IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 182 of 2001(E)
1. ABOOBACKER
... Petitioner
Vs
1. VENGOLA GRAMA PANCHAYATH
... Respondent
For Petitioner :SRI.V.RAJENDRAN (PERUMBAVOOR)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :27/08/2008
O R D E R
K.P. BALACHANDRAN, J.
------------------------------------------------------
S.A. No 182 of 2001
-----------------------------------------------------
Dated this the 27th August 2008
JUDGMENT
The plaintiff in O.S. No 45 of1998 on the file of the Munsiff’s
Court, Perumbavoor is the appellant assailing the concurrent verdict
of the courts below negativing his claim for declaration of his title over
the schedule property by adverse possession and for grant of
permanent prohibitory injunction. He instituted the said suit inter alia,
on the allegations that plaint A schedule property was Sarkar
puramboke comprised in re-survey number 85/5 of block 21 and
having old survey number 159/3, that the property surrounding the A
schedule property originally belonged to the grandfather of the
plaintiff; that the southern property is their residential garden; that the
property on the east of A schedule property is paddy field comprised
in survey number 85/8 belonging to the plaintiff; that the property on
the western side of A schedule comprised in survey number 85/2
belongs to Veeravu, the additional second defendant; that previously
the said property also belonged to the grandfather and grandmother
of the plaintiff and subsequently by partition it was allotted to
SA 182/01 2
Mohammed the brother of the plaintiff’s father and later Mohamed
sold the property to additional second defendant; that on the
southern side of A schedule property there is a tank which is being
used by the plaintiff for cultivation of his property; that though A
schedule property is puramboke land it was in the possession and
enjoyment of the grandfather and grandmother of the plaintiff; and in
continuation of their possession the plaintiff continued in possession
of that property as per agreement dated 28.06.1991; that A schedule
property is lying in a higher level than the paddy field on the eastern
side and is having well defined boundaries on all four sides and at
present there are coconut trees in the said property as also other
improvements which are more than 35 years old; that the
impovements were all effected by the father of the plaintiff; that prior
to the planting of such improvements seasonal crops used to be
cultivated in the said property and thus for the last about 70 years A
schedule property was in the exclusive possession and enjoyment of
the plaintiff and his predecessors, that the father of the plaintiff died
in 1992 and on 28.06.1991he had executed a document in favour of
the plaintiff whereby he assigned all his rights over A schedule
property in favour of the plaintiff and handed over possession of the
SA 182/01 3
said property also to him, that the plaintiff and his predecessors were
in possession and enjoyment of plaint A schedule property openly,
publicly and peaceably adversely to the interest of the Government
and everybody else and thereby he has perfected title to the
schedule property by adverse possession and limitation; that the
property situated on the western side of A schedule property
belonged to the additional second defendant; that the said property
previously belonged to the brother of the plaintiff’s father; that the
said properties were divided among the plaintiff’s father and father’s
brother as per partition deed of 1953; that in the said partition a
pathway is provided for the father of the plaintiff through the property
of Mohammed the brother of plaintiff’s father which pathway runs
upto the Panchayat road; that since alignment of the pathway as per
the partition deed was inconvenient and on the request of the said
Mohammed the alignment of the pathway was made through the
northern side of the property executing a document in that behalf by
the plaintiff’s father on 09.05.1968; that the said pathway which runs
from the western Panchayat road to the property of the plaintiff’s
father was having a width of 6 feet through the western side of the
property of Mohammed; that it is the said property which was
SA 182/01 4
subsequently purchased by the additional second defendant;that
before selling the property to Veeravu the brother of plaintiff’s father
had left out 6 feet width also from the northern side so as to provide
12 ft. of width for the pathway which is described as plaint B
schedule; that the said pathway which starts from the western
Panchayat road terminates on the north western corner of plaint A
schedule property; that the defendants are not having any manner of
right over B schedule pathway and that also exclusively belongs to
