IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 RSA.No. 401 of 2008 ----------------------- AS.213/2001 of ADDL. DISTRICT COURT (SPL.COURT), KOTTAYAM OS.137/1998 of MUNSIFF COURT, VAIKOM .................... APPELLANTS:ADDL. APPELLANTS 2 & 3/LEGAL HEIRS OF THE PLAINTIFF -------------------------------------------------------------------------------- 1. B.RAMA RAO,S/O.BALAKRISHNAN EMBRAN, VALLAYIL MADATHIL,VELLOOR VILLAGE, VAIKOM TALUK. 2. V.B.AHALYA,W/O.BALAKRISHNAN EMBRAN, VALLAYIL MADATHIL,VELLOOR VILLAGE,VAIKOM TALUK. BY ADV. SRI.B.KRISHNA MANI RESPONDENTS:RESPONDENTS/DEFENDANTS/ADDL. APPELLANTS 4 TO 5 --------------------------------------------------------------------------------- 1. KERALA STATE REPRESENTED BY COLLECTOR, KOTTAYAM. 2. SPECIAL TAHSILDAR (LA) KOTTAYAM. 3. VELLOOR GRAMA PANCHAYAT,REPRESENTED BY ITS SECRETARY,MEVELLOOR P.O,VAIKOM,KOTTAYAM. 4. SUNITHA,D/O.BALAKRISHNAN EMBRAN, VALLAYIL MADATHIL,VELLOOR VILLAGE,VAIKOM TALUK. 5. SUPRIYA,D/O.BALAKRISHNAN EMBRAN, VALLAYI MADATHIL,VELLOOR VILLAGE,VAIKOM TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ----------------------------------------------------------- R.S.A. No 401 of 2008 ---------------------------------------------------------- Dated this the 27th May 2008 JUDGMENT Legal representatives of the plaintiff who have lost their case concurrently in both the courts below are the appellants in this R.S.A. The original plaintiff filed O.S. No 137 of 1998 before the Munsiff's Court, Vaikom for declaration of title in relation to an extent of 5.77 Ares of land which is scheduled as B schedule to the plaint alleging that it is the property which remains after acquisition of 22.75 Ares of land which is described as A schedule to the plaint from out of 28.52 Ares of land owned by him under Ext A1 document and for injunction both mandatory and prohibitory. It is the case of the plaintiff that he obtained the property of 70 cents (28.52 Ares) comprised in survey number 629/5A and 5B by virtue of Ext A1 sale deed of Sub Registry Office, Kaduthuruthy. Out of the said property, 22.75 Ares of land was acquired by the defendant under the provisions of the Land Acquisition Act. Remaining 5.77 Ares is B schedule property. He is the absolute owner in possession and enjoyment of the said property which is by the side of Muvattupuzha river. 2.20 Ares of land is remaining as thitta and 3.57 Ares will be submerged in water during rainy season. Demand made to the defendant to acquire B schedule RSA 401/08 2 property as well along with plaint A schedule or in the alternative to give access to plaint B schedule property to a length of 53 metres and width of 4 metres was not acceded to by them despite the fact that there is no other way for ingress and egress to the said plaint B schedule property. Hence the prayer for declaration that he is absolute owner in possession and enjoyment of plaint B schedule property covered by Ext A1 sale deed and restraining the third defendant from trespassing into plaint B schedule property and from altering its boundaries and to direct the third defendant to provide a cartable road through the northern boundary of plaint A schedule property for the ingress and egress to plaint B schedule property. Respondents-defendants resisted the suit and they contended that the plaintiff has no right or possession over the property described as B schedule. There is no such property in existence after the acquisition of 22.75 Ares of land belonging to the plaintiff. 2. On the above pleadings the trial court raised necessary issues for trial and considering the evidence adduced at trial which consisted of the oral evidence of P.W.1 and documentary evidence of Exts A1 to A7 (a) dismissed the suit holding that the plaintiff has not established his case of his having in possession plaint B RSA 401/08 3 schedule property after acquisition of plaint A schedule property by the defendant. Aggrieved by the judgment and decree so passed by the trial court plaintiff filed A.S. No 213 of 2001 before the first appellate court. Pending appeal appellant-plaintiff died and his legal representatives were impleaded as additional appellants 2 to 5. Lower appellate court considered the contentions of the appellants and the appellate court also came to the conclusion concurring with the findings of the trial court that there is no B schedule property left behind after the acquisition of plaint A schedule property and consequently dismissed the appeal. 3. The contention that is vehemently advanced before me by the learned counsel for the appellant is that the extent of the property obtained by the original plaintiff under Ext A1 sale deed is an extent of 28.52 Ares and what is acquired by the State for the third defendant is only 22.75 Ares which is scheduled as plaint A schedule and that the balance land is what is scheduled as B schedule which is in between Muvattupuzha river and plaint A schedule property acquired by the Government and a declaration of title in relation to that portion should have been granted and that a pathway for access to that property also should have been allowed by the courts below. RSA 401/08 4 4. The argument advanced on the basis of Ext A1 that 5.77 Ares of land remaining after the acquisition of 22.75 Ares of land cannot be accepted especially in the light of the contention advanced by the defendant that the entire property owned by the first plaintiff was acquired and that was having only an area of 22.75 Ares. Even the case of the appellant plaintiff is that the property is by the side of Muvattupuzha river and 2.20 Ares of land is remaining as a thitta and 3.57 Ares will be submerged in water during rainy season. So even according to the original first plaintiff, though plaint B schedule is described as 5.77 Ares what is available is only 2.20 Ares as 3.57 Ares is practically washed away by the river or will be submerged in water during rainy season. However it was up to the plaintiff to establish that aspect. There is absolutely no reliable evidence to establish that aspect. 5. Learned counsel for the appellants submitted before me for perusal Note to award in L.A. 3/94 whereunder plaint A schedule property had been acquired by the State to contend that even according to the Land Acquisition Officer/Special Tahsildar (L.A) Kottayam what was purchased by the first plaintiff under Ext A1 is 28.52 Ares and what is acquired is only 22.75 Ares as stated in RSA 401/08 5 paragraph 3 at page 12 thereof. True that such a statement is there in the Note to the award. But it is followed by the following sentence as well:- “ No bit of land is left behind as alleged. The present land acquisition site extends upto extreme bank of the river on the western side and the question of providing access facility to a non-existent plot does not arise.” Counsel also invited my attention to the commission report and plan in an earlier suit between the same parties as O.S.No 923 of 1994 which was marked in this case as Exts. A6 and A6(a) which suit was subsequently renumbered as O.S. No 318 of 1995. Therein on the request of the plaintiff the present lie of Exts. A and B schedule properties had been directed to be ascertained and the commissioner has noted that B schedule property lies on the western side of A schedule property but that B schedule property is the property that lies adjoining Muvattupuzha river in a slanding position into the river. This means that plaint B schedule property lies as bank of the river only and whether it will remain as bank or as river depends on the level of water within the river. It was under the above circumstances that the defendants also acquired only the rest of the land upto the bank of the river which is described as A schedule. RSA 401/08 6 6. When all lands upto the bank of the river has been acquired there remains nothing for a decree being granted to the plaintiff declaring title and to provide a pathway for him to have access to that portion as beyond the bank there is only the river to which plaintiff cannot seek declaration of title of any portion. There is no question of law and much less any substantial question of law to be agitated before this court in this Second Appeal. In the result, concurring with the findings of the courts below I dismiss this R.S.A in limine refusing admission. Sd/- K.P.BALACHANDRAN Judge 27/05/2008 en [true copy]