IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 18TH JULY 2011 / 27TH ASHADHA 1933 RSA.No. 694 of 2011() --------------------- OS.335/2006 of ADDL.MUNSIFF COURT, KASARAGOD A.S.NO.47/2007 OF SUB COURT, KASARAGOD ----------------- APPELLANT/APPELLANT/PLAINTIFF ----------------------------------------------------- B.M.MOIDEEN KUNHI, S/O.MAMMUNHI, RESIDING AT PAMBEL HOUSE, BAMBRANA VILLAGE, KASARAGOD TALUK, BAMBRANA P.O., KASARAGOD DISTRICT. BY ADV. SRI.K.SHRIHARI RAO SMT.N.SHOBHA SRI.K.S.BALAKRISHNAN RESPONDENT(S):RESPONDENTS/ DEFENDANTS/ ---------------------------------------------------------------------- 1. KHADER, S/O.MOIDEEN KUTTY, RESIDING AT P.K.HOUSE, BAMBRANA VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT.671 121 2. THE TAHSILDAR, KASARAGOD TALUK AND KASARAGOD DISTRICT-671 121. 3. THE STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, VIDYANAR-671 123, KASARAGOD DISTRICT. BY GOVERNMENT PLEADER SMT.ANIE PAUL THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 694 OF 2011 =========================== Dated this the 18th day of July,2011 JUDGMENT Plaintiff in O.S.No.335/2006 on the file of Munsiff Court, Kasaragod is challenging the dismissal of the suit as barred under section 6 of the Kerala Government Land Assignment Act 1960 as confirmed by the Sub Judge, Kasaragod in A.S.No.47/2007. Appellant instituted the suit seeking a decree for declaration that Ext.A1 order dated 16.11.2004 passed by the Tahsildar in L.A.4/68 Bambrana is invalid and not binding on the appellant and for a permanent prohibitory injunction restraining respondents from trespassing into the plaint schedule property. Appellant contended that 2.58 acres in R.S.No.92/1A and 1.65 acres in R.S.No.93/1 of Bambrana Village was assigned in RSA 694/2011 2 favour of the appellant as per order dated 25.12.1966 in D.R.No.1923/66-67 and a patta was also issued and it was assigned as per Rule 7A of Kerala Land Assignment Rules and later Pakrabba Beary filed an appeal against that order claiming possession of 57 cents in R.S.No.92/1A assigned to the appellant. The Revenue Divisional Officer allowed the appeal and remanded the case. The Tahsildar passed a revised order dated 17-10-1981 assigning 2.01 acres in R.S.No.92/1A and 1.65 acres in R.S.No.93/1 to the appellant. First respondent filed an appeal against the revised order. The Revenue Divisional Officer allowed the appeal and remanded the proceedings in A.A. 25/1994, for fresh disposal. Appellant challenged that order in a revision before Commissioner (LR) who allowed the revision and remanded the case back to the Tahsildar. According to the appellant, the Tahsildar ignoring the mandatory provisions, assigned 23 cents in R.S.No.92/1A in favour of the first defendant. Appellant filed A.A.21/1999 before RSA 694/2011 3 the Revenue Divisional Officer challenging that order. The appeal A.A.21/1999 was allowed and the case was again remanded to the Tahsildar. Appellant then filed O.P.12202/1999, before this court. By judgment dated 31.5.1999 this court directed the Tahsildar to dispose the case within three months. The Tahsildar without complying the directions after lapse of five years assigned 23 cents in favour of the first defendant under Ext.A1 order dated 16.11.2004. According to the appellant as the property was assigned in favour of the appellant earlier, Ext.A1 order is illegal and it is to be declared invalid and a decree for injunction is to be granted. 2. Respondents resisted the suit contending that the suit is barred under section 6 of the Kerala Government Land Assignment Act and under Ext.A1 order the Tahsildar assigned 23 cents in favour of the first respondent and appellant is not entitled to claim possession of the property and the suit is not maintainable under section 6 of RSA 694/2011 4 Government Land Assignment Act. 3. Learned Munsiff on the evidence of PW1, DW1, A1 to A7 and B1 to B4 dismissed the suit finding that suit is not maintainable under section 6 of the Kerala Government Land Assignment Act. Appellant challenged the judgment before Sub Court, Kasaragod in A.S.No.47/2007. Learned Sub Judge on reappreciation of the evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for the appellant was heard. 5. The argument of the learned counsel is that the bar provided under section 6 of the Kerala Government Land Assignment Act is not applicable on the facts of the case. According to the learned counsel, once the Government assigned the land in favour of the appellant, the said land ceased to be a Government land to be assigned to another person later. Therefore though under Ext.A1 23 cents was assigned in favour of the first RSA 694/2011 5 respondent, Government has no right to assign the property in view of the assignment in favour of the appellant and therefore the courts below should have found that the suit is maintainable and Ext.A1 order is invalid. 