Dismissed

The Secretary, Azhikode Grama v. Ezhuthuveettil Rajalakshmi

Kerala HC9 Feb 2016RSA/196/2011

Case brief

AI extract

What is this about?

This regular second appeal challenged the appellate court's decree in a suit for declaration and recovery of a pond. The Panchayath argued the pond was public/Government land via Section 82. The Court held un-assessed land is not necessarily Government property and allowed the lower courts' finding. The appeal was dismissed.

What did the court decide?

The Second Appeal was dismissed. All interlocutory applications in the appeal were closed.

The Secretary, Azhikode Grama Vs Ezhuthuveettil Rajalakshmi — Partition | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

¶4

TUESDAY, THE 9TH DAY OF FEBRUARY 2016/20TH MAGHA, 1937

¶5

RSA.No. 196 of 2011

¶6

AGAINST THE JUDGMENT AND DECREE IN A.S.NO.113/2006 OF ADDITIONAL DISTRICT COURT, THALASSERY DATED 27-02-2010

¶7

AGAINST THE JUDGMENT IN O.S.NO.759/1999 OF PRINCIPAL MUNSIFF COURT, KANNUR, DATED 30-11-2005

¶8

APPELLANT(S)/APPELLANTS/DEFENDANTS 1 & 2 :

¶9

1. THE SECRETARY, AZHIKODE GRAMA PANCHAYATH, P.O.AZHIKODE, KANNUR - 9.

¶10

2. AZHIKODE GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, P.O. AZHIKODE, KANNUR - 9.

¶11

BY ADV. SRI.P.U.SHAILAJAN

¶12

RESPONDENT(S)/RESPONDENTS/PLAINTIFFS & 3RD DEFENDANT :

¶13

1. EZHUTHUVEETTIL RAJALAKSHMI, D/O.SARADA, AGED 37 YEARS, RESIDING AT KALLIASSERY AMSOM, INNAVE DESOM, KANNUR DISTRICT, P.O. IRINAVE - 670 301.

¶14

2. EZHUTHUVEETTIL JAYALAKSHMI, D/O. SARADA, AGED 34 YEARS, RESIDING AT KALLIASSERY AMSOM, INNAVE DESOM, KANNUR DISTRICT P.O., IRINAVE-670 301.

¶15

3. EZHUTHUVEETTIL USHA, D/O.SARADA, AGED 42 YEARS, RESIDING AT KALLIASSERY AMSOM, INNAVE DESOM, KANNUR DISTRICT P.O., IRINAVE-670 301.

¶16

4. EZHUTHUVEETTIL VALSALA BALAKRISHNAN, D/O.SARADA, AGED 45 YEARS, RESIDING AT KALLIASSERY AMSOM, INNAVE DESOM, KANNUR DISTRICT, P.O.IRINAVE - 670 301.

¶17

5. EZHUTHUVEETTIL SURENDRAN NAIR, D/O.SARADA, AGED 40 YEARS, RESIDING AT KALLIASSERY AMSOM, INNAVE DESOM, KANNUR DISTRICT, P.O. IRINAVE - 670 301.

¶18

..2/-

¶19

..2..

¶20

RSA.No. 196 of 2011

¶21

6. EZHUTHUVEETTIL RAJENDRAN NAIR, D/O.SARADA, AGED 37 YEARS, RESIDING AT KALLIASSERY AMSOM, INNAVE DESOM, KANNUR DISTRICT, P.O IRINAVE - 670 301.

¶22

7. KANNUR DISTRICT COLLECTOR, CIVIL STATION, KANNUR.

¶23

R1 BY ADV. SRI.B.PREMNATH (E) R7 BY GOVERNMENT PLEADER SRI.JOBBY JOSEPH

¶24

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶25

Msd.

¶26

P.B.SURESH KUMAR, J.

¶27

R.S.A.No.196 of 2011

¶28

-----------------------------------------------Dated this the 9^th day of February, 2016

¶29

JUDGMENT

¶30

The defendants in a suit for declaration, recovery

¶31

of possession and mandatory injunction are the appellants in this second appeal.

