IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR
TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933
RSA.No. 261 of 2004()
--------------------AS.336/2003 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR OS.660/1998 of M.UNSIFF COURT.,WADAKKANCHERRY
....................
APPELLANT/APPELLANT/PLAINTIFF
-------------------------------------------------
KUMARAN, AGED 80 YEARS, S/O. KURIYEDATH PARUNNY, RESIDING AT ERATTAKULANGARA, VADAKKANCHERRY VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT.
BY ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE SRI.D.ANIL KUMAR SRI.S.VINOD BHAT
RESPONDENT(S): RESPONDENTS/ DEFENDANT
-------------------------------------
1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, THRISSUR.
2. ASSISTANT EXECUTIVE ENGINEER,
P.W.D. ROAD SUB DIVISION, TALAPPILLY, VADAKKANCHERRY.
BY GOVERNMENT PLEADER SMT.ANEY PAUL
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 7 / 6 / 2011 ALONG WITH RSA NO. 348 OF 2004 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **M.SASIDHARAN NAMBIAR,J.**
===========================
R.S.A. No. 261 & 348 OF 2004
===========================
Dated this the 7th day of June,2011
## JUDGMENT
Plaintiff in O.S.660/1998 on the file
of Munsiff's Court, Wadakkancherry is the appellant in R.S.A.261/2004. Plaintiff in O.S.661/1998 of the same court is the appellant in R.S.A.348/2004. Respondents are the same
defendants in both the suits. First respondent is the State and the second respondent,the Assistant Executive Engineer, PWD Roads Sub Division. When the PWD (Roads and Sub
Division), Wadakkancherry issued Ext.A13, 14
and 15 notices to the appellants as well as the
plaintiff in O.S.662/1998 directing them to
vacate the road puramboke property in survey No.743 allegedly encroached by them, appellants and the plaintiff in O.S.662/1998
R.S.A.261/2004 & 348/2004 2
instituted the respective suits seeking a decree for permanent prohibitory injunction. The decree sought for in all the suits is restraining the defendants from trespassing into any portion of the plaint A schedule property and causing any damage to the building situated therein or taking possession of the plaint B schedule properties by trespass or causing any damage to the improvements thereon, by a permanent prohibitory injunction. Plaint A schedule property is the property admittedly belonging to the plaintiffs. Plaint B schedule property is alleged to be the encroached portion of the road puramboke, which according to plaintiffs are not portions of road puramboke but portions of the plaint A schedule property.
Appellants contended that as the plaint B schedule property forms part of plaint A schedule property, respondents are not entitled to take any action pursuant to the respective notice served on them. Respondents in their written statement contended that the respective appellants encroached upon a
R.S.A.261/2004 & 348/2004 3
portion of the road puramboke by extending their building in the plaint A schedule property and as they are encroachers of the Government puramboke land, Government is competent to evict them by recourse to the provisions of Kerala Land Conservancy Act and the notices were issued under the provisions of Kerala Land Conservancy Act and hence the appellants are not entitled to the decree sought for.
2. Learned Munsiff tried all the three suits together and on the evidence found that appellants are not claiming any right over any portion of the property comprised in survey No.743, which is a road puramboke, and they are only claiming right and title to the property covered under their title deed which is the plaint A schedule property and therefore they are not entitled to a decree for injunction in respect of the road puramboke land. All the suits were dismissed. Plaintiff in O.S.662/1998 did not challenge the judgment. Appellants filed A.S.284/2000 and A.S.336/2003
R.S.A.261/2004 & 348/2004
4
respectively challenging the dismissal of their suits. Learned Additional District Judge, Thrissur on reappreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. Though applications were filed under Rule 17 of Order VI of Code of Civil Procedure before the first appellate court, to raise a plea based on adverse possession in respect of the Government land, learned Additional District Judge dismissed those applications also. These appeals are filed challenging the said common judgment.
3. The appeals were admitted formulating the
following substantial questions of law.
1. Does Sec.20A of Land Conservancy Act operate as a bar to file a suit by the plaintiff who is admittedly in possession of the plaint A
schedule property?
2. When the appellant pursuant to the assignment in his favour
R.S.A.261/2004 & 348/2004
5
namely Ext.A20 has taken possession of the property which is to the immediate east of the Thrissur-Shornur Road and holds possession and constructs a building which is an act of possession, with no intention of claiming or occupying land beyond what actually belongs to him, will not such possession support the plea of adverse possession and limitation? 3. Will not the animus to hold the property openly under the claim or colour of title in derogation of title of all others, whoever they be, known or unknown satisfy the requirements of hostile animus and as this principle did not
R.S.A.261/2004 & 348/2004 6
the lower courts fall in error in presuming that lack of knowledge that the land belongs to PWD and that the appellant is holding against PWD, alone will not constitute adverse
possession?
4. Learned senior counsel appearing for the
appellants and the learned Government pleader
appearing for the respondents were heard.
5. There is no dispute with regard to the
right, title and possession of the appellants to
the respective plaint A schedule property. The
dispute is only with regard to the plaint B
schedule property. Though appellants have claimed
that plaint B schedule property forms part of plaint A schedule property, respondents contended that plaint B schedule property does not form part of the respective plaint A schedule property and they form part of the road puramboke in survey No.743 and a small portion of the road puramboke
R.S.A.261/2004 & 348/2004 7
land was encroached upon by the respective appellants and therefore proceedings were initiated under the Land Conservancy Act by issuing notices and at that stage appellants have rushed to the court seeking a decree for permanent prohibitory injunction.
6. The argument of the learned senior counsel is that there is no evidence to prove that the plaint B schedule property is a road puramboke land and as they form part of the plaint A schedule property, proceedings under the Land Conservancy Act cannot be initiated. Learned counsel also argued that the bar provided under section 20A is only as against the Government as held by the Division Bench of this court in **Kuruvilla Yohannan**
**v. Kumaran (1989(2) KLT 859)** and therefore courts
below should not have found that the suit is barred under section 20A of the Act. Learned senior counsel also pointed out that even if the Government is entitled to take proceedings under the Kerala Land Conservancy Act, appellants could
R.S.A.261/2004 & 348/2004
8
be evicted only by complying the procedure provided under the Land Conservancy Act and there should be a notice as provided under Rule 11 and after objection has been raised by the appellants, the Government has to consider the objections and pass a final order and only thereafter appellants could be evicted and as provided under section 16 appellants are entitled to file an appeal and in such circumstances when respondents are attempting to evict the appellants without complying with the procedure, a decree for injunction is to be granted.
7. The courts below on the evidence found that appellants are not claiming any right over the property in survey No.743. It was also found that respondents are taking proceedings under the Land Conservancy Act only in respect of survey No.743 which is a Government puramboke land. Though as per the boundary shown in the title deed of the appellants, road is mentioned as the boundary, appellants are not entitled to contend that there
R.S.A.261/2004 & 348/2004 9
is no road puramboke for that reason alone. Appellants have not taken out a commission to identify the plaint A schedule properties and establish that plaint B schedule property forms part of the plaint A schedule property and it is not a road puramboke. In such circumstances, when appellants are not claiming any right, title or possession to the property in survey No.743, courts below were justified in holding that appellants could be evicted from the property in survey No.743, if it is a PWD road puramboke land as
provided under the Land Conservancy Act.
8. True, as held by the learned single Judge
of this court in **Holy Cross Church v. Tahsildar,**
**North Parur (1973 K.L.T 663)** even if an encroacher
is to be evicted under the provisions of Land Conservancy Act, there should be a notice as provided under section 11 and thereafter there should be a final order accompanied by a notice in Form C served on the encroacher as provided under Rule 11 of Kerala Land Conservancy Rules.
R.S.A.261/2004 & 348/2004
10
Respondents have no case that they are proceeding to evict the appellants without passing a final order as required under Rule 11 of Land Conservancy Act. The only question is whether the appellants are entitled to a decree for permanent prohibitory injunction as sought for. On the pleadings and evidence the question of adverse possession as formulated in the substantial questions of law will not arise in the appeals. When respondents are entitled to initiate proceedings under the provisions of Land Conservancy Act and are entitled to evict any
encroacher from the Government land, appellants are not entitled to the decree for injunction sought for. It is made clear that though respondents are entitled to evict the appellants, if they have encroached upon any portion of the road puramboke in survey No.743, respondents are bound to comply with the provisions of Land Conservancy Act and the Rules, especially Rule 11 and Section 12 of the Act.
R.S.A.261/2004 & 348/2004 11
Appeals are dismissed.
M.SASIDHARAN NAMBIAR JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
--------------------W.P.(C).NO. /06 ---------------------
JUDGMENT
SEPTEMBER,2006