the plaintiff and that is the sole access to the A schedule property;
that recently neighbours of the plaintiff including a sister of the
plaintiff instigated the government officials as well as the defendants
against the plaintiff and the defendants are attempting to take forcible
possession of the property from the plaintiff to which they have no
right; that on 15.11.1997 plaintiff received a notice from the Taluk
Surveyor whereby it was intimated that the boundaries of the
property would be refixed on 18.11.1997 at the request of the
Panchayat; that there is absolutely no necessity for fixing the
boundaries of the property since the property is lying within clear and
fixed boundaries; that despite the plaintiff making representation
before the Panchayat the defendants are continuing their illegal
SA 182/01 5
activities; that therefore plaintiff filed O.P. No 20507 of 1997 before
this court and the said original petition was disposed of on
21.11.1997 granting stay for two months with effect from 21.11.1997
and also treating the representation given by the plaintiff before the
Panchayat as statutory notice under Section 249 of the Kerala
Panchayat Raj Act; that however Panchayat has not taken any action
on the representation submitted by the plaintiff and the defendant
Panchayat is attempting to trespass upon the schedule property and
is attempting to reduce possession of A schedule property with them
and that therefore the plaintiff is entitled to get a declaration of his
title over A schedule property which he has perfected by adverse
possession and limitation and also for a decree of permanent
prohibitory injunction restraining the defendants from trespassing
upon the property and causing obstruction in B schedule pathway
and hence the suit.
2. The first defendant resisted the suit contending that the
description of A schedule property is incorrect; that A schedule
property which is a pond was puramboke land and was vested with
the Vengola Grama Panchayat as per the Kerala Panchayat Raj Act
1960; that the tank in that property was known as Kavalakulam; that
SA 182/01 6
some portions of the puramboke land was seen encroached by
Khadeeja, daughter of Abdul Rehiman, Veeravu son of Pareeth and
the plaintiff and so eviction proceedings were initiated against them
and as requested the Taluk Surveyor measured out the entire
puramboke land and the plaintiff has come forward with the present
suit with ulterior motives to obstruct the action taken by the
Panchayat; that Kavalakulam was being used by the eastern
agricultural land owners for agricultural operations prior to the
formation of Periyar Valley Irrigation Canal taking water from that
tankthrough thodu; that the said thodu has a length of half a
kilometre and a portion of the thodu is now reclaimed by the plaintiff;
that about 25 years back electric connection was granted to that
area, but subsequent to the formation of Periyar Valley Irrigation
Canal the water of the tank was not being taken for agricultural
purposes, but still public are using this tank for purposes of bathing
and for cleaning of their agricultural implements; that the puramboke
land vested with the Panchayat is having an extent of 30.5 cents
with a pathway and that was being used by the general public and
that title thereof is vested with the Panchayat; that father of the
plaintiff or his predecessor was not in possession of the property as
SA 182/01 7
alleged and the plaintiff; has to file the suit under Order I Rule 8
C.P.C since numerous persons are interested in the subject matter
over and above Khadeeja Veeravu etc. and Government also is a
necessary party to the suit. The plaintiff, his father and grandfather
were not having right or possession over the schedule properties
and the plaintiff’s grandfather and grandmother had no right to
execute document in favour of the plaintiff on 28.06.1991; that it is
incorrect to say that the coconut trees standing by the side of the
tank are all 35 years of age; that since plaintiff as well as the
neighbouring people have encroached into the puramboke land the
defendant attempted to evict the encroachers and the plaintiff has no
manner of right to file the suit for declaration of title basing the claim
on adverse possession and limitation and that the document dated
28.06.1991 in favour of the plaintiff is not having any validity at all.
There was a public way on the northern side of the second
defendant’s property. Subsequently as per relinquishment six feet
width property was also surrendered by Veeravu for widening the
pathway; and at present the pathway is having 12 feet in width and is
being used by the general public. It is incorrect to say that the B
schedule pathway belongs to the plaintiff. B schedule is a public
SA 182/01 8
pathway vested with the Panchayat and used by the general public.
