IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 OP(C).No. 490 of 2011(O) ------------------------ CMA.4/2010 of DISTRICT COURT, KALPETTA OS.142/2007 of SUB COURT, SULTHAN BATHERY (IA 1023/07) .................... PETITIONERS ---------------------- 1. STATE OF KERALA, REP. BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT (REVENUE DEPARTMENT) SECRETARIAT,THIRUVANANTHAPURAM. 2. THE TAHSILDAR, TALUK OFFICE, SULTHANBATHERY. BY GOVERNMENT PLEADER RESPONDENT(S): --------------- M.V.SREYAMSKUMAR, SON OF M.P.VEERANDRAKUMAR, PULIYARMALA, P.O. KALPETTA NORTH, WAYANAD-673122. ADDL R2. P.P.VASU, S/O.VELLY, AGED 53 YEARS, KOZHITTALA COLONY, P.O., KAMBALAKKAD, KANIYAMPATA AMSOM, WAYANAD. (IMPLEADED AS ADDL.R2 AS PER ORDER DT. 10.11.2011 IN I.A.NO.15306/2011) ADV. SRI.DEVAPRASANTH.P.J. FOR R SRI.V.M.KRISHNAKUMAR FOR ADDL.R2 SRI.RENJITH THAMPAN, SENIOR ADVOCATE FOR ADDL.R2 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10/10/2011, ALONG WITH W.A.NO.836/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(CIVIL) NO.490/2011 APPENDIX EXT.P1: COPY OF THE APPLICATION FILED BY THE RESPONDENT BEFORE THE GOVERNMENT. EXT.P2: COPY OF THE ORDER DT.9.8.2007 ISSUED BY THE GOVT. REJECTING THE APPLICATION OF THE RESPONDENT. EXT.P3: COPY OF THE PLAINT IN O.S.NO.162/2007. EXT.P4: COPY OF THE LETTER DT.11.11.2005 OF THE RESPONDENT. EXT.P5: QCOPY OF THE LETTER DT.19.11.2005 OF THE RESPONDENT. EXT.P6: COPY OF THE I.A.NO.1023/2007. EXT.P7: COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN I.A.NO.1023/2007 IN O.SNO.162/2007. EXT.P8: COPY OF THE ORDER OF THE SUB COURT, SULTHANBATHERY IN I.ANO.1023/2007. EXT.P9: COPY OF THE JUDGMENT IN CMA 4/2010 DT.10.12.2010. EXT.P10: COPIES OF EXTS.A1 TO A4 RECEIPTS. //TRUE COPY// PA TO JUDGE C.N.RAMACHANDRAN NAIR, Ag.C.J.& P.S.GOPINATHAN, J. ------------------------------------------ W.A.No.836 OF 2011 & O.P.(Civil) No.490 OF 2011 ------------------------------------------- Dated this the 10th day of October, 2011 J U D G M E N T ~~~~~~~~~~~ C.N.Ramachandran Nair, Ag.C.J. The appellant in the Writ Appeal is the respondent in the Original Petition filed by the State challenging an injunction order obtained by the appellant from the sub court Sulthan Bathery which was confirmed by the District Judge, Kalpetta. We have heard the learned counsel appearing for the appellant, the learned Government Pleader and the learned counsel appearing for the various parties impleaded in the Writ Appeal and the Original Petition . 2. The admitted facts are that the appellant along with other properties has 14.44 Acres of coffee plantation in Survey No.754/2 in Krishnagiri village in Wayanad District. The land is in the possession and enjoyment of the appellant's family for more than 50 years and being coffee plantation appellant has registration with the coffee plantation. The appellant applied for assignment of land under the Kerala Land Assignment Act and W.A.No.836/2011 & O.P.(C) 490/2011 2 filed W.P.(C) before this Court for direction to the Tahsildar to consider the application for assignment. However, the learned Single Judge considered the question whether the appellant is entitled to assignment and on finding that the appellant is not entitled to assignment of the land directed the appellant to surrender the land to Government. It is against this judgment, the appellant has filed the Writ Appeal. It is to be noted that the Government has infact rejected the assignment application later and the appellant has admitted the position that he is not entitled to assignment of the land. However, apprehending immediate take over of the land consequent upon rejection of the assignment application, the appellant filed O.S.No.142/2007 seeking a declaration that the land is leasehold land. During hearing in the interim application filed along with the suit, the Sub court ordered to maintain status quo, that is, non interference of the possession and enjoyment of the land by the appellant. Later, after hearing the Government, an order of injunction was passed, which is produced as Ext.P8 in the Original Petition filed by the State, granting an injunction against interference with the possession and enjoyment of the land by the appellant. The injunction order was challenged by W.A.No.836/2011 & O.P.(C) 490/2011 3 the State before the District Judge in appeal, which was not successful because the District Judge confirmed the injunction order vide Ext.P9 order produced in the Original Petition. It is against the interim order of the injunction issued by the sub court and confirmed by the District Judge, State has filed the Original Petition (Civil) under Article 227 of the Constitution of India. Eventhough O.P.(C) was filed 31.1.2011 no interim order was passed and so much so injunction order is in force. During the pendency of the Original Petition, the learned Single Judge passed the judgment in the W.P.(C) 16422/2007 as stated above against which the appellant has filed the Writ Appeal. 3. Before us, the learned counsel appearing for the appellant contended that the learned Single Judge exceeded his jurisdiction in directing the surrender of the land which is in violation of the injunction order passed by the civil court. According to the appellant, in a W.P.