IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 RSA.No. 1281 of 2004() --------------------------------- AS.NO. 3/1997 of DISTRICT COURT, PATHANAMTHITTA OS.NO. 53/1995 of MUNSIFF'S COURT, RANNI .................... APPELLANT/APPELLANT/PLAINTIFF ----------------------------------------------------- VELIMALA RUBBER CO.LTD., KUTHATTUKULAM ESTATE, KARIKKAYAM, CHITTAR SEETHATHODU VILLAGE, RANNI. BY SRI.JOSEPH MARKOSE, SENIOR ADVOCATE BY ADV. SRI.MATHEWS K.UTHUPPACHAN RESPONDENT(S): RESPONDENTS/DEFENDANTS ---------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, COLLECTORATE, PATHANAMTHITTA. 2. THE TAHSILDAR, RANNY TALUK OFFICE, RANNY. 3. THE VILLAGE OFFICER, CHITTAR SEETHATODU VILLAGE, CHITTAR. BY THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR, J ........................................... RSA .NO.1281 OF 2004 ............................................ DATED THIS THE 24th DAY OF MAY, 2011 JUDGMENT Plaintiff in O.S.11 of 1991 on the file of Munsiff Court, Pathanamthitta is the appellant. Respondents are defendants. Suit was instituted for declaration that plaint schedule property is only a portion of the registered holding owned and possessed by Velimala Rubber Company Ltd and appellant is not liable to pay kuthakapattom and to restrain the respondents by a permanent prohibitory injunction from doing any further action on the basis of a notice, A2.3903/1989 dated 24.12.1990 as it is not legal. The suit was instituted by the Manager of the appellant Velimala Rubber Company Ltd. The contention is that the plaint schedule property forms part of the registered holding belonging to the appellant and has been in their possession and enjoyment for the last more than 60 years and it is a rubber estate owned and possessed by the appellant and does not form part of any kuthakapattom lease. It is contended that as per notice C.3903, 3740 and 3902/1989 dated 23.6.1989, objections of appellant RSA 1281/2004 2 was invited for revising the kuthakapattom rates and on 25.7.1989, appellant filed objection making it clear that the entire area owned and occupied by Velimala Rubber Company Ltd known as Koothattukalam Estate is assigned land and covered under a patta and therefore no kuthakapattom is payable. It was also contended that it was brought to the notice of second respondent that in order to identify the kuthakapattom land if any the properties are to be surveyed and appellant was served with Ext.A2 notice, 3903/1989 dated 24.12.1990 along with a revised rate of kuthakapattom based on G.O.(MS)1026/1985 dated 19.12.1985 and it is illegal per se and from schedule No.111 only the rate in respect of the bearing trees were raised and no rubber trees are included in the schedule and in such circumstances, appellant is entitled to get the declaration and injunction sought for. 2. Respondents resisted the suit contending that the plaint schedule property forms part of the kuthakapattom lease and not patta land of the appellant. It was also contended that Government is competent to revise the rates of kuthakapattom and appellant is bound to pay the amount as claimed and he is RSA 1281/2004 3 not entitled to the declaration or injunction sought for. 3. Learned Munsiff on the evidence of PW1, Dws 1 and 2, Exts.A1 to A4, B1 and B2 dismissed the suit holding that plaint schedule property is part of kuthakapattom lease and Government is entitled to enhance the kuthakapattom and appellant is bound to pay the amount. Appellant challenged the judgment before District Court, Pathanamthitta in A.S.3 of 1997. Before the appellate court, appellant not pressed the relief of decree for declaration of possession and non liability to pay kuthakapattom and pressed only the relief of prohibitory injunction. Learned District Judge found that though appellant raised a contention that Government is not entitled to claim enhancement of kuthakapattom based on the amended rules under the Kerala Land Assignment Rules, appellant had not pleaded the same and in the absence of pleading, the case cannot be considered and therefore confirming the judgment of the trial court, dismissed the appeal. It is challenged in this second appeal. 4. Second appeal was admitted formulating the following substantial questions of law. RSA 1281/2004 4 1)Does the Travancore Kuthakapattom Rules authorise levy of Kuthakapattom on rubber trees ? If so, is a lessee under a lease under the said Rules liable to pay Kuthakapattom in respect of trees cultivated by him ? 2)Does Ext.B2 order issued under the Kerala Land Assignment Rules, 1964 apply to a kuthakapattom lease for revising kuthakapattom rent under the Travancore Kuthakapattom Rules, 1947 ? 3) Whether the Courts below have acted in accordance with law in the matter of appreciating the evidence on record, in passing the impugned decree dismissing the suit ? 5. Learned counsel appearing for the appellant and learned Government Pleader were heard. 6. Learned counsel appearing for appellant submitted that though appellant originally raised a contention that plaint schedule property forms part of the registered holding of appellant, subsequently Government has taken possession of the land, terminating kuthakapattom in view of the directions of this court in WP(C) No.34945 of 2009. Therefore the only dispute now is with regard to the enforceability of the claim for enhanced kuthakapattom for the rubber trees. Learned counsel argued that RSA 1281/2004 5 under Ext.A2, kuthakapattom was enhanced based on Ext.B2 notification, G.O.(MS)No.1026 of 1985 dated 19.12.1985 which is applicable only in respect of the properties assigned under the Kerala Land Assignment Rules and not the kuthakapattom lease. It was argued that the kuthakapattom could be enhanced only as provided under the Travancore Kuthakapattom Rules, 1947 and G.O.(MS)1025/85 dated 19.12.1985 does not cover the rubber trees and rubber trees are planted by the appellant and in such circumstances, enhancement is illegal and therefore appellant is not liable to pay the amount demanded under Ext.A2 and hence a decree restraining the respondents from enforcing Ext.A2 is to be granted. 7. Learned Government Pleader submitted that when an appeal is provided as against the decisions under Kuthakapattom Rules, 1947 and when Ext.A2 order was issued after serving notice on the appellant and inviting objections, without filing an appeal or seeking a decree declaring that Ext.A2 is not enforceable or a decree to quash the same, a decree for injunction cannot be granted. It is also pointed out that there is no pleading based on the contentions now urged, as rightly found RSA 1281/2004 6 by the first appellate court and therefore the appeal is only to be dismissed. 8. As is clear from the plaint, suit was instituted for a declaration that appellant is in possession of the plaint schedule property and it forms part of the registered holding. The decree for injunction sought for was based on the contention that no kuthakapattom is payable in respect of the registered holding. There is no pleading that even though the plaint schedule property forms part of the kuthakapattom lease, no kuthakapattom is payable in respect of the rubber trees or no enhancement could be claimed based on Ext.B2 notification. On the other hand, the very suit is based on the contention that plaint schedule property does not form part of kuthakapattom lease. As rightly found by the first appellate court, if such a contention is raised, the respondent would have obtained opportunity to meet the said contention. Moreover Ext.A2 order was not challenged by filing an appeal. It has become final. In such circumstances, without seeking a decree for declaration that Ext.A2 order is not legal or without setting aside Ext.A2 on the ground that it is illegal, when Ext.A2 order is subsisting, appellant RSA 1281/2004 7 is not entitled to a decree for permanent prohibitory injunction restraining respondents from enforcing that order. In such circumstances, the question whether the Government is entitled to enhance the kuthakapattom and whether appellant is liable to pay enhanced kuthakapattom for the rubber trees are not matters to be settled in the second appeal. On the pleadings, first appellate court rightly found that appellant is not entitled to the decree for injunction sought for. There is no merit in the appeal. It is dismissed. No costs. M.SASIDHARAN NAMBIAR, JUDGE lgk