IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 65 of 1998(A)
1. C.P.JAMEELA
... Petitioner
Vs
1. THE PLANTATION CORPN., OF KERALA
... Respondent
For Petitioner :SRI.K.G.GOURI SANKAR RAI
For Respondent :SRI.JOSEPH MARKOSE (SR.)
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :24/05/2010
O R D E R
M.N. KRISHNAN, J.
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A.S. Nos. 65 & 142 OF 1998
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Dated this the 24th day of May 2010.
J U D G M E N T
Both these appeals are preferred against the
judgment and decree passed by the Subordinate Judge,
Hosdrug in O.S.42/96. The suit is one for recovery of
possession of 30 cents of property. The court below
granted a decree for recovery of possession of the
property and permitted the plaintiff to realize mesne
profits but ordered value of improvements to be paid to
the defendant. Against the decree for recovery of
possession and the mesne profits the defendant has
come up in appeal as A.S.65/98 and against the order to
grant value of improvements the plaintiff has come up in
appeal as A.S.142/98. The brief facts necessary for the
disposal are as follows.
.A.S. Nos. 65 & 142 OF 1998
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2. The plaintiff is the Plantation Corporation
of Kerala. By virtue of an order, Ext.A1 the Government of
Kerala had sanctioned to accord lease of 1192.718
hectres of forest land in Panathady village Kasaragod
Range comprised in Survey No.317 of that village along
with some other properties. As per clause No.V of Ext.A1,
“an agreement shall be executed by the lessee
incorporating the above terms and conditions of lease
and also any other conditions that may be insisted on.”
So Ext.A1 only evidences a transaction whereby the
Government have accorded sanction for the lease of the
property. I am informed that on the strength of Ext.A1,
subsequently lease document has been executed. When
a Government property is leased, it is certain that there
will be a sketch accompanying the lease deed. Now the
plaintiffs claim recovery of possession of the property
comprised in survey No. 317 on the strength of title. The
defendant on the other hand would contend that he has
.A.S. Nos. 65 & 142 OF 1998
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got property in survey Nos. 370/01 and 370/02 and along
with the same she is in possession of the property
described in the plaint schedule and therefore the
plaintiff does not have title to the plaint schedule
property. So in order to succeed in a suit of this nature
the plaintiff has to prove by production of title deed that
the property described in the plaint schedule property
forms part and parcel of the property leased in favour of
the plaintiff. If it is established then only the question of
adverse possession or limitation that may have to be
considered. If the property described in the plaint
schedule property is not taken in by the lease deed then
most probably the Government alone may have a right
over the property which is to be decided separately by an
independent suit.
3. Now so far as this suit is concerned the
question to be resolved is whether the plaint schedule
property is taken in by the lease granted in favour of the
.A.S. Nos. 65 & 142 OF 1998
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plaintiff or not. If the answer is in positive then unless it
is barred by adverse possession, the plaintiff will be
entitled to get recovery of possession of the property.
Therefore the matter requires consideration at that angle.
4. So far as the decree in A.S.142/98 is
concerned if it is found that the plaintiff has got title to
the property and the defendant is a trespasser of the
property then by no stretch of imagination a trespasser is
entitled to claim value of improvements over the
property. It all depends upon the question of title of the
plaintiff to get a decree in his favour. Therefore the
matter requires reconsideration.
5. Hence the judgment and decree of the
trial court is set aside and an opportunity is given to the
plaintiff as well as the defendant to produce both
documentary as well as oral evidence in support of their
respective contentions and let the property be identified
in accordance with the title deeds and the matter be
.A.S. Nos. 65 & 142 OF 1998
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disposed of in accordance with law. Parties are directed
to appear before the trial court on 2.7.2010. Refund of
full Court fee is allowed.
M.N. KRISHNAN, JUDGE.
ul/-
.A.S. Nos. 65 & 142 OF 1998
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M.N. KRISHNAN, J.
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A.S. Nos. 65 & 142 OF 1998
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J U D G M E N T
24th May, 2010.