IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 SA.No. 182 of 2001(E) ------------------------- AS.56/2000 of PRINCIPAL SUB COURT, NORTH PARAVUR OS.45/1998 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT: APPELLANT/PLAINTIFF --------------------------------------- ABOOBACKER, S/o MEETHIAN PILLAI, AGED 51 MULLASSERY HOUSE, VENGOLA KARA, VENGOLA VILLAGE, KUNNATHUNADU TALUK BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENTS: RESPONDENTS/DEFENDANTS --------------------------------------------------- 1. VENGOLA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, VENGOLA, PERUMBAVOOR 2. VEERAVU S/o PAREETH, VALIYAPARAMBIL HOUSE VENGOLA KARA, VENGOLA VILLAGE, PERUMBAVOOR 3. KERALA STATE REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANAD 4. TAHSILDAR, KUNNATHUNADU TALUK, PERUMBAVOOR R3 AND R4 BY GOVT PLEADER SRI L.G.SURESH BABU R2 BY ADV. SRI.K.S.MADHUSOODANAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------------------------------ S.A. No 182 of 2001 ----------------------------------------------------- Dated this the 27th August 2008 JUDGMENT The plaintiff in O.S. No 45 of1998 on the file of the Munsiff's Court, Perumbavoor is the appellant assailing the concurrent verdict of the courts below negativing his claim for declaration of his title over the schedule property by adverse possession and for grant of permanent prohibitory injunction. He instituted the said suit inter alia, on the allegations that plaint A schedule property was Sarkar puramboke comprised in re-survey number 85/5 of block 21 and having old survey number 159/3, that the property surrounding the A schedule property originally belonged to the grandfather of the plaintiff; that the southern property is their residential garden; that the property on the east of A schedule property is paddy field comprised in survey number 85/8 belonging to the plaintiff; that the property on the western side of A schedule comprised in survey number 85/2 belongs to Veeravu, the additional second defendant; that previously the said property also belonged to the grandfather and grandmother of the plaintiff and subsequently by partition it was allotted to SA 182/01 2 Mohammed the brother of the plaintiff's father and later Mohamed sold the property to additional second defendant; that on the southern side of A schedule property there is a tank which is being used by the plaintiff for cultivation of his property; that though A schedule property is puramboke land it was in the possession and enjoyment of the grandfather and grandmother of the plaintiff; and in continuation of their possession the plaintiff continued in possession of that property as per agreement dated 28.06.1991; that A schedule property is lying in a higher level than the paddy field on the eastern side and is having well defined boundaries on all four sides and at present there are coconut trees in the said property as also other improvements which are more than 35 years old; that the impovements were all effected by the father of the plaintiff; that prior to the planting of such improvements seasonal crops used to be cultivated in the said property and thus for the last about 70 years A schedule property was in the exclusive possession and enjoyment of the plaintiff and his predecessors, that the father of the plaintiff died in 1992 and on 28.06.1991he had executed a document in favour of the plaintiff whereby he assigned all his rights over A schedule property in favour of the plaintiff and handed over possession of the SA 182/01 3 said property also to him, that the plaintiff and his predecessors were in possession and enjoyment of plaint A schedule property openly, publicly and peaceably adversely to the interest of the Government and everybody else and thereby he has perfected title to the schedule property by adverse possession and limitation; that the property situated on the western side of A schedule property belonged to the additional second defendant; that the said property previously belonged to the brother of the plaintiff's father; that the said properties were divided among the plaintiff's father and father's brother as per partition deed of 1953; that in the said partition a pathway is provided for the father of the plaintiff through the property of Mohammed the brother of plaintiff's father which pathway runs upto the Panchayat road; that since alignment of the pathway as per the partition deed was inconvenient and on the request of the said Mohammed the alignment of the pathway was made through the northern side of the property executing a document in that behalf by the plaintiff's father on 09.05.1968; that the said pathway which runs from the western Panchayat road to the property of the plaintiff's father was having a width of 6 feet through the western side of the property of Mohammed; that it is the said property which was SA 182/01 4 subsequently purchased by the additional second defendant;that before selling the property to Veeravu the brother of plaintiff's father had left out 6 feet width also from the northern side so as to provide 12 ft. of width for the pathway which is described as plaint B schedule; that the said pathway which starts from the western Panchayat road terminates on the north western corner of plaint A schedule property; that the defendants are not having any manner of right over B schedule pathway and that also exclusively belongs to the plaintiff and that is the sole access to the A schedule property; that recently neighbours of the plaintiff including a sister of the plaintiff instigated the government officials as well as the defendants against the plaintiff and the defendants are attempting to take forcible possession of the property from the plaintiff to which they have no right; that on 15.11.1997 plaintiff received a notice from the Taluk Surveyor whereby it was intimated that the boundaries of the property would be refixed on 18.11.1997 at the request of the Panchayat; that there is absolutely no necessity for fixing the boundaries of the property since the property is lying within clear and fixed boundaries; that despite the plaintiff making representation before the Panchayat the defendants are continuing their illegal SA 182/01 5 activities; that therefore plaintiff filed O.P. No 20507 of 1997 before this court and the said original petition was disposed of on 21.11.1997 granting stay for two months with effect from 21.11.1997 and also treating the representation given by the plaintiff before the Panchayat as statutory notice under Section 249 of the Kerala Panchayat Raj Act; that however Panchayat has not taken any action on the representation submitted by the plaintiff and the defendant Panchayat is attempting to trespass upon the schedule property and is attempting to reduce possession of A schedule property with them and that therefore the plaintiff is entitled to get a declaration of his title over A schedule property which he has perfected by adverse possession and limitation and also for a decree of permanent prohibitory injunction restraining the defendants from trespassing upon the property and causing obstruction in B schedule pathway and hence the suit. 2. The first defendant resisted the suit contending that the description of A schedule property is incorrect; that A schedule property which is a pond was puramboke land and was vested with the Vengola Grama Panchayat as per the Kerala Panchayat Raj Act 1960; that the tank in that property was known as Kavalakulam; that SA 182/01 6 some portions of the puramboke land was seen encroached by Khadeeja, daughter of Abdul Rehiman, Veeravu son of Pareeth and the plaintiff and so eviction proceedings were initiated against them and as requested the Taluk Surveyor measured out the entire puramboke land and the plaintiff has come forward with the present suit with ulterior motives to obstruct the action taken by the Panchayat; that Kavalakulam was being used by the eastern agricultural land owners for agricultural operations prior to the formation of Periyar Valley Irrigation Canal taking water from that tankthrough thodu; that the said thodu has a length of half a kilometre and a portion of the thodu is now reclaimed by the plaintiff; that about 25 years back electric connection was granted to that area, but subsequent to the formation of Periyar Valley Irrigation Canal the water of the tank was not being taken for agricultural purposes, but still public are using this tank for purposes of bathing and for cleaning of their agricultural implements; that the puramboke land vested with the Panchayat is having an extent of 30.5 cents with a pathway and that was being used by the general public and that title thereof is vested with the Panchayat; that father of the plaintiff or his predecessor was not in possession of the property as SA 182/01 7 alleged and the plaintiff; has to file the suit under Order I Rule 8 C.P.C since numerous persons are interested in the subject matter over and above Khadeeja Veeravu etc. and Government also is a necessary party to the suit. The plaintiff, his father and grandfather were not having right or possession over the schedule properties and the plaintiff's grandfather and grandmother had no right to execute document in favour of the plaintiff on 28.06.1991; that it is incorrect to say that the coconut trees standing by the side of the tank are all 35 years of age; that since plaintiff as well as the neighbouring people have encroached into the puramboke land the defendant attempted to evict the encroachers and the plaintiff has no manner of right to file the suit for declaration of title basing the claim on adverse possession and limitation and that the document dated 28.06.1991 in favour of the plaintiff is not having any validity at all. There was a public way on the northern side of the second defendant's property. Subsequently as per relinquishment six feet width property