Dismissed

State of Kerala v. K.v.Sadanandan

Kerala HC27 Oct 2016RSA/154/2016

Case brief

AI extract

What is this about?

In this Regular Second Appeal, the High Court of Kerala dismissed the appeal filed by the State of Kerala. The court upheld the lower appellate court's finding that the plaintiffs proved their title and possession over a paddy land, rejecting the State's unsupported claim that the property was government "bought-in land".

What did the court decide?

The appeal was dismissed; all pending interlocutory applications were also dismissed; the decree passed in the appeal below was upheld.

State of Kerala Vs K.v.Sadanandan — Property and Title | Kerala HC (2016)

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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 K.HARILAL

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THURSDAY, THE 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938

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RSA.No. 154 of 2016 (B)

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AGAINST THE JUDGMENT & DECREE DATED 30-08-2014 IN AS 127/2013 of II ADDL. DISTRICT COURT, KOZHIKODE

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AGAINST THE JUDGMENT & DECREE DATED 11-04-2013 IN OS 67/2006 of PRL. MUNSIFF COURT, KOZHIKODE

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APPELLANTS/RESPONDENTS/DEFENDANTS IN A.S.:-:

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STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, COLLECTORATE,

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CIVIL STATION, VENGERI VILLAGE, NEDUNGOTTUR AMSOM AND DESOM, KOZHIKODE DISTRICT.

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THE TAHSILDAR

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TALUK OFFICE, CIVIL STATION, KOZHIKODE.

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BY GOVERNMENT PLEADER SRI. HASHIR K.M.

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RESPONDENTS/APPELLANTS/PLAINTIFFS IN A.S., RESPONDENTS 3 TO 5 IMPLEADED AS APPLICANTS IN A.S.NO.127/2013 OF THE IIND ADDITIONAL DISTRICT COURT, KOZHIKODE:-:

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K.V.SADANANDAN, AGED 70 YEARS,

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S/O.OOTTUKULATHIL CHOYIKUTTY, RESIDING AT "ARADHANA", PALAT THAZHAM P.O., CIVIL STATION, KATCHERI AMSOM AND DESOM OF KOZHIKODE TALUK-673020

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K.V.ANIL KUMAR, AGED 38 YEARS. S/O.LATE SREEDHARAN, RESIDING AT "SREE NILAYAM", KIZHAKKAN THIRUTHI HOUSE, P.O.CIVIL STATION, VENGERI VILLAGE AND NEDUNGOTTUR DESOM OF KOZHIKODE TALUK-673020

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...2

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RSA.No. 154 of 2016 (B)

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E.RAJALAKSHMI, AGED 64 YEARS,

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W/O.LATE K.V.DEVADAS, KIZHAKKAN THIRUTHIL HOUSE, CIVIL STATION P.O., VENGERI VILLAGE, NEDUNGOTTUR DESOM OF KOZHIKODE TALUK-673020

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K.V.SHAIJA, AGED 39 YEARS, D/O.LATE DEVADAS, -DO-DO-DO-

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K.V.JOSHI, AGED 37 YEARS, S/O.LATE K.V.DEVADAS, -DO-DO-DO-

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R1-R5 BY ADV. SRI.SRINATH GIRISH

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OKB

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K.HARILAL, J.

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R.S.A. No.154 of 2016

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Dated this the 27^th day of October, 2016

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JUDGMENT

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~ ~ ~ ~ ~

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The appellants, the State of Kerala and another, are the defendants in O.S.No.67/2006 on the files of the Principal Munsiff's Court-I, Kozhikode, filed by the respondents herein, as well as the appellants in A.S. No.127/2013 on the files of the II Additional District Court, Kozhikode.

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The plaint schedule property is a paddy land having an extent of 31.5 cents comprised in Re-Survey No.63/1 of Vengeri Village in Kozhikode Taluk. The respondents filed the aforesaid Original Suit for the relief of declaration, prohibitory injunction and mandatory injunction by contending that the plaint schedule property originally belonged to their predecessor-in-interest. Further, they contended that the predecessor-in-interest late Oottukulathil

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RSA.154/16-B :2:

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Choyikutty was having 'verumpattam right' under Thali Devaswom by virtue of Ext.A2, registered 'kaichit' executed by him in favour of the Estate Collector representing 'Zamorin Raja'. According to them, the said Choyikutty effected paddy cultivation in the property by paying rent to the landlord (Thali Devaswom) and also paying levy to the Government for the paddy. The said Choyikutty died on 22/07/1987. On the death of Choyikutty, his right over the plaint schedule property devolved upon the plaintiffs who are his legal heirs. The plaintiffs continued the paddy cultivation till 1990 and it could not be done due to various reasons which are detailed in the plaint. On 20/05/1999, the father of the third plaintiff submitted a petition to the second defendant to accept the land revenue from the plaintiffs; but the defendants refused to accept the same stating that the property has been taken over by the Government and it belongs to the Government. According to the plaintiffs, the property belongs to them and they have the absolute

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RSA.154/16-B :3:

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possession and enjoyment of the said property and it was never taken over by the Government; nor does it belong to the Government. No notice was ever issued to the plaintiffs with respect to taking over of the land. It is further alleged that even if any proceedings were initiated against the jenmi, that will not affect the plaintiffs and the predecessor, being the tenants. To sum up, according to them, their right over the property has been protected under the Kerala Land Reforms Act, 1963. It was in this circumstance the suit has been filed seeking aforesaid reliefs.

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On the other hand, the defendants contended that the plaint schedule property is a Government land and it was taken over by the Government as a “bought in land”. So the plaintiffs have neither right of possession nor enjoyment over the plaint schedule property. It was also contended that the property is submerged in water in all sides and not suitable for cultivation in any way. In short, according to the defendants, the plaint schedule property is a 'bought in land.