Plaintiff has filed O.S. No 654/97 before the Munsiff’s Court,
Perumbavoor claiming right of easement by prescription through the
said pathway. The suit is filed by the plaintiff concealing all those
facts. The suit is bad by reason of Section 41 of the Specific Relief
Act. He has no cause of action. Defendants will be taking steps
only after statutory notice to the plaintiff and the suit has to be
dismissed with costs. After including the tank in the People’s
Planning Programme Government have sanctioned Rs one lakh for
maintaining the tank and for constructing its embankment.
3. After amendment of the plaint first defendant filed additional
written statement contending that by the amendment the entire plaint
schedule has been changed. Since the property encroached upon
by the second defendant was excluded from the plaint schedule
there is no cause of action against the additional second defendant.
4. Additional second defendant filed written statement
contending inter alia, that the tank in the plaint A schedule property is
a public tank known as Kavalakulam; that on the western side of the
puramboke property about 2 Ares of property is in his possession
and cultivation; that for eviction of encroachers from the puramboke
SA 182/01 9
land first defendant Panchayat has taken steps to measure the
property with the help of the surveyor; that water from Kavalakulam
was being used by the neighbouring agricultural land owners for
agricultural operations till the formation of Periyar Valley Irrigation
canal and now the tank is being used for bathing purposes as well as
cleaning the agricultural implements and the people of the locality is
maintaining the tank as and when required; that at the time of
purchase of the property by the second defendant there was a 6
feet width pathway on the northern side of the defendant’s property
and that was a public pathway over which plaintiff has no title or
possession; that the documents created in relation to the pathway
are not binding on the public; the telephone as well as electric line
are passing through the pathway, on 07.05.1997 the second
defendant had surrendered 6 feet width property from his property for
widening the said public pathway and the Panchayat has developed
the pathway into a 12 feet width pathway and was also entered in the
road register of the Panchayat and that the said pathway is used by
the public. It is incorrect to say that the plaint A schedule property
was in the possession of the plaintiff as well as his predecessors for
more than 70 years. The entire property was puramboke land.
SA 182/01 10
Plaintiff has not obtained any right over the propety as per karar
executed on 28.06.1991 and he is not entitled to get decree of
declaration of title over plaint A schedule property by way of adverse
possession and also not entitled to get injunction in relation to B
schedule pathway. The defendant has got right to use plaint B
schedule pathway since it is a public way and the plaintiff is not
entitled to get any relief as claimed in the plaint.
5. Subsequent to the impleadment of additional defendants 3
and 4 they also filed separate written statements. Their contentions,
inter alia, are that as per the application filed by the Secretary,
Vengola Grama Panchayat under the Kerala Survey and Boundaries
Act to fix the boundary of an extent of 14.90 Ares of land in survey
number 85/5 of Block No 21 of Vengola village, Taluk Surveyor was
appointed to measure out the property and fix the boundary as per
revenue records and accordingly he had measured the property and
fixed the boundary of A schedule property; that as per the revenue
records plaint A schedule property is kulam puramboke which is
vested with the first defendant and the plaintiff ;has no right to
challenge the action taken by the defendant and he has no cause of
action against the defendants and the suit is liable to be dismissed
SA 182/01 11
with costs.
6. On the above pleadings the trial court raised necessary
issues for trial and considering the case in the light of the above
pleadings and the evidence adduced at trial which consisted of the
oral evidence of P.Ws 1 to 5 and D.Ws 1 to 4 and documentary
evidence Exts A1 to A7(a) and B1 to B5 as also Exts. C1 and C2
dismissed the suit. Appeal filed by the plaintiff before the first
appellate court – A.S. No 56 of 2000 was also dismissed concurring
with the findings of the trial court against which this Second Appeal is
filed. Second Appeal was admitted on the following substantial
questions of law:-
i) Whether a suit filed a person for declaration of this title
over the Government puramboke land based on adverse
possession and limitation is maintainable or not?
ii) Whether a person in possession of Government puramboke
land in his possession can be evicted from the land without
resorting to the provisions of law for eviction of unauthorised
occupants?
