IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 72 of 2010()
1. STANLY MOSES, S/O. SAMUEL THOTTIYIL
... Petitioner
2. JOY DAVID (INCORRECTLY SHOWN AS JOY DAVI
3. REJINA CHRISTABLE, D/O. SAMUEL THOTTIYIL
4. NEENA GLADIS, D/O. -DO-
Vs
1. PASTORATE COMMITTEE, CSI CHURCH,
... Respondent
For Petitioner :SRI.P.T.MOHANKUMAR
For Respondent :SRI.N.N.SUGUNAPALAN (SR.)
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :01/03/2010
O R D E R
THOMAS P. JOSEPH, J.
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R.S.A.No.72 of 2010
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Dated this the 1st day of March, 2010.
JUDGMENT
This Second Appeal arises from judgment and decree of learned
Principal Sub Judge, Kozhikode in A.S.No.167 of 2006 confirming judgment and
decree of learned Principal Munsiff-II, Kozhikode in O.S.No.977 of 2001.
Appellants/defendants are directed by judgment and decree of the courts below
to surrender possession of the building situated in the suit property and to vacate
the premises with their articles. According to the respondent suit property is in
its possession where it had constructed a quarters for the use of watchman of
its cemetery nearby. Father of appellants, Samuel was working as watchman
of that cemetery. He was permitted to occupy the building in the suit property as
a licensee in his capacity of watchman of the cemetery. He had undertaken to
vacate the quarters as and when required. On the death of Samuel, appellants
(his legal heirs) could not continue as a watchman of the cemetery. Thereon
respondent wanted to appoint another person as watchman and required the
appellants to vacate the quarters as per notice. Since they refused, respondent
filed the suit. Appellants claimed that respondent has no right to file the suit and
that the documents relied on by the respondent are all concocted. From 1967
onwards ten cents of Government puramboke in survey No.103/5 and the
building thereon are in the possession of the late Samuel and after his death,
appellants. A chapel was constructed in the adjoining land. Samuel constructed
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structure in the puramboke land and with the permission of the then vicar started
staying there. Courts below found against the contentions raised by the
appellants and granted decree. Hence this Second Appeal urging by way of
substantial questions of law whether the suit itself is not maintainable for
absence of publication under Order I Rule 8 of Code of Civil Procedure (for
short, “the Code”) and in the absence of any transferable interest for the
respondent as the property belonged to the Government, whether respondent
could claim eviction of the appellants. Learned counsel contends that
paramount title of the suit property vested with the State Government and hence
respondent cannot seek eviction of the appellants. It is contended that Section
20A of the Land Conservancy Act (for short, “the Act”) affected maintainability of
the suit. According to the learned counsel the suit is filed by the church which is
not a legal entity and hence in the absence of publication under Order I Rule 8
of the Code the suit is not maintainable. Learned counsel for respondent
supported the judgment and decree of the courts below.
2. So far as maintainability of the suit for want of publication under
Order I Rule 8 of the Code is concerned it is seen that respondent is a
committee of the church and it has obtained authorisation from the church as per
Ext.A9 to institute the suit. Therefore contention that suit is instituted by the
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church which is not a legal entity and it required publication under Order I Rule 8
of the Code cannot be sustained. There is no reason to reject Ext.A9, authority
granted by the church to institute the suit.
3. Respondent has produced Ext.A1, certified extract of property tax
demand register for the period from 1909 to 1953 in respect of the suit property
to show that it has been paying revenue for the said property. Ext.A3 is minutes
book of the respondent for the period from 1960 to 1967. Ext.A3 and the
relevant pages therein revealed as found by the courts below that when
Manesha Valiyaveedu was the watchman of the cemetery from 1961 onwards
and he was granted permission to occupy the quarters situated in the plaint
schedule property in his capacity as watchman. Following his death in the year
1967 his wife surrendered possession of the quarters to the church. Later came
the appointment of Samuel, predecessor-in-interest of appellants and he was
permitted to occupy the quarters situated in the suit property as revealed from
Ext.A3(e) and (f) (at page 175 of Ext.A3) from 5.6.1967. Courts below found
from the evidence that page No.175 of Ext.A3 contained the signature of Samuel
and his wife (plaintiff No.1). Ext.X1 revealed that Samuel was working as
watchman of the cemetery of the church and was occupying the quarters
attached to the cemetery (situated in the suit property). Though appellants
produced Exts.B2 to B8 that only revealed that Samuel was in occupation of the
quarters in question. Courts below found from the evidence that the suit property
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was in the possession of the church, Samuel and his family were permitted to
occupy the quarters situated in the suit property in connection with his work as
watchman of the cemetery.
4. Though when this matter came up for admission sometime back
learned counsel for appellants submitted that the State Government has
initiated proceedings under the Land Conservancy Act against the church for
recovery of possession of the suit property, in fairness it is now conceded by
learned counsel that no such proceeding is pending and that the proceeding
pending is before the Sub Divisional Magistrate relating to some alleged
nuisance. Now argument of learned counsel is based on the provisions of the
Land Conservancy Act, in particular Section 20A and Section 53 of the Indian
Easements Act, 1882. Learned counsel would contend that so far as Section 53
of the Indian Easements Act is concerned only the original owner of the property
could grant any license while in this case the property belonged to the
Government and hence respondent is not the original owner of the property and
hence could not grant any license in favour of Samuel. Leaned counsel has
placed reliance on the decision in Philip & others v. Skaria & others
(1987 (1) KLT 213).
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5. I am afraid that the decision relied on cannot help the appellants.
Section 20A of the Act barred the jurisdiction of the civil court so far as the
person in alleged unauthorised occupation and the Government is concerned
but, did not in any way affect the right of the person having better possessory
title to recover possession of the property from a trespasser. In this case
evidence on record would show that the church is in possession and enjoyment
of the property from 1909 onwards even if it is assumed to be the Government
land. Therefore the church has possessory title in the suit property against the
appellants subject of course to the paramount title if any on the Government if it
is puramboke land as contended by the appellants. Possessory title is next to
proprietary title and hence there is nothing illegal in the church granting
permission to Samuel, predecessor-in-interest of the appellants to occupy the
building in the suit property. None of the provisions of the Act would affect that
right of the respondent. If that be so it was well within the power of the church
to seek eviction of appellants after terminating the permission granted to them.
6. Though it is contended by learned counsel for appellants that they
are in possession of the entire suit property, that contention cannot be accepted
in the light of the evidence on records as discussed by the courts below.
“Possession” of the property is different from occupation of the building situated
thereon in his capacity as watchman of the adjacent cemetery belonging to the
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church, the grantor of license. Possession of the property remained with the
church. Hence claiming to be in possession appellants cannot claim any better
right than the respondent.
7. Having heard counsel on both sides and on going through the
judgments under challenge I am not satisfied that any substantial question of law
is involved in the Second Appeal requiring a decision. However, considering the
submission of the learned counsel for appellants that appellants have no other
place to go and have to find out alternative accommodation, I am inclined to
grant them three months time from today to vacate the building situated in the
suit property. Execution proceedings if any already initiated will stand in
abeyance for a period of three months from today.
With the above direction the Second Appeal is dismissed in limine.
I.A.No.178 of 2010 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks