Rehabilitation Plantations Ltd. v. Aliyar Rawther and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 2ND DAY OF JULY 2012/11TH ASHADHA 1934** ## **SA.NO. 792 OF 2001 (C)** **------------------------------------AS.151/1995 OF FIRST ADDITIONAL DISTRICT COURT, KOLLAM OS.108/1990 OF SUB COURT, KOTTARAKKARA** ## **APPELLANTS/RESPONDENTS/DEFENDANTS:** **----------------------------------------------------------------** **1. ALIYAR RAWTHER, THEVAROTHU PUTHEN VEEDU, MARAVETTY THADAM, YEROOR VILLAG, PATHANAPURAM.** **2. K.N. NUHU, SHINY MANZIL, MARAVETTYTHADAM, YEROOR VILLAGE, PATHANAPURAM.** **3. M. HASSAN KANNU RAWTHER, SHAJI MANZIL, MARAVETTYTHADAM, YEROOR VILLAGE, PATHANAPURAM TALUK.** **4. SHAJAHAN, S/O.ALIYAR ROWTHER, THEVAROTTU PUTHEN VEEDU, MARAVETTY THADAM, AIRNALLOOR VILLAGE, PATHANAPURAM TALUK.** **5. MAZOOD ROWTHER, S/O.MYTHEEN PICHA ROWTHER MARUTHIVILA VEEDU, MARAVETTY THADAM, AIRANALLOOR VILLAGE, PATHANAPURAM TALUK.** ## **BY ADV. SRI.P.SANTHALINGAM (SR.)** ## **RESPONDENT/APPELLANT/PLAINTIFF:** **--------------------------------------------------------** **REHABILITATION PLANTATIONS LTD., PUNALUR, REPRESENTED BY ITS MANAGING DIRECTOR.** **BY ADV. SRI.M.PATHROSE MATTHAI (SR.) BY ADV. SRI.SAJI VARGHESE** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== S.A. No.792 of 2001 ==================================== Dated this the 02[nd] day of July, 2012** ## **J U D G M E N T** This Second Appeal is brought by the defendants from the judgment and decree of learned First Additional District Judge, Kollam in A.S. No.151 of 1995 reversing the decision of learned Sub Judge, Kottarakkara in O.S. No.108 of 1990. 2. Respondent is a Company and as the learned counsel for respondent submits, formed by the Central and State Governments. According to the respondent, sometime during the early 1970s, the Government took land for rehabilitation of repatriates from Srilanka. In the year, 1973 the Government of Kerala converted two Reserved Forest area as rubber plantation. It consisted of 1482 hectares in Kulathupuzha Estate and 783 hectares in Ayiranalloor Estate. The Ayiranalloor Estate was divided into 8 coups. Coup No.3 is 105.60 hectares. Respondent claimed lease of the said 105.60 hectares as per Ext.A1, lease deed dated 26.06.1980. According to the respondent, appellants who are associated with the local Jama-Ath, claiming that there is a mosque situated in a portion of the suit property attempted to **R.S.A. No.792 of 2001** -: 2 :- trespass into the said property. Respondent filed the suit for prohibitory injunction against such trespass. 3. Appellants contended that they are in possession and enjoyment of about one acre of land and that the said one acre is not part of the suit property - 105.60 hectares referred to in Ext.A1. They further contended that the Jama-Ath is in possession and enjoyment of the said one acre from the year, 1944 onwards. They are burying the dead bodies in the said one acre and have constructed a mosque in that property. 4. The trial court held that there is no proper identification of the suit property. It is not shown that the one acre claimed by the appellants is part of the 105.60 acres referred to in Ext.A1. At any rate, evidence shows that the appellants are in possession and enjoyment of the said one acre. Trial court dismissed the suit. 5. Respondent took up the matter in appeal. Learned District Judge was of the view that merely because a mosque like structure was found in the one acre, no inference is possible that it is a mosque constructed by the appellants. Learned District Judge was of the view that the assessment of the building in the disputed land in the name of the Jama-Ath is under ## **R.S.A. No.792 of 2001** ## -: 3 :- pressure from interested person and cannot confer any right of possession of the disputed property with the appellants. Learned District Judge reversed the decision of the trial court and a decree for prohibitory injunction was granted in favour of the respondent. That judgment and decree are under challenge in this Second Appeal. 6. The following substantial question of law are framed for decision: (i) Has not the lower appellate court erred in law in holding that the respondent herein have obtained title over plaint schedule property? (ii) Whether the lower appellate court is justified in law in finding adverse possession of the respondent in the light of lack of proof as regards the same? (iii) Are not the adverse possession and limitation conclusively established by the appellants herein both through pleadings and proof? (iv) On the basis of pleadings and evidence whether the court below is justified in law in relying on Ext.A1 to find title in favour of the respondent herein? ## **R.S.A. No.792 of 2001** ## -: 4 :- 7. The learned counsel for appellants contended that the first appellate court went wrong in reversing the well reasoned decision of the trial court as to possession claimed by the appellants over the one acre. According to the learned counsel, it is by surmises and conjectures that the first appellate court came to the conclusion that the building in the suit property was assessed as mosque under pressure from interested parties. It is pointed out by the learned counsel that there is absolutely no evidence to hold so. Even the report of the Advocate Commissioner indicated that appellants are in possession of the suit property which the first appellate court has ignored. Further contention is that notwithstanding the contention of appellants that the one acre they claimed possession is not part of the suit property - 105.60 hectares, no attempt was made by the respondent to identify the disputed one acre as forming part of the 105.60 hectares. 