IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 449 of 1993(C)
1. HARRISONS MALAYALAM LTD.
... Petitioner
Vs
1. PANKARA MOIDEEN
... Respondent
For Petitioner :SRI.A.M.SHAFFIQUE
For Respondent :SRI A A ABUL HASSAN, V M KURIAN(JR.)
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :27/03/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
S.A.No. 449 OF 1993 & Cross Objection
............................................
DATED THIS THE 27th DAY OF MARCH, 2007
JUDGMENT
Plaintiff in O.S.394 of 1982 on the file of Munsiff Court,
Kalpetta is the appellant. Defendant therein is the respondent.
Appellant filed the suit seeking a decree for recovery of
possession of plaint B schedule property on the strength of title.
Case of the appellant was that plaint A schedule property was
taken assignment by the appellant company as per Ext.A1
assignment deed dated 25.10.1923 and plaint B schedule
property forms part of plaint A schedule property and on
8.5.1979, respondent trespassed into the plaint B schedule
property and reduced the same into his unlawful possession and
he succeeded in getting a purchase certificate from Land
Tribunal and that order was set aside by the Appellate Authority
(Land Reforms) in an appeal filed by appellant and appellant is
therefore entitled to recover possession of plaint B schedule
property on the strength of title with mesne profits @ Rs.100/-
per annum. Respondent in the written statement contended that
appellant has no subsisting title to plaint B schedule property. It
was contended that an extent of 2.35 acres in R.S.188/3A1 was
SA 449/1993 2
entrusted on an oral lease to the respondent by appellant
company in 1960 and he has been in possession of the property
since then and he is entitled to fixity of tenure and though he
obtained purchase certificate from the Land Tribunal, the order
was set aside and SM proceedings was remanded and appellant
is not entitled to the decree sought for. It was also contended
that even if appellant has title to the plaint B schedule property,
it is barred by adverse possession and limitation. The question
of tenancy claimed by the respondent was referred to the Land
Tribunal under Section 125(3) of Kerala Land Reforms Act. Land
Tribunal, Kalpetta tried the referred case along with the SM
proceedings which was remanded by the Appellate Authority
(Land Reforms). Before the Land Tribunal, AW1 and RW1 and
Exts.A1 to A10, C1 to C4 and X1 were marked. Land Tribunal,
on the evidence, upheld the claim of tenancy in respect of plot C
measuring 70 cents marked by the Commissioner in Ext.C2 plan.
On receipt of the findings from the Land Tribunal, Section
Officer of the appellant company was examined as PW1 and
Exts.A1 to A4 and C1 to C3 were marked. On the side of the
respondent, he was examined as DW1 and Exts.B1 and B11 were
marked.
SA 449/1993 3
2. Learned Munsiff, on the evidence, upheld the finding of
the Land Tribunal and held that respondent is a cultivating
tenant having fixity of tenure in respect of plot C marked in
Ext.C2 plan. Learned Munsiff further found that plot A marked
in Ext.C1 plan is part of vested forest as admitted by PW1 and
therefore appellant is not entitled to a decree for recovery of
possession of plot A. But learned Munsiff found that appellant
has title to plot B and respondent has no right over the same
and therefore granted a decree for recovery of possession of plot
B. Appellant challenged the decree and judgment before Sub
Court, Sultan Bathery in A.S.14 of 1991. Respondent filed a
cross-objection challenging the decree granted in respect of plot
B marked in Ext.C2 plan. Learned Sub Judge, on re-appreciation
of evidence, confirmed the decree and judgment passed by
learned Munsiff and dismissed the appeal and cross objection.
The Second appeal is filed challenging the concurrent decree
and judgment disallowing the claim for recovery of possession on
the strength of title in respect of plot A and C marked in Ext.C2
plan. Respondent filed a cross-objection challenging the
dismissal of the cross-objections.
3. The Second Appeal was admitted formulating the
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following substantial questions of law.
i) Whether courts below were right in finding that the plaintiff
does not have title over Plot A of B schedule property merely on
a statement made by the Advocate Commissioner that the said
area was Vested Forest?
ii)Whether courts below were right in considering the question
as to whether a portion of B schedule was vested forest and that
plaintiff has no right over the same?
iii)Whether courts below were right in upholding the finding of
land Tribunal, when there was absolutely no evidence before the
Land Tribunal to prove that the defendant was in possession of
the property prior to 1.4.1964?
4. Learned counsel appearing for appellant and respondent
were heard.
