Dismissed

State of Kerala v. K.G.Georger

Kerala HC3 Sept 2013AS/657/1995

Case brief

AI extract

What is this about?

This appeal and cross objection arose from a decree for Rs.53,000 damages in a suit between the State and land development officers versus the legal representatives of a deceased respondent. The apex court dismissed both petitions, upholding the trial court's finding on the quantum of damages and the maintainability of the suit following a prior possession decree. A dissent was recorded. There is

What did the court decide?

The appeal and cross objection were dismissed; parties to suffer costs; pending interlocutory applications dismissed.

State of Kerala Vs K.G.Georger — Land Acquisition | Kerala HC (2013)

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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 THOMAS P.JOSEPH

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TUESDAY, THE 3RD DAY OF SEPTEMBER 2013/12TH BHADRA, 1935

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AS.NO. 657 OF 1995 ( )

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O.S.NO.150 OF 1990, SUB COURT, KOTTARAKKARA

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APPELLANTS/DEFENDANTS 1 TO 3:

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1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.

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2. THE TAHSILDAR, KOTTARAKKARA.

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3. THE VILLAGE OFFICER, VELINALLUR VILLAGE, KOTTARAKKARA.

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BY GOVERNMENT PLEADER SHRI A.J. JOSE

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RESPONDENTS/PLAINTIFF/DEFENDANT:

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1. K.G. GEORGE, RETIRED RAILWAY SERVANT, RESIDING AT KAVOOR WEST, THIRUVALLA (DIED).

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2. SHRI PUSHPANGADAN, VILLAGE OFFICER, POOYAPPALLY VILLAGE, KOTTARAKKARA TALUK. ADDITIONAL RESPONDENTS IMPLEADED:

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3. KUNJUKUNJAMMA THOMAS, W/O. K.G. GEORGE (LATE), KAVOOR PADINJATTAHIL VEEDU, PERINGODU, KAVUMBHAGOM (P.O.) THIRUVALLA.

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AS.NO. 657 OF 1995

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4. ANN GEORGE, D/O. K.G. GEORGE, DO. DO.

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5. ASHOK G.KOVOOR, S/O.K.G. GEORGE, DO. DO.

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6. AKASH G.KOVOOR, S/O.K.G. GEORGE, DO. DO. LEGAL REPRESENTATIVES OF DECEASED 1^ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 3 TO 6 AS PER ORDER DATED 28.10.2010 ON I.A. NO.2420 OF 2009.

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R, BY ADV. SRI SUBHASH SYRIAC R2 R,R3 TO 6 BY ADV. SRI.P.R.VENKETESH R,R3 TO 6 BY ADV. SRI.P.R.RAJA

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J. ====================================

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A.S. No.657 of 1995

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Cross Objection

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====================================

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Dated this the 03^rd day of September, 2013

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J U D G M E N T

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The appeal and Cross Objection arise from the judgment and decree dated 15.12.1994 in O.S. No.150 of 1990 of the Sub Court, Kottarakkara.

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The following points arise for a decision:

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(i) Whether the trial court was right in holding that the suit is maintainable?

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(ii) Whether the trial court was right in awarding damages to the 1^st respondent?

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(iii) Whether the claim of 1^st respondent for enhancement of damages is allowable?

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The 1^st respondent filed O.S. No.150 of 1990 for a decree for recovery of damages. According to the 1^st respondent, the suit property belonged to him as per partition deed No.963/1970 and it formed part of a larger extent of 12.67

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A.S. No.657 of 1995

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-: 2 :-

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Acres of rubber plantation. While so, the Taluk Land Board, Kottarakkara (for short, “the TLB”) initiated proceedings for surrender of excess land held by the family of the 1^st respondent vide Ceiling Case No.125 of 1973. The TLB passed order directing the 1^st respondent to surrender 2.50.050 Acres of land to the Government. The 1^st respondent challenged that order in this Court in C.R.P. No.1119 of 1976 and got a favourable order. The TLB passed fresh order on 27.09.1977 directing surrender of 2.50.050 Acres of cashew plantation in Sy.No.619/1-86-111 of Velinalloor Village. The 1^st respondent again challenged that order in this Court in C.R.P. No.1046 of 1978. As permitted by this Court, the 1^st respondent filed option statement for surrender of 2.50.050 Acres of Cashew Plantation in Sy.Nos.494/157 and 494/1-58. lt is the version of the 1^st respondent that the said option statement was accepted by the TLB by order dated 07.06.1980. However, the appellant and the 2^nd respondent measured out 2.50.050 Acres of Rubber Plantation. Thereon the 1^st respondent filed O.S. No.16 of 1985 for a decree for prohibitory injunction against the appellants and the 2^nd respondent taking possession of the said property. Appellants and the 2^nd respondent contended that they had taken

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A.S. No.657 of 1995

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-: 3 :-

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possession of the said property on 31.07.1980. Thereon the plaint in O.S. No.16 of 1985 was amended to incorporate a prayer for declaration of title and recovery of possession. The 1^st respondent claimed that the said suit was decreed in his favour on 19.11.1987.

