Sundaresan v. The State of Kerala represented by the District Collector Pathanamthitta; Tahsildar, Ranny; Sarojini Parameswaran; Shaji A.P; Omanakuttan; Prasad; Kanchana C.S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **MONDAY, THE 7TH DAY OF JANUARY 2013/17TH POUSHA 1934** ## **RSA.No. 254 of 2012 ()** **--------------------------------AGAINST THE JUDGMENT IN AS.69/2008 OF DISTRICT COURT, PATHANAMTHITTA DATED 12-10-2011 AGAINST THE JUDGMENT IN OS.354/2003 OF MUNSIFF'S COURT, RANNY, DATED 28-01-2008** **APPELLANT(S)/APPELLANT/PLAINTIFF:** **----------------------------------------------------------------** **SUNDARESAN, AGED 48 OLIKAL HOUSE. THULAPPLLI, PAMPAVALLEY, KOLLAMULA VILLAGE, RANNI** **BY ADV. SRI.BECHU KURIAN THOMAS** ## **RESPONDENT(S)/RESPONDENTS/DEFENDANTS:** **--------------------------------------------------------------------------** **1. THE KERALA STATE REPRESENTED BY THE DISTRICT COLLECTOR PATHANAMTHITTA 689101** **2. TAHASILDAR, RANNY 689672** **3. SAROJINI PARAMESWARAN, AGED 63 AREATHRA VEETIL, KAINAGIRITHOTTUVATHALA KUTTANADU TALUK, ALAPPUZHA DISTRICT PIN 679533** **4. SHAJI A.P, AGED 41 YEARS AREATHRA VEETIL, KAINAGIRITHOTTUVATHALA KUTTANADU TALUK, ALAPPUZHA DISTRICT PIN 679533** **5. OMANAKUTTAN , AGED 38 YEARS AREATHRA VEETIL, KAINAGIRITHOTTUVATHALA KUTTANADU TALUK, ALAPPUZHA DISTRICT PIN 679533** **6. PRASAD, AGED 36 YEARS AREATHRA VEETIL, KAINAGIRITHOTTUVATHALA KUTTANADU TALUK, ALAPPUZHA DISTRICT PIN 679533** **7. KANCHANA C.S** - **KALARICKAL VEEDU VARANNAM P.O PUTHANGADI 688555** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** das ## **N.K.BALAKRISHNAN, J. ==================** ## **R.S.A. No. 254 of 2012** ## **========================= Dated this the 7[th] day of January, 2013** ## **JUDGMENT** Heard the learned counsel for the appellant. The appellant is the plaintiff in O.S. No.354/2003 on the files of the Munsiff's Court, Ranny. The suit was filed for a declaration of title and cancellation of Patta issued by the Government under Kerala Land Acquisition Act and Rules and also for a permanent prohibitory injunction. The defendants 1 and 2 therein are the State of Kerala and the Tahsildar of Ranny Taluk. 2. The plaintiff therein contended that the plaint schedule property measuring 50 cents is in his father and thereafter in his absolute possession and enjoyment and the possession continued for the last about 33 years. It was contended that the said property was having welldefined boundaries and that without following the procedure and formalities Patta was issued by defendants R.S.A.No.254/2012 : 2 : 1 and 2 in favour of Kunjan Parameswaran, the husband of the third defendant. The plaintiff and others had preferred a writ petition before this court in which this court directed the plaintiff and others to file civil suit to get the title declared and consequential release. The defendants contended that the claim of possession set up by the plaintiff is not true. The property shown in this complaint and other properties were Government lands and that the Government decided to issue Patta in respect of varieties items of properties to the landless poor persons. Accordingly, proceedings were initiated by the Revenue Authorities and Patta was issued to the different applicants/persons. 3. The aforesaid suit (O.S. 354/2003) and other suits were jointly tried and a common judgment was passed dismissing all the suits. The appeal filed by the plaintiff herein was dismissed by the Lower Appellate Court. R.S.A.No.254/2012 : 3 : 4. The learned counsel for the appellant submits that it was stated in the plaint that the plaintiff and his predecessor (father) have been in possession of the plaint scheduled property since 1971 and that the procedure prescribed for assignment of Government land was not followed and as such the Patta issued to Kunjan Parameswaran, the husband of the third defendant is liable to be set aside. 