Binil Thomas v. Shibu Vijayan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 17TH DAY OF OCTOBER 2018/25TH ASWINA, 1940** **OP(C).No.2614 of 2016** # **AGAINST THE PROCEEDINGS IN OS NO.51/2016 of GRAMA NYAYALAYA ADHIKARI, NEDUMKANDOM** ## **PETITIONER/DEFENDANT:** **BINIL THOMAS @ JOSEPH PANDARUKUNNEL HOUSE, EETTAKKANAM, RAJAKKADU, IDUKKI.** **BY ADVS. SRI.SIJU P.KURIAKOSE SMT.ANITHA MATHAI MUTHIRENTHY SRI.MATHEW A KUZHALANADAN** ## **RESPONDENT/PLAINTIFF:** **SHIBU VIJAYAN, S/O.VIJAYAN MANALIL HOUSE, EETTAKKANAM, RAJAKKADU, IDUKKI.** **BY ADVS. SRI.JOMY GEORGE KUM.M .ANJU THOMAS SMT.A.MINI JOSEPH SRI.DEEPAK MOHAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(C) No.2614 of 2016 :: 2 :: **==> picture [36 x 11] intentionally omitted <==** ## **JUDGMENT** Challenging Ext.P16 order dated 11.11.2016 in I.A.No.144 of 2016 in O.S.No.51 of 2016 and Ext.P11 order of temporary injunction, dated 20.10.2016, in I.A.No.135 of 2016 in O.S.No.51 of 2016 of the Gram Nyayalaya, Nedumkandam, the petitioner/defendant came up with this petition challenging the jurisdiction of the Gram Nyayalaya in entertaining a suit of this nature. The subject matter of the suit is an immovable property and the suit is filed for declaration of right of way. Admittedly, the way in question is a private way and not a public way. Gram Nyayalaya entertained the suit and granted an order of injunction. The application in I.A.No.144 of 2016 challenging the jurisdiction of the Gram Nyayalaya was dismissed under Ext.P16 order. 2. The civil jurisdiction of Gram Nyayalaya is governed by Section 13 of the Gram Nyayalayas O.P.(C) No.2614 of 2016 :: 3 :: Act, 2008 (for short 'the Act'), which is extracted below for reference: " _13. Civil Jurisdiction.-- (1)_ _Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, and subject to sub-section (2), the Gram Nyayalaya shall have_ _jurisdiction to--_ _(a) try all suits or proceedings of a civil nature falling under the classes of disputes specified in Part I of the Second Schedule;_ _(b) try all classes of claims and disputes which may be notified by the Central Government under sub-section (1) of section 14 and by the State Government under sub-section (3) of the said section._ _(2) The pecuniary limits of the Gram Nyayalaya shall be such as may be specified by the High Court, in consultation with the State Government, by notification, from time to time._ " 3. The matter in dispute would fall under clause (a) of Section 13(1) of the Act, i.e. classes of disputes specified in Part I of the Second Schedule. Part I of the Second Schedule is O.P.(C) No.2614 of 2016 :: 4 :: extracted below for reference: **==> picture [56 x 9] intentionally omitted <==** _SUITS OF A CIVIL NATURE WITHIN THE JURISDICTION OF GRAM NYAYALAYAS_ **==> picture [323 x 100] intentionally omitted <==** _(ii) Property Disputes:_ **==> picture [287 x 55] intentionally omitted <==** _(c) right to draw water from a well or tube well._ _(iii)Other Disputes:_ _(a) claims under the Payment of Wages Act 1936 (4 of 1936); (b) claims under the Minimum Wages Act, 1948 (11 of 1948); (c) money suits either arising from trade transaction or money lending;_ _(d) disputes arising out of the partnership in cultivation of land; (e) disputes as to the use of forest produce by inhabitants of Gram Panchayats._ " O.P.(C) No.2614 of 2016 :: 5 :: 4. According to the petitioner, the dispute would come under the purview of clause (i)(b) in Part I of the Second Schedule, "use of common pasture". 5. The word 'Pasture' is defined in Law Lexicon as under: " _Pasture or grasslands.-- "Land for pasture" has the protection of Art.31A(2)(a)(iii) of the Constitution. The inclusive definition of "estate" takes in this category of land expressly but there is no reference in terms to "land for grass" in this provision. The dictionary meaning of grassland is "pasture or grazing land" and of pasture land is "a piece of land covered with grass". –_ _**Shorter Oxford English Dictionary** , Vols.I and II.--_ _**Gulabhai Vallabhai Desai v. H.A.Khan, Collector of Daman** , A.I.R. 1970 Goa 59 at pp.69-70."_ The meaning of the word 'pasture' is given in Oxford Advanced Learner's Dictionary of Current English 7[th] Edition as "land covered with grass that is suitable for feeding animals on: an area of permanent/rough/rich pasture" O.P.