IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 RSA.NO. 1175 OF 2009() ----------------------------------- AS.129/2007 OF PRL.SUB COURT,IRINJALAKUDA OS.281/2006 OF MUNSIFF COURT,CHALAKKUDY .................... APPELLANT – APPELLANT – PLAINTIFF: ------------------------------------------------------ KARTHYAYANI AMMA,AGED 78 YEARS, W/O.RAGHAVAN MENON,MURIKKUMPUZHA HOUSE, MURINGOOR VADAKKUMMURI VILLAGE, CHALAKUDY, TRICHUR DISTRICT. BY ADV. SRI.JESWIN P.VARGHESE RESPONDENTS – RESPONDENTS – DEFENDANTS: ------------------------------------------------------------------- 1. THE GOVERNMENT OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, COLLECTORATE,AYYANTHOLE,THRISSUR. 2. THE TAHSILDAR,MUKUNDAPURAM TALUK, IRINGALAKKUDA. 3. THE VILLAGE OFFICER,MELOOR, MUKUNDAPURAM TALUK, IRINJALAKKUDA. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.1175 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6th day of January, 2010 J U D G M E N T --------------------- Appellant sued the respondents, State and its officials for a decree for mandatory injunction to direct them to receive revenue for the suit property described as 10 cents comprised in Sy.No.126. According to the appellant her husband got 60 cents in Sy.No.126 and another 64 cents in Sy.No.141/2 as per order in C.R.P. No.1421 of 1971 of this Court arising from A.S. No.552 of 1966. Appellant claimed that after sale of a portion of the property comprised in Sy.No.126 her husband is in possession of the remaining 10 cents scheduled in the plaint and she is looking after the property on behalf of her husband. Since respondents refused to take revenue for the suit property, the present suit. Respondents contended that husband of appellant got only 60 cents in Sy.No.126 out of which 26 cents have already been sold to Francis Decosta and wife and another 24 cents, to Dr.Jacob Manjooran. Of the remaining 10 cents, 6½ cents have been taken for development of the National Highway and what remained is only 3½ cents which is part of R.S.A. No.1175 of 2009 -: 2 :- puramboke land. Respondents contended that appellant or her husband has no possession or title over the said property. They further contended that no revenue was paid for the property after 1971. Trial court found against the claim of the appellant and dismissed the suit. First appellate court has confirmed the same. Hence this Second Appeal urging by way of substantial questions of law whether courts below have committed a fundamental error in dismissing the suit in its entirety without considering the material fact that assignees from the appellant are remitting tax for the properties assigned to them and whether courts below have misinterpreted the provisions of law and the judgment in R.S.A. No.649 of 2005 to deny relief to the appellant. Learned counsel asserted the grounds stated in the Second Appeal to contend that findings entered by the courts below are incorrect. 2. Prayer in the suit would appear to be very innocent, a direction to the respondents to receive revenue for the suit property. But unless appellant or her husband has title or possession over the property mutation cannot be effected in their name and respondents cannot be directed to receive the revenue for the suit property which will only create complications in the matter. The only document produced by the appellant to prove title R.S.A. No.1175 of 2009 -: 3 :- and possession is Ext.A1, compromise decree in A.S. No.552 of 1966. No document to prove delivery of possession of the property in favour of the husband of appellant has been produced. There is no case or evidence that revenue was paid either by the appellant or her husband for any portion of the property after 1971. It is not disputed that of the 60 cents which husband of appellant claimed by way of title in Sy.No.126, 26 cents have already been sold to Francis Decosta and wife and 24 cent have been sold to Dr.Jacob Manjooran. What the appellant also claimed is the remaining 10 cents out of which it has come in evidence that 6½ cents have been given for development of the National Highway. According to the respondents remaining 3½ cents are puramboke land. Appellant has not produced any document to show that the remaining 3½ cents belonged to her husband. 3. Further fact revealed from the evidence is that appellant had filed O.S. No.744 of 1993 for recovery of possession of the very same property on the strength of title though against certain other persons and that suit was dismissed obviously holding that appellant has no title over the property. That dismissal was confirmed in R.S.A.No.649 of 2005. Exhibit B1 is the copy of judgment in R.S.A. No.649 of 2005. If that be so appellant cannot be heard to say in R.S.A. No.1175 of 2009 -: 4 :- this proceeding that she is still in possession of the suit property. Hence respondents cannot be directed to receive revenue for the said property. I do not find any substantial question of law involved in the Second Appeal requiring its admission. 4. Learned counsel for appellant submitted that in the written statement filed by the respondents it is stated that appellant has not filed any application in Form No.10 and that is the proper remedy available to the appellant. Learned counsel requests that appellant may be permitted to pursue that remedy. I make it clear that if there is any such remedy available to the appellant and that is sanctioned by law it is open to the appellant to do so. With the above observations Second Appeal is dismissed in limine. Interlocutory Application No.2680 fo 2009 shall stand closed. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. No.1175 of 2009 -: 5 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO. 1175 OF 2009 =================== J U D G M E N T 6TH JANUARY, 2010 R.S.A. No.1175 of 2009 -: 6 :-