IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 AS.No. 636 of 1998() ------------------------------ OS.120/1988 of ADDL.SUB COURT,ATTINGAL .................... APPELLANT(S): PLAINTIFF -------------------------------------- SALMA BEEVI, D/O. KUNJU, LAKIYILAZHIKATHU HOUSE, PALLICKAL DESOM, PALLICKAL VILLAGE, BY ADV. SRI.BABU KARUKAPADATH RESPONDENT(S): DEFENDANTS ---------------------------------------------- 1. STATE OF KERALA REP.BY THE CHIEF SECRETARY TO THE GOVERNMENT, SECRETARIATE, TRIVANDRUM. 2. DISTRICT SUPERINTENDENT OF POLCIE (RURAL) TRIVANDRUM. 3. DISTRICT COLLECTOR, TRIVANDRUM. .4. TAHSILDAR, CHIRAYINKEEZHU. 5. ASST. ENGINEER, BUILDINGS SUB DIVISION, P.W.D. ATTINGAL. BY GOVERNMENT PLEADER SRI.P.K.BABU THIS APPEAL SUITS HAVING COME UP FOR ADMISSION ON 11/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... A.S.NO.636 OF 1998 ............................................. Dated this the 11th day of October, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Additional Subordinate Judge, Attingal in O.S.No.120/1988. The suit is one for declaration of title and possession and for injunction and also for recovery of possession. 2. It is the case of the plaintiff that herself and one Abdul Karim are brother and sister. They are the children of one Mariyam Beevi @ Chitty Ashya Ummal. She had exclusive possession over 70 cents of land in Sy.No.1968 of Madavoor village. She had obtained the said property by virtue of document No.2345/1092 M.E. It was a Sthreedhanakuri executed by her father Kunju Pakki, S/o. Kathirur Labba. The mother had been in exclusive possession and she died in the year 1980. On her death, the plaintiff and the brother became the absolute owners of the property. The plaintiff's brother had released his right in favour of the plaintiff in 1986 and therefore, the plaintiff is the : 2 : A.S.NO.636 OF 1998 absolute title holder. Possession of the defendants is only permissive and not adverse to the interest of the plaintiff. The defendants are attempting to construct building and, therefore, the suit is filed. 3. The defendants, on the other hand, would contend that plaintiff and her brother Abdul Karim are not the children of late. Smt. Mariyam Beevi @ Chitty Ashya Ummal. She died without children and the plaintiff and her brother Abdul Karim are the children of one Moideen Kunju and Mariyam Beevi. The plaintiff's mother had never been called Chitty Ashya Ummal and name of her house is also different. 4. It is the case of the department that 29 cents of land in Sy.No.1968 of Madavoor village is with the police department for the last so many years. According to them, Chitty Ashya Ummal had surrendered 29 cents of property in favour of the police department and the police department has constructed a building and therefore, the plaintiff does not have any right or possession over this 29 cents and therefore, prays for dismissal of the suit. : 3 : A.S.NO.636 OF 1998 5. In the trial court, the learned trial judge found in favour of the plaintiff regarding title etc but non suited the plaintiff on the ground that Section 80 notice is not given. It is against that decision, the plaintiff has come up in appeal. 6. Heard the learned counsel for the appellant as well as the learned Government Pleader. At the outset, I may like to state that a suit which is filed against the Government wherein notice under Section 80 C.P.C is imperative is a matter which has to be considered as a preliminary issue. The procedure normally adopted is when there is emergency in filing a suit, the party files an application under Section 80(2) of the C.P.C and the court has got power to dispense with notice at that stage and therefore permits the plaintiff to proceed with the suit. When the defendants enter appearance and contend that there is no urgency in the suit, then the proper procedure for the court is to return the plaint directing the plaintiff to wait for the time and then present the plaint again. 7. Unfortunately here we have reached a stage that : 4 : A.S.NO.636 OF 1998 without following any of these procedural formalities, the court ultimately dismissed the suit of the plaintiff for want of notice under Section 80 of C.P.C. I am told by the learned counsel for the plaintiff that along with the plaint, the plaintiff has moved an application - I.A.No.298/1987 and the court has provisionally permitted to file suit. Since it is an order passed without the junction of the defendants, I classify it as a provisional order which is subjected to change after the appearance of the parties. Now decades have passed and therefore, the requisiteness to have Section 80 notice at this stage has fallen into insignificance and therefore, I do not want to throw out the case on technical grounds. 8. Though it is an appeal filed by the plaintiff, since defendants have succeeded in the suit by getting a judgment of dismissal, they are entitled to contend other points which had gone against them. Now the crux of the matter is that the plaintiff is claiming the property through her mother Mariyam Beevi @ Chitty Ashya Ummal and the said Ashya Ummal is said to have obtained the property in the : 5 : A.S.NO.636 OF 1998 Malayalam Era 1092 from her father as per a Sthreedhanakuri and on her death the property devolved upon the plaintiff and her brother and the brother had released the right in favour of the plaintiff and thereby she claims absolute title to the property. 9. The defence tendered in this case is that this Mariyam Beevi @ Chitty Ashya Ummal is not the mother of the plaintiff or her brother. It is submitted that these two persons are the children of Moideen Kunju and Mariyam Beevi. According to the defendants, Mariyam Beevi @ Chitty Ashya Ummal as contended by the plaintiff is not the mother of the plaintiff but her mother is another Mariyam Beevi, who was never been called as Chitty Ashya Ummal. So, it is the point that has to be considered. 10. The second point urged is that there has been surrender of 29 cents of property by the original owner Chitty Ashya Ummal in favour of the police department and on the strength of the same, the police department has constructed a building and therefore, the plaintiff does not get any right over the property. The transfer in favour of : 6 : A.S.NO.636 OF 1998 the department is alleged on the basis of an oral sale or an adjustment as the case may be. But the fact remains for long number of years, the police department is in possession of some of the properties included in Sy.No.1968. There is no case for the plaintiff that they are the trespassers. So it can be either a sale or a lease or a licence and therefore, these are all matters which requires a detailed analysis. 11. Therefore considering the specific background of this case and the fact that a police station has already come into being with a permanent structure, I am inclined to grant an opportunity to the Government as well to produce documents, if any, or adduce evidence in support of their respective contentions. 12. In the result: (1). The judgment and decree under challenge are set aside and it is made clear that since the suit has been pending for the last two decades, the question of Section 80 further need not be looked into. It can be considered as dispensed with. (2). The trial court is directed to permit both concerned : 7 : A.S.NO.636 OF 1998 to produce documentary as well as oral evidence in support of their respective contentions and then decision be taken in accordance with law. (3). Considering the peculiar facts and circumstances of this case, if possible endeavour shall be made by both the parties to have an amicable settlement of the matter. (4). Let the matter be disposed of within a period of five months from the date of first appearance of the parties. Parties are directed to appear before the trial court on 15.11.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 8 : A.S.NO.636 OF 1998 M.N. KRISHNAN, J. ........................................... A.S.NO.636 OF 1998 ............................................. 11th day of October, 2010. J U D G M E N T