IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 RSA.No. 1126 of 2007() ---------------------- AS.174/2001 of I ADDL. DISTRICT COURT, PALAKKAD OS.221/1998 of MUNSIFF COURT, CHITTUR .................... APPELLANT/APPELLANT/PALINTIFF ---------------------------------------------- RANGANATHAN, S/O.RAMASWAMY CHETIAR, VELANTHAVALAM, NOW RESIDING AT 15/B, LAKESAN ROAD NO.2, SAIBABA COLONY, COIMBATORE. BY ADV. SRI.S.ANANTHAKRISHNAN RESPONDENTS: RESPONDENTS/DEFENDANTS ----------------------------------- 1. THE TAHSILDAR, CHITTUR. 2. THE VILLAGE OFFICER, THENAMPATHY VILLAGE, CHITTUR TALUK. 3. THE STATE OF KERALA, REPRESENTED BY DISTRICT COLECTOR, PALAKKAD. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ========================= R.S.A.NO.1126 OF 2007 ========================= Dated this the 10th day of January 2008 JUDGMENT Plaintiff in O.S.221/1998 on the file of the Munsiff Court, Chittur is the appellant. Defendants are the respondents. Appellant sought a decree for permanent prohibitory injunction contending that plaint schedule properties along with other properties was originally owned by the predecessor in interest of the appellant by name Swaminathan Assari and others and it was partitioned as per Partition Deed No.593/61 and Plaint B and C schedule properties were allotted to the share of Ramaswamy and Kuzhanthavelu who in turn assigned it in favour of Ramaswamy Chettiar, father of the appellant and Ramaswamy's wife and others executed a deed in favour of appellant and he obtained purchase certificate from the Land Tribunal in O.A.814/1976 and Plaint-C schedule property in the document was allotted to the share of the appellant and subsequently as per registered partition deed of 1986, properties were divided and C- schedule property was allotted to the share of the appellant and he has been in possession and enjoyment of the property and respondents with ulterior motive encroached upon the adjacent property and they attempted to trespass into the property and they R.S.A.1126/2007 2 have no right to trespass into the plaint schedule property and are to be restrained by a permanent prohibitory injunction. First respondent in the written statement contended that appellant encroached on a portion of government land comprised in sy.No.62/19 of Block No.25 in Ozhalapathy Village which was acquired for construction of Staff Quarters to the employees of Sales Tax Check Post, Velanthavalam and to remove encroachment action under the provisions of the Kerala Land Conservancy Act was initiated and appellant appeared on 6.4.1998 and agreed to vacate the encroached portion and Taluk Surveyor was directed to demarcate line in the presence of appellant, but appellant did not turn up in spite of notice issued by the Taluk Surveyor and for the purpose of construction of compound wall, proceedings under Section 11(2) of Kerala Land Conservancy Act was initiated and appellant is an encroacher of Government and is not entitled to the decree. 2. Learned Munsiff on the evidence of PW1, Exts.A1 to A8 series, DW1 and B1, CW1, Ext.C1 and C1(a), dismissed the suit holding that appellant is not entitled to the decree for injunction sought for as respondents have initiated steps under the Kerala Land Conservancy Act. Appellant challenged the judgment before District Court Palakkad in A.S.174/2001. Learned District Judge on re-appreciation of evidence R.S.A.1126/2007 3 dismissed the appeal confirming the findings of learned Munsiff. It is challenged in this appeal. 2. Learned counsel appearing for the appellant was heard. Argument of the learned counsel is that Courts below should not have dismissed the suit without establishing that the disputed property was acquired by the Government and are entitled to proceed under Kerala Land Conservancy Act and therefore the dismissal of the suit is not sustainable. 3. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. The suit is only for injunction simplicitor. The fact that appellant is in possession of the disputed property was not disputed by the respondents also. Respondents contended that appellant encroached the Government land, which was acquired by the Government earlier and he has no right over that property and proceedings were initiated under Kerala land Conservancy Act. The argument of the learned counsel is that that acquisition was not proved. Though appellant instituted the suit after he appeared before the authorities in the proceeding under Kerala land Conservancy Act, he did not seek any decree for declaration of his right over his disputed property. In a suit for injunction, the legality of this proceedings initiated under Kerala Land Conservancy Act is not to R.S.A.1126/2007 4 be decided. As rightly found by the Courts below, when respondents have initiated steps under the Kerala Land Conservancy Act and so long as the appellant did not seek a declaration of his title to the property, he is not entitled to challenge the right of the respondents to initiate the proceedings under the Kerala Land Conservancy Act in this suit. Question whether the plaint schedule property was acquired as claimed by the respondents is to be decided in that proceedings. Respondents admitted that they are only proceeding as provided under Land Conservancy Suit. Hence the suit was rightly dismissed by the Courts below. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR, JUDGE css/ R.S.A.1126/2007 5 M.SASIDHARAN NAMBIAR,J. RSA 1126/2007 JUDGMENT 10/1/2008