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On the aforesaid rival pleadings, the trial court

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RSA.154/16-B :4:

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framed issues properly and both parties let in evidence. The first plaintiff was examined as P.W.1 and Exts.A1 to A14 were produced and marked. No oral evidence was adduced by the defendants; but Exts.B1 to B3 were marked, Exts.C1 to C4 were marked as court exhibits. After appreciating the evidence on record, the trial court dismissed the suit on a finding that the evidence is far from sufficient to prove that the plaintiffs have right, title and interest over the plaint schedule property. So the plaintiffs are not entitled for declaration, prohibitory injunction and mandatory injunction.

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Being aggrieved, the plaintiffs preferred an appeal before the lower appellate court and after reappreciating the evidence on record the lower appellate court allowed the appeal and set aside the judgment and decree passed by the trial court on a finding that the plaintiffs have succeeded in proving the title and possession over the property. Thus, the legality and propriety of the divergent findings, whereby the trial court dismissed the suit and the lower appellate court allowed the appeal, are assailed in this Regular Second Appeal.

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RSA.154/16-B :5:

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Heard the learned Government Pleader.

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It is the case of the plaintiffs that their predecessor-in-interest Choyikutty was having verumpattam right under the Thali Devaswom by Ext.A2 registered kaichit executed by him in favour of the Ooralan of the said Devaswom and thereafter Choyikutty was in absolute possession and enjoyment of the property. To substantiate the aforesaid contention they have produced Ext.A2 kaichit which stands unchallenged in evidence also. Further, Exts.A2 to A4 receipts issued to Choyikutty from Zamorin Kovilakam shows that he had been paying pattam from 1919 upto 1966. Ext.A7 is a notice issued by the Tahsildar, Kozhikode Taluk to the plaintiffs, Ext.A5 is the levy notice issued by the Village Officer of Vengeri to Choyikutty, Exts.A11 to A14 are certificates of encumbrance of the property issued by the SRO, Chevayoor, etc. Ext.A10 is the copy of Resettlement Adangal issued by the Village Officer, Vengeri. On a reappreciation of Exts.A2 to A5 coupled with the evidence of P.W.1 the court below rightly held that the aforesaid evidence are sufficient to hold that late Choyikutty took the plaint

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RSA.154/16-B :6:

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schedule property on lease from jenmi and he was in possession and enjoyment of the property and he used to do paddy cultivation in the property. I do not find any kind of illegality or impropriety in the aforesaid finding, in view of the right and title established by Choyikutty under Exts.A1 to A4.

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On the other hand, the case of the defendants is that the plaint schedule property is a 'bought in land', which is in possession and enjoyment of the Government. How did the Government acquire title over the property? The manner in which the Government got the property has not been explained in the written statement and only contention is that it is a paddy land. The Government acquires 'Bought in land', when the property over which there is any dues to the Government is put it in auction and the Government themselves bids the property in auction. It belongs to the Government. Thus, the defendants themselves admitted that originally the plaint schedule property did not belong to the Government and subsequently the Government acquired the title and possession over the property by way of bid in auction

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RSA.154/16-B :7:

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conducted by the Government in execution of the amount due to the Government from the owner of the property. But, absolutely, no evidence has been adduced by the defendants to show that there was any attachment to the plaint schedule property at any point of time for any alleged arrear of revenue or the property was bid in auction by the Government. As rightly held by the court below mere reference to the plaint schedule property in the Bought-in-land Register is not sufficient to prove that the Government acquired the property or bid the same in auction as a bought in land. Therefore Exts.B1 to B3 are not sufficient to prove any title or possession of the Government over the plaint schedule property. I am of the view tat the court below is justified in finding that the defendants have miserably failed to prove the Government's title and possession over the plaint schedule property. Suffice to say, on the other hand, Exts.A1 to A14 clearly established plaintiffs' title and possession over the plaint schedule property.

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Going by the trial court judgment, it is seen that the trial court arrived at a finding that there is no

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RSA.154/16-B :8:

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evidence to show that the plaintiffs are the legal heirs of the deceased Choyikutty. But, as rightly noted by the court below, the specific averments in the plaint in this respect have not been denied by the defendants in their written statement. P.W.1 has also given evidence that the plaintiffs are the legal heirs of late Choyikutty and this evidence has not been challenged in cross-examination. Thus, the claim of the plaintiffs that they are the legal heirs of the deceased Choyikutty and they are in absolute possession and enjoyment of the property cannot be disbelieved. More over, the documents produced at the appellate stage by the plaintiffs also clearly show that the plaintiffs are only legal heirs of the late Choyikutty and the lower appellate court has marked the said document in evidence as Exts.A15 to A23 and relied on the same to prove the locus standi of the plaintiffs to sue the defendants.

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To sum up, it has come out in evidence that the late Choyikutty was in possession and enjoyment of the property as a cultivating tenant and thereafter he got fixity of tenure over the plaint schedule property and on

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RSA.154/16-B :9:

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his death the property devolved upon the plaintiffs as his legal heirs. The said case stands proved by the plaintiffs. But the defendants miserably failed to prove that the plaint schedule property is a 'bought in land' bid in auction for the realisation of the amount due to the Government.

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In the above analysis, I find that the court below re-appreciated the evidence in its correct perspective and decreed the suit. No question of law arises for consideration in this appeal. Consequently, this Regular Second Appeal will stand dismissed.

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All pending interlocutory applications will stand dismissed.

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Sd/K.HARILAL, Judge.

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okb

State of Kerala v. K.v.Sadanandan

Case brief

What is this about?

What did the court decide?

State of Kerala v. K.v.Sadanandan

Case brief

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