7. It is vehemently contended before me by the learned counsel
for the appellant that though the property is government puramboke
land, the property was in possession and enjoyment of the plaintiff
SA 182/01 12
and his predecessors including his father and his paternal
grnadfather for the last 70 years immediately preceding the institution
of the suit and that therefore they have perfected title to the
schedule property and as such appellant-plaintiff is not liable to be
evicted either by the Government or by the first respondent
Panchayat. It is pointed out by the counsel for the first respondent
that the plaintiff as P.W.1 has admitted that he was aware that the
schedule properties including the pathway were government
puramboke land and that State also is impleaded as a party with a
view to get the property assigned; that even in Ext A3 on which the
appellant-plaintiff relies there is a statement to the effect that
prohibitory assessment and kuthakappattom were being paid by his
father and it is accordingly that his father was enjoying the property;
that the said averment binds the appellant though when confronted
with such recital he has pleaded ignorance, but however P.W.1 has
admitted that he has heard from his parents that kuthakappattom
used to be paid for the schedule property and that his paternal
grandfather also had paid kuthakappattom and has even admitted
that in plaint A schedule property nobody has attempted to trespass
upon forcibly and nobody has attempted to close B schedule
SA 182/01 13
pathway and that therefore the suit itself has been filed by the plaintiff
without any cause of action whatsoever and with no right as claimed
over the schedule property and that therefore the courts below
cannot be faulted in dismissing the suit and there is no merit in the
Second Appeal as well.
8. It is common case that plaint A schedule property is a
puramboke land which has now got vested in the first defendant
Panchayat. Though the plaintiff asserts that he has not paid
prohibitory assessment or kuthakappattom in relation to schedule
property, Ext A3 document on which he relies which has been
executed by his father in his favour, shows that the appellant’s father
was in enjoyment of plaint A schedule property paying prohibitory tax
and kuthakappattom. A person who has come into possession and
enjoyment of the property accepting ownership of another and with
obligation to pay prohibitory tax or kuthakappattom as the case may
be, cannot now turn round and say that the possession was hostile to
that of the real owner. Possession which has its origin on
permission cannot at any point of time turn to be hostile. Counsel for
the first respondent has also invited my attention to the decision of
this court in Devassy v. Koratty Grama Panchayat (2008 (1) KLT
SA 182/01 14
719) wherein this court has held that when a person is in possession
of puramboke land paying prohibitory assessment or fine, that
evidences a case of admission of title of the Government and it
cannot be said that he retains animus possidendi even after paying
prohibitory assessment under the provisions of the Land
Conservancy Act. Hence in the instant case the appellant cannot
even for a moment contend that his possession over the schedule
property pursuant to and in continuation of possession and
enjoyment of A schedule property by his father and paternal
grandfather will confer on him absolute title over the property by
adverse possession and limitation. Thus there is no merit in this
Second Appeal and the substantial questions of law formulated donot
in fact arise for consideration as the case in hand is one where the
plaintiff and his predecessors were in possession admitting the title
of the Government over A schedule property. A schedule property
which is puramboke land has now got vested with the first
respondent Panchayat and they have contended that they have not
proposed to evict the appellant forcibly and they would be proceeding
only according to law to get the schedule property recovered from the
possession of the appellant. First respondent is legally entitled to
SA 182/01 15
proceed according to law and recover possession of the schedule
property from the appellant. This appeal is devoid of merit and
deserves only to be dismissed confirming the decree passed
concurrently by the courts below refusing to grant the reliefs prayed
for by the appellant-plaintiff.
9. In the result, I dismiss this Second Appeal. In the
circumstances of the case parties are to suffer their own costs.
Sd/-
K.P. BALACHANDRAN
Judge
27/08/2008
en
Order on CMP No 389 of 2001
—————————————–
Dismissed.
Id./- K.P. Balachandran, Judge
27/08/2008
[true copy]