(C) No.2614 of 2016 :: 6 :: 6. Dispute pertaining to user of way cannot be brought under the purview of "common pasture" even by giving an exhaustive meaning. The jurisdiction vested with the Gram Nyayalaya under Section 13(1)(a) is not for trying all suits or proceedings of a civil nature but confined only to those classes of disputes specified in Part I of the Second Schedule. Three classes of cases are brought under the head 'civil disputes'- (a) right to purchase of property (b) use of common pasture, and (c) regulation and timing of taking water from irrigation channel. Three other sets of disputes are brought under the category 'property disputes'-(a)village and farm houses (possession); (b) water channels; and (c) right to draw water from a well or tube well. In the third category, certain other disputes are included under the head 'other disputes'. A dispute with respect to user of way either public or private cannot be brought under Part I of Second Schedule. 7. The pecuniary limits of the jurisdiction of O.P.(C) No.2614 of 2016 :: 7 :: Gram Nyayalayas is notified by the State Government vide G.O.(Rt.) No.2518/2014/Home dated 20/09/2014 and it is upto `50,000/-. The learned Presiding Officer of the Gram Nyayalaya misinterpreted the said notification empowering the Gram Nyayalaya for trying all civil suits and proceedings and found that the present suit is within the jurisdiction of Gram Nyayalayas. The wording used in the notification that the pecuniary jurisdiction "shall extend to all suits or proceedings of civil nature of which the amount or value of the subject matter does not exceed `50,000/-(Rupees Fifty Thousand only)" shall not be construed as the jurisdiction vested with the Gram Nyayalayas for trying all suits or proceedings of civil nature. The notification pertaining only to the pecuniary limits of jurisdiction of Gram Nyayalayas. The nature of jurisdiction vested with the Gram Nyayalayas is governed by Section 13 of the Act. The civil disputes included in Part I of Second Schedule alone can be tried by the Gram Nyayalas constituted under the Act. In short, in order to invoke the jurisdiction vested with Gram O.P.(C) No.2614 of 2016 :: 8 :: Nyayalayas it should satisfy the pecuniary limits of jurisdiction, namely, up to `50,000/- and also the requirement under Section 13 of the Act. Only those matters which would come under the purview of Section 13 having the value upto `50,000/- alone can be tried by Gram Nyayalayas. Further, the words "use of common pasture" would stand for a right to use a common grass land. As such, the matter in dispute would not come under the jurisdiction of Gram Nyayalaya. The order is liable to be set aside and I do so. The Gram Nyayalaya shall return the plaint as per Order VII Rule 10 CPC for presentation before the Civil Court having jurisdiction over the matter. The Original Petition is disposed of as above. ## **Sd/** ## **P.SOMARAJAN** ## **JUDGE** ahz/ O.P.(C) No.2614 of 2016 :: 9 :: ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF TITLE DEED, DATED 14/11/97** **EXHIBIT P2 TRUE COPY OF THE DOCUMENT DATED 31-10-2006. EXHIBIT P3 TRUE COPY OF THE AGREEMENT DATED 21.3.2015.** **EXHIBIT P4 TRUE COPY OF THE FIR SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT ADIMALY, BY THE RAJAKKADU POLICE.** **EXHIBIT P5 TRUE COPY OF THE NOTICE ISSUED BY THE TAHASILDAR ON 28/11/2015.** **EXHIBIT P6 TRUE COPY OF THE PETITIONER'S STATEMENT, DATED 08-12-2015** **EXHIBIT P7 TRUE COPY OF THE ORDER PASSED BY THE SUB DIVISIONal MAGISTRATE COURT,DATED 23.6.2016** **EXHIBIT P8 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER, DATED 20-07-2016** **EXHIBIT P9 TRUE COPY OF THE O.S.NO.51/2016 FILED BY THE RESPONDENT BEFORE THE NEDUMKANADAM GRAMA NYAYALAYA ADHIKARI.** **EXHIBIT P10 TRUE COPY OF THE INTERIM APPLICATION FILED BY THE RESPONDENT.** **EXHIBIT P11 TRUE COPY OF THE TEMPORARY INJUNCTION ORDER DATED 20-10-2016 PASSED BY NEDUMKANDAM GRAMA NYAYALAYA ADHIKARI.** **EXHIBIT P12 TRUE COPY OF THE COMPLAINT DATED 20-10-2016 FILED BEFORE THE SI OF POLICE, RAJAKKAD AND THE ACKNOWLEDGEMENT.** **EXHIBIT P13 TRUE COPY OF THE PATTA ISSUED FOR AN EXTENT OF 2 ACRE 40 CENTS OF PROPERTY THAT CONTAINS THE RESPONDENT'S PROPERTY AND A SKETCH.** **EXHIBIT P14 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER.** O.P.(C) No.2614 of 2016 :: 10 :: **EXHIBIT P15 TRUE COPY OF THE IA.NO.144/2016.** **EXHIBIT P16 TRUE COPY OF THE ORDER PASSED BY THE GRAM NYAYALAYA IN I.A.NO.144/2016.**