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The 1^st respondent alleged that the appellants and the 2^nd respondent damaged improvements in the 2.50.050 Acres of Rubber Plantation which was allowed to be recovered possession in O.S. No.16 of 1985. Hence the 1^st respondent claimed damages from the appellants and the 2^nd respondent.

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The appellants and the 2^nd respondent contended that the TLB, by its order dated 12.01.1976 in C.C. No.125 of 1973 directed the 1^st respondent to surrender 2.54.500 Acres in Sy. No.619/1/86/3 and that the said land was taken possession on 26.02.1976. Pursuant to the order of this Court in C.R.P. No.1119 of 1976, the TLB directed the 1^st respondent to surrender 2.50.050 Acres in Sy.No.494/41/58. The suit property was taken possession on 31.07.1980. It is further contended that the judgment and decree in O.S. No.16 of 1985 are not correct and that Government proposed to file appeal against that judgment and decree. The right to take yield from the rubber trees was

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A.S. No.657 of 1995

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-: 4 :-

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sold in public auction. The property was in the management of the appellants from 31.7.1980 to 22.09.1997.

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The trial court framed issues for trial, answered the issues in favour of the 1^st respondent and granted a decree for recovery of Rs.53,000/- with interest at the rate of 6% per annum till realization and proportionate costs of the suit. Appellants are aggrieved and have preferred appeal.

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The 1^st respondent, aggrieved by the quantum of damages decreed has preferred the Cross Objection.

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Learned Government Pleader for the appellants contended that in view of Section 125(1) of the Kerala Land Reforms Act (for short, “the KLR Act”), the suit itself is not maintainable. According to the learned Government Pleader, it is a case of mistaken identity of the property - there is no such property as opted to be surrendered by the 1^st respondent. It is argued that at any rate, until the property as per the option is surrendered by the 1^st respondent, he has no right - legal or equitable to claim damages from the appellants. Quantum of damages awarded also is under challenge.

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Learned counsel for the 1^st respondent while supporting that part of the judgment and decree in his favour

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A.S. No.657 of 1995

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-: 5 :-

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contended that having regard to the report submitted by the Advocate Commissioner and other relevant materials the trial court ought to have awarded the entire damages assessed by the Advocate Commissioner.

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So far as contention based on identity of the property and maintainability of suit under Sec.125(1) of the KLR Act are concerned, I am inclined to think that there is no scope for such contentions. Any such contention ought to have been raised and decided in O.S. No.16 of 1985. It is not disputed and the evidence also revealed that O.S. No.16 of 1985 was decreed in favour of the 1^st respondent whereby the 1^st respondent was allowed to recover possession of 2.50.050 Acres of Rubber Plantation taken possession of by the appellants and 2^nd respondent on 31.07.1980. Though the appellants and 2^nd respondent contended that they are taking steps to challenge the judgment and decree in O.S. No.16 of 1985 it is admitted by both sides that no such appeal has been filed. If an appeal against the judgment and decree in O.S. No.16 of 1985 was competent in the view of the Government and if it was not preferred, the Officers concerned are responsible for that. So far as the judgment and decree in O.S. No.16 of 1985 stands, the appellant cannot raise a

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A.S. No.657 of 1995

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-: 6 :-

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contention regarding identity of the property and the right of the appellants to take possession of 2.50.050 Acres of Rubber Plantation which they did on 31.07.1980 and which is allowed to be recovered by the 1^st respondent as per the decree in O.S. No.16 of 1985.

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What then remains is the extent of damages awarded by the trial court. Both sides are aggrieved.

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The trial court for the purpose of fixing quantum of damages has referred to Exts.A9 and A10, copy of report and mahazar prepared in O.S. No.16 of 1985 as regards the improvements in the disputed property. The trial court found that excluding the expenses for maintenance of property during the time it was in the possession of appellants and 2^nd respondent, damages payable to the 1^st respondent comes to Rs.53,000/-. That finding is based on the evidence on record and I do not find reason to interfere.

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In result,

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(i) The appeal and cross objection fail and are

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dismissed.

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A.S. No.657 of 1995

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-: 7 :-

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(ii) Parties shall suffer their costs in the appeal and cross objection.

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P. JOSEPH, JUDGE.

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vsv

State of Kerala v. K.G.Georger

Case brief

What is this about?

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State of Kerala v. K.G.Georger

Case brief

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