C. P. Raghavan Nair and others v. S. Abdul Razzak

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR** **MONDAY, THE 19TH NOVEMBER 2007 / 28TH KARTHIKA 1929** **SA.No. 790 of 1994()** **--------------------------** **AS.90/1985 of SUB COURT,KOTTARAKKARA OS.181/1980 of MUNSIFF COURT, PUNALUR** **....................** ## **APPELLANTS: APPELLANTS/ DEFENDANTS** - **---------------** **1. C.P.RAGHAVAN NAIR, FOREST RANGE OFFICER, PATHANAPURAM.** **2. M.RAGHAVAN PILLAI, FOREST GUARD, RESIDING AT MECHAKATTU PUTHEN VEEDU, KADAKKAMON, PIRAVANTHUR VILLAGE.** **3. THE DIVISIONAL FOREST OFFICER, PUNALUR.** **4. THE DIVISIONAL FOREST OFFICER, PUNALUR.** **4. THE CHIEF CONSERVATOR OF FOREST CHIEF CONSERVATOR'S OFFICE, THIRUVANANTHAPURAM.** **5. STATE OF KERALA.** **BY GOVERNMENT PLEADER** ## **RESPONDENT/ RESPONDENT/PLAINTIFF** **-----------------** ## **S.ABDUL RAZZAK, ADVOATE RESIDING AT SHALIMAR MANZIL KADAKKAMON, PIRAVANTHOOR VILLAGE, PATHANAPURAM TALUK.** **BY ADV. SRI .SHYJI.P.ABRAHAM** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **M.SASIDHARAN NAMBIAR,J.** =========================== S.A. NO. 790 OF 1994 =========================== Dated this the 19th day of November, 2007 ## JUDGMENT Defendants in O.S.181/1980 on the file of Munsiff Court, Punalur are the appellants. Plaintiff is the respondent. The suit was originally instituted seeking a decree for permanent prohibitory injunction restraining appellants from entering into the plaint schedule property or committing any waste or making any construction therein. Plaint was subsequently amended seeking a decree for declaration of title and possession of respondent over 21 cents in survey No.319/1 of plaint schedule property and also consequential decree for permanent prohibitory injunction. Plaint schedule property is 66 cents in survey No.319/1/228-9A.99 and 21 cents in survey No.319/1 of Piravanthoor Village of Pathanapuram Taluk. Case of respondent was that he has been in possession of 87 cents of garden S.A.790/1994 2 land comprised in survey No.319/1/228,9A.99 and 319/1 in Piravanthoor village and it originally belonged to his father Shahul Hameed and on his death it came into the possession of the respondent and he is the absolute owner in possession of plaint schedule property. It was contended that plaint schedule property is situated between the Government eucaliptus plantation and Kayamkulam -Punalur road and is separated from the eucaliptus plantation by a mud wall of 3 feet height and it is cultivated with rubber, coconut etc. and those trees are aged more than 35 years and eucaliptus plantation near to the plaint schedule properties belong to the Forest Department under the control of the appellants. As per plaint allegations, on 3.11.1980 respondents 1 and 2 trespassed into the plaint schedule property and destroyed certain cultivations under the pretext that the property belongs to the forest department and on the protest of respondent, first appellant had withdrawn informing that with sufficient force they will return and destroy the cultivation. Contending that father of respondent S.A.790/1994 3 purchased plaint schedule property under Exts.A1 to A4 sale deeds of 1956 and 1976. It was claimed that the area covered by the documents is 66 cents and vadavilkooduthal which is 21 cents in survey No.319/1 being a total extent of 87 cents. It was further contended that appellants have no right to enter the plaint schedule property and even if Government has any right it is lost by adverse possession. It is on these allegations suit was instituted along with an application filed under sub section (2) of Section 80 of Code of Civil Procedure to institute a suit without sending notice under section 80(1) of the Code of Civil Procedure. Appellants filed a written statement contending that as against the respondent OR.250/79 was registered for trespassing into the eucaliptus plantation on 29.11.79 which lies to the north of the property covered under patta. It was also contended that on 13.11.1980 when forest officials inspected the property and found that respondent committed trespass into a portion of the resurvey forest having a length of 10 meters and width of six meters and planted plaintains they were 4 ## S.A.790/1994 removed by the officials and the trespassed area evicted. Appellants contended that respondent was not having 87 cents and even if he is in possession of any excess land, he has no right over the forest land and therefore respondent is not entitled to the decree for injunction. After plaint was amended an additional written statement was filed contending that 21 cents in survey No.319/1 is part of reserve forest and is not a property belonging to the respondent and has no right or title to that property and has not perfected title by adverse possession. 2. Learned Munsiff on the evidence of Pws. 1 to 4, Dws.1 and 2 and Exts.A1 to A4 and B1 and B2 and C1 to C5 granted a decree declaring the title and possession of the respondent over the disputed 21 cents in survey No.319/1. A consequential permanent prohibitory injunction was also granted. Appellants challenged the decree and judgment before Sub Court, Kottarakara in A.S.No.90/1985. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the S.A.790/1994 5 second appeal. 3. The second appeal was admitted formulating the following substantial questions of law. 1. When the father of respondent purchased only 66 cents under Exts.A1 to A4, whether respondent can claim title to the plaint schedule property. 2. In the light of Exts.A1 to A4 whether respondent is entitled to claim title to 21 cents of land in survey No.319/1 which is part of the Reserved forest as proved by Ext.C5 report of the Commissioner. 4. Learned Government pleader appearing for appellants heard. Though respondent appeared through a counsel, he did not appear. Respondent was therefore called, was absent and was set ex parte. 