IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1175 of 2009()
1. KARTHYAYANI AMMA,AGED 78 YEARS,
... Petitioner
Vs
1. THE GOVERNMENT OF KERALA,
... Respondent
2. THE TAHSILDAR,MUKUNDAPURAM TALUK,
3. THE VILLAGE OFFICER,MELOOR,
For Petitioner :SRI.JESWIN P.VARGHESE
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :06/01/2010
O R D E R
THOMAS P.JOSEPH, J.
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R.S.A. NO.1175 of 2009
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Dated this the 6th day of January, 2010
J U D G M E N T
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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, 6= cents have been taken for development of the National
Highway and what remained is only 3= cents which is part of
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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
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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 6= cents have been
given for development of the National Highway. According to the
respondents remaining 3= cents are puramboke land. Appellant
has not produced any document to show that the remaining 3=
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
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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
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THOMAS P.JOSEPH, J.
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R.S.A. NO. 1175 OF 2009
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J U D G M E N T
6TH JANUARY, 2010
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