8. Learned counsel for respondent contended that the disputed one acre is part of the 105.60 hectares leased to the respondent as per Ext.A1. The evidence reveal that there was only an attempt on the part of the appellants to trespass into a ## **R.S.A. No.792 of 2001** ## -: 5 :- portion of the suit property. Learned counsel has invited my attention to the various documents parties have relied. It is the contention of learned counsel that the property originally was Reserved Forest notified under Section 3 of the Kerala Forest Act (short short, “the Act”) it is within the power of the Government to constitute any land at the disposal of the Government a Reserved Forest. Reliance is also placed on Sec.22 of the Act to contend that no right of any description shall be acquired in or over a Reserved Forest except under a grant or contract in writing made by or on behalf of the Government or by or on behalf of some person in whom such right or the power to create such right was vested when the notification under Sec.19 was published or by succession from such person. Learned counsel has invited my attention to the decision in **Aliakutty Paul v. State of Kerala and others** (1995 [3] ILR (Ker.) 107 - paragraph 18) to contend that in the absence of any grant or contract as referred to in Sec.22 of the Act, appellants could not claim any right including possessory right over the suit property and hence contention of the appellants has to fail. It is contended that by Ext.C1, even the Advocate Commissioner has identified the suit property as taking in the disputed land. In the circumstances ## **R.S.A. No.792 of 2001** ## -: 6 :- merely because some structures were found at the time of inspection by the Advocate Commissioner, no inference is possible that the disputed one acre is in the possession of the appellants. Learned counsel has argued that the first appellate court has reversed the finding on the facts based on evidence on record and that involves no substantial question of law. 9. Exhibit A1 is the lease deed dated 26.06.1980 in favour of the respondent and concerns 105.60 acres. Dispute is concerning the one acre of unplanted area which according to the respondent forms part of the 105.60 acres. Exhibit A2 is the copy of Form No.1 report dated 19.07.1989 prepared by the forest official under Sec.52 of the Act for alleged trespass into the property of the Government and Rehabilitation Plantations. In Ext.A2, it is stated that the extent involved is about one acre and on enquiry it was revealed that the accused in that case trespassed into the said one acre. Exhibit A3 relates to O.S. No.176 of 1989 filed by the appellants against the respondent, the State, etc. alleging that the mosque is in existence in the disputed property since 1944 onwards. That suit, it is not disputed was withdrawn by the appellants without adjudication of the dispute. ## **R.S.A. No.792 of 2001** -: 7 :- 10. Exhibit A6 is a letter dated 19.06.1990 from the Government of Kerala, Labour and Rehabilitation Department and addressed to the Managing Director of the respondent. The said letter referred to the unauthorized burial of dead bodies in the premises leased (as per Ext.A1). The Managing Director of the respondent was directed to take immediate action by approaching the court and to get prohibitory injunction. Exhibit A7 is the proceeding dated 27.07.1990 of the District Collector, Kollam. Reference is made to a petition dated 01.06.1990 and report of the Tahsildar, dated 18.07.1990. In Ext.A7, it is stated that burial, burning and otherwise disposal of dead bodies near the staff quarters and labour tenements in Sy. No.822/1 (in which the suit property is allegedly situated) which is a portion of the Reserved Forest is stayed. Exhibit A8 is the letter dated 01.06.1990 from the respondent to the District Collector. There, it is stated that there is no such mosque, burial ground or JamaAth as claimed by the appellants in the disputed land. 11. Exhibit B1 is a letter dated 26.05.1975 (about five years prior to Ext.A1, lease deed) from the Agriculture (Forest General) Department of the Government of Kerala and addressed to the President of the Jama-Ath. The subject matter referred is **R.S.A. No.792 of 2001** ## -: 8 :- allotment of 5 acres to the Jama-Ath. Reference is made to a representation dated 02.07.1974 from the Jama-Ath to the Minister for Finance. In Ext.B1, it is stated that the Chief Conservator of Forests has reported on request that the survey party was not able to carry out work of