Job Joseph A. v. Corporation of Kochi and Greater Cochin Development Authority

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 11[TH] DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945** **RFA NO. 284 OF 2005** **AGAINST THE DECREE AND JUDGMENT DT. 30.11.2004 IN OS 5/2003 OF PRINCIPAL** **SUB COURT, ERNAKULAM** **-----** ## **APPELLANT/PLAINTIFF IN OS 5/2003:** JOB JOSEPH.A., S/O LATE JOSEPH, AGED 47, AIKARAPARAMBIL, KASSIM LANE, KOCHI-17. BY ADVS. SRI.K.C.CHARLES SRI.M.POLY MATHAI SMT.A.T.RENJU SRI.VIMAL K.CHARLES ## **RESPONDENTS/DEFENDANTS IN OS 5/2003:** 1 CORPORATION OF KOCHI, ERNAKULAM, COCHIN-682011, REP. BY ITS SECRETARY. 2 GREATER COCHIN DEVELOPMENT AUTHORITY KADAVANTHRA, COCHIN-682 020, REPRESENTED BY ITS SECRETARY. BY ADVS. D.G.VIPIN - FOR R2 SRI.M.K.CHANDRA MOHANDAS - FOR R1 THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 11.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. No.284 of 2005** **= = = = = = = = = = = = = = = = = = Dated this the 11[th] day of December, 2023** ## **J U D G M E N T** The suit for recovery of possession on the strength of title, for fixation of boundary and for mandatory injunction was dismissed by the trial court. The plaintiff is in appeal. 2. The plaint consists of two schedules; 'A' schedule has an extent of 35.50 cents in Sy. No.90/1 and the 'B' schedule has an extent of 17.315 cents in Sy. No. 90/3. The properties are lying contiguous. On the southern, western and northern sides of the plaint schedule property is situated a 'thodu'. 3. The property originally belonged to the grand father of the plaintiff as per Ext.A1 Sale Deed and Ext.A2 jenmi karam receipts. On his death the property devolved on his legal heirs including the plaintiff's father Joseph. The siblings of Joseph executed Release R.F.A. No.284 of 2005 -: 2 :- Deed 1169/1963 in his favour. Thus Joseph became the absolute title holder of the property. On the death of Joseph, Ext.A3 partition deed was entered into between the legal heirs. Plaint items 'A' and 'B' are item Nos.3 and 4 in the 'A' schedule to the partition, and were allotted to the plaintiff. Ext.A4 is a tax receipt with regard to payment of tax in respect of the properties. The suit is filed alleging that the defendants encroached into the property reducing the same into their possession for construction of a canal and constructed a compound wall in between 'A' and 'B' schedule properties. 4. The first defendant contended that the suit is not maintainable under Section 544 of the Kerala Municipalities Act, 1994 (hereinafter referred to as “the Act”). The second defendant denied any trespass on their part. R.F.A. No.284 of 2005 -: 3 :- 5. The trial court dismissed the suit holding that the property was not identified. 6. I have heard the learned counsel on either side. 7. Exts.A1 to A5 documents evidence the title of the plaintiff over the plaint schedule properties. That the plaint schedule properties were utilized for the formation of a canal is not disputed. There is no rival claim of title over the plaint schedule properties. 8. Exts.C1 and C1(a) are the Commissioner's report and plan identifying the plaint schedule properties. The Commissioner has identified the properties based on the title deeds of the plaintiff. Though the trial court would observe that the side measurements of the properties are not shown in the Commissioner's report, a perusal of Ext.C1(a) Commissioner's plan shows that all the details including the side measurements have been provided therein. The Commissioner was examined as PW4 and the Surveyor was examined as PW5. A reading of the R.F.A. No.284 of 2005 -: 4 :- report and the evidence of PWs.4 and 5 indicates that the property has been properly identified by Commissioner. 9. The plaint 'A' schedule property has been identified in Ext.C1(a) and marked therein as plots 'A', 'B' and 'C'. It is to be noticed that, a portion of 'A' schedule shown as plot 'C' in Ext.C1(a) is still in the possession of the plaintiff and the relief claimed is with regard to plots 'A' and 'B' as shown in Ext.C1(a). Plaint 'B' schedule has been identified in Ext.C1(a) plan as plots 'D' and 'E'. In Ext.C1(a), the Commissioner has shown plots 'B' and 'D' as the property utilized for the formation of 'thodu' and plots 'A' and 'E' as properties between which a wall was constructed. The finding of the trial court that the details have not been provided in the Commissioner's report, is not correct. Therefore, I hold that the plaint schedule properties have been identified in Ext.C1(a) R.F.A. No.284 of 2005 -: 5 :- Commissioner's plan. 10. Thus it is found that the plaintiff has proved title over the plaint schedule property and that the plaint schedule property has been properly identified in Ext.C1(a) plan. 11. The contention of the first defendant is essentially based on Section 544(3) of the Muncipalities Act, that the suit is barred by limitation. 12. Section 544 of the Muncipalities Act Reads thus:- ## _“_ _**544. Institution of suits against municipal authorities,**_ _**officers and other employees.