IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 SA.No. 911 of 2000(A) ------------------------------------ AS.163/1996 of DISTRICT COURT ,KOLLAM OS.110/1993 of ADDL.MUNSIFF COURT, KOLLAM .................... APPELLANT(S): PLAINTIFF/ APPELLANT ---------------------------------------------------------- T.S. VENKITESWARAN, PROPRIETOR, ELECTRIC SWAMY MOTORS, KOLLAM. BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE BY ADV. SRI.KMR.MENON RESPONDENT(S): DEFENDANTS/ RESPONDENTS ----------------------------------------------------------------------- 1. STATE OF KERALA, REP.BY THE DISTRICT COLLECTOR, KOLLAM. 2. TAHSILDAR (R.R.) TALUK OFFICE, KOLLAM. 3. VILLAGE OFFICER, VILLAGE OFFICE, KOLLAM. R1 TO R3 BY GOVERNMENT PLEADER SMT.REKHA NAIR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDE ON CMP. NO.2396/2000 IN SA. NO.911/2000 CLOSED 22/07/2010 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.BHAVADASAN, J. ------------------------- S.A No.911 of 2000 -------------------------- Dated this the 12th July, 2010 J U D G M E N T Plaintiff, whose suit was dismissed by the Munsiff's Court, Kollam and which was confirmed by the appellate court, is the appellant before this Court. 2. Issue relates to an extent of 1.116 cents of land comprised in Sy. No.8474/ 11, which according to the plaintiff, was oustanding on Kuthakappattam right. The short plea of the plaintiff is that the father of the plaintiff obtained 13 1/2 cents of land in Sy. No.8474/11 of Kollam village in the year 1949 vide kuthakappattam right.. After the expiry of initial period, the period was extended for 12 years. In the meanwhile plaintiff's father expired and property had come into the possession of his brother T.S. Sreenivasan. On 1.4..1973 again the period was extended based on the application filed by the brother of the plaintiff. According to the plaintiff, there was an arrangement between the legal heirs of Subramanya Iyer and State whereby 1.116 cents of land in Sy. No. 8474/11 was given to the plaintiff a as kuthakappattom and he was S.A No.911 of 2000 2 doing business therein. In 1982, it is stated that the entire property was taken over by the State for not paying the kuthakapattom but was reclaimed by the parties on the understanding of 25% of the arrears would be paid immediately. It is stated by the plaintiff that at that point of time also he took possession of 1.116 cents of land which he already possessed and whereby he was conducting his business. The complaint of the plaintiff was that plaintiff's brother committed default in payment of pattam from 1983 and huge amount was due from him to the Government as arrears in respect of which the Government initiated revenue recovery proceedings for recovery of the kuthakappattam arrears against these two properties. He apprehends his property may be proceeded against revenue recovery proceedings and so the suit was laid. 3. Defendants resisted the suit. It is pointed out that 13 ½ cents of land in Sy.No.8474/11 was given as kuthakappattom to the Caltex Company in the year 1949 for 12 years. Plaintiff's father was an agent of the company. Plaintiff's father died in 1962 and thereafter the S.A No.911 of 2000 3 brother of plaintiff T.S Sreenivasan who was the Managing Partner of the business approached the Government and kuthakappattam was extended for a period of 5 years. They denied the averment that plaintiff was obtained kuthakapattam for 1.116 cents and he was enjoying the property from 1982. T.S Sreenivasan obtained kuthakappattam right as a result of renewal. According to the defendant, plaintiff never got any right over an extent of property through a kuthakapattom in his name. The possession of plaintiff and his brother on the property was for and on behalf of the Caltex Company. As per the agreement the agency is liable to pay the kuthakappattom to the Government. When they made default in payment of the amount due to the State, the state had taken over the land. But it was returned on condition that that plaintiff would be paid 25% of the dues immediately. That was paid and property was returned. Again the plaintiff and his brother made default as partners of the agency. Therefore, defendants are entitled to proceed against the defaulter. Plaintiff has no manner of right over the property. Hence S.A No.911 of 2000 4 they prayed for dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and Exts. A1 to A5 were marked from the side of the plaintiff. Defendants had examined DW1 and Ext. B1was marked. 5. The trial court on evaluation of the evidence in the case came to the conclusion that there were no documents to prove the arrangements said to have been made between the legal heir of Subramanya Iyer and the State, as a result of which plaintiff had come into possession of 1.11.6 cents of land. The trial court adverted to the documents produced by the plaintiff. However, taking note of the evidence furnished by the Village Officer , who was examined as DW1, the court below came to the conclusion that the averments by the plaintiff could not be accepted and therefore dismissed the suit. 6. The plaintiff carried the matter in appeal as A.S.163 of 1996 before the District Court, Kollam. The lower court too found that there was no evidence to show S.A No.911 of 2000 5 that plaintiff was in possession of 1.116 cents of land and that he had independent right over the same. Accordingly, the appeal was dismissed. Hence the Second Appeal. 7. The following questions of law have been raised in this memorandum of appeal. 1. Can the right to succeed to the fathers state be denied, indirectly, by refusing to issue injunctions? 