re-fixing of the boundary due to obstruction by the local people and that request of the Jama-Ath (for allotment of 5 acres referred in Ext.B1) could be considered only after re-fixation of the boundary. In Ext.B1, the Government requested President of the Jama-Ath to render necessary assistance for re-fixation of the boundary. Exhibits B2 and B3 are letters dated 05.09.1975 and 03.10.1975 (also about five years prior to Ext.A1) from the Divisional Forest Officer to the President of Jama-Ath. There, the DFO has requested President of the Jama-Ath to report whether the Jama-Ath is willing to pay value for the land requested for. Exhibit B4 is a notice dated 12.03.1994 from the Special Tahsildar (LA) referring to the 0.00.80 hectares in Sy. No.4494/8 and 0.07.49 hectares in Sy.4492/1 (serial No.822/1 - which is the survey number given for the suit property). In Ext.B4 it is stated that property is in the possession of Mohayudeen Muslim Jama-Ath. 12. Exhibit C1, report of the Advocate Commissioner ## **R.S.A. No.792 of 2001** ## -: 9 :- states that he inspected the property on 27.11.1990. The Advocate Commissioner reported that the disputed one acre is towards south-eastern portion of the property claimed by the respondent as per Ext.A1. The disputed area is barren land while the rest of property claimed by the respondent is cultivated with rubber. The Advocate Commissioner has also reported that the rubber estate is towards north-eastern side of the disputed one acre and that on the west, it is the quarters of RPL employees. The Advocate Commissioner found a cutjan thatched building in the disputed one acre. Local people told the Advocate Commissioner that it is a mosque. The Advocate Commissioner reported that the roof of that building is made of wood and reapers. He noticed that the foundation of that building was made of granite stones. Commissioner also noticed some structures inside the building which gave the appearance of a mosque. According to the Commissioner, the building is 14 years old and bore Panchayat No.YP/XII/254. Commissioner noticed a coffin (Samtak) kept inside the building on two pillars. 13. Learned Sub Judge found from Ext.C1 as well as the evidence of P.W1 that the land occupied by the respondent is separated from the disputed land with a row of stones. Learned ## **R.S.A. No.792 of 2001** ## -: 10 :- Sub Judge observed that there is no case for the respondent that in the suit property covered by Ext.A1, any such demarcation was made. Learned Sub Judge, having regard to the report of the Advocate Commissioner and the evidence concluded that appellants are in possession of the disputed property and that the claim of respondent cannot be sustained. 14. The learned District Judge was of the view that mere presence of the structure in the suit property is not sufficient to show possession of the disputed property with the appellants. Learned District Judge observed that assessment of the building by the Panchyath was allegedly obtained at the instance of interested persons. In paragraph 10 of the judgment it is observed that the Advocate Commissioner (in Ext.C1) has noticed that there were some characteristics of a place of worship but that building can hardly be characterized as a mosque or madrassa. 15. It is not clear why and for what reason the first appellate court made such an observation. It is still not understandable on the strength of what evidence the first appellate court mentioned in paragraph 12 of its judgment that the entry in the Panchayath register was wrongly made at the ## **R.S.A. No.792 of 2001** ## -: 11 :- instance of interested parties. No reliance evidence is produced to show that assessment for the building by the Panchayah was at the instance of any interested party. If reference is to the appellants who are the officials of the Jama-Ath, necessarily they are interested and there is nothing wrong in their obtaining assessment of the building in their name if it was constructed by them in the disputed property. 16. An important aspect I have to bear in mind is that the Advocate Commissioner while inspecting the property on 27.11.1990 assessed the oldness of the building in the disputed land as 14 years while it is by Ext.A1 dated 26.06.1980 that respondent claims right and possession of the entire property. Going by Ext.C1 which is not shown to be not correct, the building in question must have come into existence much prior to Ext.A1. There is no case for the respondent that the said building was constructed by the Government. The claim of respondent that it constructed that building for accommodating its employees cannot be accepted in the light of Ext.C1. There is evidence that the building was used by the appellants as a mosque even prior to Ext.A1. The trees found in the disputed land also were planted prior to Ext.A1. The disputed land was seen ## **R.S.A. No.792 of 2001** ## -: 12 :- demarcated from the rest of the property belonging to the respondent. The building in the disputed property was assessed in the name of appellants. 