(C) filed by him the Single Judge should not have directed the appellant to surrender the land particularly when injunction order issued by civil court in in force and the suit is still pending before sub court. However, the appellant is not challenging the finding of the learned Single W.A.No.836/2011 & O.P.(C) 490/2011 4 Judge that the appellant is not entitled to the assignment of the land under the Land assignment Act and Rules. The Government Pleader referred to the decisions rendered by this Court in the earlier round of litigation by the additional respondents impleaded in both the cases wherein this Court in the Writ Appeal 348/2008 dated 7.4.2010 held that the Tahsildar has to decide the matter in confirmity with the sub court orders. It is to be further noted that in a police protection case filed by the very same appellant, the Division Bench in the judgment reported in Harrisons Malayalam Ltd. (M/s.) and others v. State of Kerala and others [2010(2)ILR Kerala 845] took note of the injunction order issued by the civil court and held that this Court cannot decide the appellant's right over the property which has to be necessarily decided by the civil court. The learned counsel appearing for the additional respondents contended that suit itself is not maintainable and so much so, the civil court has no jurisdiction to pass injunction order which is challenged by the Government in the O.P.(C). However, the learned counsel for the appellant pointed out that additional respondents impleaded are not even parties to the civil suit and therefore they have no right to contend that the suit is not W.A.No.836/2011 & O.P.(C) 490/2011 5 maintainable. 4. After hearing the counsel for the appellant, the learned Government Pleader and the additional respondents impleaded, we are of the view that there is no justification for us to take a view different from the view taken by the two other Division Benches in the two earlier judgments referred. The fact remains that the appellant and previously his predecessors were in possession and enjoyment of 14.44 Acres of land for more than 50 years and the land is coffee plantation. The injunction order is only in the form of an order to maintain status quo, that is, to restrain from the right of the appellant to retain possession and enjoyment of the land until the matter is decided by the civil court. We do not find any justification to deviate from the view taken by the two civil courts and so much so, the appellants are permitted to retain possession and enjoyment of the land until the matter is finally decided by the civil court. However, we do not want to consider the right claimed by the appellant over the property which the sub court has to decide and consistent with civil court judgment the statutory authorities are free to consider eviction in accordance with law. W.A.No.836/2011 & O.P.(C) 490/2011 6 5. During hearing, the learned counsel for the appellant submitted that the question whether the appellant is entitled to fixity of tenure stands referred to the Land Tribunal. If this is the factual position, then the matter has to be first decided by the Land Tribunal and the reference should be returned to the civil court based on which the civil court should try the suit and dispose of the same. We do not want to pre-empt the Land Tribunal or before the civil court by deciding any issue pending before them. The additional respondents, if interested, are free to implead in the suit or in the proceeding before the Land Tribunal and raise their objections in accordance with law. However, we do not find any justification to sustain the order the learned Single Judge directing the appellant to surrender the land to the Government pending disposal of the suit before the Civil Court. 6. We dispose of the Writ Appeal and the Original Petition with the following directions. 1) The land Tribunal to which the matter stands referred, which is stated to be the Land Tribunal Mananthavady, is directed to dispose of the referred case after hearing the W.A.No.836/2011 & O.P.(C) 490/2011 7 parties concerned within a period of three months from the date of production of a copy of this judgment. As soon as the matter is disposed of, the Land Tribunal will forward the order along with the records to the sub court, Sulthan Bathery for proceedings to decide the suit. 2) The sub court Sulthan Bathery is directed to dispose of O.S.No.142/2007 within a period of three months from the date of receipt of order from the Land Tribunal with records. 3) The order of injunction granted by the sub court confirmed by the District Judge will remain in force until disposal of the suit by the civil court. As and when the suit is disposed of, the statutory authorities are free to initiate any proceedings in confirmity with civil court judgment and decree for eviction of the appellant. Writ Appeal and Original Petition (Civil) are disposed of as above. (C.N.RAMACHANDRAN NAIR, Acting Chief Justice) (P.S.GOPINATHAN, JUDGE) ps/11/11