IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 WP(C).No. 35839 of 2007(N) --------------------------------------- PETITIONER(S): ----------------------- KURIAKOSE THOMAS, MURIANIKKAL (PERINGANATH ) HOUSE, KANGAZHA, KOTTAYAM DISTRICT. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): ------------------------- 1. THE DISTRICT COLLECTOR, KOTTAYAM. 2. THE ASSISTANT EXECUTIVE ENGINEER, PWD ROADS SUB DIVISION, KANJIRAPALLY. R1 & R2 BY GOVT. PLEADER SMT. KOCHUMOL KODUVATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/11/2011, THE COURT ON 10/11/2011 DELIVERED THE FOLLOWING: VPV W.P.C.NO. 35839/2007 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE LEASE DEED NO.213/1970 OF SRO., KARUKACHAL. P2: COPY OF THE TAX RECEIPT DATED 21.11.2005 ISSUED BY VILLAGE OFFICER, KANGAZHA. P3: COPY OF BUILDING TAX RECEIPT DATED 30.10.2006 ISSUED BY KANGAZHA GRAMA PANCHAYAT P4: COPY OF ORDER DATED 2.1.2007 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P5: COPY OF THE JUDGMENT IN W.P.(C) NO.27047/2006 DATED 16.10.2006. P6: COPY OF THE REPRESENTATION PRODUCED AS EXHIBIT P1 IN W.P.(C.) NO.27047/2006. P7: COPY OF THE JUDGMENT IN W.P.(C) NO.1566/07 DATED 18.7.2007. P8: COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 31.7.2007. P9: COPY OF ORDER NO.AB2-220/03 DATED 29.10.2007 ISSUED BY 2ND RESPONDENT. P10: COPY OF THE PHOTOGRAPHS OF THE PETITIONER'S BUILDING DATED NIL. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE VPV S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.35839 of 2007 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of November, 2011 J U D G M E N T The petitioner is challenging Ext.P9 order passed by the Assistant Executive Engineer, Public Works Department, Roads Sub Division, Kanjirappally under the Kerala Land Conservancy Act, directing the petitioner to surrender certain properties in the possession of the petitioner on the ground that the same is Government land. The petitioner earlier approached this court against an order passed in respect thereof and by Ext.P7 judgment this Court directed the 2nd respondent to treat the order as a show cause notice and to pass fresh orders after hearing the petitioner. It is pursuant to the same Ext.P9 order has been passed. The petitioner challenges Ext.P9 order on the ground that the property belongs to the petitioner either on title or by adverse possession in so far as the petitioner is in possession of the land at least from 1969. W.P.(C)No.35839 of 2007 -2- 2. I have heard the learned Government Pleader also. 3. I am of opinion that, as to whether the land in question is Government land or land belonging to the petitioner is a question of fact. I cannot take evidence in this writ petition to decide that question of fact. Section 20 of the Kerala Land Conservancy Act,1957 reads as follows: “20. Saving of suits by persons aggrieved by proceedings under this Act.- No suit against the Government shall be entertained in any Civil Court in respect of any order passed under this Act except upon the ground that the land in respect of which such order has been passed is not a land which is the property of Government whether a poramboke or not: Provided that Civil Courts shall not take cognizance of any such suit unless it shall be instituted within one year from the date on which the cause of action arose.“ Going the by same, it is clear that in so far as the petitioner bases his claim on title, the remedy available to the petitioner is to file a suit for establishing his title to the property in question. In the above circumstances, this writ petition is disposed of as follows: The stay granted by this Court shall continue for a period of three months from today to enable the W.P.(C)No.35839 of 2007 -3- petitioner to file a suit against the Government after issuing a notice under Section 80 of the Code of Civil Procedure. The petitioner shall file the suit and seek interim orders in the suit within that time. It would be open to the petitioner to seek exclusion of the period during which this writ petition was pending before this court for the purpose of deciding the question of limitation, which shall be considered by the civil court in accordance with law. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/