¶32

The first defendant is the Secretary of the second defendant Grama Panchayath. The case of the plaintiffs is that the plaint B schedule pond is part of the plaint A schedule property obtained by them as per Ext.A2 partition deed. According to the plaintiffs, there is a temple in the plaint A schedule property and the plaint B pond is used exclusively for the temple. The specific case of the plaintiffs is that the plaint A schedule property has definite

¶33

R.S.A.No.196 of 2011

¶34

¶35

boundaries and the plaint B schedule pond is situated within the boundaries of the plaint A schedule property. According to the plaintiffs, the defendants have taken possession of the plaint B schedule pond for the use of the public. The suit was, therefore, filed for declaration of title of the plaintiffs over the plaint B schedule pond and also for recovery of possession of the plaint B schedule pond from the defendants. A decree for mandatory injunction directing the defendants to restore the plaint B schedule pond to its original position was also sought.

¶36

The defendants resisted the suit, contending

¶37

mainly that the plaint B schedule pond is a public pond and that it is not part of the plaint A schedule property. They also contended that by virtue of an order passed by the District Collector on 25.3.1962, in exercise of his powers under Section 82 of the Kerala Panchayath Act, 1960, the plaint B schedule pond was vested with the Panchayath.

¶38

R.S.A.No.196 of 2011

¶39

¶40

The trial court found that the plaint B schedule pond is situated within the boundaries of the plaint A schedule property and that it is not part of Government land. The trial court also found that Section 82 of the Kerala Panchayath Act has no application to ponds situated within private lands. Consequently, the trial court decreed the suit directing the defendants to demolish the constructions made by them in the plaint B schedule pond and give vacant possession of the same to the plaintiffs within 30 days. Though the defendants took up the matter in appeal, the appellate court confirmed the decision of the trial court. The defendants, who are aggrieved by the concurrent decisions against them, have thus come up in this second appeal.

¶41

Heard the learned counsel for the appellants as also the learned counsel for the respondents/plaintiffs.

¶42

The learned counsel for the appellants reiterated the stand of the Panchayath that plaint B

¶43

R.S.A.No.196 of 2011

¶44

¶45

schedule pond is situated in Government land and that therefore, the plaintiffs have no right over the same. To buttress his argument, he relied on the evidence tendered by the Village Officer of the village concerned to the effect that the plaint B schedule pond is situated in an un-assessed land. According to the learned counsel, all un-assessed lands are Government properties and therefore, the courts below should have accepted their case.

¶46

I do not agree with the submission made by the learned counsel for the appellants. Un-assessed land does not mean that the property is owned by the Government. Even within private property, there can be unassessed land. Though the Village Officer was examined in the proceedings as a witness, it is seen that the Panchayath has not asked any question to the Village Officer as to the nature of the property in which the plaint B schedule pond is situated. The attempt of the Panchayath was only to

¶47

R.S.A.No.196 of 2011

¶48

¶49

establish that the disputed land is an un-assessed land. In so far as there is no material on record to indicate that the plaint B schedule pond is situated in a Government land, I do not find that the decisions taken by the courts below are incorrect or illegal in any manner.

¶50

In the said view of the matter, there is no merit in the second appeal and it is, accordingly, dismissed. All the interlocutory applications in the appeal are closed.

¶51

P.B.SURESH KUMAR, JUDGE.

¶52

smm

The Secretary, Azhikode Grama v. Ezhuthuveettil Rajalakshmi

Case brief

What is this about?

What did the court decide?

The Secretary, Azhikode Grama v. Ezhuthuveettil Rajalakshmi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Esi Corporation Vs P.G.Sivan

Thachan Baby Vs Suresh Kumar P.P.

Reliance General Insurance Co.Ltd Vs Valsala George

Lissamma Iype Vs Gopalan

Prabhakaran Vs Church of God a Pentecostal Church Rep. by Its Pastor

Suja Vs Avarachan