Dismissed

A.P.Mathai v. State of Kerala

Kerala HC8 Jun 2011SA/264/1999

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of a second appeal filed by an appellant-cultivator challenging the dismissal of a suit for injunction. The court held that the suit was not maintainable as the land was covered by a notification under the Kerala Forest Act, extinguishing rights irrespective of long possession.

What did the court decide?

Appeal dismissed; suit held not maintainable against Government based on Forest Act notification.

A.P.Mathai Vs State of Kerala — Land Acquisition | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE P.BHAVADASAN

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WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933

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SA.No. 264 of 1999(F)

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--------------------------AS.31/1997 of SUB COURT,THODUPUZHA OS.225/1992 of MUNSIFF COURT, DEVICOLAM

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APPELLANT(S): RESPONDENT/PLAINTIFF

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------------------------------------------------

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A.P.MATHAI,S/O.POTHAN, AGED 60 YEARS, OZHAVATHADAM KARA, MANNAMKANDOM VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT.

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BY ADV. SRI.A.P.SUBHASH

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RESPONDENT(S):APPELLANTS/DEFENDANTS

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----------------------------------------------------

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1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, IDUKKI, PAINAVU.

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2. THE DIVISIONAL FOREST OFFICER, MUNNAR DIVISION, DEVIKULAM, K.D.H. VILLAGE, DEVIKULAM TALUK, IDUKKI DISTRICT.

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R1 & R2 BY GOVT. PLEADER SRI.M.P.PRAKASH, FOREST

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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svs

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P.BHAVADASAN, J.

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S.A.No. 264 of 1999

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Dated this the 8^th day of June, 2011

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JUDGMENT

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Plaintiff is the appellant. The facts fall within a narrow compass. The plaintiff claimed relief in respect of the plaint schedule property pointing out that he has been cultivating the same for a long time and so was his predecessor- in-interest and that defendants cannot forcibly evict him.

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The defendants resisted the suit by pointing out that the plaint schedule property is situated in a notified forest area and therefore, the plaintiff cannot agitate any right against the defendants. They also pointed out that civil court has no jurisdiction to entertain the suit.

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Based on the above pleadings necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts.A1 to A3 from the side of the plaintiff. Defendants had DW1 examined and document marked as Ext.B1. Ext.C1 is the Commissioner's Report. The trial court on the basis of the commissioner's report which

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S.A.No. 264 of 1999 2

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showed that the plaintiff had been cultivating the property, decreed the suit in his favour. The defendants carried the matter in appeal as A.S.No.31/1997 before the Sub Court, Thodupuzha. The lower appellate court found that the plaintiff is merely an encroacher of a forest area and he is not entitled to any protection whatsoever. Accordingly, the appeal was allowed and the suit was dismissed. The said judgment and decree are assailed in this Second Appeal.

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Notice is seen issued on the following substantial questions of law :

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a) Whether in the facts and c circumstances of the case the court below was right in holding that the appellant is a tresspasses upon the Government land ?

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b) Was the court below justified in allowing the appeal by holding that the appellant is not entitled to injunction against the state especially when there is ample evidence with respect to the continuous and long possession of the appellant over the plaint schedule property right from 1975 onwards and accordingly as a resident cultivator of plaint schedule property prior to 1.1.1997 he is entitled to patta in pursuance of the policy decision of the Government. ?

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c) Whether the lower appellate court was correct in holding that the appellant is not entitled to injunction in as much as the evidence adduced in this case will categorically prove the continuous exercise of an interest of the

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S.A.No. 264 of 1999 3

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appellant in the plaint schedule property and thus such a person in possession of a property without title is also entitled to remain in possession even as against the lawful owner until he is evicted by taking resources to law and procedure established by law.

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d) Was the court below right in arriving at a conclusion that the Government can forcibly dispossess a person who is having long and continuous possession and interest over the plaint schedule property without adopting procedure established by law.

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e) Whether a person in absolute possession of a property and who is a resident cultivator therein is entitled for an equitable relief of injunction against threatened forcible eviction even by Government in order to protect his possession until he is evicted therefrom in due course of law.

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f) Whether the lower appellate court was correct in ratifying the attempt of the defendant for forcible eviction of the plaintiff from plaint schedule property without resorting to 'due course of law'.”

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The learned counsel appearing for the appellant pointed

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out that the lower appellate court was not justified in reversing the judgment and decree of the trial court based on the evidence on record. The learned counsel went on to point out that the evidence of DW1 is far from satisfactory and that is insufficient to substantiate the contentions put forward by the defendants. It is also contended that there is considerable evidence to show that the property has been in the cultivation and possession of the

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S.A.No. 264 of 1999 4

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plaintiff and his predecessors-in-interest for a long time.

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The learned Senior Special Government Pleader pointed

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out that the area is covered by notification under the Forest Act and that be so, the plaintiff has no right either to cultivate or to encroach into the area. The suit itself is not maintainable. In fact, according to the learned Special Government Pleader, the plaint itself shows that it is a sarcar land. The defendants have produced Ext.B1 which shows that it is a notified area. According to them, the lower appellate court is fully justified in dismissing the suit and no grounds are made out to interfere with the judgment and decree of the trial court.

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It appears that submissions of the learned Special Government Pleader are correct. Ext.A1 notification which was issued under the relevant provisions of the Kerala Forest Act, shows that plaint schedule property fall within the notification. Apart from the said fact, Section 20 of the Act says that if there is a notification issued then all the rights in respect of which no claim has been preferred under Section 6 stand extinguished. Section 66 of the Kerala Forest act deals with the power to

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S.A.No. 264 of 1999 5

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prevent commission of offence. Every Forest Officer and Police Officer shall prevent, and may interfere for the purpose of preventing the commission of any forest offence and shall have power to evict all encroachers and squatters from Reserved Forests or other lands under the control of the Forest Department and to confiscate or demolish any sheds or other structures put up in such lands. Forest Officers shall have the powers of the Police Officers for the purposes of investigation or prevention of forest offences and the collection of evidence.

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The learned counsel for the appellant pointed out that the appellant is entitled to regularisation of his occupation of land under the Kerala Land Assignment (Regularisation of Occupations of Forest Land prior to 1.1.1977) Special Rules 1993.

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Whatever that be, the suit is not maintainable. If, as a matter of fact the plaintiff is entitled to regularization and occupation of forest land as contemplated under the above rules, it is open to him to take such necessary steps in that regard. There are no grounds to interfere with the judgment and decree of the lower appellate court.

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S.A.No. 264 of 1999 6

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It is also made clear that if as a matter of fact the plaintiff is entitled to apply for assignment of any land as per the law now in force this judgment will not stand in his way of agitating his claim before the appropriate forum.

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The appeal stands dismissed subject to the above

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observations.

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P.BHAVADASAN, JUDGE.

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A.P.Mathai v. State of Kerala

Case brief

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A.P.Mathai v. State of Kerala

Case brief

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