17. True that in Ext.A2, there is an allegation of the JamaAth officials trespassing into the disputed land. That remains an allegation. Exhibits B1 to B3 show that even a few years prior to Ext.A1, appellants have been requesting the Government for allotment of 5 acres. It is therefore not as if the presence of the appellants in the disputed land could be traced to something that happened after Ext.A1. This must be taken along with the evidence of P.W.1 and DW1 that the disputed land is demarcated from the rest of the property belonging to the respondent with a row of stones. 18. So far as reference to Sec.22 of the Act made by the learned counsel is concerned, true that the said provision say that no right of any description shall be acquired in or over a Reserved Forest except under a grant or contract in writing. Appellants are not requesting the aid of the court to enforce any right they claim over the disputed property. Their attempt is only to ward off the request of the respondent to prevent them from entering into the suit property as if they have no possession ## **R.S.A. No.792 of 2001** ## -: 13 :- of the said property. The decision relied on by the learned counsel for respondent in my view would not help the respondent in the above circumstances. May be that possession of the appellants as against the Government is unauthorized but that is a different matter so far as the dispute as to possession between the appellants and respondent is concerned. 19. I have gone through the judgments of learned Munsiff and the learned District Judge. The learned Munsiff has referred to all relevant aspects and evidence to conclude that the appellants are in possession of the disputed one acre. On the other hand, it is by surmises and conjectures and based on no evidence that the first appellate court has entered a finding that the structure in the disputed property has only the appearance of a mosque and that assessment for the building was obtained at the instance of some interested party. I must also notice that notwithstanding the contention raised by the appellants that the disputed property does not form part of property covered by Ext.A1, no attempt was made by the respondents to take out a survey commission to identify the disputed land and show that it is part of the property belonging to them as per Ext.A1. 20. The learned counsel for the respondent has invited ## **R.S.A. No.792 of 2001** ## -: 14 :- my attention to some observations made by the Advocate Commissioner in Ext.C1 as if the disputed land is part of the suit property. That is not a statement made after a proper identification of the suit property. 21. Though appellants have raised a plea of adverse possession, that being irrelevant so far as the present dispute is concerned, is not required to be decided. That question is left open. 22. On hearing the learned counsel on both sides and going through the judgments under challenge and the evidence I am satisfied that the first appellate court has decided the issue regarding possession against the evidence on record and entered into certain findings which are not supported by any evidence. In that view of the matter the first appellate court was not right in reversing the judgment of the trial court which is based on a proper appreciation of the evidence on record. 23. I make it clear that what is decided here is only the possession appellants claim over the disputed property. The question whether the disputed property is covered by Ext.A1 is left open. I have not decided on the title over the disputed property, nor on the right, if any of the Government or such other ## **R.S.A. No.792 of 2001** ## -: 15 :- authority to enforce the title they claim over the property. 24. The learned counsel for the respondent raised an apprehension that it may take some time for the Government or the respondent to initiate appropriate proceeding for recovery of the disputed land from the appellants and if in the meantime appellants bury dead bodies or put up additional structures in the disputed property, position might become irreversible by the time the respondent or other authority initiated action. I have heard the learned counsel for appellants also in this regard. Having regard to the above apprehension of the respondent and since I have not decided on the title to the disputed property, it is appropriate to issue a direction to the appellants not to put up additional structures or bury dead bodies in the disputed land for a period of four months from this day. 25. Substantial questions of law framed are answered as above. Second Appeal is allowed as under: (i) Judgment and decree of the learned First Additional District Judge, Kollam in A.S. No.151 of 1995 are set aside. (ii) Judgment and decree of the learned Sub Judge, ## **R.S.A. No.792 of 2001** -: 16 :- Kottarakkara in O.S. No.108 of 1990 are restored. (iii) O.S. No.108 of 1990 will stand dismissed. (iv) Appellants and men under them are directed not to bury any dead bodies, put up additional structures in the disputed land or alter its present position and condition for a period of four months from this day. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv