IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 SA.No. 290 of 2003(A) ------------------------------ [AS.NO.1/1997 OF DISTRICT COURT, WAYANAD, KALPETTA, OS.NO.78/1992 OF SUB COURT, SULTHAN BATHERY] .................... APPELLANTS/APPELLANTS IN A.S/PLAINTIFFS IN O.S: ------------------------------------------------------------------------------ 1. PAZHUKKALIYIL JAMES, S/O. VARGHESE, AGED 41, VALANCHERYKUNNU, KIDANGANAD AMSOM, CHENADU DESOM, SULTHANBATHERY TALUK, WAYANAD DISTRICT. 2. BROTHER PAZHUKKALIYIL POULOSE, AGED 38, IN -DO- -DO-. 3. BROTHER PAZHUKKALIYIL SHAJAN, AGED 36, IN -DO- -DO-. BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE, ADV. SRI.K.JAYAKUMAR. RESPONDENTS/RESPONDENTS IN A.S/DEFENDANTS IN O.S: --------------------------------------------------------------------------------------- 1. FOREST RANGE OFFICER, KURICHIAD RANGE OFFICE, CHETHALAYAM, KIDANGANAD VILLAGE, SULTHANBATHERY TALUK. 2. DIVISIONAL FOREST OFFICER, KALPETTA, WAYANAD DISTRICT. (ERRONEOUSLY MENTIONED AS DISTRICT FOREST OFFICER IN THE PLAINT, A.S. AND JUDGEMENT). 3. DISTRICT COLLECTOR, WAYANAD DISTRICT, KALPETTA. 4. TAHSILDAR, SULTHANBATHERY TALUK, SULTHANBATHERY. R1 TO R4 BY GOVERNMENT PLEADER SRI. P.K. RAVIKRISHNAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. HARUN-UL-RASHID, J. ------------------------ S.A.No.290 Of 2003 ---------------------- Dated this the 20th day of January, 2011. J U D G M E N T The plaintiffs in O.S.No.78/1992 on the file of the Sub Court, Sultan Batheri are the appellants. The appeal is directed against the decree and judgment in A.S.No.1/1997 on the file of the District Court, Wayanad. Suit was filed for a permanent prohibitory injunction restraining the defendants from trespassing into plaint schedule property or committing any act of waste therein or drawing power fence through the property. The trial court dismissed the suit. The appellate court confirmed the decree and judgment passed by the trial court. Parties hereinafter are referred to as the plaintiffs and defendants as arrayed in the suit. 2. The defendants are the forest officials and District Collector, Wayanad. The total extent of the plaint schedule property is 5.15 acres. Out of the said total extent, 3.50 acres is wet land and balance 1.65 acres is dry land. Plaintiffs claimed title and possession over the plaint schedule property as per sale deed executed by one Parvathy Chettichiyar in 1990. The ::2:: S.A.No.290 Of 2003 plaintiffs contended that the plaint schedule property was originally Government land which was enjoyed and possessed by Parvathy Chettichiyar and another, that they have obtained pattayam from the Government and while they were in possession, they partitioned the property in the year 1970. In the said partition, the plaint schedule property was allotted to Parvathy Chettichiyar. Suit was filed alleging that on 1.4.1992 the Forest Range Officer and some others attempted to destroy the improvements and attempted to draw power fencing through the plaint schedule property. 3. The defendants resisted the suit denying the plaint averments and prayed for dismissal of the suit. 4. Parties adduced oral and documentary evidence. Exts.C1 & C2 were marked as court exhibits. 5. After appreciating oral and documentary evidence the trial court found that the plaint schedule property continues to be Government land and Government has not assigned the property to anybody and has not issued any patta in respect of the plaint schedule property in favour of anybody. The trial court also ::3:: S.A.No.290 Of 2003 recorded the finding that 1.65 acres of dry land is in the actual possession of the forest department forming part of vested forest and it is being preserved and protected by the Forest Department. Regarding 3.50 acres of wet land, the court observed that the defendants have not raised any claim over the said land which is admittedly in the possession of the plaintiff. Before the trial court, the learned Government pleader submitted that the Government is prepared to grant patta in favour of the land in their possession. The trial court noticed that the defendants have no interest at all to enter into the wet land because it is an admitted case that the wet land is in the actual possession of the plaintiff and it is being cultivated by them. The trial court further observed that the dispute is only regarding the dry land and it is with respect to wet land the plaintiff really seeks injunction. In the circumstance, the trial court took the view that the plaintiff has no reason to trespass into the wet land and therefore held that they are not entitled to any injunction regarding the wet land. The findings are entered solely based on the facts, evidence and circumstances. The plaintiff challenged ::4:: S.A.No.290 Of 2003 the said findings before the appellate court. The appellate court also appreciated the evidence on record and confirmed the findings of the trial court. 6. The findings of the trial court confirmed by the appellate court that the dry land is in actual possession of the Forest Department forming part of it being preserved and protected by the Forest Department was arrived at after examining the facts, evidence and circumstances of the case. The decision is purely on the basis of facts and therefore, in second appeal this Court cannot interfere with the said findings. Regarding the wet land also, the trial court as well as the appellate court are justified in not extending the relief of injunction. It is clearly stated by the trial court that it is an admitted case that wet land is in actual possession and it is being cultivated by them. The court below also noticed that the defendants have no claim over the wet land. In fact, the court recorded the submission of the learned Government Pleader that Government propose to issue patta for the wet land in their possession. The court finding that the wet land is in the ::5:: S.A.No.290 Of 2003 possession of the plaintiff, did not extend the relief of injunction, after recording the fact that the defendants have no idea and interest at all to enter into the wet land. Therefore, this Court is of the view that there is no justification for this Court to interfere with the decision taken by the fact finding court in not extending the relief of injunction to the plaintiff. In the facts and circumstances of the case the second appeal lacks merit and is liable to be dismissed. 7. I have already stated the submission of the learned Government Pleader which was recorded by the trial court. In the said circumstance, it is open to the plaintiff to approach the Government for issuance of patta in their favour. In that event, the Government shall consider the claim of the plaintiffs and shall pass appropriate orders. In the result, the appeal fails and accordingly dismissed with the observation made above. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-