was also surrendered by Veeravu for widening the pathway; and at present the pathway is having 12 feet in width and is being used by the general public. It is incorrect to say that the B schedule pathway belongs to the plaintiff. B schedule is a public SA 182/01 8 pathway vested with the Panchayat and used by the general public. Plaintiff has filed O.S. No 654/97 before the Munsiff's Court, Perumbavoor claiming right of easement by prescription through the said pathway. The suit is filed by the plaintiff concealing all those facts. The suit is bad by reason of Section 41 of the Specific Relief Act. He has no cause of action. Defendants will be taking steps only after statutory notice to the plaintiff and the suit has to be dismissed with costs. After including the tank in the People's Planning Programme Government have sanctioned Rs one lakh for maintaining the tank and for constructing its embankment. 3. After amendment of the plaint first defendant filed additional written statement contending that by the amendment the entire plaint schedule has been changed. Since the property encroached upon by the second defendant was excluded from the plaint schedule there is no cause of action against the additional second defendant. 4. Additional second defendant filed written statement contending inter alia, that the tank in the plaint A schedule property is a public tank known as Kavalakulam; that on the western side of the puramboke property about 2 Ares of property is in his possession and cultivation; that for eviction of encroachers from the puramboke SA 182/01 9 land first defendant Panchayat has taken steps to measure the property with the help of the surveyor; that water from Kavalakulam was being used by the neighbouring agricultural land owners for agricultural operations till the formation of Periyar Valley Irrigation canal and now the tank is being used for bathing purposes as well as cleaning the agricultural implements and the people of the locality is maintaining the tank as and when required; that at the time of purchase of the property by the second defendant there was a 6 feet width pathway on the northern side of the defendant's property and that was a public pathway over which plaintiff has no title or possession; that the documents created in relation to the pathway are not binding on the public; the telephone as well as electric line are passing through the pathway, on 07.05.1997 the second defendant had surrendered 6 feet width property from his property for widening the said public pathway and the Panchayat has developed the pathway into a 12 feet width pathway and was also entered in the road register of the Panchayat and that the said pathway is used by the public. It is incorrect to say that the plaint A schedule property was in the possession of the plaintiff as well as his predecessors for more than 70 years. The entire property was puramboke land. SA 182/01 10 Plaintiff has not obtained any right over the propety as per karar executed on 28.06.1991 and he is not entitled to get decree of declaration of title over plaint A schedule property by way of adverse possession and also not entitled to get injunction in relation to B schedule pathway. The defendant has got right to use plaint B schedule pathway since it is a public way and the plaintiff is not entitled to get any relief as claimed in the plaint. 5. Subsequent to the impleadment of additional defendants 3 and 4 they also filed separate written statements. Their contentions, inter alia, are that as per the application filed by the Secretary, Vengola Grama Panchayat under the Kerala Survey and Boundaries Act to fix the boundary of an extent of 14.90 Ares of land in survey number 85/5 of Block No 21 of Vengola village, Taluk Surveyor was appointed to measure out the property and fix the boundary as per revenue records and accordingly he had measured the property and fixed the boundary of A schedule property; that as per the revenue records plaint A schedule property is kulam puramboke which is vested with the first defendant and the plaintiff ;has no right to challenge the action taken by the defendant and he has no cause of action against the defendants and the suit is liable to be dismissed SA 182/01 11 with costs. 6. On the above pleadings the trial court raised necessary issues for trial and considering the case in the light of the above pleadings and the evidence adduced at trial which consisted of the oral evidence of P.Ws 1 to 5 and D.Ws 1 to 4 and documentary evidence Exts A1 to A7(a) and B1 to B5 as also Exts. C1 and C2 dismissed the suit. Appeal filed by the plaintiff before the first appellate court - A.S. No 56 of 2000 was also dismissed concurring with the findings of the trial court against which this Second Appeal is filed. Second Appeal was admitted on the following substantial questions of law:- i) Whether a suit filed a person for declaration of this title over the Government puramboke land based on adverse possession and limitation is maintainable or not? ii) Whether a person in possession of Government puramboke land in his possession can be evicted from the land without resorting to the provisions of law for eviction of unauthorised occupants? 