IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 AS.No. 713 of 1993() -------------------- OS.143/1990 of SUB COURT, MUVATTUPUZHA .................... APPELLANTS/DEFENDANTS: ------------------------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, ERNAKULAM. 3. THE TAHSILDAR, TALUK OFFICE, MUVATTUPUZHA. 4. THE TAHSILDAR, TALUK OFFICE, KOTHAMANGALAM. BY GOVERNMENT PLEADER MR.BASANT BALAJI RESPONDENTS/PLAINTIFFS: ------------------------------- *1. JACOB JOSEPH, AGED 74, S/O.LATE OUSEPH JACOB, PULICKAL HOUSE, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. - (EXPIRED). 2. DR.JOSEPH JAMES, AGED 57, S/O.JACOB JOSEPH, PULICKAL HOUSE, KOZHIPALLY KARA, VARAPETTY VILLAGE. 3. MARY GEORGE, AGED 57, W/O.LATE JACOB GEORGE, PULICKAL HOUSE, KOTHAMANGALAM VILLAGE. 4. RAJU GEORGE, AGED 32, S/O.LATE JACOB GEORGE -DO-. 5. BENNY GEORGE, AGED 29, S/O.LATE JACOB GEORGE -DO-. 6. SAJIV GEORGE, AGED 22, S/O.LATE JACOB GEORGE, -DO-. AS 713/93 **ADDL.R7 TO R11 IMPLEADED 7. JOSEPH JOHNNY, PULICKAL HOUSE, KUZHIPALLY P.O., KOTHAMANGALAM. 8. RITHAMMA TOMMEY, PUTHENKUDY HOUSE, AIMURY P.O., PERUMBAVOOR. 9. DIVYA BABY, PULICKAL HOUSE, MATHIRAPPALLY, KOTHAMANGALAM P.O. 10.BABU JOSEPH, VETTUVELIKUNNEL HOUSE, PONKUNNAM P.O., PONKUNNAM. 11.JOSEPH JOSHY, PULICKAL HOUSE, KATHUKUZHY P.O., KOTHAMANGALAM. *R2 IS RECORDED AS THE LEGAL REPRESENTATIVE OF THE DECEASED R1 VIDE ORDER DATED 25.2.08 ON I.A.NO.767/05. **ADDL.R7 TO R11 ARE IMPLEADED AS PER THE ORDER DATED 25.2.08 IN I.A.NO.767/05. BY ADV. SRI.THOMAS V.JACOB FOR R3 TO 6 SMT.ELSA DENNY PINDIS SRI.MOHAN JACOB GEORGE FOR R3 TO 6 SMT.P.V.PARVATHI FOR R3 TO 6 SMT.REENA THOMAS FOR R3 TO 6 SRI.K.N.PRAMOD KUMAR MENON FOR R3 TO 6 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 21/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO.4032 OF 1993 IN A.S.NO.713 OF 1993 DISMISSED 21.5.2008 SD/- PIUS C.KURIAKOSE, JUDGE. PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No.713 of 1993 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 21st May, 2008 JUDGMENT The Government and the Public Officers who were respectively defendants 1 to 4 before the trial court are the appellants. The suit was for declaration and an injunction in respect of the suit property having an extent of 11.65 acres to which the plaintiffs claimed title and possession by virtue of Exts.A1 and A2 partition deeds and earlier documents. Noticing that the defendants had not filed written statement in spite of several opportunities given, the court set the defendants ex parte on 28.10.1991. Thereafter the respondents- plaintiffs filed application for issuance of commission for ascertaining the value of improvements effected on the properties and the appellants-defendants filed I.A.No.1356/92 under Order IX Rule 7 for getting the ex parte order set aside and for acceptance of the written statement which had been filed along with the application. By a separate detailed order the court below dismissed the I.A. holding on the authority of several decisions that the application under Order IX Rule 7 is not maintainable in law since the case stood posted for judgment. Thereafter on the basis of the evidence adduced by the respondents-plaintiffs which consisted of the oral testimony of P.W.1, A.S.No.713/93 - 2 - the 2nd plaintiff and documents Exts.A1 to A8, the court below decreed the suit. In doing so, the court below found on the basis of the evidence placed on record that the suit properties were part of the registered holdings of the respondents-plaintiffs and that in any event the plaintiffs-respondents have been in undisputed possession of the holding within well defined boundaries for nearly 40 years. The court below noticed that in spite of specific directions, the appellants- defendants did not produce the relevant documents relating to puthuval decision No.81/1088 on the files of the Taluk Office, Muvattupuzha and obviously drew adverse inference against the appellants-defendants on account of such non-production. The explanation offered by the appellants-defendants that the relevant file is misplaced did not inspire confidence in the court and accordingly the suit was decreed declaring that the plaintiffs have absolute title and possession over the suit properties and that the defendants have no right to evict the plaintiffs from the suit properties. It was also declared that the defendants have no right to realise prohibitory tax from the plaintiffs. A decree of permanent injunction was passed against the appellants-defendants restraining eviction of the plaintiffs and from initiating steps for realisation of prohibitory tax. A.S.No.713/93 - 3 - 2. Raising various grounds this appeal has been preferred seeking a reversal of the judgment under appeal and in the alternative for granting an opportunity to the appellants to substantiate the contentions raised by them in the written statement filed by them along with the application under Order IX Rule 7. 3. I have heard the submissions of Mr.Basant Balaji, learned Government Pleader for the appellants and also those of Mr.Mohan Jacob George, counsel for respondents 3 to 6. 4. The learned Government Pleader submitted that all said and done the decree passed by the court below was an ex parte one which though purporting to deal with the merits of the contentions of the plaintiffs, has been rendered without considering the contentions raised and without granting opportunity to the appellants for substantiating those contentions. Resisting the above submissions, Mr.Mohan Jacob George would submit that even after the appellants were set ex parte the respondents-plaintiffs filed commission application as well as application for directing the appellants to produce the documents relating to puthuval decision No.81/1088. The Government participated in the hearing of these applications and sought time to file counter affidavits but did not file counter and it A.S.No.713/93 - 4 - was accordingly that the commission application as well as application I.A.No.54/92 were disposed of by the court below. Even now no document has been produced by the Government which will show that the Government will be able to substantiate the contentions sought to be raised by them through the written statement. No useful purpose will be served by passing an order of remand and giving the appellants an opportunity to substantiate the so-called contentions. In reply, the learned Government Pleader would submit that the court below seems to have been impressed by the case of the respondents- plaintiffs that the no proper survey of the property had been conducted pursuant to the judgment of this court in O.P.No.79/56. The Government Pleader would submit on the basis of the averments in paragraph 3 of the memorandum of appeal that the land in question was surveyed and demarcated by the plan scheme survey during 1960 and proper boundary stones were planted and as per that the extent of land in survey No.1063/IC of Kothamangalam village was found to be 93 acres and 23 cents out of which 82 acres and 26 cents was registered land while 10 acres and 97 cents (instead of 11 acres and 65 cents) is sarkar tharisu, i.e., Government property and cannot have been in uninterrupted possession of the A.S.No.713/93 - 5 - plaintiffs or the predecessors. The Government Pleader also submitted on the basis of the very same paragraph in the appeal memorandum that the plaintiffs were paying prohibitory tax upto 1987-88 as per L.C. case No.299/1110 which he would highlight as a circumstance which supports the Government's case that the property could not have been the registered holding of the respondents-plaintiffs. 5. Having anxiously considered the rival submissions addressed at the Bar, I am of the view that the appellants can be afforded an opportunity to substantiate the contentions raised by them through the written statement. However, since it is apparent that there was gross negligence on the part of the appellants in the matter of filing of the written statement and also in the matter of producing documents (which are not produced even before this court), I am not inclined to grant such opportunity unless it be by imposing very strict conditions. Having regard to the stakes involved and the totality of the circumstances which attend on this case, I am of the view that a sum of Rs.15,000/- can be fixed as the cost payable by the appellants for getting an opportunity to substantiate the contentions. Accordingly, the appeal will stand allowed and the judgment and A.S.No.713/93 - 6 - decree under appeal will stand set aside and the suit will go back to the trial court on condition that the appellants pay a sum of Rs.15,000/- by way of cost to the respondents. The costs can be paid to them through their counsel appearing in this court within a period of six weeks of receiving copy of this judgment against a memo to be issued by the counsel. Upon such payment, the judgment and decree under appeal will stand set aside and the suit will go back to the Sub Court, Muvattupuzha. The court below will formulate issues for trial within one month of getting the records back and will give just one posting within one month thereafter for pre-trial steps and will special list the suit for trial in the earliest available special list. In any event, it will be ensured by the court below that the suit is tried and finally disposed of within a period of four months of formulation of issues for trial. The status quo as obtaining today regarding the properties maintained by both parties will continue till the matter is finally decided by the court below in response to this judgment. No costs. srd PIUS C.KURIAKOSE, JUDGE