Achamma Mathai v. Cheriyanadu Panchayat

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 **RSA.No. 1098 of 2005** AS.3/2001 OF ADDL.DISTRICT COURT-I,MAVELIKKARA OS.NO.105/1996 OF MUNSIFF'S COURT, CHENGANNUR ## **APPELLANT: APPELLANT/PLAINTIFF:** ACHAMMA MATHAI, W/O.LATE V.M.MATHAI, ROY VILLA, PATTAMKADAVU, CHERUVALLOOR, CHERIYANAD VILLAGE, CHENGANNUR TALUK. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.SREELEKHA PUTHALATH SRI.A.R.DILEEP ## **RESPONDENT: RESPONDENT:DEFENDANT:** CHERIYANADU PANCHAYATH, REPRESENTED BY SECRETARY. ADV. SRI.K.M.SATHYANATHA MENON THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **I.A.NO.2228/2005 IN R.S.A.NO.1098/2005** DISMISSED 22/10/2008 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ ## **K.T.SANKARAN, J.** ## **-------------------------------------------R.S.A. NO. 1098 OF 2005 E -------------------------------------------Dated this the 22[nd] October, 2008** ## **JUDGMENT** The plaintiff in O.S.No.105 of 1996, on the file of the Court of the Munsiff of Chengannur, challenges the concurrent decision rendered by the court below dismissing the suit filed by her for declaration of title and possession as well as for consequential injunction filed against the Cheriyanadu Grama Panchayat. ## 2. The case of the plaintiff is that she has title and possession over an extent of four Ares of land and the accretion thereto. The property is situated on the northern side of Achankovil river. According to the plaintiff, as per Ext.A3 title deed dated 24.10.1959, she has got title to an extent of three cents of land. The plaintiff stated that as per the proceedings dated 31.1.1970, the Government assigned an extent of 1½ cents of land adjoining the three cents of land. No document is produced to prove the assignment. It is also stated that as per the re-survey records, the plaintiff is in possession of three Ares of land. Reliance is placed on the partition deed No.2527/85, which was also not produced by the plaintiff. It was alleged in the plaint that the Panchayat had taken a decision to take possession of the land in the possession of the plaintiff. R.S.A. NO.1098 OF 2005 :: 2 :: The Panchayat has absolutely no right over the property. There was no vesting of the property in the Panchayat under the Kerala Panchayat Raj Act. Mention is made about a suit for prohibitory injunction filed by the plaintiff as O.S.No.96 of 1991, the judgment of which was also not produced by either party. It is stated that a decree for permanent prohibitory injunction was obtained against the Panchayat restraining the Panchayat from taking forcible possession. It is also stated that the Court observed that Panchayat could initiate appropriate proceedings under the Panchayat Raj Act in respect of the land in question. 3. The Panchayat contended that the plaintiff has title and possession over 60 square metres of land in R.S.No.396/6 and 2.40 Ares of land in R.S.No.396/7. The Panchayat contended that in respect of the property in R.S.No.398/1, the plaintiff has no title and she has no possession as well. That property constitutes “attupuramboke” and it had vested in the Panchayat. The “attupuramboke” is situated on the southern side of the three Ares of land belonging to the plaintiff. The Panchayat stated that it had constructed a well and a pump house in a portion of the said property about twelve years before. The Panchayat also contended that the Government has not assigned any land in favour of the plaintiff as contended by her and that the Panchayat had no information about the same. It is also stated that the Government has no R.S.A. NO.1098 OF 2005 :: 3 :: authority to assign any such land which had vested in the Panchayat. After the decree in O.S.No.96 of 1991, proceedings were initiated against the plaintiff under the Kerala Panchayat Act Removal and Imposition and Recovery of Penalties for Unauthorised Occupation Rules, 1964, after giving due notice to the plaintiff. The plaintiff instituted O.S.No.39 of 1994 for declaration of right and title over the disputed property involved in the present suit. The defendant Panchayat stated that O.S.No.39 of 1994 was dismissed. The present suit is filed again in respect of the same land and in respect of the same cause of action. In the written statement it is stated that after getting an order of status quo in the suit, the plaintiff demolished the boundary fence constructed by the Panchayat and removed the stone pillars installed by the Panchayat, by which, the Panchayat sustained a loss of Rs.2,000/-. A counter claim is also filed by the Panchayat for declaration of its right and possession over the counter claim scheduled property. The Panchayat also raised a contention that the suit is bad for want of notice under Section 249 of the Kerala Panchayat Raj Act. 4. The trial court found that in a suit of this nature a notice under Section 249 of the Panchayat Raj Act was mandatory. It was also held that the plaintiff has failed to prove title and possession over the disputed land. As regards the counter claim made by the defendant, it is stated R.S.A. NO.1098 OF 2005 :: 4 :: that the Panchayat has every right to proceed under the provisions of the Panchayat Raj Act and, therefore, it is not necessary to grant the reliefs made in the counter claim. On appeal by the plaintiff, the lower Appellate Court confirmed the judgment and decree of the trial court. 