7. It is vehemently contended before me by the learned counsel for the appellant that though the property is government puramboke land, the property was in possession and enjoyment of the plaintiff SA 182/01 12 and his predecessors including his father and his paternal grnadfather for the last 70 years immediately preceding the institution of the suit and that therefore they have perfected title to the schedule property and as such appellant-plaintiff is not liable to be evicted either by the Government or by the first respondent Panchayat. It is pointed out by the counsel for the first respondent that the plaintiff as P.W.1 has admitted that he was aware that the schedule properties including the pathway were government puramboke land and that State also is impleaded as a party with a view to get the property assigned; that even in Ext A3 on which the appellant-plaintiff relies there is a statement to the effect that prohibitory assessment and kuthakappattom were being paid by his father and it is accordingly that his father was enjoying the property; that the said averment binds the appellant though when confronted with such recital he has pleaded ignorance, but however P.W.1 has admitted that he has heard from his parents that kuthakappattom used to be paid for the schedule property and that his paternal grandfather also had paid kuthakappattom and has even admitted that in plaint A schedule property nobody has attempted to trespass upon forcibly and nobody has attempted to close B schedule SA 182/01 13 pathway and that therefore the suit itself has been filed by the plaintiff without any cause of action whatsoever and with no right as claimed over the schedule property and that therefore the courts below cannot be faulted in dismissing the suit and there is no merit in the Second Appeal as well. 8. It is common case that plaint A schedule property is a puramboke land which has now got vested in the first defendant Panchayat. Though the plaintiff asserts that he has not paid prohibitory assessment or kuthakappattom in relation to schedule property, Ext A3 document on which he relies which has been executed by his father in his favour, shows that the appellant's father was in enjoyment of plaint A schedule property paying prohibitory tax and kuthakappattom. A person who has come into possession and enjoyment of the property accepting ownership of another and with obligation to pay prohibitory tax or kuthakappattom as the case may be, cannot now turn round and say that the possession was hostile to that of the real owner. Possession which has its origin on permission cannot at any point of time turn to be hostile. Counsel for the first respondent has also invited my attention to the decision of this court in Devassy v. Koratty Grama Panchayat (2008 (1) KLT SA 182/01 14 719) wherein this court has held that when a person is in possession of puramboke land paying prohibitory assessment or fine, that evidences a case of admission of title of the Government and it cannot be said that he retains animus possidendi even after paying prohibitory assessment under the provisions of the Land Conservancy Act. Hence in the instant case the appellant cannot even for a moment contend that his possession over the schedule property pursuant to and in continuation of possession and enjoyment of A schedule property by his father and paternal grandfather will confer on him absolute title over the property by adverse possession and limitation. Thus there is no merit in this Second Appeal and the substantial questions of law formulated donot in fact arise for consideration as the case in hand is one where the plaintiff and his predecessors were in possession admitting the title of the Government over A schedule property. A schedule property which is puramboke land has now got vested with the first respondent Panchayat and they have contended that they have not proposed to evict the appellant forcibly and they would be proceeding only according to law to get the schedule property recovered from the possession of the appellant. First respondent is legally entitled to SA 182/01 15 proceed according to law and recover possession of the schedule property from the appellant. This appeal is devoid of merit and deserves only to be dismissed confirming the decree passed concurrently by the courts below refusing to grant the reliefs prayed for by the appellant-plaintiff. 9. In the result, I dismiss this Second Appeal. In the circumstances of the case parties are to suffer their own costs. Sd/- K.P. BALACHANDRAN Judge 27/08/2008 en Order on CMP No 389 of 2001 ----------------------------------------- Dismissed. Id./- K.P. Balachandran, Judge 27/08/2008 [true copy]