5. Though suit was filed originally for permanent prohibitory injunction, it was subsequently got amended to for a declaration of title and possession also in addition to the permanent prohibitory injunction. Though plaint S.A.790/1994 6 schedule property is shown as 87 cents, the property, the disputed portion of the property is only 21 cents comprised in survey No.319/1 of Piravanthoor Village. The decree for declaration was also confined to the said 21 cents. There was no dispute on the remaining property. Learned Munsiff and learned Sub Judge declared title of the respondent to the said 21 cents. What was claimed in the plaint is the title under Exts.A1 to A4 eventhough it was additionally contended that even if Government has any right over the said property, it is lost by adverse possession and limitation. In the plaint, title is claimed under Ext.A1 to A4 sale deeds. Exts.A1 to A4 sale deeds are obtained by the father of the respondent. His case is that on the death of the father, plaint schedule property vests with the respondent. At the outset it is to be noted that respondent is not the sole legal heir of Shahul Hameed, the deceased father. Therefore it cannot be said that on the death of Shahul Hameed, respondent is the sole legal heir and therefore he has exclusive title to the property. Whatever it be, S.A.790/1994 7 allegations in paragraph 7 of the plaint makes the position absolutely clear. The case is not that respondent or his father perfected title by adverse possession. Instead what was claimed was that his father and subsequent to the death of the father, respondent has title to the plaint schedule property. Paragraph 7 of the plaint after the amendment reads:- “The plaintiff's father purchased the plaint scheduled properties by virtue of the sale deeds numbered as 2190 of 1956, 1663 of 1956, 4342 of 1959 and 1352 of 1976. The area covered by the said documents is 66 cents and Vadavilkooduthal” in survey No.319/1-21 cents which in total is of 87 cents.” Therefore it is the specific case of the respondent that he has title to the plaint schedule property as his father has title to 87 cents S.A.790/1994 8 including the disputed 21 cents in survey No.319/1. Exts.A1 to A4 would only show the extent of the property was only 66 cents. They also show that the property obtained is inclusive of “vadavilkooduthal”. But the property obtained under Exts.A1 to A4 is only in survey No.319/1-228 and not in survey No.319/1. Ext.C5 report submitted by the Commissioner establish that the disputed 21 cents in survey No.319/1 is part of the Reserved forest. Though respondent filed objection to the report of the Commissioner on other aspects reported by the Commissioner in the objection fact that 21 cents is part of reserved forest in resurvey 319/1 was not disputed. Therefore evidence establish that under Exts.A1 to A4 father of respondent obtained title only to the properties in survey No.319/1/228-9A.99 and did not obtain title to 21 cents, which is part of reserve forest. If that be so, respondent can claim title to the property only by adverse possession. Though in paragraph 8 respondent pleaded that appellants have no right to enter into the plaint schedule property as he and his predecessors have been in S.A.790/1994 9 possession of the property for more than 35 years and even if Government has any right, it is lost by adverse possession, respondent cannot claim title to the property without admitting the title of respondent to the plaint schedule property. The very allegation in the plaint shows that respondent was contending that he has title to the property being part of the property obtained under Exts.A1 to A4. Plaint or the evidence do not show that neither Shahul Hameed the father nor respondent the son recognised the title of the State to the disputed 21 cents. Without admitting the title of the State to the disputed property respondent is not entitled to claim the title by adverse possession. 6.Apex Court in **T.Anjanappa v. Somalingappa** **(2006)7 SCC 570)** laid down the principle as follows:- “The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true S.A.790/1994 10 owner and even if they believed that Government was the true owner and not the plaintiffs,the same was inconsequential. Obviously the requirement of proving adverse possession have not been established. If defendants are not sure who is the true owner, the question of being in hostile possession and the question of denying title of the true owner do not arise.” 7. When it is established that the disputed 21 cents is part of reserve forest unless the respondent could establish that the title of the Government has been lost by adverse possession and he or his predecessor has perfected title by adverse possession, he is not entitled to the declaration sought for. Unfortunately this aspect was not properly considered by the courts below. S.A.790/1994 11 Without admitting the title of the State and without proving the necessary animus to possess it against the true owner respondent or his predecessor cannot claim that title to the disputed 21 cents was perfected by adverse possession. In such circumstance, the decree granted by the trial court as confirmed by the first appellate court is unsustainable. 8. Moreover, courts below omitted to take note of the specific bar provided under section 5 of the Kerala Forest Act. Section 5 reads:- “Except as hereinafter provided, no Civil Court shall, between the dates of publication of the notification under Section 4, and of the notification to be issued under section 19, entertain any suit against the Government to establish any right in or over any land, or to the forest produce of any land, included S.A.790/1994 12 in the notification published under section 4.” Section 5 bars the institution of any suit to establish any right over any land included in the notification issued under section 4 of Forest Act. The fact that the disputed 21 cents is part of the reserved forest notified under section 4 of Forest Act is not in dispute. Hence on that sole ground the suit is to be dismissed. The appeal is allowed. The decree and judgment in A.S.90/1985 on the file of Sub Court, Kottarakara confirming the judgment in O.S.181/1980 on the file of Munsiff Court, Punalur is set aside. O.S.181/1980 stands dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- ## M.SASIDHARAN NAMBIAR, J. --------------------S.A.NO.790 /1994 --------------------- JUDGMENT 19[th] November, 2007