High Court Kerala High Court

Pazhukkaliyil James vs Forest Range Officer on 20 January, 2011

Kerala High Court
Pazhukkaliyil James vs Forest Range Officer on 20 January, 2011
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

SA.No. 290 of 2003(A)



1. PAZHUKKALIYIL JAMES
                      ...  Petitioner

                        Vs

1. FOREST RANGE OFFICER
                       ...       Respondent

                For Petitioner  :SRI.M.K.DAMODARAN (SR.)

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :20/01/2011

 O R D E R
                      HARUN-UL-RASHID, J.
                       ------------------------
                       S.A.No.290 Of 2003
                        ----------------------
            Dated this the 20th day of January, 2011.

                          J U D G M E N T

The plaintiffs in O.S.No.78/1992 on the file of the Sub

Court, Sultan Batheri are the appellants. The appeal is directed

against the decree and judgment in A.S.No.1/1997 on the file of

the District Court, Wayanad. Suit was filed for a permanent

prohibitory injunction restraining the defendants from trespassing

into plaint schedule property or committing any act of waste

therein or drawing power fence through the property. The trial

court dismissed the suit. The appellate court confirmed the

decree and judgment passed by the trial court. Parties

hereinafter are referred to as the plaintiffs and defendants as

arrayed in the suit.

2. The defendants are the forest officials and District

Collector, Wayanad. The total extent of the plaint schedule

property is 5.15 acres. Out of the said total extent, 3.50 acres is

wet land and balance 1.65 acres is dry land. Plaintiffs claimed

title and possession over the plaint schedule property as per sale

deed executed by one Parvathy Chettichiyar in 1990. The

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plaintiffs contended that the plaint schedule property was

originally Government land which was enjoyed and possessed by

Parvathy Chettichiyar and another, that they have obtained

pattayam from the Government and while they were in

possession, they partitioned the property in the year 1970. In

the said partition, the plaint schedule property was allotted to

Parvathy Chettichiyar. Suit was filed alleging that on 1.4.1992

the Forest Range Officer and some others attempted to destroy

the improvements and attempted to draw power fencing through

the plaint schedule property.

3. The defendants resisted the suit denying the plaint

averments and prayed for dismissal of the suit.

4. Parties adduced oral and documentary evidence.

Exts.C1 & C2 were marked as court exhibits.

5. After appreciating oral and documentary evidence the

trial court found that the plaint schedule property continues to be

Government land and Government has not assigned the property

to anybody and has not issued any patta in respect of the plaint

schedule property in favour of anybody. The trial court also

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recorded the finding that 1.65 acres of dry land is in the actual

possession of the forest department forming part of vested forest

and it is being preserved and protected by the Forest

Department. Regarding 3.50 acres of wet land, the court

observed that the defendants have not raised any claim over the

said land which is admittedly in the possession of the plaintiff.

Before the trial court, the learned Government pleader submitted

that the Government is prepared to grant patta in favour of the

land in their possession. The trial court noticed that the

defendants have no interest at all to enter into the wet land

because it is an admitted case that the wet land is in the actual

possession of the plaintiff and it is being cultivated by them. The

trial court further observed that the dispute is only regarding the

dry land and it is with respect to wet land the plaintiff really

seeks injunction. In the circumstance, the trial court took the

view that the plaintiff has no reason to trespass into the wet land

and therefore held that they are not entitled to any injunction

regarding the wet land. The findings are entered solely based on

the facts, evidence and circumstances. The plaintiff challenged

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the said findings before the appellate court. The appellate court

also appreciated the evidence on record and confirmed the

findings of the trial court.

6. The findings of the trial court confirmed by the

appellate court that the dry land is in actual possession of the

Forest Department forming part of it being preserved and

protected by the Forest Department was arrived at after

examining the facts, evidence and circumstances of the case.

The decision is purely on the basis of facts and therefore, in

second appeal this Court cannot interfere with the said findings.

Regarding the wet land also, the trial court as well as the

appellate court are justified in not extending the relief of

injunction. It is clearly stated by the trial court that it is an

admitted case that wet land is in actual possession and it is being

cultivated by them. The court below also noticed that the

defendants have no claim over the wet land. In fact, the court

recorded the submission of the learned Government Pleader that

Government propose to issue patta for the wet land in their

possession. The court finding that the wet land is in the

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possession of the plaintiff, did not extend the relief of injunction,

after recording the fact that the defendants have no idea and

interest at all to enter into the wet land. Therefore, this Court is

of the view that there is no justification for this Court to interfere

with the decision taken by the fact finding court in not extending

the relief of injunction to the plaintiff. In the facts and

circumstances of the case the second appeal lacks merit and is

liable to be dismissed.

7. I have already stated the submission of the learned

Government Pleader which was recorded by the trial court. In

the said circumstance, it is open to the plaintiff to approach the

Government for issuance of patta in their favour. In that event,

the Government shall consider the claim of the plaintiffs and shall

pass appropriate orders.

In the result, the appeal fails and accordingly dismissed with

the observation made above. No order as to costs.

HARUN-UL-RASHID,
Judge.

bkn/-