IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 RSA.No. 72 of 2010() -------------------- A.S.NO.167/2006 OF PRINCIPAL SUB COURT, KOZHIKODE O.S.NO.977/2001 OF II PRINCIPAL MUNSIFF COURT, KOZHIKODE APPELLANTS/APPELLANTS/DEFENDANTS ----------------------------------------- 1. STANLY MOSES, S/O. SAMUEL THOTTIYIL AGED 52 YEARS, S/O. SAMUEL THOTTIYIL (LATE) RESIDING AT CHEMBAKASSERY MEETHAL, 28/3439, NELLICODE, CALICUT-16. 2. JOY DAVID (INCORRECTLY SHOWN AS JOY DAVI) S/O. SAMUEL THOTTIYIL, RESIDING AT -DO- 3. REJINA CHRISTABLE, D/O. SAMUEL THOTTIYIL, RESIDING AT -DO- 4. NEENA GLADIS, D/O. -DO- RESIDING AT -DO- BY ADV. SRI.P.T.MOHANKUMAR, ADV. SHRI A.RANJITH NARAYANAN, ADV. S.K.SAJU. RESPONDENT(S)/RESPONDENT/ PLAINTIFF ------------------------ PASTORATE COMMITTEE, CSI CHURCH, PUTHIYARA, CALICUT, REPRESENTED BY ITS CHAIRMAN KOTTOOLI AMSOM, PARYANCHERI DESOM OF KOZHIKODE TALUK, KOZHIKODE DISTRICT. ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE ADV. SHRI S.SUJIN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.72 of 2010 -------------------------------------- Dated this the 1st day of March, 2010. JUDGMENT This Second Appeal arises from judgment and decree of learned Principal Sub Judge, Kozhikode in A.S.No.167 of 2006 confirming judgment and decree of learned Principal Munsiff-II, Kozhikode in O.S.No.977 of 2001. Appellants/defendants are directed by judgment and decree of the courts below to surrender possession of the building situated in the suit property and to vacate the premises with their articles. According to the respondent suit property is in its possession where it had constructed a quarters for the use of watchman of its cemetery nearby. Father of appellants, Samuel was working as watchman of that cemetery. He was permitted to occupy the building in the suit property as a licensee in his capacity of watchman of the cemetery. He had undertaken to vacate the quarters as and when required. On the death of Samuel, appellants (his legal heirs) could not continue as a watchman of the cemetery. Thereon respondent wanted to appoint another person as watchman and required the appellants to vacate the quarters as per notice. Since they refused, respondent filed the suit. Appellants claimed that respondent has no right to file the suit and that the documents relied on by the respondent are all concocted. From 1967 onwards ten cents of Government puramboke in survey No.103/5 and the building thereon are in the possession of the late Samuel and after his death, appellants. A chapel was constructed in the adjoining land. Samuel constructed RSA No.72 of 2010 2 structure in the puramboke land and with the permission of the then vicar started staying there. Courts below found against the contentions raised by the appellants and granted decree. Hence this Second Appeal urging by way of substantial questions of law whether the suit itself is not maintainable for absence of publication under Order I Rule 8 of Code of Civil Procedure (for short, “the Code”) and in the absence of any transferable interest for the respondent as the property belonged to the Government, whether respondent could claim eviction of the appellants. Learned counsel contends that paramount title of the suit property vested with the State Government and hence respondent cannot seek eviction of the appellants. It is contended that Section 20A of the Land Conservancy Act (for short, “the Act”) affected maintainability of the suit. According to the learned counsel the suit is filed by the church which is not a legal entity and hence in the absence of publication under Order I Rule 8 of the Code the suit is not maintainable. Learned counsel for respondent supported the judgment and decree of the courts below. 2. So far as maintainability of the suit for want of publication under Order I Rule 8 of the Code is concerned it is seen that respondent is a committee of the church and it has obtained authorisation from the church as per Ext.A9 to institute the suit. Therefore contention that suit is instituted by the RSA No.72 of 2010 3 church which is not a legal entity and it required publication under Order I Rule 8 of the Code cannot be sustained. There is no reason to reject Ext.A9, authority granted by the church to institute the suit. 3. Respondent has produced Ext.A1, certified extract of property tax demand register for the period from 1909 to 1953 in respect of the suit property to show that it has been paying revenue for the said property. Ext.A3 is minutes book of the respondent for the period from 1960 to 1967. Ext.A3 and the relevant pages therein revealed as found by the courts below that when Manesha Valiyaveedu was the watchman of the cemetery