2. The entire proceedings for recovery of arrears of kist having been stayed by this Hon'ble High Court in C.M.P. 2206/93 in OP 1175 of 1993 can the Revenue Authorities be allowed to nullyfy or subterfuge its effect by refusing an injunction? 3. Should not injunction be issued in just case, to protect property rights? 8. Learned counsel appearing for the appellant contended that there was sufficient evidence on the side of the plaintiff to establish his case. According to the learned counsel documents produced by him clearly show that State has received kuthakapattam for 1.116 cents of land which he claimed to be in occupation as per the agreement made between the legal heirs of Subramanya Iyer and State. S.A No.911 of 2000 6 9. Learned counsel also drew attention of this Court to para 3 of the Memorandum of Appeal and pointed out that in the original petition filed before this Court by his brother T.S Sreenivasan, it is specifically stated that out of the 13 1/2 cents of land by way of kuthakatappam which he resumed back paying of 25% of the defaulted arrears, 1.116 cents of land was handed over to the plaintiff. Learned counsel went on the point that after having accepted amounts from the plaintiff towards the kuthakapattom the State cannot now turn round and say that the plaintiff had no manner of right over the property. 10. At any rate, according to the learned counsel, a reconsideration of the issue is necessary at the hands of the courts below. 11. Learned Government Pleader on the other hand pointed out that the courts below have considered the issues in proper perspectives. There was absolute want of evidence from the side of the plaintiff to show that he was in separate possession of 1.116 cents. All the documents relating to the transaction would show that the S.A No.911 of 2000 7 kuthakapattam property was for a compact on 13 1/2 cents and no division of the kuthakapattam property was recognised by the State. 12. Learned Government Pleader pointed out that any arrangements inter se between the legal heirs of Subramanya Iyer cannot bind the state. 13. As far as the State e is concerned, the entire 13 1/2 cents is a compact plot and they need not worry about the arrangement between the legal heirs of T.S Subramanya Iyer. It is also pointed out that any splitting up of the property by the legal heirs cannot have the effect of conferring separate right on them. Therefore, it is contended that no interference is called for to the judgment and decree of the courts below. 14. Though the arguments advanced by the learned Government Pleader has some force, it cannot be said that claim putforward by the plaintiff is without merits, whatsoever. The plaintiff has definite case that at least after 1982 when the Government had taken over the land for arrears of kuthakapattam and it was returned to T.S. S.A No.911 of 2000 8 Sreenivasan on condition that 25% of the defaulted arrears would be paid immediately and which was done, there are ample evidence to show that at that point of time 1.116 cent of land was given back to the plaintiff as he had been conducting business therein. 15. As pointed out by the learned counsel for appellant Exts. A1, A3 A3 (a) and A6 produced before the Court are all after 1982. These documents would show that the State had received amounts from the plaintiff in respect of 1.116 cents of land. Therefore, it could not be said that the State was unaware of the arrangements and they had not acknowledged the same. True, the evidence adduced by the plaintiff is far from satisfaction. The fact remains that there is a claim raised by the plaintiff with respect to 1.116 cents of land which finds some credence in the documents produced by the plaintiff. It is complained that had any appropriate issues been raised by the said court, the plaintiff have been put, the plaintiff would have adduced sufficient evidence to establish his case. S.A No.911 of 2000 9 16. If it is the case that the plaintiff has been dispossessed from the property and the property had been taken over, there will be records to establish the said fact. 17. Plaintiff had not been able to produce convincing evidence to show that there has been an arrangement between the legal heirs of T.S.Subramanya Iyer and State and that he is entitled to possess 1.116 cents of land also as rightly contended by the learned Government Pleader. Even assuming that the arrangements between the legal heirs of Sri. Subramanya Iyer does not bind the State, the fact remains that the State received amounts from the plaintiff for 1.116 cents of land which he claimed to be in possession and he is conducting a business therein. 18. These aspects have been omitted to be noticed by the courts below and that has caused prejudice to the plaintiff. It is felt that reconsideration of the issue is necessary at the hands of the court below. Considering the fact that there is a proper issue to be considered, the matter needs to be remitted back to the trial court. S.A No.911 of 2000 10 In the result, this appeal is allowed. The impugned judgment is set aside and the matter is remanded to the trial court for fresh disposal, in accordance with law. The parties will be given opportunity to adduce further evidence if they so choose. Parties shall appear before the court below on 19.8.2010. The court below shall make every endeavour to dispose of the suit , as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment. There will be no order as to costs. P.BHAVADASAN, JUDGE ma S.A No.911 of 2000 11 S.A No.911 of 2000 12