IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 AS.No. 400 of 1999() ---------------------------- OS.528/1991 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANT(S): DEFENDANTS 1 TO 3 -------------------------------------------------------- 1. STATE OF KERALA REP.BY SECRETARY, REVENUE DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM. 2. DISTRICT COLELCTOR, THRISSUR. 3. TAHASILDAR, TALUK OFFICE, KODUNGALLUR. BY SR. GOVERNMENT PLEADER SRI.P.K.BABU RESPONDENT(S): PLAINTIFF/ DEFENDANT NO. 4 ----------------------------------------------------------------------- 1. KUNHUMUHAMMED, 54 YEARS, AGRICULTURE, S/O. MANMASARAYI ILLATH KUNHAKKARU, KAIPPAMANGALAM VILLAGE, KODUNGALLUR TALUK. 2. ADDL. DEFENDANT, BALAKRISHNAN, S/O. CHENNANKULANGARA MAMMA, KAIPAMANGALAM VILLAGE, KODUNGALLUR TALUK NOW RESIDING 13/294 KANJARANJADI ROAD, KOORKANCHERY, THRISSUR. R2 BY ADVS. SRI.V.M.KRISHNAKUMAR R1 BY SRI.T.H.ABDUL AZEEZ. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 29/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 400 OF 1999 = = = = = = = = = = = = = = = Dated this the 29th day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Irinjalakuda in O.S.528/91. The suit is one for a declaration of title over the plaint schedule property and for a perpetual prohibitory injunction to restrain the defendants from proceeding against the plaintiff for eviction under the provisions of the Kerala Land Conservancy Act. The property which is described in the plaint schedule is having an extent of 15 and quarter cents comprised in new survey No.254/03 and resurvey No.164/14. It is the case of the plaintiff that the predecessors- in-interest of the plaintiff had taken lease of the property by virtue of the document A.S. 400 OF 1999 -2- No.2395/10 and renewed by document No.1221/22 and thereafter had also purchased the jenm right from the land owners of the property in 1978. It is submitted that the property described as “12- takes in the plaint schedule property and therefore the plaintiff is entitled to right over the property. It is also contended that the plaintiff and his predecessors-in-interest had been continuously and uninterruptedly with the knowledge of all had been holding those properties for the large number of years and therefore the plaintiff has got prescriptive title as well with respect to the property. So the plaintiff prays for a decree. 2. The defendants on the other hand would contend that the plaint schedule property is treated as a Government property and it is 23 A.S. 400 OF 1999 -3- cents of unassessed tank. The plaintiff has no right or possession over the plaint schedule property and therefore it is submitted that the plaintiff is not entitled to the relief prayed for. 3. In the trial court Exts.A1 to A16, X1, and C1 to C3 were marked and PW1 and DW1 were examined. On an analysis of the materials the Court below declared that the plaintiff has prescriptive title to the plaint schedule property by adverse possession for more than 30 years and it exclusively belonged to him. There was a prohibitory injunction also passed against the defendants. It is challenging that decision the defendants have come up in appeal. 4. Heard both the sides. The plaintiff in this case mainly relied upon the fact that the property described in the plaint schedule belonged to Vakkayil Tarward and the A.S. 400 OF 1999 -4- predecessors-in-interest of the plaintiff had obtained lease of the property as early as on 1910 and had been in continuous enjoyment of the property thereafter. It is also contended that in 1922 there had been a renewal of the said lease and therefore it confirms that the property belonged to them. Ext.A5 is a document executed on 5.9.2010 executed by Pathumma in favour of Vakkayil Raman. The properties described in the plaint schedule are inclusive of a tank having an extent of 22 x 36 six feet koles and 10 x 13 six feet koles. Ext.A6, the 1922 renewal includes the property showing the extent as 90 cents. But it is a property which is covered by Ext.A6. It has to be remembered that the Government is contending for the position that it is a puramboke land on the basis that it is an unassessed tank. There is no document or any thing before Court to A.S. 400 OF 1999 -5- establish that the tank had been dug by the Government and it is a Governmental property. Whereas Exts.A5 and A6 receipts would reveal specifically that the property covered and described therein takes in a tank also. So it has also to be stated that it is a part and parcel of that tank which is claimed as a plaint schedule property. Just because the land is not assessed being a tank it will not lead to the conclusion that it is a Government land. When properties lying are incapable of put into cultivation we have seen instances where the Government do not impose tax on those tanks and on the lands which are not cultivated. That is why it is often described as unassessed tank. So merely the usage of the word unassessed tank cannot lead us to the conclusion that it is a Government property. 5. Now it is the conduct of the parties A.S. 400 OF 1999 -6- that have to be looked into. This Tarward with the adjoining lands had created a lease in favour of the plaintiffs, put into use and predecessors renewed subsequently and it has never transferred hands thereafter. Now the trial court on an appreciation of the materials held that even if it is not properly established that the title is with the Vakkayil Tarward, the evidence available would reveal that the property is continuously in the possession of the plaintiff and his predecessors-in-interest. There are pacca buildings and other valuable trees standing in the property and the Court below was absolutely convinced about the continuous long possession of the plaint schedule property as well. I feel the trial court should have really found in favour of the plaintiff on the question that the property is a property of Vakkayil Tarward. It is seen in A.S. 400 OF 1999 -7- paragraph 28 of the judgment that “As already stated Exts.A1 and A2 are genuine documents and the plaint schedule property is a portion of the property described in the documents.” When it is so, the properties are held under the lease. Similarly whether Vakkayil Tarward's title is established or not, it is not proved that the plaintiff is holding the property as a tenant under Vakkayil Tarward which would prove their possession almost for 90 days. At any rate, the Court below, in order to avoid further complication considered the question of adverse possession and held that even if it is a Governmental land from 1910 onwards the plaintiff along with its remainder had been enjoyed by the plaintiff and the members of his family with the knowledge of the Government and therefore even if it is a Governmental land they had prescriptive title over the property. So in A.S. 400 OF 1999 -8- any view of the matter the plaintiff has got right over the property is established. If it is established the Government is not entitled to proceed against that property claiming it to be a puramboke land and therefore I find that the judgment and decree of the trial court declaring right of the property with plaintiff is well found on strong legal principles and it does not call for any interference. Therefore the appeal fails and the same is dismissed but without costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 400 OF 1999 -9- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 400 OF 1999 = = = = = = = = = = = J U D G M E N T 29th July, 2010.