IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 SA.No. 219 of 1997(A) --------------------- AS.66/1996 of SUB COURT, KASARAGOD OS.289/1993 of PRL.MUNSIFF, KASARAGOD .................... APPELLANT/APPELLANT/SECOND DEFENDANT -------------------------------------------------------------------- .SUPERINTENDENT OF POST OFFICES KASARAGOD BY ADV.SRI.S.KRISHNAMOORTHY, CGC RESPONDENTS/RESPONDENTS/PLAINTIFFS ---------------------------------------------------------------- 1.C H MAHIN HAJI, AGED ABOUT 60 YEARS S/O.HASSAN KUNJU BEARY KUMBALA TOW, KOIPADY VILLAGE KASARAGOD 2. C H ABDUL RAHIMAN AGED ABOUT 58 YEARS S/O.HASSAN KUNJU BEARY KUMBALA TOW, KOIPADY VILLAGE KASARAGOD 3. STATE OF KERALA REP BY DISTRICT COLLECTOR, KASARAGOD 4. SI OF POLICE, KUMBALA POLICE STATION, KUMBALA 5. THE EXECUTIVE OFFICER KUMBALA PANCHAYATH KUMBALA PO, KASARAGOD ADV. SRI.K.G.GOURI SANKAR RAI FOR R1 & R2 GOVERNMENT PLEADER MR.SHAIJ RAJ T K FOR R3 TO R5 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD 9.11.2011 ALONG WITH OP NO. 13014 OF 1997 & WPC NO. 837 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ----------------------------------------------------------------------- SA No.219/97, OP No.13014/97 & WP(C) No.837/10 ------------------------------------------------------------------------ Dated this the 9th day of November 2011 Judgment SA No.219/97 The second defendant in OS No.289/93 before the Munsiff's Court, Kasaragod, is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff claims to be the owner of plaint A schedule property having purchased it as per Ext.A1 sale deed dated 7.3.1960. He also claims to be in possession of Plaint B schedule property and has put up structures therein. It is alleged that the predecessor-in-interest of the plaintiff was also enjoying plaint B schedule as his own property and had put up structures therein. Plaint A and B schedule properties are on the northern side of a road in the sketch appended to the plaint. It is also pointed out that in between the road and plaint A and B schedule SA 219/97 & connected cases 2 properties, there is also a drainage. The plaintiff has been enjoying the plaint A and B schedule properties as his own and has been asserting rights over the same from 1960 onwards. The plaintiff claimed right of easement to use the road which is shown as 'R' in the sketch and also pointed out that the defendants have no right to close the pathway. On 23.05.1993, it is alleged that the fourth defendant asked the plaintiff to pull down the structures in plaint B schedule and they wanted to take forcible possession of the same. That necessitated the suit. 3. Defendants 1, 2 and 4 resisted the suit by filing a joint written statement. They denied the allegations in the plaint. According to them, 0.27 acres of land originally belonged to the Government and the same was assigned to the Postal Department for construction of Kumbala Post Office. Thereafter, the entire land was taken possession of by the Postal Department on 27.10.1982. They denied the existence of any road as alleged in the plaint. They also disputed the claim that the plaintiff had no SA 219/97 & connected cases 3 other means of access to their property than the road which was involved in the suit. It was also pointed out that there was another litigation as OS No.129/84 before the Munsiff's Court, Kasaragod with regard to the very same issue and in that suit, it was found that there was no such road. They also pointed out that since the Postal Department is made a party to the suit, it is necessary that the Central Government is also arrayed as a party to the suit, going by Order XXVII Rule 5A of CPC. On the basis of these contentions, they prayed for dismissal of the suit. 4. The third defendant filed a separate written statement, wherein it was pointed out that he was an unnecessary party to the suit. However, he admitted that there was an old road shown as 'R' in the sketch produced along with the plaint. He also conceded that the said road has been entered in the register concerned of the panchayat by name 'Market Road' having a length of 200 metres and a width of 8 metres and it leads to Gandhimaidan. It was however stated in the written SA 219/97 & connected cases 4 statement that the road was being used by school children and also the public of the locality. According to him, no obstruction has ever been caused to the use of the road by the public. Pointing out that the plaintiff has no cause of action against him, he prayed for dismissal of the suit. 5. On the above pleadings, necessary issues were