IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 290 of 2003(A)
1. PAZHUKKALIYIL JAMES
... Petitioner
Vs
1. FOREST RANGE OFFICER
... Respondent
For Petitioner :SRI.M.K.DAMODARAN (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :20/01/2011
O R D E R
HARUN-UL-RASHID, J.
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S.A.No.290 Of 2003
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Dated this the 20th day of January, 2011.
J U D G M E N T
The plaintiffs in O.S.No.78/1992 on the file of the Sub
Court, Sultan Batheri are the appellants. The appeal is directed
against the decree and judgment in A.S.No.1/1997 on the file of
the District Court, Wayanad. Suit was filed for a permanent
prohibitory injunction restraining the defendants from trespassing
into plaint schedule property or committing any act of waste
therein or drawing power fence through the property. The trial
court dismissed the suit. The appellate court confirmed the
decree and judgment passed by the trial court. Parties
hereinafter are referred to as the plaintiffs and defendants as
arrayed in the suit.
2. The defendants are the forest officials and District
Collector, Wayanad. The total extent of the plaint schedule
property is 5.15 acres. Out of the said total extent, 3.50 acres is
wet land and balance 1.65 acres is dry land. Plaintiffs claimed
title and possession over the plaint schedule property as per sale
deed executed by one Parvathy Chettichiyar in 1990. The
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plaintiffs contended that the plaint schedule property was
originally Government land which was enjoyed and possessed by
Parvathy Chettichiyar and another, that they have obtained
pattayam from the Government and while they were in
possession, they partitioned the property in the year 1970. In
the said partition, the plaint schedule property was allotted to
Parvathy Chettichiyar. Suit was filed alleging that on 1.4.1992
the Forest Range Officer and some others attempted to destroy
the improvements and attempted to draw power fencing through
the plaint schedule property.
3. The defendants resisted the suit denying the plaint
averments and prayed for dismissal of the suit.
4. Parties adduced oral and documentary evidence.
Exts.C1 & C2 were marked as court exhibits.
5. After appreciating oral and documentary evidence the
trial court found that the plaint schedule property continues to be
Government land and Government has not assigned the property
to anybody and has not issued any patta in respect of the plaint
schedule property in favour of anybody. The trial court also
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recorded the finding that 1.65 acres of dry land is in the actual
possession of the forest department forming part of vested forest
and it is being preserved and protected by the Forest
Department. Regarding 3.50 acres of wet land, the court
observed that the defendants have not raised any claim over the
said land which is admittedly in the possession of the plaintiff.
Before the trial court, the learned Government pleader submitted
that the Government is prepared to grant patta in favour of the
land in their possession. The trial court noticed that the
defendants have no interest at all to enter into the wet land
because it is an admitted case that the wet land is in the actual
possession of the plaintiff and it is being cultivated by them. The
trial court further observed that the dispute is only regarding the
dry land and it is with respect to wet land the plaintiff really
seeks injunction. In the circumstance, the trial court took the
view that the plaintiff has no reason to trespass into the wet land
and therefore held that they are not entitled to any injunction
regarding the wet land. The findings are entered solely based on
the facts, evidence and circumstances. The plaintiff challenged
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the said findings before the appellate court. The appellate court
also appreciated the evidence on record and confirmed the
findings of the trial court.
6. The findings of the trial court confirmed by the
appellate court that the dry land is in actual possession of the
Forest Department forming part of it being preserved and
protected by the Forest Department was arrived at after
examining the facts, evidence and circumstances of the case.
The decision is purely on the basis of facts and therefore, in
second appeal this Court cannot interfere with the said findings.
Regarding the wet land also, the trial court as well as the
appellate court are justified in not extending the relief of
injunction. It is clearly stated by the trial court that it is an
admitted case that wet land is in actual possession and it is being
cultivated by them. The court below also noticed that the
defendants have no claim over the wet land. In fact, the court
recorded the submission of the learned Government Pleader that
Government propose to issue patta for the wet land in their
possession. The court finding that the wet land is in the
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possession of the plaintiff, did not extend the relief of injunction,
after recording the fact that the defendants have no idea and
interest at all to enter into the wet land. Therefore, this Court is
of the view that there is no justification for this Court to interfere
with the decision taken by the fact finding court in not extending
the relief of injunction to the plaintiff. In the facts and
circumstances of the case the second appeal lacks merit and is
liable to be dismissed.
7. I have already stated the submission of the learned
Government Pleader which was recorded by the trial court. In
the said circumstance, it is open to the plaintiff to approach the
Government for issuance of patta in their favour. In that event,
the Government shall consider the claim of the plaintiffs and shall
pass appropriate orders.
In the result, the appeal fails and accordingly dismissed with
the observation made above. No order as to costs.
HARUN-UL-RASHID,
Judge.
bkn/-