State of Kerala v. P.Y.Philip

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 SA.No. 129 of 1999(F) --------------------AS.52/1989 of SUB COURT,KOTTARAKKARA OS.135/1987 of MUNSIFF COURT, PUNALUR .................... APPELLANT(S): -------------------- 1. STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, KOLLAM. 2. THE DIVISIONL FOREST OFFICER, DIVISIONAL FOREST OFFICE, PUNALUR. 3. THE RANGE OFFICER, FOREST RANGE OFFICE, PATHANAPURAM. BY ADV. SRI.T.R.REVI, SPL.GOVT.PLEADER RESPONDENT(S): --------------- 1. P.Y.PHILIP, S/O.YOHANNAN, PARANKIMAMVILA VEEDU, CHERUKADAVU, EDAMON, PATHANAPURAM.(DIED) ADDITIONAL RESPONDENTS IMPLEADED : 2. ANNAMMA, W/O.PHILIP, PARANKIMAMVILA VEEDU, CHERUKADAVU, EDAMON, PATHANAPURAM. 3. P.SUSAMMA, D/O.PHILIP, PARANKIMAMVILA VEEDU, CHERUKADAVU, EDAMON, PATHANAPURAM. 4. P.SAJIMON, S/O.PHILIP, PARANKIMAMVILA VEEDU, CHERUKADAVU, EDAMON, PATHANAPURAM. 5. P.SUJAMOL, D/O.PHILIP, PARANKIMAMVILA VEEDU, CHERUKADAVU, EDAMON, PATHANAPURAM. (ADDL. R2 TO R5 ARE IMPLEADED BEING LEGAL REPRESENTATIVES OF DECEASED SOLE RESPONDENT VIDE ORDER DATED 6.6.2011 IN I.A.320/09). ADV. SRI.K.V.SOHAN FOR R2 TO 5 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2011, THE COURT ON 15.11.2011 DELIVERED THE FOLLOWING: ## **M.L.JOSEPH FRANCIS, J. ----------------------------------------------Second Appeal No.129 of 1999 ----------------------------------------------Dated 15[th] November, 2011.** ## **J U D G M E N T** This second appeal is filed by the defendants 1 to 3 in O.S. No.135 of 1987 on the file of Munsiff Court, Punalur. The original respondent herein was the plaintiff in that suit which was filed by him for permanent prohibitory injunction against the defendants 1 to 3. 2. The case of the plaintiff in O.S. No.135 of 1987 is briefly as follows: The plaintiff has got absolute title and possession over 70 cents of property comprised in survey No.872/1/8/3 of the Edamon village. Near to the said property there is the plaint schedule property. The plaint schedule property is described to be 3 acres of land included in the same survey number. The plaintiff is in possession of the plaint schedule property for the last 34 years. He has effected valuable improvements in the property by planting Arecanut, Tamarind, Jack trees and coffee plants and he is collecting the yields therefrom. The defendants are attempting to forcibly and illegally evict the plaintiff and trying to trespass into the plaint schedule property and also trying to cut and remove the S.A.129/1999 2 improvements. Since an urgent and immediate relief of injunction is claimed, notice as required under section 80 of the Civil Procedure Code could not be issued. Hence the plaintiff prayed for a decree of perpetual injunction restraining the defendants from trespassing into the plaint schedule property and from committing any sort of waste therein. 3. The third defendant filed written statement contending as follows: The statement of the plaintiff that he was in possession of the suit land for the last 34 years is false. The suit land is reserved forest and it is in the possession of the defendants and it is separated by jundas. The allegation of the plaintiff that he is conducting agricultural operations in the suit property is false. The plaintiff is not in possession of the suit land. He has no title over it. He cannot claim any adverse possession. The Forest Department had planted permumaram trees on the southern side of the registered holding as part of forest and there are several forest trees in the plaint property. At the northern side of the suit land, there are properties S.A.129/1999 3 belonging to others and ingress and egress to plaint property is possible only through the registered lands of others and the suit is prima facie baseless. According to the 3[rd] defendant, the plaintiff has filed this suit as a test suit to examine whether the forest land could be grabbed from the government. He is not entitled to any relief. 4. In the trial Court on the side of the plaintiff, PW1 to PW3 were examined and Ext.A1 was marked. On the side of defendants DW1 was examined. Exts.C1 to C3 were marked as Court exhibits. The learned Munsiff on considering the evidence found that the plaintiff is in possession of the plaint schedule property and that if the plaint schedule property is a part of the reserve forest the defendants can recover possession of the property from the plaintiff in due process of law and they cannot forcibly trespass over the property and commit waste in the land and the suit was decreed as follows: The plaintiff is granted a decree of perpetual injunction restraining the defendants from trespassing into the plaint S.A.129/1999 4 schedule property and from committing waste therein. It is made clear that this decree of perpetual injunction will not bar the defendants from recovering possession of the property from the plaintiff under due process of law. The parties are directed to suffer their costs. 5. Against that judgment and decree, the defendants 1 to 3 filed appeal as A.S.52/89 before the Sub Court, Kottarakkara, which was dismissed on finding that the plaintiff is in possession of the plaint schedule property and the defendants are free to recover possession of the plaint schedule property under due process of law as the property is a reserve forest. Against that judgment and decree the defendants 1 to 3 filed this Second Appeal. 