5. Learned counsel for the appellant submitted that the courts below were not right in holding that notice under Section 249 of the Panchayat Raj Act is necessary in a suit of this nature. He submitted that the suit is being for declaration of title and possession as well as for consequential injunction, a notice is not strictly necessary. Counsel also contended that the attempted trespass by the Panchayat would not enable the Panchayat to get a notice under Section 249 and it cannot contend that without such a notice the suit is not maintainable. Reliance was placed on the decision in **Mammadhan Kutty** v. **Pallivasal Grama Panchayat** (2004 (1) KLT 751). On the merits of the case, learned counsel for the appellant submitted that additional documents were produced before the lower Appellate Court, which were marked as Exts.A5 to A8 and a proper consideration of the documents was not made by the lower Appellate Court. He contended that the plaintiff having perfected her title by long user, the court below should have granted the reliefs prayed for in the suit. ## R.S.A. NO.1098 OF 2005 :: 5 :: 6. Learned counsel appearing for the Panchayat submitted that the courts below have considered the merits of the case in great detail on the basis of the evidence on record and there is no substantial question of law involved justifying interference with the concurrent findings of fact rendered by the courts below. 7. The decision reported in **Mammadhan Kutty** v. **Pallivasal Grama Panchayat** (2004 (1) KLT 751) is not applicable to the facts of the case. That was a case where in spite of the decree the Panchayat tried to encroach upon the property. A suit was necessitated in such circumstances. Therefore, this Court held, if the allegations are correct, the bar under Section 249 would not affect the power of the civil court to entertain the suit against the encroachment. It was also held that the provisions of the Panchayat Raj Act do not enable the Panchayat or its officers to encroach upon the property and the ultra vires action was not protected by any exclusionary clause in Section 249. A reading of the plaint in the present case would indicate that the Panchayat had taken necessary steps under the provisions of the Panchayat Raj Act and Rules. There is no case that there is an illegal act of trespass or any other act disregarding the decree passed by a court. Going by the averments in the plaint, it cannot be said that the ingredients of Section 249(a) are not satisfied so that no notice would be necessary for instituting a suit. The R.S.A. NO.1098 OF 2005 :: 6 :: averments in the plaint and the contentions put forward by the defendant would amply show that the Panchayat had initiated proceedings under the provisions of the Act and, therefore, a notice under Section 249 is mandatory. The courts below were right in holding that the suit is bad for non-issuing notice under Section 249 of the Panchayat Raj Act. 8. On the merits of the case, I am of the view that the courts below rightly held that the plaintiff has not proved her title and possession over the disputed extent of land. It is not established by any document that the plaintiff acquired title over the piece of land which is claimed by her. The partition deed under which she claimed right and title was not produced before the court below. In respect of the 1.5 cents of land, which, according to the plaintiff, was assigned in her favour by the order passed by the Government was also not produced. The Panchayat gracefully conceded the right and title of the plaintiff in respect of 60 sq. metres in R.S.No.396/6 and 2.40 Ares in R.S.No.396/7. The dispute relates to the rest of the land on the southern side of the said extent. The plaintiff has not established that she has settled possession over this extent of land. On the other hand, the proved facts and circumstances of the case would indicate that the Panchayat was treating this land as vested in the Panchayat and was asserting their rights over the disputed piece of land. If there is a vesting under the Panchayat Raj Act, even unauthorised ## R.S.A. NO.1098 OF 2005 :: 7 :: possession by the plaintiff would not entitle her to get a declaratory decree. There is no case that she has perfected title by adverse possession. The admitted and proved facts would not justify any claim for adverse possession. The courts below were also right in holding that the present suit is not maintainable as O.S.No.39 of 1994 filed by the plaintiff for identical reliefs was dismissed by the court below as admitted by her in evidence. For the aforesaid reasons, I am of the view that the courts below were right in holding that the plaintiff is not entitled to any of the reliefs claimed in the plaint. Dismissal of the suit and confirmation of the same in appeal was legal and proper. The substantial questions of law raised in the Memorandum of Regular Second Appeal do not arise for consideration in the facts of the case. Hence, the Regular Second Appeal is dismissed. No order as to costs. **(K.T.SANKARAN) Judge** ahz/