6. On going through the judgments of the courts below and the copy of Ext.A1 order made available by the learned counsel, I do not find any substantial question of law involved in the appeal. The facts, as is clear from Ext.A1, are not disputed. As per order dated 13.2.1967, 2.58 acres in R.S.No.92/1A and 1.65 acres in R.S.No.93/1 of Bambrana Village, were assigned in favour of the appellant recognising his kumki right. Though a patta was also issued, as admitted by the appellant himself in the plaint Pakrabba Beary filed A.A.65/73 challenging that order claiming that out of 2.58 acres in R.S.No.92/1A, he is in possession of 57 cents and that property cannot be assigned to the appellant. Revenue Divisional Officer as per order dated 7.12.1973 allowed A.A.65/1973 and RSA 694/2011 6 remanded the proceedings to the Tahsildar for passing fresh order. Therefore the original assignment granted in favour of the appellant was set aside by the Revenue Divisional Officer on 7.12.1973. Meanwhile as per order dated 5.3.1973, Tahsildar assigned 23 cents out of 2.58 acres in R.S.92/1A in favour of the first respondent in L.A.4/1968. Appellant filed A.A.15/1992, challenging that order before the Revenue Divisional Officer contending that the said property forms part of the property assigned in his favour and therefore it cannot be assigned to the first respondent. Coming to know about the order assigning 2.58 acres in favour of the appellant as per order dated 13.2.1967, first respondent in turn filed A.A.25/1994 contending that 23 cents which is in his possession could not have been assigned to the appellant. The Revenue Divisional Officer heard both the appeals and as per order dated 30.5.1995 dismissed A.A.15/1992 filed by the appellant against the order assigning 23 cents in RSA 694/2011 7 favour of the first respondent and set aside the order dated 13.2.1967 assigning 2.58 acres in favour of the appellant and remanded the proceedings back to the Tahsildar. Appellant challenged both the orders before the Board of Revenue. By order dated 12.5.1997 the Board of Revenue directed the Tahsildar to pass fresh orders considering all the contentions raised by the parties. Aggrieved by that order, appellant filed a second revision before the Government of Kerala. The Government as per order dated 20.1.1999, found that there is no reason to interfere with the order of the Board of Revenue and Board of Revenue was justified in directing the Special Tahsildar to re- examine the entire case and to direct proper identification. Thereafter Tahsildar found that 23 cents claimed by the first respondent forms part of 2.58 acres originally claimed by the appellant and also found that first respondent is entitled to get assignment of that land and appellant is only entitled to the balance. That order was RSA 694/2011 8 challenged by the appellant before Revenue Divisional Officer in A.A.21/1999. The Revenue Divisional Officer found that sufficient opportunity was not given to the appellant to represent the case before passing the order and therefore allowed the appeal and remanded the matter back to the Tahsildar once again. It is at that stage appellant filed O.P.12202/1999 before this court contending that the order of the Revenue Divisional Officer dated 30.5.1995 in A.A.25/1994 and the order of the Board of Revenue as against that order, are invalid and are to be set aside. This court disposed the O.P. clarifying that by the Government order the matter was only remanded to the Tahsildar and the Tahsildar has to consider the entire dispute and pass appropriate order within three months. The Tahsildar subsequently passed Ext.A1 order on 16.11.2004 holding that first respondent is entitled to get assignment of 23 cents and appellant is only entitled to the balance. Appellant without challenging that order RSA 694/2011 9 by filing an appeal, filed the suit for declaration and injunction. The question is whether the suit is maintainable. 7. Section 6 of the Kerala Government Land Assignment Act, 1960 reads:- 6. Bar of Suits:- No suit against the Government shall be entertained in any Civil Court in respect of any order passed under this Act except upon the ground that--- (a) the order is in breach of any completed agreement to assign, or (b) the land in respect of which such order has been passed is not Government land; Provided that any such suit by a person who was a party or privy to and had due RSA 694/2011 10 notice of the proceeding under this Act shall be instituted within two years from the date of service of the notice of such order. As rightly found by the courts below, in view of Section 6, no suit against the Government shall be entertained in any civil court challenging Ext.A1 order passed under the Act. Remedy is to challenge the order as provided under the Act. The claim of the appellant is that the property which was assigned in his favour ceased to be a Government land and therefore it cannot be assigned to the first respondent. The argument cannot be accepted because the original order assigning 2.58 acres in R.S.No.92/1A in favour of the appellant is not subsisting. The assignment granted in favour of the appellant was set aside. The order in favour of the first respondent was passed on 5.3.1973. The Tahsildar passed a revised order only on 17.10.1981. Therefore it cannot be said that there RSA 694/2011 11 was a final order binding on the property, in favour of the appellant so as to deny the right of the government to assign the property. Moreover, appellant himself challenged the order assigning 23 cents in favour of the first respondent as per order dated 5.3.1973 in L.A.4/68, before Revenue Divisional Officer and A.A.15/1992. It was dismissed on 30.5.1995. It was that order along with the order remanding the land assignment proceedings in A.A.25/94, appellant approached the Board of Revenue and subsequently the Government and later filed the writ petition. Therefore it is clear that the order assigning 23 cents, now assigned under Ext.A1 in favour of the first respondent, in favour of the appellant is not subsisting. Therefore appellant is not entitled to contend that the suit is maintainable. The proper remedy of the appellant is to challenge Ext.A1 by filing an appeal as provided under the Act and not a suit. No substantial question of law is involved in the appeal. It is dismissed. RSA 694/2011 12 The dismissal of the suit will not affect thestatutory right of the appellant to challenge Ext.A1 order. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006