IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 RSA.No. 959 of 2011() --------------------- AS.327/2008 of DISTRICT COURT, THRISSUR OS.863/2005 of PRL.SUB COURT,THRISSUR .................... APPELLANT IN RSA-APPELLANT IN A.S.PLAINTIFF IN SUIT ------------------------------------------------------------------------------------ V.P.JACOB, S/O.PORINCHU, RESIDING AT VADAKOODAN HOUSE, OTTUPARA DESOM, KUMARANELLUR VILLAGE, WADAKKANCHERY, THRISSUR DISTRICT. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.B.SUBRAMANYAN RESPONDENTS IN R.S.A.- RESPONDENTS IN A.S.DEFENDANTS IN SUIT ---------------------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, THRISSUR.680003, AYYANTHOLE P.O. 2. THE ASST.EXECUTIVE ENGINEER, P.W.D. (ROADS) SUB DIVISION, THALAPPILLY, WADAKKANCHERY, THRISSUR DISTRICT. PIN.680582 P.O. WADAKKANCHERY. BY GOVERNMENT PLEADER SMT.ANNIE PAUL THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 959 OF 2011 =========================== Dated this the 6th day of September,2011 JUDGMENT Plaintiff in O.S.863/2005 on the file of Sub Court, Thrissur is the appellant. Respondents are the defendants. Suit was filed for declaration of title and permanent prohibitory injunction. Case of the appellant is that he has been in possession of the plaint schedule property having an extent of 0.076 hectares (1.8 cents) in survey No.281 of Kumaranellur Village with a building bearing No.8/649 and 650 of Wadakanchery Panchayat and he has been running a Clinic by name Doctors Clinical Laboratory and ECG and the property was owned by Thrithala Kunhikutty Amma and then one Moidutty Moideen who got the right in 1974 and subsequently appellant obtained right and he has been paying building tax and electricity RSA 959/2011 2 and water charges. It is contended that on 8.1.2005 second respondent issued a notice asking the appellant to surrender vacant possession of the puramboke land after removing the structure. It is contended that plaint schedule property is not a puramboke land belonging to the second respondent and second respondent has no authority to issue such a notice. It is contended that even if it is a puramboke land as appellant and his predecessors have been in exclusive possession and enjoyment of the property for more than 30 years, appellant has perfected title by adverse possession. He sought a decree for declaration of title and permanent prohibitory injunction. 2. Respondent resisted the suit contending that appellant is only a trespasser who encroached the puramboke land and constructed a building therein and he has no right whatsoever on the puramboke land. It is also contended that notice was issued to the appellant by virtue of the order passed by the Honourable Supreme Court in W.P.(C)318/2002 RSA 959/2011 3 dated 9.7.2002 and being a trespasser appellant is not entitled to the decree sought for. It is contended that under section 2(f)(1), 13 and 15 of the Kerala Highway Protection Act, PWD has authority to evict trespassers from puramboke land and therefore appellant is not entitled to the decree sought for. 3. Learned Sub Judge on the evidence found that the plaint schedule property is a puramboke land and appellant himself had filed an application before the Government for assignment of the land and when that application was dismissed, he filed an appeal before the RDO, Thrissur and that was also dismissed and in such circumstances appellant cannot claim that he has perfected title by adverse possession. The suit was therefore dismissed. Appellant challenged the decree and judgment before the District Court, Thrissur in A.S.327/2008. Learned District Judge on reappreciation of the evidence confirmed the findings of the learned Sub Judge and dismissed the appeal. It is challenged RSA 959/2011 4 in the second appeal. 4. Learned senior counsel appearing for the appellant was heard. 5. Learned senior counsel argued that appellant and his predecessors have been in exclusive possession of the property for more than 30 years and a building has been constructed therein and building tax was being collected by the Panchayat and electricity charges and water charges are being paid and in such circumstances findings of the courts below that appellant is not entitled to the declaration of title and injunction is not sustainable. Learned counsel also submitted that even if it is to be found that appellant has not perfected title, liberty be granted to pursue the application for assignment of the land or to file a separate application. 6. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 7. The trial court and the first appellate RSA 959/2011 5 court entered a factual finding that plaint schedule property is a road puramboke. That factual finding cannot be interfered. The only question is whether appellant has perfected title by adverse possession against the Government. Though appellant claims that he and his predecessors have been in exclusive possession of the property for more than 30 years and therefore title of the Government has been lost by adverse possession, where it is admitted that he had filed an application for assignment of the land before the government and when the application for assignment was rejected, he filed an appeal before the RDO, Thrissur and by Ext.B7 order the said appeal was also dismissed. When appellant admitted title of the Government even in 2007, he cannot claim that he has perfected his title by adverse possession. In such circumstances, the appeal can only be dismissed as no substantial question of law is involved in the appeal. It is made clear that dismissal of the appeal will not affect the right RSA 959/2011 6 of the appellant to pursue his application for assignment of the land or to file a separate application if permissible in accordance with law. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006