IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 191 of 2007()
1. BICHIKOYA, S/O.ABDUL KHADER,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. KOCHEEBI, W/O.AHAMED, KAMMUKKAKAM
3. SAINABI, W/O.MOIDEENKOYA,
4. AYISHABI, W/O.MOHAMMED KOYA,
5. ABDUL LATHEEF, S/O.ABDUL KHADER,
6. SOUDATH, W/O.MOHAMMED KOYA,
7. RAMLATH, W/O.SALEEM,
8. JAFFER, S/O.ABDUL KHADER,
9. MUJEEB RAHMAN, S/O.ABDUL KHADER,
10. SUNITHA, W/O.RAFI,
For Petitioner :SRI.SIBY MATHEW
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :06/12/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
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R.S.A. NO. 191 OF 2007
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Dated this the 6thday of December, 2007
J U D G M E N T
Plaintiff in O.S. 603/2000 on the file of Munsiff Court, Kozhikode is
the appellant. Respondents are defendants. Plaintiff instituted the suit
seeking a decree for permanent prohibitory injunction contending that plaint
schedule property along with other land was originally entrusted to
P.V.Abdul Khader, father of the appellant, by the Port Department in 1960
as per lease agreement and Abdul Khader was conducting a coir factory
and while so in 1963-64 he entrusted it to M.M.Thybali retaining his status
as Manager under an oral entrustment. Another land adjacent to the
factory having an extent of 800×20 ft. was also in the possession of
appellant as lease hold property. Thybali received property having a total
extent of 10.50×80 ft. and was conducting the coir factory under the name
and style of “M.P.Rope Works”. In 1985, that property was returned back
to Abdul Khader after receiving consideration. Since then, it is functioning
under the name Sadhu Coir Works with 50 employees and now 30
employees are working there. The said employees with their family are
depending on the income being derived from the coir factory. It was also
contended that the factory is having electricity and telephone connections.
In the meanwhile, some area bound the said land was taken by the
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Revenue Department for development of Beach road. Plaint schedule
property in possession of the appellant is having kuzhikore effected by the
appellant or his predecessor. On 31.1.1997 Abdul Khader died.
Thereafter appellant along with other defendant are in possession of the
property. Appellant and his predecessors have been in possession of the
property uninterruptedly for the last more than 40 years. The Government
did not take any action under Land Conservancy Act. So Government has
lost the title by adverse possession and respondents are not entitled to
tress pass into the plaint schedule property or demolish the building or
remove appellant from possession of the property. It was also contended
that on 23.8.2000 some officers of the Revenue Department came to the
plaint schedule property and demanded demolition and removal of the
building for the purpose of road works. So respondents are to be
restrained from demolishing the building. First respondent resisted the
suit contending that appellant has no right in the plaint schedule property
and PWD is proceeding with the work of road development. Because of
the obstruction caused by the appellant, the work could not be completed
in that area. The suit is bad for non-joinder of PWD. It was contended that
appellant or his predecessor was not in possession of the property and
they have not perfect right by adverse possession and appellant is not
entitled to the decree sought for.
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2. Learned counsel on the evidence of PWS 1 and 2, Exts. A1 to
A63 and C1 & C2, dismissed the suit holding that appellant did not
establish the title by adverse possession and holding that first respondent
is entitled to take possession of the property. Appellant challenged the
judgment before the Sub court, Kozhikode in A.S. No.130/2003. Learned
sub judge on reappreciation of evidence confirmed the findings of the
learned Munsiff and dismissed the appeal. It is challenged in the second
appeal.
3. Learned counsel appearing for appellant was heard. The
argument of the learned counsel is that courts below did not properly
appreciate the facts or the evidence and it should have found that Abdul
Khader has been in possession of the property for the last more than 40
years and title of the State has been lost by adverse possession and
limitation. It was further argued that Government has not taken any
proceedings under Land Conservancy Act and it establishes that even if
Government has any right, it was lost. It was also contended that courts
below should have granted a lesser relief even if, the major relief sough for
cannot not grated.
4. On hearing the learned counsel, I do not find any substantial
question of law involved in the appeal. Plaint schedule property is
admittedly Government land. Appellant claimed that it was entrusted to his
father Abdul Khader and he has been in possession of the property since
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then and Government has not taken any action under Kerala Land
Conservancy Act and as appellant is continuing the uninterrupted
possession of the property, title of the Government is lost. But apart from
contending that plaint schedule property was entrusted with the Abdul
Khader, no evidence was produced to prove the entrustment. Even the
nature of the entrustment was not disclosed there was no case of an
assignment of the land. Hence even if there was an entrustment, it could
only be either a lease or license. In both the case appellant cannot claim
adverse possession either against the licensor or land lord. Courts below
on the evidence rightly found that appellant or his predecessor did not
establish title to the property perfected by adverse possession. Learned
counsel argued that even if appellant is not entitled to a decree on the
basis that he has not perfected title by adverse possession, courts below
should have granted a lessor relief as appellant cannot be evicted other
than by due process of law. But appellant has not sought a decree
restraining first respondent from taking possession other than by due
process of law. There was no case that there was an attempt on the part
of the Government to take possession of the property. Facts of the case
reveal that the suit was dismissed on 29.3.03 and first appeal was
dismissed on 29.11.06. If there was attempt to evict appellant other than
by due process of law Government could have done it as the first appeal
was dismissed more than one year back. In such circumstances I find
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reason to grant the limited relief sought for by the Appellant. As no
substantial question of law is involved appeal is dismissed in limine. It is
made clear that dismissal of the appeal will not prevent appellant from
claiming right, if any, available under Land Conservancy Act.
M.SASIDHARAN NAMBIAR, JUDGE
vps
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