framed by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A5 (h) from the side of the plaintiff. The defendants did not choose to adduce any evidence. Exts.C1 to C4 are the commissioner's report and plan. 6. On an evaluation of the evidence, the court below found that there did exist a road shown as 'R' in the commissioner's plan and that the plaintiff is entitled to use the same. It was also found that the construction as shown in plaint B schedule was in the road margin and the defendants were permitted to take such steps as are available to them in law to recover that portion of the property. On the basis of these conclusions, the suit was SA 219/97 & connected cases 5 disposed of. 7. The State carried the matter in appeal as AS No.66/96 before the Sub Court, Kasaragod and the plaintiff chipped in with a cross objection. The State pointed out that there was no road as found by the court below while the plaintiff in his cross objection, complained about the finding regarding adverse possession and limitation by the trial court. The lower appellate court dismissed the appeal filed by the State and allowed the cross objection, thereby holding that the right of any person as regards plaint B schedule has been lost by adverse possession and limitation. Hence the second appeal. 8. Notice is seen issued on the following questions of law raised in the second appeal : (a) Whether in the facts and circumstances of this case, the finding of the court below was right in holding that title in respect of the property is lost by adverse possession and limitation especially when the assignment of property was in 1982 and also when the plaintiffs have admitted that N SA 219/97 & connected cases 6 schedule property is Government land and that he came to know that B schedule property is Government land about 4 years back ? (b) Whether the court below was right in holding that compliance with Order XXVII Rule 5A was not necessary for the reason that act of public officer is not challenged in the original suit. 9. It was contended on behalf of the appellant that there is clear non-joinder of necessary parties in the suit in view of Order XXVII Rule 5A of CPC and that should result in dismissal of the suit. It was also contended that even going by the evidence furnished by PW1, it can be seen that he came to know that plaint B schedule belongs to the State, only four years prior to the suit and if that be so, he cannot claim adverse possession and limitation. Even otherwise, according to the learned counsel, the plea has to fail since there is nothing to show that the plaintiff has been holding the property adverse to the interest of the State. SA 219/97 & connected cases 7 10. As regards the first contention, it seems to have little merit. Order XXVII Rule 5A of CPC reads as follows : “Government to be joined as a party in a suit against a public officer – Where a suit is instituted against a public officer for damages or other relief in respect of any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit.” 11. As rightly noticed by the lower appellate court, no act as such of any officer of the Central Government is challenged in the proceedings. Of course, there is a claim of adverse possession and limitation as against the defendants in the suit. But a reading of Order XXVII Rule 5A of CPC would indicate that it relates to tortious acts committed by the officers and would appear that it does not apply to the case of instant nature. The plea has necessarily to fail. SA 219/97 & connected cases 8 12. But, it is felt that the appellant is entitled to succeed as regards the plea of adverse possession and limitation. The trial court has found that the plaintiff had miserably failed to establish the plea of adverse possession and limitation for cogent and convincing reasons. The lower appellate court, on the other hand, found that the structures shown in plaint B schedule had been there for over 30 years and therefore, the plaintiff has perfected title to the adverse possession and limitation. The finding of the lower appellate court does not appear to be correct. The trial court has observed that there was absolutely no evidence to show that the father of the plaintiff had included plaint B schedule property in the assignment deed namely Ext.A1 by which the plaintiff got title to the suit property. It is also noticed by the trial court that the boundary shown on the southern side of Ext.A1 deed is the property lying in RS No.119/1A1 which is named as Panchayat Board Road. It was under these circumstances that the trial court was inclined to hold that SA 219/97 & connected cases 9 in all probability, the construction must be on the road margin. The trial court has noticed the evidence given by PW1 that he came to know that plaint B schedule property belongs to the State, only four years prior to the suit and has rightly held that if that be so, the claim of adverse possession and limitation has necessarily to fail. It is significant to notice that B schedule property lies in an entirely different survey number and it admittedly belongs to the State. The trial court was justified in coming to the conclusion that the necessary ingredients to constitute adverse possession and limitation were found wanting in the case on hand. There was no justification for the lower appellate court to have upset that finding as the trial court had given cogent and convincing reasons for its conclusions. It has also to be noticed that the finding of the lower appellate court that the plea of adverse possession and limitation has to succeed is without any foundation and is contrary to the evidence on record. That finding has necessarily to be set aside. SA 219/97 & connected cases 10 In the result, this appeal is partly allowed and the finding of the lower appellate court that the plaintiff has perfected title by adverse possession and limitation over the property and also that portion of the decree which says that the defendants will not interfere with any of the structures in plaint B schedule property belonging to the appellant, are set aside. No order as to costs. OP No.13014/97 13. The petitioner challenges Ext.P4 order passed by the Revenue Divisional Officer, Kasaragod. By the said order, the appeal filed by respondents 3 and 4 was allowed and the Tahsildar was directed to send a fresh proposal regarding the property to be handed over. The brief facts of the case are as follows : 14. The Postal Department was assigned 27 cents of land in Survey No.119/1A1A1C and 119/1A1A1A2 of Koippadi village in Kasaragod taluk. The land originally belonged to the State of Kerala. The purpose for which the assignment was made was to establish a post office at SA 219/97 & connected cases 11 Kumbala. Various other averments are also made in the original petition which are not relevant in the present context. 15. It so happened that an issue regarding a road was agitated by respondents 3 and 4 and they were able to get a decree in their favour in the suit filed by them. It was under these circumstances that the authority concerned namely the R.D.O. had occasion to issue Ext.P4 order. 16. It is pointed out that against Ext.P4 order, there is a statutory remedy by way of revision as per Rule 21 of the Kerala Land Assignment Rules to the Revenue Commissioner. There is nothing to show that the remedy so provided is inefficacious or ineffective. There is no reason as to why the petitioner should not be relegated to avail of the said remedy. Accordingly, this Original Petition is disposed of giving liberty to the petitioner to approach the revisional authority against Ext.P4 order within two months from today. SA 219/97 & connected cases 12 WP(C) No.837/10 17. Under challenge is Ext.P4 order issued by the first respondent, whereby an extent of 2.5 cents comprised in Survey No.119/1A1A1A1B of Koipadi village has been handed over to the panchayat for laying a road. The petitioner claims that an extent of 27 cents of land in RS Nos.119/1A1A1A1C and 119/1A1A1A2 has been assigned to him for the purpose of setting up a post office at Kumbala. The various steps taken by the department for setting up the post office are narrated in the writ petition which are not relevant in the present context. This writ petition can be disposed of on a short ground. 18. The impugned order directs the panchayat to lay a road utilising 2.5 cents of land comprised in Survey No. 119/1A1A1A1B of Koipadi village in Kasaragod taluk. One may have a look at Ext.P1 which is the assignment deed in favour of the petitioner. The schedule shows that 10 cents of land in RS No.119/1A1A1A2 and 17 cents in 119/1A1A1A1C have been assigned in favour of the SA 219/97 & connected cases 13 Superintendent of Post Offices. There is nothing to show, going by Ext.P1 that the petitioner has been assigned any extent of property comprised in RS No.119/1A1A1A1B. Under such circumstances, one fails to understand what grievance the petitioner could have as against Ext.P4 order. The writ petition is without any merits and it is accordingly dismissed. P.Bhavadasan, Judge sta SA 219/97 & connected cases 14