⸺** (1) No suit shall be instituted against a Municipality or any Municipal authority or any officer or other employee of a Municipality or against any person acting under the order of direction of a Municipal Authority or any officer or employee of a Municipality in respect of any act done or purported to have been done, in pursuance of this Act or any rule, regulation or bye-law made thereunder until the expiration of two months after notice in writing to the Municipality and, in the case of such officer, employee or person, unless notice in writing has also been_ R.F.A. No.284 of 2005 -: 6 :- _delivered to him in person or at his office or place of residence, and unless such notice states explicitly the cause of action, the nature of the relief sought, the amount of compensation, claimed and the name and place of residence of the intending plaintiff, and unless the plaint contains a statement that such notice has been so delivered._ _(2) Nothing in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction which object would be defeated by the giving of the notice or the postponement of the institution of the suit._ _(3) Every such suit shall be instituted within six months after the date on which the cause of action arose or in cases of continuing injury or damage, during such continuance or within six months after the causing thereof._ _(4) Where any person to whom any notice is given under sub-section (1), tenders amends to the plaintiff before the suit is instituted, and if the plaintiff does not recover in any such action more than the amount so tendered he shall not recover any costs incurred after such tender by the person to whom such notice has been given and the defendant shall be entitled to costs as from the date of tender._ _(5) Where the defendant in any such suit is the Chairperson, the Secretary, an officer or other employee of a Municipality, payment of the sum, or any part thereof, payable_ R.F.A. No.284 of 2005 -: 7 :- _by him in or in consequence of the suit, whether in respect of costs, charges, expenses, compensation for damages or otherwise, may be made with the sanction of the Council, from the municipal fund.”_ Law is now well settled that Section 544 applies only when the action of the authority is in pursuance of the powers and duties under the Municipalities Act, Rules, Regulations or bye-laws made thereunder, and that it does not extend to illegal acts like trespass etc. _(See_ _**Mammadhan Kutty v. Pallivasal Grama Panchayath 2004(1) KlT 751, Mathai Michael v. Pathanamthitta Municipality (2007 KER 44198), P.Jerome v. Corporation of Cochin (SA Nos.26 & 346 of 2002)** ._ The Act of the first defendant in having trespassed into the plaintiff's property and formed a 'thodu' without following any procedure established by law cannot by any stretch of imagination be considered or claimed to be an act done under the authority of law. Therefore, the first defendant cannot take shelter under Section 544 of the Municipalities Act. Since Section 544 does not apply R.F.A. No.284 of 2005 -: 8 :- so is Section 544(3). 13. The suit is one for recovery of possession on the strength of title. Unless the defendant pleads and proves that the title of the plaintiff has been lost by reason of adverse possession and limitation in terms of Article 65 of the Limitation Act, the suit is liable to be decreed. 14. Incidentally it is also to be noticed that, in respect of the adjacent property on the immediate eastern side, which belongs to the siblings of the plaintiff, a suit was instituted on the very same allegation, as OS 188/2004, which was decreed by the Sub Court, Ernakulam. The decree was affirmed in appeal in AS 16/2011. The said fact is not in dispute. In the circumstances as above, there is no reason why the plaintiff is not entitled for a decree. 15. Resultantly, this appeal is allowed. The decree and judgment of the trial court are set aside. The R.F.A. No.284 of 2005 -: 9 :- plaintiff is granted a decree for recovery of possession of plots 'A', 'B', 'E' and 'D' as marked in Ext.C1(a) plan. The first defendant is directed to remove the constructions effected in the plaint schedule properties and to restore the same in its original stage within one month from today. In the event of the defendant failing to comply with the same, the plaintiff is allowed to have the same done and to recover the costs from the first defendant. Ext.C1(a) Commissioner's plan will form part of the decree. 16. The learned Standing Counsel for the first respondent would submit that, through the property in question, a canal was formed as early as in the year 1999 and hence if the property is restored it may affect the flow of water etc. It is observed that if the first defendant requires the property for any such purpose, the remedy is to have the property acquired in accordance with law. It is clarified that the decree R.F.A. No.284 of 2005 -: 10 :- passed in the suit will be without prejudice to the rights of the first defendant as above. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX OF RFA 284/2005** PETITIONER ANNEXURES ANNEXURE A1 CERTIFIED COPY OF THE JUDGMENT IN OS NO. 188/2004 IN THE COURT OF SUB JUDGE, ERNAKULAM, DATED 31.07.2010 ANNEXURE A2 CERTIFIED COPY OF THE DECREE IN OS NO. 188/2004 -----