IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 AS.No. 281 of 1995(D) AND CROSS OBJECTION --------------------------------------------------------------------- [OS.NO.132/1991 OF ADDITIONAL SUB COURT, ALAPPUZHA] .................... APPELLANT: ------------------- STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ALAPPUZHA. BY SR. GOVERNMENT PLEADER SRI. P.K. BABU. RESPONDENTS/PLAINTIFF 1, 2 & 2ND DEFENDANT: -------------------------------------------------------------------------- 1. KURIAN, S/O. CHANDY, KALAVARA VEEDU, DISTRICT COURT WARD, ARYAD SOUTH MURI, ARYAD SOUTH VILLAGE. 2. MOLLY KURIAN OF DO. DO. *3. POTHAN, S/O. ABRAHAM, VADAKKEKALATHIL, VAZHICHERRY WARD, ALAPPUZHA. *(DIED). *ADDITIONAL RESPONDENTS 4 TO 8 IMPLEADED: 4. SMT. MONCY POTHAN, W/O. POTHAN, VADAKKEKALATHIL, VAZHICHERRY WARD, ALAPPUZHA. 5. V.P. ABRAHAM, S/O. POTHAN, VADAKKEKALATHIL, VAZHICHERRY WARD, ALAPPUZHA. 6. V.P. KURIAN, S/O. POTHAN, -DO- -DO-. 7. ANNIE MATHEW, D/O. POTHAN -DO- -DO- A.S. NO.281/1995-D: 8. BEENA THOMAS, D/O. POTHAN, -DO- -DO-. *LEGAL HEIRS OF DECEASED 3RD RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 4 TO 8 AS PER ORDER DTD 29/10/10 ON I.A. 3712/06. BY ADV. SRI. P.R. VENKETESH. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/11/2010, ALONG WITH CROSS- OBJECTION, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S. NO.281/1995-D: ORDER ON C.M.P. NO. 2331/1995 IN A.S. NO.281/1995 DISMISSED 22/11/2010. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 281 OF 1995 & Cross Objection = = = = = = = = = = = = = = = Dated this the 22nd day of November , 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Alappuzha in O.S.132/91. The suit is one for recovery of possession and damages. It is submitted that the plaint schedule property was purchased by virtue of a document dated 1.12.1978. There had been granite walls on the property for its safeguard and now an attempt is made by the Government to trespass into the portion of item No.1 which is described as item 2 and therefore the plaintiff is seeking recovery of possession of the plaint schedule item No.2 with mesne profits. A.S. 281 OF 1995 & Cross Objection -2- 2. On the other hand the Government would contend that the plaint schedule property in toto does not belong to the plaintiff and which is described as item No.2 is only a part and parcel of the puramboke land and therefore the plaintiff is not entitled to recovery of possession on the strength of title. The trial court on consideration of the entire materials granted a decree in favour of the plaintiff and it is against that decision the State has come up in appeal. 3. Heard the learned counsel for the appellant as well as the respondent. The suit is one for recovery of possession on the strength of title. The plaintiff is claiming property by virtue of a document in 1978 and according to him it is a property well surrounded by boundaries and walls and the A.S. 281 OF 1995 & Cross Objection -3- Government have no manner of right over the same. The Government, on the other hand, would contend that a portion of the property which is now in the possession of the plaintiff is a trespassed area of puramboke and therefore the plaintiff is not entitled to the relief. 4. A Commissioner was appointed and he had demarcated the property but unfortunately the trial Court had set aside that plan and report by virtue of the judgment and so virtually no Commissioner's plan and report is available in this case to decide the matter. I may say it is quite unfortunate. The Courts are generally expected to consider these matters before the trial of the suit so that one will be able to point out where the property is. But the major difficulty in this case is got over by the original pleadings in the written statement. The A.S. 281 OF 1995 & Cross Objection -4- plaintiff is claiming right over the property in Re.Sy.No.26/13/A2. The first defendant, in the written statement has admitted that the property is in Re.Sy.No.26/13/A2. There is no case for the Government that the property comprised in Re.Sy.No.26/13/A2 is part and parcel of the puramboke. When there is a private property and puramboke land generally they are situated in two different survey numbers. It has also come out in evidence that so far no case has been registered against the plaintiff for trespass into the plaint schedule property. i.e., the Government puramboke. Further the assignor of the plaintiff namely DW1 was examined and he had spoken in support of the case of the plaintiff. He would submit that the boundary wall had been in existence from 1939 onwards. The suit is filed in the year 1991. So it is very clear A.S. 281 OF 1995 & Cross Objection -5- that there is a uninterrupted possession of a compact compound by a person for a long period of 52 years and therefore the contention of the plaintiff that he had obtained the property by virtue of 1978 document with clear demarcating boundaries appears to be in order. Since Re.Sy.No.26/13/A2 is not a Government puramboke land and the plaintiff is claiming right over that land it has to be stated that the plaintiff is entitled to the decree as prayed for. Therefore I agree with the finding of the learned trial judge but make it clear that the recovery of possession is with respect to item No.2 of the plaint schedule property along with the boundaries mentioned therein. Thus the judgment and decree of the trial court are to be confirmed. A.S. 281 OF 1995 & Cross Objection -6- 5. The cross-objection is filed claiming compensation. The learned trial judge had raised a specific issue as issue No.5 and he considered it elaborately and found that there is absolutely no evidence in support of that and therefore declined to grant any damages as claimed by the plaintiff. I do not find any ground to find that the said approach is erroneous and therefore the cross objection does not merit consideration. Therefore the appeal and cross objection are dismissed but under the circumstances without any costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 281 OF 1995 & Cross Objection -7- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 281 OF 1995 & Cross Objection = = = = = = = = = = = J U D G M E N T 22nd November, 2010.