The Cashew Development Officer, Kasaragod; Agricultural Officer, Cashew Progeny Orchard, Galimukha; State of Kerala v. Venkatramana Bhat (deceased) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY ,THE 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941** **RSA.No. 636 of 2007 (A)** **AGAINST THE JUDGMENT AND DECREE DATED 31.01.2007 IN AS NO.51/2004 of SUB COURT, KASARAGOD** **AGAINST THE JUDGMENT AND DECREE DATED 31.01.2004 IN OS NO. 232/2000 of ADDITIONAL MUNSIFF, KASARAGOD** ## **APPELLANTS/DEFENDANTS:** - **1 THE CASHEW DEVELOPMENT OFFICER,KASARGOD.** - **2 THE AGRICULTURAL OFFICER, CASHEW PROGEMY ORCHARD, GALIMUKHA.** - **3 THE STATE OF KERALA REP. BY THE DISTRICT COLLECTOR, KASARGOD.** **BY GOVERNMENT PLEADER SRI.P.M.SATHEESH** ## **RESPONDENTS/PLAINTIFFS:** - **-1 VENKATARAMANA BHAT (DIED)** ## **SUPPLIMENTAL:** - **2 SMT.SAVITHRI V.BHAT, AGED 62 YEARS, W/O LATE K.VENKATARAMANA BHAT.** - **3 SMT.PRASANNA GOWRI. G.BHAT, AGED 37 YEARS, D/O.K.VENKATARAMANA BHAT.** - **4 SMT. SANTHAKUMARI. N.BHAT, AGED 36 YEARS, D/O. LATE K.VENKATARAMANA BHAT.** - **5 SUBRAMANYA PRASAD, AGED 34 YEARS, S/O. LATE K.VENKATARAMANA BHAT.** RSA No.636 of 2007 2 **6 SATHYSANKARA.M. AGED 30 YEARS, S/O. LATE K.VENKATARAMANA BHAT.(ALL ARE RESIDING AT MAILANKOTE HOUSE, ADHUR VILLAGE, POST KUNTAR, VIA MULLAIA, KASARGOD DIST.** **BY ADVS.SRI.T.SETHUMADHAVAN (SENIOR ADVOCATE) SRI.K.JAYESH MOHANKUMAR SRI.KODOTH PUSHPARAJAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA No.636 of 2007 3 ## **A.HARIPRASAD, J. -------------------------------------R.S.A.No.636 of 2007 -------------------------------------Dated this the 2[nd] day of April, 2019** ## **JUDGMENT** Aggrieved by the concurrent findings of the courts below, the officers of the Cashew Development Corporation and the State are in appeal. Appellants are the defendants in O.S.No.232 of 2000 on the file of the Additional Munsiff, Kasaragod. The suit is one for declaration and consequential injunction. 2. According to the plaint averments, plaint A schedule property, along with other properties, originally belonged to a joint family consisting of plaintiff and others. As per Ext.A1 partition deed of the year 1972, plaint A schedule property along with other items were allotted to the plaintiff and his son Subramanya Prasad. Thereafter the plaintiff keeps actual possession of the properties and he has effected improvements. Property described in the plaint B schedule forms kumki and lagthi to plaint A schedule property and has been in actual possession of the plaintiff's family since more than 100 years. 3. There is an ancient tank in plaint A schedule property which is marked as 'T' in the sketch produced along with the plaint. Areca garden and residential house of the plaintiff are situated in resurvey RSA No.636 of 2007 4 No.286 of Adhur Village. The water for irrigation of areca garden and domestic use is being taken from tank 'T' through the water channel marked 'C' in the sketch. Plaintiff contended that there is another small tank marked 'T1' in the plaint B schedule property. The water for domestic purpose is taken to tank 'T1' and then it is taken to the house through a pipe. Reservoir “R' marked in the sketch is used for storing the water taken from 'T1' tank. There is no other water source to irrigate the plaintiff's areca garden. Plaint A and B schedule properties are situate in a compact block and the B schedule was enjoyed as part and parcel of the plaint A schedule property. Plaintiff's predecessors-in-interest and the plaintiff have been in direct possession and enjoyment of the plaint B schedule properties. They have effected improvements and done cultivation. There is no demarcating boundary between plaint A and B schedule properties. The defendants have no manner of right, title or interest over the plaint B schedule property or any portion of the same. Touching the plaint B schedule property, the defendants have planted cashew plants. B schedule property was not made over to the Corporation either by the plaintiff or the Government at any time. Plaintiff is in actual possession and enjoyment of the property as part and parcel of plaint A schedule property openly, peaceably and asserting a hostile title by effecting improvements to the knowledge of the defendants. Therefore the defendants' right, if any, has been lost by adverse possession and limitation. When workers of the 2[nd] defendant unlawfully trespassed into the plaint B schedule property, the suit is filed for declaration of title in respect of that property and also for a prohibitory injunction. RSA No.636 of 2007 5 4. The defendants contended that plaint B schedule property is in the possession of the Corporation. The Cashew Progeny Orchards, Adhur and Galimukha are comprising of 116.3807 hectares in various survey numbers and sub divisions in plaint A schedule. The land was possessed by the Department of Agriculture, Government of Kerala. The Agriculture Department is the absolute owner of plaint B schedule property. 2.1206 hectares of land situate in resurvey No.643/2 of Adhur Village was surveyed by the Deputy Director of Surveys, Kasaragod and prepared a sketch. Plaintiffs are not entitled to get any right over the plaint B schedule property. 5. It is seen from the records that Ext.A1 was marked on the side of the plaintiff and no document was produced on the side of the defendants. Exts.C1 to C3 are the reports and plan submitted by the commissioner. Two witnesses testified on behalf of the plaintiff and one on the side of the defendants. 6. Trial court, after framing necessary issues and considering the evidence, found that the plaintiff has perfected title over plaint B schedule property by open, hostile, long and continuous possession and the rights of the defendants, if any, are lost by adverse possession and limitation. Therefore, the suit was decree as prayed for. 7. The appellants/defendants unsuccessfully challenged the judgment and decree of the trial court before the lower appellate court. After reconsidering the entire evidence, the lower appellate court agreed with the trial court and dismissed the appeal. 8. On the above factual settings, the substantial questions of law RSA No.636 of 2007 6 raised for determination by a learned single Judge on 06.11.2007 is thus: “Whether finding of courts below that original plaintiff has perfected title by adverse possession is justified on the pleading and evidence when plaintiff did not recognize the title of the Government to plaint B schedule property.” 9. Heard the learned Government Pleader for the appellants and learned senior counsel appearing for the respondents. 10. Learned Government Pleader contended that the courts below committed a grave error in decreeing the suit against the appellants. According to him, except the partition deed, no other document is produced by the respondents to establish that they have title over plaint B schedule property. That apart, the fact that the said property had been handed over to the Cashew Development Corporation by the State was not considered by the courts below in its proper perspective. 11. Per contra, learned senior counsel appearing for the respondents contended that there is no material produced by the appellants to show that the property described in the plaint B schedule was ever handed over or belonged to the Corporation. Respondents have a definite case that the plaint B schedule property was not handed over to the Corporation and it remained always in the possession of the respondents for more than 100 years before institution of the suit. As against this contention, it is pertinent to note that no document is produced by the appellants to show that the 3[rd] defendant State had handed over 2.1206 hectares of land to the Corporation. It is a case admitted in the plaint that the plaint B schedule property is not included in Ext.A1 partition deed. According to the plaintiff's case, B schedule property RSA No.636 of 2007 7 was enjoyed along with plaint A schedule property for more than 100 years and the properties described in plaint B schedule are kumki and lagthi land. Learned senior counsel also drew my attention to the candid admission by DW1 that plaint B schedule property was not handed over to the Corporation. It cannot be taken as a stray sentence uttered by DW1 because he has repeatedly admitted this aspect. Non-production of material documents to show that Government land had been handed over to the Corporation and admission of DW1 are fatal to the case of the appellants. On facts, the courts below have correctly decided the issues. 12. Learned Government Pleader relying on two decisions of the Supreme Court contended that the courts below committed a serious error in finding that the appellants' title to the plaint B schedule property has been lost by adverse possession and limitation. In **Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan (2008 (4) KLT 357)** , a two Judge bench of the Supreme Court exhorted for an amendment in the law of adverse possession which ousts an owner on the basis of inaction within a period of limitation. However, the law remains the same as Section 27 of the Limitation Act, 1963 has not been amended as suggested in the decision. 13. Another decision relied on by the learned Government Pleader is **Dharampal v. Punjab Wakf Board ((2018) 11 SCC 449)** wherein it has been held that the plaintiff cannot set up a plea of adverse possession to claim ownership over the property, but it can be raised by the defendant in answer to the plaintiff's claim. Learned senior counsel for the respondents contended that the principle in the above decision goes against the ratio in larger bench RSA No.636 of 2007 8 decisions of the Supreme Court in **Sarangadeva Periya Matam & another v. Ramaswami Goundar (AIR 1966 SC 1603), Nair Service Society Limited v. K.C.Alexander & others (AIR 1968 SC 1165)** and also against **Kshitish Chandra Bose v. Commissioner of Ranchi (AIR 1981 SC 707)** . All the above decisions are rendered by a bench comprising of three learned Judges. Therefore, I am bound to follow the larger bench decisions in this case and apply the principles therein to find that the courts below have acted correctly. Hence the substantial question of law can only be answered against the appellants. 14. Before leaving the case, I deem it appropriate to observe that the defendants' conduct of the case in the courts below was thoroughly unsatisfactory because no serious attempt was made to prove the pleaded case. In this second appeal, that too against concurrent findings by the courts below, there are lot of limitations. On merits also therefore the appeal has to fail. In the result, I hereby confirm the concurrent findings of the courts below and dismiss the appeal. No order as to costs. All pending interlocutory applications will stand closed. **A.HARIPRASAD, JUDGE.** **cks**