IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 RSA.No. 1261 of 2011() ------------------------------ AS.30/2008 of SUB COURT, KASARAGOD OS.174/2007 of ADDL.MUNSIFF, KASARAGOD .................... APPELLANT/1ST DEFENDANT : ---------------------------------------------- DELAMPADY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, ADOOR VILLAGE, URDOOR POST, KASARAGOD DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.V.VENUGOPAL RESPONDENTS/PLAINTIFF : -------------------------------------- 1. PRATHIBHA MAHILA SAMAJAM(REGD.), REPRESENTED BY ITS GENERAL SECRETARY, SMT.PRAMEELA C.NAIK, W/O. CHANDRASEKHARA NAIK, ADARSANILAYAM, ADOOR VILLAGE, P.O.URDOOR-671 543, KASARAGOD DISTRICT. 2. THE OFFICER, SISU VIKASANA PADHATHI, KASARAGOD DISTRICT-671121. 3. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, P.O.VIDYAVIHAR-671 123, KASARAGOD. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ln M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1261 of 2011 ............................................ DATED THIS THE 3rd DAY OF NOVEMBER, 2011 JUDGMENT First defendant in O.S.174 of 2007 on the file of Additional Munsiff Court, Kasargod is the appellant. First respondent is the plaintiff, General Secretary of Prathibha Mahila Samajam, a registered society. Suit was instituted for recovery of possession and damages. According to the first respondent, plaint A schedule property originally belonged to A.Ramakrishna Rao who gifted it in favour of Adoor Community Recreation Centre, who in turn gifted the property in favour of the first respondent, society under Ext.A2 gift deed dated 14.9.1981. While the society has been in possession of the same, the society constructed a building and started a Balawadi and tailoring class in the year 1981. Later, Government of Kerala took over the programme of running Anganawadi. The officer of Sisuvikasana Padhathi at Kasaragod obtained the building, except one room, on lease. On 4.12.2006, the President and some of the members of the appellant Panchayat came to plaint A schedule property and RSA 1261/2011 2 forcibly put their own to the room which was in the possession of the first respondent. On enquiry, first respondent was told that the building belongs to the panchayat and they have every right to deal with the same. The suit was therefore instituted seeking a decree for recovery of possession with damages for use and occupation with future mesne profits at the rate of Rs.2500/- per month. 2. The defendant panchayat filed a written statement contending that the building was constructed utilizing the funds alloted by Kasargod Block Development Officer. There was no lease agreement or arrangement with the first respondent Samajam in respect of the plaint schedule property. The case that it was obtained on rent at the rate of Rs.300/- per month and was enhanced to Rs.750/- per month are false. It was contended that the plaint schedule property was gifted to the first respondent organization for the purpose of housing and running Balawadi. First respondent has no vested or proprietory right over the same. In 1985 as a matter of policy, all Balawadies in the State were converted into Anganawadies. The control of the same vested with the ICDS under the Social Welfare RSA 1261/2011 3 Department. Thereafter as part of the Peoples planning programme, the management of the Anganawadies were transferred in favour of Grama Panchayat in 1995. The suit property now vests with the appellant Panchayat. The Anganawadi building in the plaint schedule property was in a dilapidated condition. The Grama panchayat decided to renovate the building and with the funds of the panchayat renovation work is almost completed. First respondent Samajam has not objected to the same. Therefore first respondent is not entitled to the decree sought for. 3. Learned Munsiff on the evidence found that the title to the plaint schedule property vests with the first respondent society under Ext.A2 gift deed executed by A.Ramakrishna Rao, in favour of Adoor Community Recreation Centre. Though under Ext.A6 financial assistance was obtained by the first respondent, title to the building vests with the first respondent. The appellant or other defendants cannot claim title to the property or the building. It was therefore found that defendants are not liable to surrender possession of the plaint A schedule property and hence a decree for recovery of possession or damages for use and RSA 1261/2011 4 occupation cannot be granted. 4. Learned Munsiff granted a decree for recovery of possession. Appellant challenged the decree before Sub Court, Kasargod in A.S.30 of 2008. The other defendants filed A.S.82 of 2008 challenging the decree. Learned Sub Judge, by common judgment dated 21.7.2011 confirmed the decree of the trial court and dismissed the appeals. The decree is challenged in the second appeal. 5. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that though first respondent contended that the building in the plaint schedule property was constructed by the first respondent, Ext.A6 establishes that it was constructed with the assistance given by the Government for the purpose of starting a Balawadi and subsequently the Balawadi was converted into Anganawadi and as the building was constructed with the assistance of the Government, first respondent cannot claim title to the building and therefore the decree granted is not sustainable. Learned counsel made available a copy of Ext.A6. Ext.A6 shows that it was a permission granted by the CARE Kerala under the composite programme for RSA 1261/2011 5 pre-school children pursuant to GO(MS)115/1975 dated 6.10.1975 and GO(MS) 100/81 dated 23.11.1981. Ext.A6 only shows that on the recommendation of the Field Officer of CARE, first respondent Prathibha Mahila Samajam was granted approval for commencement of construction of their building, to facilitate smooth functioning of CPWP unit. It shows that for the construction, a financial assistance of Rs.6000/- was granted to the first respondent in three instalments at the rate of Rs.2000/-, Rs.2000/- and Rs.2000/-, after completion of roof and tiling. Clause (A) provides that Block Development Officer was requested to ensure to obtain a written undertaking from individual Mahila Samajam to the effect that construction of the Balawadi will be carried out and completed in accordance with the terms and conditions prescribed in G.O(MS) 115/1975 and the building will be properly maintained for a minimum period of ten years and it will be utilized for the intended purpose to meet the programme objectives as defined in the G.O. There is no other provision in Ext.A6, which enables the CARE or the Government to claim ownership over the building so constructed. On the other hand, Ext.A6 makes it clear that the only condition attached to RSA 1261/2011 6 the financial assistance is that building shall be properly maintained for a minimum period of ten years and it shall be utilized for that intended purpose. That does not mean that the building vests with the Government or that it shall be used only for the purpose of Balawadi or the objectives of the scheme for all time. At best, it could be said that for a period of ten years, it shall not be used for any other purpose. In the light of Ext.A6, appellant cannot contend that the building vests with Government or the Panchayat. Though it was argued that building was subsequently renovated under the Peoples planning programme, admittedly no agreement was got executed at that time providing that the building so renovated vests with the Government. In such circumstances, no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE ` lgk