from 1961 onwards and he was granted permission to occupy the quarters situated in the plaint schedule property in his capacity as watchman. Following his death in the year 1967 his wife surrendered possession of the quarters to the church. Later came the appointment of Samuel, predecessor-in-interest of appellants and he was permitted to occupy the quarters situated in the suit property as revealed from Ext.A3(e) and (f) (at page 175 of Ext.A3) from 5.6.1967. Courts below found from the evidence that page No.175 of Ext.A3 contained the signature of Samuel and his wife (plaintiff No.1). Ext.X1 revealed that Samuel was working as watchman of the cemetery of the church and was occupying the quarters attached to the cemetery (situated in the suit property). Though appellants produced Exts.B2 to B8 that only revealed that Samuel was in occupation of the quarters in question. Courts below found from the evidence that the suit property RSA No.72 of 2010 4 was in the possession of the church, Samuel and his family were permitted to occupy the quarters situated in the suit property in connection with his work as watchman of the cemetery. 4. Though when this matter came up for admission sometime back learned counsel for appellants submitted that the State Government has initiated proceedings under the Land Conservancy Act against the church for recovery of possession of the suit property, in fairness it is now conceded by learned counsel that no such proceeding is pending and that the proceeding pending is before the Sub Divisional Magistrate relating to some alleged nuisance. Now argument of learned counsel is based on the provisions of the Land Conservancy Act, in particular Section 20A and Section 53 of the Indian Easements Act, 1882. Learned counsel would contend that so far as Section 53 of the Indian Easements Act is concerned only the original owner of the property could grant any license while in this case the property belonged to the Government and hence respondent is not the original owner of the property and hence could not grant any license in favour of Samuel. Leaned counsel has placed reliance on the decision in Philip & others v. Skaria & others (1987 (1) KLT 213). RSA No.72 of 2010 5 5. I am afraid that the decision relied on cannot help the appellants. Section 20A of the Act barred the jurisdiction of the civil court so far as the person in alleged unauthorised occupation and the Government is concerned but, did not in any way affect the right of the person having better possessory title to recover possession of the property from a trespasser. In this case evidence on record would show that the church is in possession and enjoyment of the property from 1909 onwards even if it is assumed to be the Government land. Therefore the church has possessory title in the suit property against the appellants subject of course to the paramount title if any on the Government if it is puramboke land as contended by the appellants. Possessory title is next to proprietary title and hence there is nothing illegal in the church granting permission to Samuel, predecessor-in-interest of the appellants to occupy the building in the suit property. None of the provisions of the Act would affect that right of the respondent. If that be so it was well within the power of the church to seek eviction of appellants after terminating the permission granted to them. 6. Though it is contended by learned counsel for appellants that they are in possession of the entire suit property, that contention cannot be accepted in the light of the evidence on records as discussed by the courts below. “Possession” of the property is different from occupation of the building situated thereon in his capacity as watchman of the adjacent cemetery belonging to the RSA No.72 of 2010 6 church, the grantor of license. Possession of the property remained with the church. Hence claiming to be in possession appellants cannot claim any better right than the respondent. 7. Having heard counsel on both sides and on going through the judgments under challenge I am not satisfied that any substantial question of law is involved in the Second Appeal requiring a decision. However, considering the submission of the learned counsel for appellants that appellants have no other place to go and have to find out alternative accommodation, I am inclined to grant them three months time from today to vacate the building situated in the suit property. Execution proceedings if any already initiated will stand in abeyance for a period of three months from today. With the above direction the Second Appeal is dismissed in limine. I.A.No.178 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks