O. Prasan Nakumari Amma and K.V. Hemachandran Nair v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **MONDAY, THE 29TH DAY OF MAY 2017/8TH JYAISHTA, 1939** ## **WP(C).No. 38468 of 2003 (D)** **----------------------------** ## **PETITIONER(S):** - **-----------------------** **1. O. PRASANNAKUMARI AMMA, SREENILAYAM, T.C.18/707, ARAMADA P.O., THIRUVANANTHAPURAM-32.** **2. K.V. HEMACHANDRAN NAIR, THIRUVATHIRA, T.C.18/707 (2), ARAMADA P.O., THIRUVANANTHAPURAM-32.** **BY ADVS.SRI.V.SANTHARAM, SRI.ALEX ANTONY SEBASTIAN P.A.** ## **RESPONDENT(S):** - **------------------------** **1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.** **3. THE TAHSILDAR, THIRUVANANTHAPURAM.** **4. THE EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, MINOR IRRIGATION DEPARTMENT, THIRUVANANTHAPURAM.** **5. J. ANTONY, KAITHARA KONNATHU, MELEPUTHENVEEDU, PUNNAKKAMUGAL, ARAMADA VILLAGE, THIRUVANANTHAPURAM.** **6. S. VIJAYAKUMAR, VIJAYABHAVAN, MELACHANKONAM, PUNNAKKAMUGAL, ARAMADA, THIRUVANANTHAPURAM.** **R1 TO R4 BY GOVT. PLEADER SMT.A.C. VIDHYA. R5 & R6 BY ADV. SRI.B.JAYASURYA.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 38468 of 2003 (D)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXT.P1 COPY OF THE DELIVERY NOTE DATED 18/11/1976 ISSUED BY THE SUB COURT, TRIVANDRUM IN EP.134/1976 IN O.S.224/1957.** - **EXT.P2 COPY OF THE GIFT DEED NO.101 DATED 11/01/1979.** - **EXT.P3 COPY OF THE WILL DATED 20/07/1983.** - **EXT.P4 COPY OF THE ORDER DATED 16/03/1989 IN I.A.2394/89 IN OS. NO.640/89.** - **EXT.P5 COPY OF THE PROHIBITORY ORDER DATED 28/05/1990.** - **EXT.P6 COPY OF THE PLAINT IN O.S. NO.1613/1990.** - **EXT.P7 COPY OF THE JUDGMENT DATED 29/07/1992 PASSED BY THE PRL. MUNSIFF, TRIVANDRUM.** - **EXT.P8 COPY OF THE PATTAYAM NO.2089 DATED 04/05/1979.** - **EXT.P9 COPY OF THE NOTICE DATED 16/01/1995 ISSUED TO THE FIRST PETITIONER.** - **EXT.P10 COPY OF THE NOTICE DATED 16/01/1995 ISSUED TO THE FATHER OF THE PETITIONERS.** - **EXT.P11 COPY OF THE JUDGMENT DATED 04/10/2001 IN OS.763/95.** - **EXT.P12 COPY OF THE TAX RECEIPT DATED 22/07/2003 OF THE FIRST PETITIONER.** - **EXT.P13 COPY OF THE TAX RECEIPT DATED 22/07/2003.** - **EXT.P14 COPY OF THE JUDGMENT DATED 30/04/2003 IN O.P. NO.14061/2003.** - **EXT.P15 COPY OF THE REPRESENTATION DATED 17/11/2003.** - **EXT.P16 COPY OF THE REPRESENTATION DATED 18/11/2003.** - **EXT.P17 COPY OF THE NOTICE DATED 18/11/2003.** - **EXT.P18 COPY OF THE DECREE IN O.S.763/1995 DATED 04/10/2001.** - **EXT.P19 COPY OF THE COMMISSION REPORT DATED 08/01/2001 WITH SKETCH.** - **EXT.P20 COPY OF THE PRELIMINARY AND FINAL DECREE ALONG WITH SKETCH IN OS.224/57 SUB COURT, THIRUVANANTHAPURAM.** **....2/-** **WP(C).No. 38468 of 2003 (D)** **EXT.P21 COPY OF THE CERTIFIED F.M. SKETCH OF THE PERTAINING TO SURVEY NOS.1175, 1176 AND 1178.** - **EXT.P22 COPY OF THE JUDGMENT DATED 25/09/1962 IN O.S.224/57 PASSED BY PRINCIPAL SUB JUDGE, TRIVANDRUM.** **EXT.P23 COPY OF THE CERTIFIED COPY OF THE PARTITION DEED NO.65 DATED 08/01/1955.** - **EXT.P24 COPY OF THE LEGIBLE TYPED COPY OF THE EXT.P23.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R4A COPY OF THE WRITTEN STATEMENT SUBMITTED BEFORE THE ADDL. MUNSIFF, THIRUVANANTHAPURAM BY THE EXECUTIVE ENGINEER.** **EXT.R5A COPY OF THE STATEMENT FILED BY THE 4TH RESPONDENT IN O.S. NO.763/1995 BEFORE THE ADDL. MUNSIFF COURT, THIRUVANANTHAPURAM.** - **EXT.R5B COPY OF THE JUDGMENT DATED 30/04/2003 IN O.P. NO.14061/2003 OF THIS HON'BLE COURT.** **EXT.R5C COPY OF THE JUDGMENT DATED 12/01/2004 IN C.C.C. NO.1444/2003 OF THIS HON'BLE COURT.** **EXT.R5D COPY OF THE REPORT OF THE VILLAGE OFFICER, ARAMADA VILLAGE. DATED 28/05/1990.** **EXT.R5E COPY OF THE REPORT AND SKETCH KEPT BY THE VILLAGE OFFICER, THIRUMALA DATED 05/12/1998.** **ANNEX. A COPY OF THE SKETCH OF SY. NOS.1176/A & 1176/B.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ## **K.VINOD CHANDRAN, J. -----------------------------------W.P.(C)No.38468 of 2003 ------------------------------------Dated this the 29[th] day of May, 2017** ## **JUDGMENT** The petitioners are concerned with Ext.P17 order under Rule 11(3) of the Kerala Land Conservancy Rules, 1964. The petitioners are sought to be evicted from 10 cents and 279 sq.links of property in Sy.No.1176 of Thirumala Village. The allegation is that the petitioners are in possession of the aforesaid extent which is in fact a ‘kulam puramboke’. The litigation has a history which has been placed on record by the petitioners. 2. The petitioners are siblings who obtained respectively 1 acre and 42 cents from their father. Their father the predecessorin-interest obtained the aforesaid property in a partition suit. The description of the total extent obtained by the predecessor-ininterest is evident from Ext.P1 delivery note of the Executing Court. The property which was apportioned to the share of the father of the petitioners was 1 acre 42 cents comprised in Sy.No.1176/A. In fact the total extent of properties which were partitioned was 6 acres 16 cents comprised in both Sy.No.1176/A & B. The property in sub division B being comprised of only 14 cents. The petitioners’ father was not delivered with any property in sub division ‘B’. The 1[st] petitioner was gifted 1 acre out of the said property by Ext.P2 W.P.(C)No.38468/2003 ..2.. gift deed in the year 1979. The balance 42 cents was bequeathed to the 2[nd] petitioner as per Ext.P3 Will. The father of the petitioners died in 1999. On Ext.P17 being issued the petitioners have filed the above writ petition. 3. Even when the father was alive there was an encroachment threatened by certain persons of the locality against which the father and the 1[st] petitioner had filed a suit in which a temporary injunction against encroachment was granted as per Ext.P4. The suit also stood decreed as against the private parties impleaded therein as defendants. Subsequently by Ext.P9 a memo was issued by the Tahsildar against the 1[st] petitioner who was in ownership and possession of 1 acre and the 2[nd] petitioner who was in possession of 42 cents. Ext.P5 alleged that a kulam puramboke in Sy.No.1176/B was in the possession of the petitioners. The petitioners filed a suit again; this time impleading the Government and the Tahsildar, the plaint in which is produced as Ext.P6. The specific contention taken up in the suit was that there was absolutely no property in the possession of the petitioners comprised in sub division B of Sy.No.1176. It was also contended that the entire extent of property of 1 acre 42 cents comprised in W.P.(C)No.38468/2003 ..3.. Sy.No.1176/A and held by the petitioners were bounded by a wall. The suit stood decreed as per Ext.P7. Obviously none appeared for the State and the decree was one passed ex-parte. However there is no challenge made to the same and it has acquired finality Subsequent to the suit there were notices issued by Exts.P9 and P10 which according to the petitioners was only to close the proceedings initiated as per Ext.P5. It could not have been otherwise, in the teeth of the decree at Ext.P7. 4. Later, respondents 5 and 6 herein approached the Additional Munsiffs Court, Thiruvananthapuram with O.S.No.763/1995, again seeking eviction of the petitioners from the kulam puramboke. Obviously the suit was filed in public interest to restore the puramboke property of the Government to its rightful owners and for the use of the public. The suit stood dismissed for non-prosecution as is seen from Ext.P11. Subsequent to the dismissal of the suit respondents 5 and 6 approached this Court with O.P.No.14061/2003 which was disposed of by Ext.P14. There was a direction in the aforesaid O.P. to the District Collector to consider the representation made by the petitioners. The representation was again for restoration of 14 cents, which was W.P.(C)No.38468/2003 ..4.. alleged to be kulam puramboke. The proceedings initiated before this Court was after the dismissal of the suit and without impleading the persons who were alleged to be in possession of the property, i.e., the petitioners herein. It is pursuant to this that Ext.P17 was passed which is challenged herein. 5. Respondents 5 and 6 have filed a detailed counter affidavit again relying on the judgment of this Court in Ext.P14 and also a written statement filed in O.S.No.763/1995 which stood dismissed as per Ext.P11. The respondents 5 & 6 obviously did not pursue the suit they filed, which was dismissed in 2001 by Ext. P11; that too for default and then approached this Court in 2003, seeking for the same reliefs. Be that as it may this Court directed consideration of the representation which led to the impugned order. It has to be emphasised that this Court merely directed consideration and did not utter a word on merits. The directions issued cannot efface the effect of the earlier proceedings before the civil court. 6. In the instant writ petition by interim order dated 21.6.2006 this Court had directed a survey to be conducted which has been conducted and a report placed on record which is styled as W.P.(C)No.38468/2003 ..5.. a statement filed on behalf of the 3[rd] respondent along with a sketch. The statement is dated 22.6.2007. The statement filed also indicates that 10 cents of property in Sy.No.1176/B is in the possession of the petitioners. It is very evident that the Government has now resumed the proceedings taken against the petitioners first initiated by Ext.P5. Ext.P5 was also on account of an allegation of illegal encroachment into puramboke land. A suit was filed which was decreed, as per Ext.P7 in favour of the petitioners the persons who possessed the land. The issue insofar as the possession of the land stands settled in the suit; the judgment and decree in which has become final. 7. Subsequently respondents 5 and 6 also filed a suit for the very same relief presumably since the State could not have taken any proceedings for reason of the earlier decree against it in the suit filed by the petitioners. A Commission is seen to have been taken out in O.S.No.763/1995, a copy of which is produced as Ext.P19 by the petitioners. In the Commission Report it has been specifically stated that there is no pond seen in the properties inspected. This Court need not place any reliance on that finding since it is the contention of respondents 5 and 6 and the W.P.(C)No.38468/2003 ..6.. Government that the pond has been filled up. However the Commission Report further finds that the petitioners are only in possession of 1 acre 42 cents which at the time of inspection had an extent of 1 acre 45 cents clearly bounded within a wall. It was also noticed by the Advocate Commissioner that despite the allegation of encroachment of 14 cents the plaintiffs therein, i.e., respondents 5 and 6 could not specifically point out the identity of the property. In any event the claim of respondents 5 and 6 was not pursued before the Civil Court and the suit was dismissed for default as per Ext.P11. Respondents 5 and 6 could not have agitated the same cause again before this Court. 8. This Court by Ext.P14 disposed of the Original Petition at the admission stage itself directing the 2[nd] respondent to consider the representation made by the petitioners. The allegation/claim in the representation was akin to that made before the civil court in O.S.No.763/1995. The said remedy having been availed and given up; the petitioners could not have taken it up again with the Government. Further the Government also could not have independently or at the behest of third parties, taken up the issue for reason of the decree against the Government as is seen from W.P.(C)No.38468/2003 ..7.. Ext.P7. The attempt of respondents 5 and 6 was to circumvent the decree against them and the Government. It is also pertinent that in that Original Petition, seeking disposal of representation, the petitioners who were parties in the suit and who were admittedly in possession of the alleged encroachment were not made parties. 9. The cause agitated by respondents 5 and 6 could not have been entertained by this Court, on merits and even now there is no finding as to the rival claims in Ext.P14 judgment. This Court in disposing of the Original Petition filed by respondents 5 and 6 merely directed the District Collector to consider the issue. The District Collector as was noticed herein earlier could not have made any consideration since Ext.P7 decree stood against the Government. Ext.P17 hence is found to be unsustainable. 10. In disposing of the above writ petition this Court has also to advert to the survey conducted by the Additional Tahsildar, the report of which is placed along with statement dated 22.6.2007. This is also in compliance of the interim order of this Court dated 21.6.2006. A reading of the interim order dated 21.6.2006 clearly indicates that this Court had directed identification of the entire 6.30 acres of land situated in Sy.No.1176. There was no such W.P.(C)No.38468/2003 ..8.. identification made. What is seen from the sketch is the identification of Sy.No.1176/A in which only 10 cents is identified as that falling within Sy.No.1176/B. Survey sketch goes to the extent of indicating that there is available only 13 cents in sub division B which is a kulam puramboke out of which 3 cents have already been evicted. Despite the survey sketch indicating so, it has to be noticed that the proceedings initiated by the District Collector itself is bad for reason of the District Collector being restrained from taking any such proceedings by the decree passed as per Ext.P7. The suit filed by respondents 5 and 6 also stood dismissed despite considerable proceedings having been taken by the filing of counter affidavit by the State and also a Commission being taken out. 11. In finding the District Collector’s action to be bad for reason of Ext.P7 decree this Court is fortified by the decision of a Division Bench of this Court in **Gopalakrishnan Nair K.P. & others v. Tahsildar & Executive Magistrate, Kollam[2011 (1) KHC 707 (DB)];** which upheld the primacy of a civil court decree, even if it is ex-parte. There the Division Bench of this Court refused to allow the claim of the appellants, in a proceeding under Article 226, and declined interference to the judgment of the learned W.P.(C)No.38468/2003 ..9.. Single Judge, which set aside the decision of the Revenue Authorities nullifying the decree passed by the Civil Court. The proceedings taken by the District Collector against the petitioners, similarly has the effect of nullifying Ext.P7 decree which allowed a boundary wall to be constructed, within which is bounded the petitioners' property and is hence unsustainable. Ext.P17 stands set aside. The writ petition is allowed. The parties will suffer their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** skj