Thressiamma Varkey v. District Collector, Kottayam & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 RSA.No. 157 of 2004() --------------------AS.92/1998 of PRL.SUB COURT,KOTTAYAM OS.402/1992 of ADDL.M.C.,KOTTAYAM .................... APPELLANT/(APPELLANT/PLAINTIFF.) -------------------------------------------------------- THRESSIAMMA VARKEY, W/O.VARKEY, THEKKEPARAMBIL HOUSE, ANICADUKARA, ANICADU VILLAGE, KOTTAYAM. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): RESPONDENTS/DEFENDANTS. -------------------------------------------------------------------- 1. THE DISTRICT COLLECTOR, KOTTAYAM. 2. BLOCK DEVELOPMENT OFFICER, OFFICE OF THE BLOCK DEVELOPMENT, PAMPADY, KOTTAYAM. 3. K.N.VIJAYAKUMAR, S/O.NARAYANAN, CHIRACKAL HOUSE, ANICADUKARA, ANICADU VILLAGE, KOTTAYAM. 4. BLOCK PANCHAYATH, PAMPADY, BLOCK DEVELOPMENT OFFICE, ANICADU REP. BY ITS PRESIDENT, K.VINAYACHANDRAN, BLOCK PANCHAYATH PAMPADY, KOTTAYAM. BY GOVERNMENT PLEADER SMT.ANNIE PAUL THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 5 / 7/ 2011, THE COURT ON 05/07/2011 PASSED THE FOLLOWING: ## **M.SASIDHARAN NAMBIAR,J.** =========================== R.S.A. No. 157 OF 2004 =========================== Dated this the 5th day of July,2011 ## JUDGMENT Plaintiff in O.S.402/1992 on the file of Additional Munsiff Court, Kottayam is challenging the dismissal of the suit for injunction as confirmed by the Principal Sub Judge, Kottayam in A.S.No.92/1998. Respondents are the defendants, District Collector, Block Development Officer and the Block Panchayat. Plaint schedule property is 4 cents in survey No.336/5 B of Anickad Village. Appellant instituted the suit contending that under Ext.A1 sale deed dated 18.4.1973 he obtained 57 cents of land including the plaint schedule property but by mistake the survey number was shown as 334/2A instead of 336/5B and the Block Development Office is situated to the south east of the plaint schedule property and the R.S.A.157/2004 2 officials of the Block Development Officer attempted to trespass into the plaint schedule property and constructed a compound wall enclosing the plaint schedule property and they have no right to do so and therefore a decree is to be granted restraining the respondents from trespassing into the plaint schedule property. It was also contended that even if the respondents have any right, it was lost by adverse possession, as the property purchased under Ext.A1 was enclosed by an old compound wall aged more than 50 years. **==> picture [398 x 13] intentionally omitted <==** contending that the Block office is having title to 2.03 acres of land in survey No.135/6 of Anickad Village and when they took steps for construction of compound wall to the land of block office, it was noticed that there was unauthorised encroachment and only an extent of 77.75 Ares is in their possession instead of 12.80 acres, and the appellant has been in unlawful possession of 1.10 R.S.A.157/2004 3 Ares of Government land and she has no right or title of the property and she cannot claim title by adverse possession and respondents are entitled to protect the Government property and they have no intention to trespass into the property and she is not entitled to the decree sought for. Fourth respondent who was impleaded later filed a written statement contending that the plaint schedule property does not form part of the property belonging to the appellant under Ext.A1 and she is in illegal occupation of the property and under the provisions of Kerala Land Conservancy Act the unlawful possession of the appellant is to be terminated and she is not entitled to the decree for injunction. 3. Learned Munsiff framed the issues including an issue on the question of title. But appellant did not pay court fee under section 27(a) and the court fee paid was only under section 27(c). On the evidence, learned Munsiff dismissed the suit R.S.A.157/2004 4 holding that appellant has no title to the property and it is a Government land and hence she is not entitled to the decree sought for. Appellant challenged the judgment before Sub Court, Kottayam in A.S.92/1998. Learned Sub Judge on reappreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Second appeal was admitted formulating the following substantial questions of law. **==> picture [244 x 10] intentionally omitted <==** injunction alone maintainable merely because the defendants deny the title of plaintiff over plaint schedule property? 4. In a suit for injunction should the lower court consider whether plaintiff has title to plaint schedule R.S.A.157/2004 5 property or the entire plaint schedule property? 5. Is not the plaintiff entitled to a decree for injunction against trespass when the possession of plaintiff over the plaint property is admitted and proved? 5. Learned counsel appearing for the appellant and the learned Government pleader were heard. 6. Relying on the Full Bench decision of this court in **Kesava Bhat v. Subraya Bhat (1979 KLT** **766)** learned counsel argued that in a suit for injunction question of title need not be settled and the only question is whether appellant has been in possession of the property on the date of institution of the suit. It was argued that when in the written statement itself it is admitted R.S.A.157/2004 6 that appellant has been in possession of the plaint schedule property, courts below went wrong in not granting a decree for injunction on the ground that appellant has no title. Learned counsel argued that as the appellant has been in settled possession of the property, respondents are not entitled to trespass into the property and hence a decree for permanent prohibitory injunction against trespass should have been granted. Learned Government pleader pointed out that the evidence of PW1 establish that he had no intention to be in possession of any Government land adverse to the Government and as the plaint schedule property does not form part of the property obtained under Ext.A1 and is a Government land, courts below rightly held that appellant is not entitled to the decree sought for. 7. In the written statement itself respondents have admitted that appellant is in possession of the plaint schedule property. Though appellant R.S.A.157/2004 7 has contended that she has title to the property by adverse possession, as no court fee was paid, question of title was not decided. Being a suit for injunction normally the only question is whether plaintiff has established her possession. But when a decree for injunction is sought for as against the Government in respect of the Government land, the crucial question is whether a person in possession of the Government land is entitled to a decree for permanent prohibitory injunction as against the Government, the true owner. 8. A learned single Judge of this court (as his Lordship then was) in **Vasudeva Kurup v. Ammini Amma (1964 KLT 468)** considered the question and held that it seems to be the policy of the Indian Law that a person in possession, albeit without title, is entitled to remain in possession even as against the lawful owner until evicted in due course of law. The lawful owner is not entitled R.S.A.157/2004 8 to take the law into his own hands and throw out the person in possession. It is the policy underlying both sections 145 of the Code of Criminal Procedure and section 9 of Specific Relief Act and it is significant to note that under section 54 of Specific Relief Act, an injunction may be granted not merely to protect a plaintiff's right to property but also to protect his enjoyment thereof. This was the law being followed till the Honourable Supreme Court declared otherwise in **Tamil Nadu Housing Board v. A.Viswam (AIR 1996 SC 3377).** That was a case where a decree for injunction was sought for against the Housing Board in respect of a land which was acquired. It was found that the property form part of the property acquired for a housing scheme. The question considered was, in such circumstances, whether a decree for injunction could be granted as against the Housing Board, the true owner. Their Lordships held:- R.S.A.157/2004 9 “12. Thus considered, the title of the land in Survey No.140/4 having been vested in the appellant, to whomsover it belonged earlier, it stood divested from him/them and no one can lay any claim to the said acquired land once over and claim injunctiion on that basis. The injunction, therefore, cannot be issued against the true owner, namely , the Housing Board in whom the land ultimately stood vested and then stood transferred to Municipal Corporation. A trespasser cannot claim injunction against the owner nor can the Court issue the same. R.S.A.157/2004 10 “(underline supplied). In the light of the law, it can only be found that appellant is not entitled to a decree for injunction against the Government, the true owner of the property. In such circumstances, there is no merit in the appeal. It is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006