IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 SA.No. 665 of 1999(D) --------------------- AS.14/1998 of PRL.SUB COURT,THRISSUR OS.1724/1986 of III ADDL. MUNSIFF COURT,THRISSUR .................... APPELLANT/APPELLANT/DEFENDANT: ------------------------------------------------------- THRISSUR MUNICIPALITY, REPRESETED BY ITS SECRETARY, THRISSUR MUNICIPALITY, THRISSUR 1. BY ADVS. SRI.K.P.VIJAYAN, SRI.V.M.SHYAMKUMAR SMT.KRIPA ELIZABETH MATHEWS RESPONDENT/RESPONDENT/PLAINTIFEE: ----------------------------------------------------------- SRI.BHANUPRAKASH, S/O.CHULLIPARAMBIL RAMAN, KIZHAKKUMPATTUKARA, THRISSUR. BY ADV. SRI.P.V.CHANDRA MOHAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30.05.2011 , THE COURT ON 30/05/2011 DELIVERED THE FOLLOWING: VK P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 665 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of May, 2011. JUDGMENT The local authority, namely, the Thrissur Municipality has come up in appeal against the concurrent decrees suffered by them in O.S.1724 of 1986 before the Munsiff's Court, Thrissur. 2. The plaintiff claims to have obtained the plaint schedule property, which consists of plaint A and B schedule as per Ext.A1 settlement deed of the year 1974. The plaint schedule property was the subject matter of Ext.A2 partition deed of the year 1104 and the predecessor-in-interest of the plaintiff is alleged to have obtained the property. It is pointed out that the property was in the possession of Kuttan, the predecessor-in-interest of the plaintiff. The defendant had issued Ext.A4 notice dated 2.3.1116 under the provisions of the then available local authorities Act S.A.665/1999. 2 calling upon the plaintiff's father to surrender 2 ½ cents of property. The plaintiff claims to have succeeded to the interests of Kuttan and it is pointed out that the plaintiff and his predecessor-in-nterest had been in possession of the property for a long time and rights if any enjoyed by the local authority has been lost by adverse possession and limitation. Since the local authority tried to interfere with the possession of the plaintiff, the suit was laid for permanent prohibitory injunction. 3. The defendant resisted the suit. They disputed the claim of the plaintiff that they are in uninterrupted possession for a long time and disputed that the plaintiff had no manner of right over 2 ½ cents. The defendant also pointed out that Kuttan might have been vacated from the premises and thereafter fresh encroachment might have been made. When the defendant found that the plaintiff had encroached into the plaint schedule property, the defendant issued Ext.A4 notice under the Kerala Municipalities Act for evicting the plaintiff. They therefore pointed out that the S.A.665/1999. 3 plaintiff is not entitled to any relief and the suit is only to be dismissed. 4. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Exts.A1 to A5 from the side of the plaintiff. The defendants did not adduce any evidence. Ext.C1 is the commission report. 5. The trial court found that the plaintiff has been in possession atleast from 1890 onwards. In fact the predecessor-in-interest of the defendant had initiated the proceedings for eviction of the of the predecessor-in-interest of the plaintiff and did not pursue the matter after Ext.A4 notice. Strangely enough the trial court found that the suit is covered by Article 111 of the Limitation Act and by virtue of Section 27 of the Limitation Act the plaintiff had perfected title. 6. The defendant carried the matter in appeal as A.S.14 of 1998 before the Sub Court, Thrissur. The lower S.A.665/1999. 4 appellate court accepted the reasoning of the trial court and dismissed the appeal. Hence the Second Appeal. 7. Notice is seen issued on the following questions of law: “(i) Whether a trespasser is entitled to equitable relief of injunction as against the owner of an immovable property. (ii) Whether the provisions contained in the Limitation Act which being the general law, will prevail over the provisions contained in the Kerala Land Conservancy Act, Kerala Municipalities Act and similar special laws providing specific provisions for protection of public properties and puramboke lands. (iii) Whether adverse possession can be claimed as against puramboke lands by unauthorised trespassers. (iv) Whether Articles 64, 65 and/or 111 read with Section 27 of the Limitation Act or otherwise has any relevance with respect to the disputes and issues to be adjudicated in the suit.” S.A.665/1999. 5 8. Learned counsel appearing for the appellant pointed out that the courts below have erred in law in holding that Article 111 applies and by virtue of Section 27 of the Limitation Act the plaintiff has perfected his title. According to the learned counsel, Article 111 could have no application and the proceedings should be treated as one under the Land Conservancy Act in which case the suit is not maintainable. The lower appellate court has omitted to notice this vital aspect and that has resulted in an erroneous decree being passed in favour of the plaintiff. 