IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 AS.No. 65 of 1998(A) ------------------------------ OS.42/1996 of SUB COURT, HOSDRUG .................... APPELLANT/DEFENDANT: --------------------------------------- C.P. JAMEELA, W/O.A.K. MOHAMMAD, RESIDING AT PULIKUNNU, KAMMADY ESTATE IN PANATHADY VILAGE OF HOSDURG TALUK, P.O. KALLAPALLI, (VIA) RAJAPURAM. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENT/PLAINTIFF: --------------------------------------- THE PLANATION CORPORATION OF KERALA LIMITED, REPRESENTED BY THE MANAGING DIRECTOR, KOTTAYAM DISTRICT, P.O. KOTTAYAM. BY SRI.JOSEPH MARKOSE, SENIOR ADVOCATE. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 24/05/2010, ALONG WITH AS NO. 142 OF 1998, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. AS.No. 65 of 1998(A) ORDER ON C.M.P. NO.536/1998 IN AS. NO.65/1998 DISMISSED 24/05/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. Nos. 65 & 142 OF 1998 = = = = = = = = = = = = = = = Dated this the 24th day of May 2010. J U D G M E N T Both these appeals are preferred against the judgment and decree passed by the Subordinate Judge, Hosdrug in O.S.42/96. The suit is one for recovery of possession of 30 cents of property. The court below granted a decree for recovery of possession of the property and permitted the plaintiff to realize mesne profits but ordered value of improvements to be paid to the defendant. Against the decree for recovery of possession and the mesne profits the defendant has come up in appeal as A.S.65/98 and against the order to grant value of improvements the plaintiff has come up in appeal as A.S.142/98. The brief facts necessary for the disposal are as follows. .A.S. Nos. 65 & 142 OF 1998 -2- 2. The plaintiff is the Plantation Corporation of Kerala. By virtue of an order, Ext.A1 the Government of Kerala had sanctioned to accord lease of 1192.718 hectres of forest land in Panathady village Kasaragod Range comprised in Survey No.317 of that village along with some other properties. As per clause No.V of Ext.A1, “an agreement shall be executed by the lessee incorporating the above terms and conditions of lease and also any other conditions that may be insisted on.” So Ext.A1 only evidences a transaction whereby the Government have accorded sanction for the lease of the property. I am informed that on the strength of Ext.A1, subsequently lease document has been executed. When a Government property is leased, it is certain that there will be a sketch accompanying the lease deed. Now the plaintiffs claim recovery of possession of the property comprised in survey No. 317 on the strength of title. The defendant on the other hand would contend that he has .A.S. Nos. 65 & 142 OF 1998 -3- got property in survey Nos. 370/01 and 370/02 and along with the same she is in possession of the property described in the plaint schedule and therefore the plaintiff does not have title to the plaint schedule property. So in order to succeed in a suit of this nature the plaintiff has to prove by production of title deed that the property described in the plaint schedule property forms part and parcel of the property leased in favour of the plaintiff. If it is established then only the question of adverse possession or limitation that may have to be considered. If the property described in the plaint schedule property is not taken in by the lease deed then most probably the Government alone may have a right over the property which is to be decided separately by an independent suit. 3. Now so far as this suit is concerned the question to be resolved is whether the plaint schedule property is taken in by the lease granted in favour of the .A.S. Nos. 65 & 142 OF 1998 -4- plaintiff or not. If the answer is in positive then unless it is barred by adverse possession, the plaintiff will be entitled to get recovery of possession of the property. Therefore the matter requires consideration at that angle. 4. So far as the decree in A.S.142/98 is concerned if it is found that the plaintiff has got title to the property and the defendant is a trespasser of the property then by no stretch of imagination a trespasser is entitled to claim value of improvements over the property. It all depends upon the question of title of the plaintiff to get a decree in his favour. Therefore the matter requires reconsideration. 5. Hence the judgment and decree of the trial court is set aside and an opportunity is given to the plaintiff as well as the defendant to produce both documentary as well as oral evidence in support of their respective contentions and let the property be identified in accordance with the title deeds and the matter be .A.S. Nos. 65 & 142 OF 1998 -5- disposed of in accordance with law. Parties are directed to appear before the trial court on 2.7.2010. Refund of full Court fee is allowed. M.N. KRISHNAN, JUDGE. ul/- .A.S. Nos. 65 & 142 OF 1998 -6- M.N. KRISHNAN, J. = = = = = = = = = = A.S. Nos. 65 & 142 OF 1998 = = = = = = = = = = = J U D G M E N T 24th May, 2010.