6. Heard the learned counsel for the appellants and the learned counsel for the respondent. 7. Learned counsel for the appellants submitted that the ratio laid down in the decision reported in **Chief Secretary v. Mathai Kuriakose** [1988(2) KLT 221] ought to S.A.129/1999 5 have applied by the courts below and the suit ought to have been dismissed. Learned counsel for the appellants, relying on the decision reported in **Aliakutty Paul v. State of Kerala and others** [ILR 1995(3) Kerala 107] submitted that under Section 66 of the Forest Act, the Government can evict a person in possession of Government forest land without valid permission, without filing a civil suit and by invoking powers under that Section. Learned counsel for the respondents supported the judgments of the courts below. 8. Learned counsel for the respondents invited my attention to the decision of the Apex Court reported in **Rame Gowda (D) by L.Rs. v. M. Varadappa Naidu (D) by L.Rs. and another [** AIR 2004 S.C.4609], in which it was held : “So far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. S.A.129/1999 6 If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law: he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force.” ## In the said decision, it was further held : “The Court laid down the following tests which may be adopted as a working rule for determining the attributes of 'settled possession': (i)that the trespasser must be in actual physical possession of the property over a sufficiently long period; (ii)that the possession must be to the knowledge (either express of implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case, (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be S.A.129/1999 7 acquiesced to by the true owner; and (iv) that one of the usual tests to determine the quality of settled possession in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession. Therefore when title of either party was not proved and plaintiff was found to be in settled possession he would be entitled to relief of injunction restraining defendant from interfering with his possession.” 9. According to the case of the plaintiff, the plaintiff has title over 70 cents of property in survey No.872/1/8/3 of Edamon village. The plaint schedule property also is described to be included in the same survey number and having an extent of three acres. The plaintiff claimed that he is in absolute possession and enjoyment of the plaint schedule property for the last 34 years, effected improvements like Arecanut, Tamarind, Jack trees and Coffee plants. He is in possession of the land for long continuous uninterrupted period of 34 years and adversely to the defendants. The further allegation is that S.A.129/1999 8 the defendants are attempting to trespass into the property, destroy the cultivation and disturb the possession of the plaintiffs for which they have no right. 10. In the trial court, an Advocate Commissioner inspected the plaint schedule property and prepared Ext.C1 mahazar, Ext.C2 rough sketch and Ext.C3 report. The Advocate Commissioner was examined as PW2. PW2 deposed that the plaint schedule property is lying separated by well-defined boundaries on all the four sides and he has also stated about the boundaries and different kinds of improvements. He has stated that there are Glyrecedea plants on the ridges on the four sides put up as boundary. It is also stated that there are crops like Pineapple, coffee etc. and there are also trees like Mango tree, Mullumurikku etc. 11. The plaintiff, who was examined as PW1 deposed that he is in possession of the plaint schedule property for the last 34 years. PW3, who is an independent witness supported the case of the plaintiff that plaintiff is in possession S.A.129/1999 9 of the plaint schedule property. The Munsiff Court, on considering the evidence on record found that the plaintiff is in possession of the plaint schedule property and that he is entitled to get a prohibitory injunction. In appeal, that finding was confirmed by the lower appellate court. Since the lower appellate court is the final court of facts confirmed the finding of the trial court regarding plaintiff's possession over the plaint schedule property and upheld the judgment of the trial court decreeing the suit, there is no scope for this Court to interfere with the concurrent finding of facts in this Second Appeal. From the judgments of the courts below, it is clear that both the courts considered the rulings cited by both sides before those courts and distinguished the decision reported in **Chief Secretary v. Mathai Kuriakose** [1998(2) KLT 221]. Both the lower courts have not stated that the filing of a civil suit is necessary for getting recovery of possession of plaint schedule property from the plaintiff. On considering these aspects of the matter, I am of the view that this Second Appeal has to be dismissed as it is without any merits. Accordingly, this Second S.A.129/1999 10 Appeal is dismissed. There is no order as to costs. Sd/- **M.L.JOSEPH FRANCIS, JUDGE.** tgs (True copy) P.S. to Judge.