenging the said order and that was dismissed and the plaintiffs were directed to establish their right in a civil suit and were restrained from doing any blasting operations till their rights are established. 7. The previous suit filed before the Munsiff's Court and the original petition filed before this Court were dismissed on account of the failure of the plaintiffs to establish their rights. The plaintiffs cannot claim any rights over the scheduled property as predecessors had no right or interest thereon. The disputed rocky area is not covered by Exhibits A1 and A2 assignment deeds. RSA 1054/07 7 The plaintiffs obtained permits for blasting operations, producing false documents and on the basis thereof, they blasted rocks till 31.3.1983. One of the assignors of the plaintiffs, namely, Mathai Mathew has filed a petition objecting to mutation being effected in favour of the plaintiffs, as according to him, he executed the assignment deed in favour of the plaintiffs in respect of the scheduled properties, which were not in his possession at their insistence. As per some defects in the settlement register, this rocky area could not be shown in the Register. All the same, it is not included in any of the pattayam properties and therefore, the rocky area is vested in Government. As per the resurvey records, Manthattupara is the property of the Government and its re-survey numbers are 239/1 and 240/5. Absence of ownership over the property by the plaintiffs was one of the reasons to restrain them from blasting operations, over and above the nuisance and danger to the neighbours. The suit is barred RSA 1054/07 8 by limitation and has to be dismissed. 8. In the written statement filed by the third defendant, her contentions are that she has purchased one acre and fifty seven cents in Sy.No. 456/1 in 1957 and she has planted rubber trees in the property. On the eastern side of that property, the plaintiffs had properties and when they tried to trespass into the properties of the third defendant and to blast rocks therein, she filed O.S.No.75/85 against the plaintiffs and that suit was decreed fixing the boundaries of her properties. The appeal preferred by the plaintiffs was also dismissed. The claim of the plaintiffs is barred by res judicata and the suit is to be dismissed. 9. On the above pleadings the trial court raised necessary issues for trial. Considering the pleadings and the evidence adduced in the case, which consisted of oral evidence of PWs 1 to 4 and DWs 1 to 3 and documentary evidence Exhibits A1 to A10, B1 to B10, C1, C1(a) and C2, X1 and X(a), the RSA 1054/07 9 trial court came to the conclusion that the plaintiffs have no right or possession over the scheduled properties and consequently, dismissed the suit. In A.S.No.29/01 filed by the plaintiffs, the first appellate court reversed the decree and judgment passed by the trial court and decreed the suit in part, declaring the title and possession of the plaintiffs/respondents 1 and 2 over the scheduled properties shown as ABCDEFGHIJKLMNOPQRS plot in Exhibit C1(a) plan. However, the prayer for fixing of boundary was disallowed clarifying that it shall be subject to the fixing up of the boundary in O.S. 75/85 by the Munsiff's Court, Thiruvalla filed by the third defendant against them. The respondents were also restrained by a decree of permanent prohibitory injunction from disturbing the possession and enjoyment of the scheduled properties by the plaintiffs, observing further that blasting of rocks, if any, done by them in the scheduled property shall be subject to the norms and rules and permission, if any, to be granted by RSA 1054/07 10 the authorities concerned in that matter. It was also made clear that records, if any, created by the respondents with respect to taking possession of the plaint schedule property shall not in any way stand in the way of possession and enjoyment of the property by the plaintiffs. It was also provided that Exhibit C1(a) plan shall form part of the decree. It is assailing the decree and judgment so passed by the first appellate court that defendants 1 and 2, namely, the Tahsildar, Mallappally and the State of Kerala have preferred this Regular Second Appeal through the Government Pleader. 10. It is contended before me by the learned Government Pleader that respondents 1 and 2, who are the plaintiffs, are not having any right or title over the scheduled properties; that they are lands belonging to the Government and that therefore, the decree of the first appellate court has to be reversed and the suit dismissed. RSA 1054/07 11 11. As discussed by both the courts below, evidence was let in in the case to establish that in the village records, the rocky area scheduled as plaint schedule property is not shown as the property of the Government or as puramboke land. There is no dispute that the scheduled properties are comprised in Sy.No.472/1B-3. The extract of Exhibit A8 Thandaper register reveals that one Mathai Mathew has got right over 4.91 acres of land in Sy.No.472/1B-3. The revenue record do not show existence of any Government Property or puramboke land in the said survey number and those aspects are also established by Exhibit B6 report of the R.D.O., Thiruvalla and Exhibit B5 report of the Tahsildar, Mallappally. It appears that it is, on the complaint of one of the vendors of the plaintiffs themselves that they had no right, title or possession over the scheduled property, that genuineness of Exhibits A1 and A2 began to be probed into by the revenue authorities, when the revenue records show that the vendors of the RSA 1054/07 12 plaintiffs have got right over the scheduled properties. It should have been found that the complaint raised by the vendors was baseless and that he was only attempting to invite trouble for the plaintiffs and to do harm for them. Exhibits A1 and A2 were being executed in favour of the plaintiffs respectively on 22.12.1982 and 23.12.1982 by Mathai Mathew and his wife Aliyamma and the description shows that the properties sold is exclusive of Manthattupara. 12. The first appellate court has observed that though the respondents contended that the predecessors-in-interest of the plaintiffs had no title over the scheduled property, they had no case that the scheduled property is puramboke land. It was also observed that the third defendant has not advanced any claim over the scheduled property. In fact, the third defendant filed O.S.No.75/85 before the Munsiff's Court, Thiruvalla against defendants 1 and 2 for fixing the eastern boundary of the plot belonging to her. This shows that on the eastern RSA 1054/07 13 boundary of the third defendant, the plaintiffs were having properties and it is that property that is scheduled to the plaint as scheduled properties. 13. It is worthy to note that boundaries separating the plot belonging to the third defendant and the plaintiffs had already been fixed in O.S.No.75/85 and though the present plaintiffs filed an appeal that was dismissed. According to them, the matter is pending in second appeal. It is in view of the pendency of the appeal before this Court against the decree and judgment in O.S.No. 75/85 that it was provided in the decree of the first appellant court that the question of putting up of the boundary shall be subject to the final verdict in that appeal. However, the fact remains that as long as the present appellants, who are defendants 1 and 2 in the suit, have not established their claim that the scheduled properties belong to the Government, the decree granted in favour of respondents 1 and 2, who are the plaintiffs, cannot be faulted. Thus, there is RSA 1054/07 14 no merit at all in the Regular Second Appeal filed before this Court by the appellants. Substantial questions of law attempted to be formulated in the appeal memorandum are, in fact, no questions of law and much less, any substantial question of law, so as to be agitated in this Regular Second Appeal. In the result, the Regular Second Appeal is dismissed in limine, refusing admission. 29th May, 2008 (K.P.Balachandran, Judge) tkv