IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 SA.No. 429 of 1999(A) --------------------- AS.32/1990 of I ADDL. DISTRICT COURT, PALAKKAD OS.483/1983 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT(S): IN THE HIGH COURT/APPELLANTS IN THE LOWER APPELLATE COURT/PLAINTIFFS IN THE TRIAL COURT: ---------------------------------------------------------------------------------------------------------- 1. MALINI, D/O.RAGHAVAN, THEKKATHARA HOUSE, THRISSUR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. 2. AJITHA, D/O. RAGHAVAN, ...DO...DO..... 3. JAYAN,S/O. RAGHAVAN, ....DO....DO.... 4. LATHA, D/O.KUMARAN, THEKKETHARA HOUSE, THRISSUR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. 5. PREETHA, D/O. BALAN, THEKKETHARA HOUSE, DURGAGOSHTAM VILLAGE, CHITTUR TALUK, PALAGHAT DISTRICT. 6. ANITHA, D/O. BALAN, ...DO...DO.... BY ADVS. SRI.T.K.VENUGOPALAN, SRI.M.C.GOPI. RESPONDENT(S): IN THE HIGH COURT/RESPONDENTS IN THE LOWER APPELLATE COURT/DEFENDANTS IN THE TRIAL COURT: ---------------------------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, PALGHAT, PALAKKAD P.O. 2. THE DIVISIONAL FOREST OFFICER, SPECIAL DIVISION, PALGHAT, PALAKKAD P.O. R1 & R2 BY GOVERNMENT PLEADER THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.526/2001 IN S.A.NO.429/1999 CLOSED 22/06/2010 SD/- HARUN-UL-RASHID, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss HARUN-UL-RASHID, J. ------------------------ S.A.No.429 Of 1999 ---------------------- Dated this the 22nd day of June, 2010. J U D G M E N T Plaintiffs in O.S.No.483 of 1983 on the file of the Principal Sub Court, Palakkad are the appellants. Suit was filed for permanent perpetual injunction restraining the defendants, namely, State of Kerala and Divisional Forest Officer (Sub Division), Palakkad, from trespassing into plaint schedule property and from interfering with the possession and enjoyment of the plaintiffs. Suit was decreed originally by judgment dated 26.3.1986. The defendants preferred A.S.No.119 of 1986 before the District Court, Palakkad. The appellate court set aside the decree and judgment and remanded the matter for fresh consideration after giving opportunity to the plaintiffs for taking out a proper commission to identify the property and after giving opportunity to both sides to adduce further evidence, if any. 2. After remand, plaintiffs took out a fresh commission and commissioner filed a report. PW1 was examined again. Commissioner was examined as DW4. Exts.A1 to A25 was marked on the side of the plaintiffs and Exts.C2 and C3 were also marked. S.A.No.429 Of 1999 ::2:: 3. The plaint schedule property is described as Sabari Coffee Estate at Nelliampathy. The extent of Sabari Estate is 30 acres. According to the plaintiffs property including plaint schedule property belong to Vengunad Kovilakam and was taken on lease from the Kovilakam by Gopala Menon. Gopala Menon developed the area into a plantation. It is the plaintiffs’ further case that when possession of the forest was taken by the Forest Department under the Kerala Private Forest (Vesting and Assignment) Act 1971, the plaint schedule property was left out being not a vested forest. It was a pakka plantation at that time. 3. According to the defendants, plaint schedule property was part of vested forest vested under the provisions of the above Act. 4. Ext.C2 is the report furnished by the commissioner after remand. He had measured and demarcated the plaint schedule property with the help of a private surveyor. The private surveyor filed Ext.C3 plan showing the lie of the property. Identification and demarcation of the property was done by the commissioner with the help of a sketch produced along with the plaint and with the copy of the plan. The trial court observed that the commissioner did not care to verify whether the sketch S.A.No.429 Of 1999 ::3:: was one approved by the Survey Department. The commissioner admitted that the measurement was not made with the aid of any survey record. Assistance of a surveyor in the service of the Government was not taken in order to identify and demarcate the coffee estate. The trial court rightly observed that it is for the plaintiffs to exactly identify and demarcate the property so that an effective decree can be passed. The commissioner was examined as DW4. The commissioner admitted that he identified the property with the help of the sketch produced by the plaintiff along with the plaint. The commissioner as DW4 is not in a position to say whether the property comprised in Ext.C3 plan is located as per Ext.B3 plan. He relied on the sketch produced before the court on the assumption that since it was something produced in the court it would be true. Trial court considered the commission report and plan in detail and evidence of the commissioner. Trial court as well as the appellate court held that there was no proper identification of the property and therefore the infirmity pointed out by the appellate court in decreeing the suit i.e., the absence of proper identification of the plaint schedule property still holds good in this case. S.A.No.429 Of 1999 ::4:: 5. The lower appellate court held that the plaintiffs’ predecessor-in-interest Gopala Menon owns possession of 30 acres of land is an undisputed fact. The court below also on evidence found that the Gopala Menon is in possession of 30 acres of land known as Sabari Estate. Gopala Menon had obtained certificate of registration for the same is also not a disputed fact. Exts.A1 & A2 would give an indication that Gopala Menon has taken the property on lease and he paid early rent to the jenmi. The lower appellate court also relied on Ext.A3 proceedings of the Tahsildar, Chittur which would go to show that Gopala Menon was enjoying the 30 acres Coffee estate. Ext.A3 proceeding refer to the Revenue Inspector's report stating an area of 30 acres is in the actual possession of Govinda Menon. The lower appellate court discussed and relied on Exts.A3, A4, A5, A13, A14, A25 etc., and held that Sabari Estate having an extent of 30 acres was in the possession of the aforesaid Gopala Menon and that the said 30 acres was not a private forest because it was a plantation. For entering into such a finding the lower appellate court also relied on the averments made in Ext.A25, copy of the affidavit filed by the Forest Department in O.P.No.907 of 1980. S.A.No.429 Of 1999 ::5:: 6. The trial court as well as the lower appellate court concurrently found that the plaintiffs failed to identify the property. Even after remand plaintiffs did not chose to request the court to depute a Taluk Surveyor for identifying the property. At the same time, in the interest of justice, this Court feels that an opportunity shall be given to the plaintiffs to identify the property by deputing a commissioner with the assistance of Taluk Surveyor. I feel that a remand is necessary especially for the reason that the lower court on evidence found that the plaintiffs are entitled to hold 30 acres of land by name Sabari Estate. If the 30 acres of land which is a coffee estate is the plaint schedule property, definitely the plaintiffs are entitled to a decree of injunction as sought for in the plaint. It is for the plaintiffs to apply before the trial court to depute a commissioner with the assistance of a Taluk Surveyor or such other officials to demarcate and identify the property with the assistance of a survey plan and survey records maintained by the Revenue and Forest Departments as the case may be. 7. The learned Government Pleader also submitted that the suit is not maintainable in view of the reason that Section 13 of the Kerala Private Forest (Vesting and Assignment) Act S.A.No.429 Of 1999 ::6:: stipulates that no civil court shall have jurisdiction to decide or deal with any question or to determine any matter which it, by or under this Act, required to be decided or dealt with or to be determined by the Tribunal, the custodian or any other officer and it was decided in Bhargavi Amma v. State of Kerala (1997 (2) KLT 513). In the facts and circumstances discussed above, the case is remanded for fresh consideration in accordance with law. The parties are at liberty to raise contentions they wish to urge and the court below shall decide all the questions afresh on the basis of the pleadings. The court shall depute a commission to identify measure and demarcate the property if the plaintiffs file necessary application in that regard within three months. Since the suit is of the year 1983 the trial court shall expedite the trial of the case, at any rate dispose of the suit, within a period of nine months from the date of receipt of a copy of the judgment. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-