9. Per contra, learned counsel appearing for the respondent pointed out that the courts below have considered the question from the right perspective and have come to the conclusion that the plaintiff has been in possession of the property for a long time and he and his predecessors-in-interest had effected valuable improvements which are more that 30 years old. It was pointed out that Ext.A4 proceedings were initiated against Kuttan, the predecessor-in-interest of the plaintiff and then S.A.665/1999. 6 the local authority did not pursue the matter and that shows that even prior to that date the plaintiff's predecessors-in-interest were in possession of the property. The courts below have recognised the long and continuous possession of the property and according to learned counsel there are no grounds to interfere with the judgments and decrees of the courts below. 10. Obviously on going through the records it is found that proceedings were initiated against the plaintiff under Section 217 of the Kerala Municipalities Act of 1960. Ext.A4 would make the position clear. The contention now raised that the proceedings had been initiated under the Kerala Land Conservancy Act cannot be accepted for the simple reason that neither the relevant provision under the Act nor the Rules findd a place in Ext.A4. Further Ext.A4 notice is seen issued under Section 217(3)(b) of the Kerala Municipalities Act. There is no pleading in the written statement that the suit is barred by Section 392 of the Act S.A.665/1999. 7 for the simple reason that the suit is for injunction, which is exempted. 11. It is significant to notice that the plaintiff has specifically averred in the plaint that the predecessor- in-interest of the plaintiff had obtained the property as per Ext. A3 partition deed of the year 1869 and eversince then his predecessor in interest and he has been in continuous possession of the plaint B schedule property, which according to the plaintiff lies contiguously with plaint A schedule property. The plaintiff has also pointed out that the proceedings were initiated against the predecessor-in-interest of the plaintiff evidenced by Ext.A4 document and the matter was not pursued thereafter. 12. It is significant to notice that Ext.A4 is not disowned by the defendant. The commission report shows that there are improvements in the property having more than 25 years of age which would justify the claim of the plaintiff that he and his predecessors-in-interest have been in possession of the property for a long time. S.A.665/1999. 8 13. May be the courts below are wrong in law in relying on Article 111 of the Limitation Act. The said provision reads as follows: By or on behalf of any local The date of the authority for possession of dispossession or any public street or road or Thirty years discontinuance. any part thereof from which it has been dispossessed or of which it has discontinued the possession. A perusal of the above provision would clearly show that it can have no application to the facts of the case. The question as to whether the appellant can move the Land Conservancy Act need not be considered for the simple reason that the notice issued, namely, Ext.A4 is not under the Land Conservancy Act but under the Municipalities Act, 1968. 14. Learned counsel appearing for the appellant was unable to show any provision other than Article 111 which enables the Municipality to contend for the position S.A.665/1999. 9 that in order to enable the plaintiff to acquire right against the Municipality the period of 30 years is required. 15. It is also important to notice that the appellant has not bothered to controvert the allegations in the plaint and the evidence adduced by the plaintiff. One has to remember that the suit is for mere injunction to restrain the defendant from dispossessing the plaintiff. 16. On going through the findings of the courts below, there are no grounds to interfere with the judgments and decrees of the courts below. As already noticed the question as to whether the defendant can invoke the provisions under the Land Conservancy Act need not be decided in this case. In the result, there are no grounds to interfere with the judgment and decree of the court below and this appeal is only to be dismissed. Leaving open the question as to whether the appellant can take recourse to the provisions of the Land Conservancy Act and confirming the judgment and S.A.665/1999. 10 decree of the court below, this second appeal is dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.