5. Admittedly, the property was held by the Government. The evidence on record and which was accepted by the courts below would show that the Government had initiated action for assignment of different parcels of land to the landless poor persons. It was accordingly, the Patta was issued to the Kunjan Parameswaran mentioned earlier as per L.A.5/1990. It is in evidence that the Patta was issued to Kunjan Parameswaran in respect of 80.94 Ares of land. Since that property was not properly surveyed the assignee R.S.A.No.254/2012 : 4 : approached this court. It is in evidence that this court directed the property to be surveyed and measured and accordingly, the property covered by Ext.B3 Patta issued in L.A. 5/1990 was measured. It was thereafter, the suit was filed by the plaintiff contending that no notice was issued to him while the Patta was issued to Kunjan Parameswaran. It was observed by the appellate court in Paragraph 25: Ext.B3 patta was issued as per G.O.(M.S) 399/80/RD dated 21.10.1980 and as per Government letter No.32732/P2/90/RD dated 5.7.1990. 11 persons were assigned with 2 acres of land each in Ranny Taluk and according to the learned counsel for the respondent the order was passed with public interest as part of upliftment of scheduled caste community. The Government orders are not under challenge. 6. The argument, that was advanced before the Lower Appellate Court, was that the procedure under Sec.4 of the Kerala Land Acquisition Act was not R.S.A.No.254/2012 : 5 : followed. But it was contended that the assignment was done in public interest and so Rule 24 of the Kerala Land Acquisition Rules would govern the issue. Though a contention was raised before the appellate court that in view of the proviso the procedure contemplated under Sec.4 should have been followed, that contention was negatived by the Lower Appellate Court since as per SRO. 643/73 dated 15.10.1973, published in the Gazette dated 22.10.1973., the proviso to Rule 24 was deleted. Therefore, according to the defendant, in view of the facts that the assignment was made in public interest as provided under Rule 24. The contention that the procedure prescribed under Sec.4 was not followed cannot be countenanced at all. It is further pointed out, altogether 11 persons were granted assignment as per the proceedings initiated which itself would show that the assignment was in public interest. The decisions of this court in **Bharaninal Ammal Thampuran v. State of** R.S.A.No.254/2012 : 6 : **Kerala** (1979 KLT SN 69) and **Pushpavally v. State** (1996(2) KLT 197) were followed by the lower appellate court to negatived the contention raised by the appellant that the procedure formalities were not followed by the Government while issuing the Patta in favour of Kunjan Parameswaran and others. In view of the non-obstande clause contained in Rule 24, the Government may assign land dispensing any of the provisions contained in Rules and subject to such conditions as they may impose. 7. In view of what is stated above, the contention that the Patta was issued in violation of the Rules cannot be sustained. It was rightly rejected by the Lower Appellate Court. There is no acceptable pleadings to the effect that the plaintiff has prescribed title to the plaint schedule property by adverse possession and limitation, since it is a Government land, such continues possession should have been for thirty years. Leaving about other ingredients, to sustain a plea for acquisition of title by R.S.A.No.254/2012 : 7 : adverse possession it can also be seen that the Government had initiated the proceedings for assignment of the land even in 1980 and that after following the procedure the Patta was issued in 1990. Therefore, even going by the averments in the plaint it can be found that the requisite period of 30 years was not completed, since even according to the plaintiff and his father was in possession only since 1971. As such, I find that the plaintiff was rightly non suited by the courts below. No substantial question of law is involved in this case. Hence, this appeal is dismissed in limine. Sd/- **N.K.BALAKRISHNAN, JUDGE** das // True copy // PA to Judge