IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 RSA.No. 702 of 2011() --------------------- AS.109/2003 of SUB COURT, PAYYANNUR OS.82/1998 of MUNSIFF COURT, PAYYANNUR .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- MAMBALLIL JOHN, S/O.MATHAI, AGED 43 YEARS, AGRICULTURIST, RESIDING AT KUTTUR VILLAGE, (P.O.) KUTTUR, TALIPARAMBA TALUK. BY ADV. SRI.MAHESH V RAMAKRISHNAN RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. THE DISTRICT COLLECTOR, KANNUR. 2. THE DEPUTY TAHSILDAR (REVENUE RECOVERY), TALIPARAMBA. 3. THE VILLAGE OFFICER, KUTTUR. 4. THE TALUK TAHSILDAR, TALIPARAMBA. BY G.P.SMT. ANNIE PAUL THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ........................................... R.S.A.NO.702 OF 2011 ............................................. Dated this the 28th day of July, 2011. JUDGMENT Plaintiff in O.S.No.82/1998 on the file of the Munsiff Court, Payyannur is the appellant. Defendants are the respondents. The suit was filed for injunction against the Village Officer, Tahsildar and the District Collector contending that appellant has title to the plaint schedule property having obtained it under Ext.A1 sale deed No.618/1997 from Parambil Madusoodhanan, who in turn obtained it from Thekke Kottarathil Johny under Ext.A2 sale deed No.1600/96. It was contended that the said Johny purchased it under Ext.A3 sale deed 524/1978 and then obtained assignment of jenm right under Ext.A5 order of the Land Tribunal in SM 2068/78 and Ext.A4 purchase certificate was also issued in his favour and thus appellant has been in possession of the plaint schedule property and respondents have no right over it and are not entitled to trespass into the property or interfere with his peaceful possession. Respondents resisted the suit contending that Johny the assignor under Ext.A2 R.S.A.NO.702 OF 2011 : 2 : obtained the property from Vengayil Lekshmi Amma under Ext.A3 sale deed No.524/78 dated 6.4.1978 and as against Vengayil Lekshmi Amma, ceiling case TLB 536/75 was pending before the Taluk Land Board and as per the order in the said proceedings, 56.53 acres of Kuttoor village was found to be surplus land to be surrendered and it was surrendered and taken possession and appellant is therefore not entitled to the decree. It was also contended that Johny, the assignor under Ext.A3, instituted O.S.No.55/1983 which was dismissed under Exts.A8 and A9 judgment and decree and Vengayil Lekshmi Amma had filed O.S.No.15/1984 and Father Antony had filed O.S.126/1995 and all the suites were dismissed and the appellant is entitled to the relief sought for. 2. Learned Munsiff on the evidence of PW1,CW1, Exts.A1 to A11, B1 to B5 and C1 and C2 found that appellant is claiming title and possession under Ext.A1 sale deed and as the property was surrendered by the order of the Taluk Land Board, under Ext.A1 sale deed executed by the declarant later, the appellant cannot claim title or R.S.A.NO.702 OF 2011 : 3 : possession. It was also found that the assignor under Ext.A3 had filed O.S.No.55/1983 earlier in respect of the very same property which was dismissed and with respect to the property surrendered, Vengayil Madusoodhanan, son of Lekshmi Amma had filed O.S.No.15/1984 which was also dismissed and though an appeal was filed, that appeal was also dismissed. Learned Munsiff also found that O.S.No.126/1995 filed by one Father Antony Pious Edezhath was also dismissed and Ext.A8 and A9 judgments establish that O.S.No.55/1983 filed by Johny was dismissed and in view of sub section 8 of Section 85 and Section 125 of the Kerala Land Reforms Act, the appellant is not entitled to the decree sought for. Appellant challenged the decree and judgment before Sub Court, Payyannur in A.S.No.109/2003. The learned Sub Judge on re-appreciation of the evidence confirmed the judgment and decree of the Munsiff Court, Payyannur and dismissed the appeal. It is challenged in the appeal. 3. The learned counsel appearing for the appellant was heard. Argument of the learned counsel is that the courts R.S.A.NO.702 OF 2011 : 4 : below did not property appreciate the evidence and courts below did not take note of the Kerala Land Reforms (Amendment) Act, 2005 which came into force with effect from 18.10.2006 and when the appellant has been in possession of the property, a decree for injunction should have been granted. 4. On hearing the learned counsel, I do not find any substantial questions of law involved in the appeal. It is not disputed that TLB 536/1975 was initiated against Vengayil Lekshmi Amma and she was directed to surrender 56.53 acres of land in R.S.No.77/1A1 of Kuttoor village. The plaint schedule property is one acre in the said R.S.77/1A1. The appellant is claiming right and possession under Ext.A1 sale deed executed by Parambill Madusoodhan who in turn obtained the right under Ext.A2 sale deed dated 11.6.1996 executed by Thekke Kottarathil Johny who in turn purchased the right under Ext.A3 sale deed dated 6.4.1978. Ext.A3 sale deed was executed by Vengayil Lekshmi Amma, the declarant in TLB 536/1975 and that too subsequent to the proceedings of the Taluk Land Board that declarant has R.S.A.NO.702 OF 2011 : 5 : been in possession of surplus land. Taluk Land Board found that Vengayil Lekshmi Amma has been in possession of excess land and directed to surrender 56.53 acres in RS.No.77/1A1 being the surplus land. Subsequent to the said proceedings, under Ext.A3 sale deed in 1978, Vengayil Lekshmi Amma the declarant in that case, assigned one acre in favoaur of Thekke Kottarathil Johny. The assignor Johny in turn instituted O.S.No.55/1983. It was dismissed evidenced by Exts.A8 and A9 decree and judgment. Though the learned counsel argued that it was dismissed as the counsel reported no instructions, Exts.A8 and A9 judgment and decree establish that the suit was in respect of the same property and against the Government. It is thereafter Ext.A4 purchase certificate was obtained by Johny pursuant to Ext.A5 order. When the Taluk Land Board has already directed surrender of the property by Vengayil Lekshmi Amma, based on Ext.A3 assignment deed, Johny could not have claimed right over the property or obtained jenm right from the Land Tribunal. Therefore based on Exts.A4 and A5 Johny cannot claim any right. Therefore R.S.A.NO.702 OF 2011 : 6 : based on Ext.A2 executed by Johny, Madhusoodhanan, the assignor under Ext.A1 could not have derived right. Therefore appellant cannot claim right under Ext.A1 sale deed. It was argued that even though Lekshmi Amma was directed to surrender the property by the Taluk Land Board, in view of the subsequent enactment of Kerala Land Reforms (Amendment) Act, 2005 he is entitled to protect his possession. As rightly found by the courts below, as provided under sub section 8 of Section 85 of Kerala Land Reforms Act where the Taluk Land Board determines the extent of land to be surrendered by Vengayil Lakshmi Amma, and the claim is based on an assignment deed executed by the said Vengayil Lakshmi Amma, remedy of the appellant if any is only to approach the Taluk Land Board and not to approach the Civil Court to seek a decree for injunction, in view of Section 125 of Kerala Land Reforms Act which provides that no Civil Court shall have jurisdiction to settle , decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the R.S.A.NO.702 OF 2011 : 7 : Land Tribunal or the Appellate Authority or the Land Board or the Taluk Land Board or the Government or an officer of the Government. In such circumstances, the appeal can only be dismissed. It is made clear that dismissal of the suit will not be a bar for the appellant to approach the Taluk Land Board as provided under sub section 8 of Section 85 of the Kerala Land Reforms Act, if he has any right under Ext.A1. M.SASIDHARAN NAMBIAR, Judge. cl