5. The title of the appellant to the property covered under
Ext.A1 was not disputed. The case of appellant was that plot A,
B and C marked by the Commissioner in Ext.C2 plan, is the
plaint B schedule property which is part of plaint A schedule
property. According to appellant plaint A schedule property is
the property covered under Ext.A1. The learned Munsiff and
learned Sub Judge, on the evidence upheld the claim of
SA 449/1993 5
appellant over plot B. But the claim for recovery of possession of
plot A was disallowed holding that report of the Commissioner
and Ext.C3 plan prepared by Surveyor and the evidence
establish that plot A is part of vested forest. Claim for recovery
of possession over plot C was disallowed, upholding the plea of
tenancy raised by the respondent after confirming the finding of
the Land Tribunal.
6. Learned counsel appearing for the appellant
vehemently argued that there is no evidence to prove that plot A
marked in Ext.C2 plan is part of vested forest. It was also aruged
that courts below should not have relied on the report submitted
by the Commissioner to enter a finding that plot A is part of
vested forest. But from the records, it is clear that courts below
did not rely on the report of the Commissioner or the plan
prepared by the Surveyor alone to enter a finding that plot A
forms part of vested forest. On the other hand, evidence of PW1
is sufficient to establish that plot A forms part of vested forest.
The report of the Commissioner and the evidence of PW1 and
DW1 establish that the residential house of respondent is in plot
A. Ext.B1 is a communication sent by the appellant at the time
when respondent started construction of the building. In Ext.B1,
SA 449/1993 6
it has been specifically stated by the appellant that respondent
has started construction of a building in the reserved forest.
PW1 admitted at the time of cross-examination that Forest
Tribunal found that part of the property belonging to the
appellant company was declared as vested forest. PW1 also
deposed that the matter is now pending before Supreme Court
in an appeal filed by the appellant company. PW1 also admitted
that the property which lies just to the north of plot B and shown
in yellow shaded portion which is plot A is part of the vested
forest and it was taken possession by the State pursuant to the
order of Forest Tribunal and now pending before the Supreme
Court. Therefore evidence establish that plot A is part of the
vested forest as found by Forest Tribunal. So long as that order
was not set aside in the appeal filed by the appellant before the
Supreme Court, appellant is not entitled to claim any right or
title to that property. Hence the finding of courts below that
appellant has no subsisting title to plot A and being a vested
forest appellant is not entitled to a decree for recovery of
possession of plot A is perfectly correct. It is made clear that if
the appellant succeeds in the matter pending before the
Supreme Court and it is found that it is not part of vested forest,
SA 449/1993 7
appellant is entitled to seek appropriate remedy available under
law.
7. The argument of learned counsel appearing for
appellant was that there is no evidence to prove that respondent
has been in possession of the property in plot C before 1.4.1964
and the evidence only show that he has been in possession after
1.1.1970 and therefore the finding of the Land Tribunal as
upheld by the first appellate court is unsustainable. The case of
the appellant could have been appreciated if appellant had a
case that respondent was permitted to cultivate the property but
permission was granted only after 1.4.1964 and therefore
respondent is not entitled to fixity of tenure. But that was not the
case pleaded or sought to be proved. What was contended by
the appellant was that respondent is a rank trespasser, who
trespassed into plaint B schedule property on 8.5.1979. On the
otherhand case of respondent was that he was in possession of
the property from 1960 onwards as per an oral lease granted by
appellant company. Therefore if the evidence establish that
case of trespass of 1979 alleged by appellant is not true, then the
only other alternative case available is the one pleaded by the
respondent is that he has been in possession of the property
SA 449/1993 8
from 1960 onwards and that too as per oral lease granted by the
appellant company. The Land Tribunal as well as first appellate
court appreciated the evidence and found that Ext.B2 dated
12.11.1973 establish that appellant had granted permission to
the respondent to cultivate the paddy field. The relevant portion
of Ext.B2 reads as follows:-
“It has been reported to me by the
Conductor, Kardoora Division that
you have trespassed into the
Company’s Land adjoining the
paddy plot(swamp)alloted to you
for cultivation and that you have
planted the trespassed area with
tapioca”.
8. As rightly found by the courts below, Ext.B2 establish
that respondent has been cultivating the paddy field before
1973 and that was as permitted by the appellant company. If
that be so, case of appellant that respondent trespassed into
plaint B schedule property in 1979 as alleged in the plaint
cannot be true. Land Tribunal and first appellate court in the
light of the evidence accepted the case of the respondent that he
SA 449/1993 9
has been in possession of plot C marked in Ext.C2 plan as per an
oral lease from 1960 onwards. I find no reason to differ with
that finding as it is a possible and reasonable finding that could
be taken on the evidence on record. In such circumstances,
there is no merit in the appeal. It is dismissed. Though a cross-
objection was filed, no substantial question of law arises in the
cross-objection. The cross-objection is also dismissed.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-