IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 WA.No. 1030 of 2010 ------------------------ AGAINST THE JUDGEMENT IN WPC.24203/2003 Dated 21/11/2008 .................... APPELLANTS/PETITIONERS 2 TO 4: --------------------------------------- 1. MUJEEB,S/O.KHADER, KANJIRATHINGAL HOUSE SURYANELLI KARA, CHINNAKANAL VILLAGE, UDUMBANCHOLA TALUK,IDUKKI DISTRICT. 2. NAJIYAMOLE, D/O.MOIDEEN SAITHUKUDY HOUSE SURYANELLI KARA, CHINNAKANAL VILLAGE, UDUMBANCHOLA TALUK,IDUKKI DISTRICT. 3. SHAJI, S/O.HASSANKUTTY, PUTHIYAKUNNEL HOUSE,SURYANELLY KARA, CHINNAKANAL VILLAGE,UDUMBANCHOLA TALUK, IDUKKI DISTRICT, BY ADV. SRI.SHAJI THOMAS PORKKATTIL RESPONDENTS/RESPONDENTS: ----------------------------------- 1. DISTRICT COLLECTOR, IDUKKI DISTRICT,CIVIL STATION, KUYILIMALA, IDUKKI DISTRICT. 2. THE DEPUTY DIRECTOR,SURVEY AND LAND RECORDS,CIVIL STATION, IDUKKI DISTRICT. 3. THE TAHSILDAR,UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY SR.GOVERNMENT PLEADER SMT.K.MEERA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.N.Ravindran, J. ------------------------------------------ W.A.No.1030 of 2010 ------------------------------------------ Dated this the 27th day of July, 2010 JUDGMENT J.Chelameswar, C.J. Aggrieved by a judgment dated 21st November, 2008 in W.P.(C) No.24203 of 2003, three of the eight writ petitioners therein preferred the instant writ appeal. The writ petition itself was filed with the prayers as follows: “i) to issue a writ of certiorari or any other appropriate writ, order or direction quashing the same; ii) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1st and 3rd respondents to issue Pattayam to the petitioners pursuant to Exhibits P4 to P11 on the basis of Exhibit P13 and the report accompanying th same; calling for Exhibit P13 and accompanying report; iii) issue any other reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.” W.A.No.1030 of 2010 - 2 - 2. Ext.P14 in the writ petition is an intimation by the second respondent herein to the effect that the application filed by the eight writ petitioners for grant of patta in respect of the properties mentioned in the application cannot be accepted for the various reasons given in Ext.P14. 3. The case of the three appellants herein is that they purchased various extents of the property ranging between 2.5 and 3.5 acres each from one Hassankutty. It may be mentioned here that such a purchase is not evidenced by any document, either registered or unregistered. 4. The more interesting thing is that having claimed that the appellants had purchased the property from the abovementioned Hassankutty, the appellants herein along with five others filed applications for assignment of land from the Government. Assignment of land by the Government is possible only with reference to lands which vested in the State. 5. In so far as the alleged vendor of the appellants W.A.No.1030 of 2010 - 3 - Sri.Hassankutty is concerned, it is stated in the writ petition that Hassankutty purchased the said property from one Karuppuswamy who is alleged to have been in continuous possession and enjoyment of the land eversince 1940. 6. It is the further case of the appellants that the abovementioned Hassankutty and Karuppuswamy filed a civil suit, O.S.No.29 of 2000 on the file of the Munsiff, Devikulam against two private individuals who are not parties to the present writ petition. It is not known what exactly are the averments made in the plaint, either regarding the title or possession of the suit schedule property. A xerox copy of the ex parte decree dated 5th April, 2000 is filed as Ext.P2 in the writ petition. According to the said exhibit, the two defendants in the suit were “permanently restrained from trespassing on the plaint schedule property or doing any mischief or wastes in the plaint schedule.” It may be mentioned here that the plaint schedule property is dry land of an extent of 24 acres in W.A.No.1030 of 2010 - 4 - Sy.No.34/1, 229/230 of Chinnakkanal Village in Udumbanchola Taluk. 7. It may be mentioned here that according to Ext.P5 application, the assignment sought by the first appellant herein is for an extent of 3.50 acres in Sy.No.229,230 of Chinnakkanal Village in Udumbanchola Taluk. Exts.P6 and P7 applications filed by the other two appellants seeking assignment of land are also referred to the abovementioned Sy.No. of 229,230. What is worth mentioning is that while the total extent of the land which is the subject matter of the ex parte decree in the abovementioned O.S.No.29 of 2000 pertains to Sy.No.34/1, 229/230, in the assignment applications the appellants herein did not make any mention of Sy.No.34/1 which was one of the items of the decree schedule of the abovementioned suit. 8. The next stage of the litigation is that the abovementioned Hassankutty approached this Court by a writ petition, O.P.No.20803 of 2000 obviously alleging that W.A.No.1030 of 2010 - 5 - Hassankutty was the owner in possession of the property covered by Ext.P2 decree referred to earlier. It was further averred that inspite of the above referred decree, the judgment debtors therein are interfering with the possession of the writ petitioner/decree holder (Hassankutty) and therefore sought that the police be directed to protect the possession of Hassankutty. Consistent with the decree the alleged judgment debtors also did not choose to appear before this Court and contest the writ petition. On the other hand, an assertion was made by the respondent police officials that there was no law and order situation on the land which warrants a direction such as the one sought in the said writ petition. In the abovementioned circumstances, the writ petition came to be disposed of by judgment dated 4th September, 2000. The operative portion of the judgment reads as follows: “In such circumstances, I am of the view that Original Petition itself can be disposed of directing R1 and R2 to afford adequate effective police protection to W.A.No.1030 of 2010 - 6 - the petitioner for the enjoyment of the property covered by Ext.P2 judgment against any interference at the hands of R3 and R4 and their henchmen. However it is clarified that this direction will stand vacated in case there is any order of stay or modification of Ext.P2 judgment by the Appellate Court.” 9. It may be mentioned here that neither the State of Kerala was a party to the said writ petition, nor was there any decision regarding either the title or possession of Hassankutty, vis-a-vis the State of Kerala or for that matter no decision in the said judgment regarding the title of Hassankutty vis-a-vis the judgment debtors in O.S.No.29 of 2000 who are made parties to the said writ petition. 10. On the basis of the abovementioned two judicial proceedings the appellants herein seek assignment of the various parcels of the land and assert that they have been in possession of the land from 1969 onwards. There is not even a mention that they took their possession from their predecessor in interest. Nor is there any material on record to establish that either the W.A.No.1030 of 2010 - 7 - appellants or their alleged 'predecessor in interest' had been in possession of the property from 1969 onwards. As we have already indicated above, the very identity of the property is doubtful. 11. In the background of the abovementioned facts, the learned Judge of this Court dismissed the writ petition. Though slightly different reasons are assigned by the learned Judge we are in total concurrence with the conclusion reached by the learned Judge. For the reasons mentioned above, we do not see any reason warranting interference with the conclusion reached by the learned Judge. In the circumstances, the writ appeal is dismissed at the admission stage. J.Chelameswar, Chief Justice P.N.Ravindran, Judge vns