Allowed

State of Kerala v. v.C.Aniyankunju

Kerala HC16 Jun 2017AS/415/2002

Case brief

AI extract

What is this about?

This appeal challenges a decree granting recovery of Rs. 6,12,500 to the legal heirs of Chandy in respect of trees cut from reserve forest land. The High Court allowed the appeal, holding that mere possession sans title does not confer a right to compensation and remanded the benefit to the State.

What did the court decide?

The decree and order of the court below declaring entitlement for Rs. 6,12,500 towards value of trees cut were set aside. The amount was declared to belong to the State.

State of Kerala Vs v.C.Aniyankunju — Land Acquisition | Kerala HC (2017)

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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 V.CHITAMBARESH

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THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH

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FRIDAY, THE 16TH DAY OF JUNE 2017/26TH JYAISHTA, 1939

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A.S.No. 415 of 2002 (E)

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------------------------(AGAINST THE JUDGMENT IN O.S.NO.248/1995 OF SUB COURT, KOTTARAKKARA DATED 29-09-2001)

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APPELLANTS/DEFENDANTS:

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---------------------1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIVISIONAL FOREST OFFICER, THENMALA. BY GOVERNMENT PLEADER SRI. P.M. SATHEESH & SPL.GOVERNMENT PLEADER FOR FORESTS SRI. NAGARAJ NARAYAYAN

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RESPONDENTS/PLAINTIFFS:

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1. V.C.ANIYANKUNJU, S/O. V.I.CHANDY, VALAMPARAMBIL VEETTIL, KULATHUPUZHA VILLAGE (DIED).
2. V.C.THOMAS, S/O. V.I.CHANDY, DO. (DIED)
3. GEORGE VALAMPARAMBIL, S/O. V.I.CHANDY, VALAMBARAMBIL, ILAMANNOOR VILLAGE, MAROOR P.O.
4. CHINNAMMA JOHN, W/O. V.C.JOHN, VALAMBARAMBIL, KULATHUPUZHA. 5. THANKAMMA ANIYANKUNJU, D/O. ACHAMMA, -DO-.
6. GEORGE V.ALEX, S/O. ANIYANKUNJU, -DO- NOW RESIDING AT P.B.NO.40348, SHARJAH, U.A.E.
7. JIJI V. ALEXANDER, S/O. ANIYANKUNJU, VALAMBARAMBIL, KULATHUPUZHA.
8. SOSAMMA, D/O. THANKAMMA, P.B.NO.2550, JADDA, SAUDI ARABIA.
ADDL. RESPONDENTS:
9. RAICHAL THOMAS, W/O. V.C.THOMAS, VALAMPARAMBIL HOUSE, E.S.M.COLONY, KULATHUPUZHA.
10.ROYIS THOMAS, S/O. V.C.THOMAS, P.B.NO.769, MANAMA, KINGDOM OF BAHARAIN.
11.RENCE THOMAS,D/O. V.C.THOMAS, P.B.NO.3764, AJAMAN, U.A.E.

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REENA THOMAS, D/O. V.C.THOMAS, W/O. FATHER ABRAHAM PULIYETIL, P.S.S.PRESS, IRINGORE P.O., PERUMBAVOOR.

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(LEGAL REPRESENTATIVES OF THE DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 9 TO 12 AS PER ORDER DT.8.8.2008 ON C.M.P.NO.7081 OF 2002)

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R3,R4,R5, R7 AND R9 TO R12 BY ADV. SRI.S.EASWARAN

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16-06-2017,

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THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AS.No.415 of 2002

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APPENDIX

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ANNEXURE-A1 TO I.A.NO.632/2006 -

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A COPY OF NOTICE DATED 23.4.2004 ISSUED BY THE TAHSILDAR (RR), TALUK OFFICE, PATHANAPURAM.

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-True copy-

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PS to Judge

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V.CHITAMBARESH & K.P.JYOTHINDRANATH, JJ.

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------------------------------------------A.S.No.415 of 2002

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------------------------------------------Dated this the 16^th day of June, 2017

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J U D G M E N T

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Chitambaresh, J.

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1.The plaint schedule property lying in the catchment area of Thenmala Dam is said to form part of 620 acres of waste land assigned by the Travancore Government on 8.4.1871 in favour of an English man by name Coax. It was contended that the property devolved on Sydney Thomson and later on his wife under a Will with whom the predecessor in interest of the plaintiffs entered into Ext.A2 agreement. The predecessor in interest by name Chandy is said to have obtained letters of administration in respect of the property under the Probate and Letters of Administration Act, 1925. Chandy did file O.S.No.14 of 1971 on the file of the Court of the Subordinate Judge of Kottarakkara for declaration of his right and possession and also for injunction. The court in answer to Issue No.2 framed therein categorically found that

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AS415/2002

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-: 2 :-

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Chandy did not succeed in establishing his right over the property or even a right of management of the same. Nevertheless it was found that Chandy was in possession of Item No.1 property therein who could be evicted only under due process of law and the suit was dismissed in other respects.

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2.Ext.A7 judgment in O.S.No.14 of 1971 was followed by Ext.A8 judgment in O.P.No.5210 of 1983 on the file of this Court which merely recorded that the parties are bound by the decision of the civil court. The Divisional Forest Officer, Thenmala later issued a notice to Chandy as an occupant of the property preparatory to the cutting down of the trees before the plugging of Thenmala Dam. This was challenged by Chandy in O.P.No.2660 of 1985 on the file of this Court which was disposed of by Ext.A9 judgment directing his

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AS415/2002

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-: 3 :-

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representation to be considered. It was observed as follows:

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“The question of the petitioner's right to receive compensation in respect of the above extent of 12.25 acres of land will be decided by the Divisional Forest Officer in the proceedings already initiated by him by issue of Ext.P4 notice on the basis of Ext.P5 representation already submitted by the petitioner.”

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3.The Divisional Forest Officer by Ext.A11 order negatived the contentions of Chandy finding that he has encroached into the Reserve forest and rejected the representation observing as follows:

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“As per the directions in the judgment in O.P.No.2660/85, the list of forest trees and improvements therein of 12.25 acres in Sy.No.950/1 was prepared.

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AS415/2002

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-: 4 :-

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From the above, it is clear that the area of 12.25 acres in Sy.No.950/1 of Kulathupuzha village is a validly declared reserve forest and accepted as such by the Hon'ble High Court. It is also clear that the petitioner has no title or right over the area. It is also clear that the petitioner has ceased to be in possession of the area encroached upon by him and that the person in possession of the area at the time of plugging and subsequent submersion of the area have been compensated by the Revenue Department for their land and improvement.”

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4.Ext.A11 order of the Divisional Forest Officer was the subject matter of challenge by Chandy (who died pending writ petition and the legal heirs brought on record) in O.P.No.270 of 1986 on the file of this Court. This Court by Ext.A10 judgment observed that the title traced by the legal heirs of

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AS415/2002

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-: 5 :-

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Chandy 'is still in the regions of mystery' and relegated the parties to the civil court. The trees in the property had in the meanwhile been cut and sold under orders of court and the amount generated was directed to be applied dependent on the result of the civil court. This is how the present suit happened to be filed by the legal heirs of Chandy for declaration of title, consequential injunction and for recovery of money to the tune of `6,12,500/-.

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5.The court below has in the impugned judgment found that Chandy and his legal heirs have not established their title to the property and that their possession has not matured into

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a legal right. It has been observed as follows:

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“On a perusal of the entire case records in this case, I am of the opinion that the plaintiff could not prove title over the plaint schedule properties.

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AS415/2002

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-: 6 :-

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He could not adduce any evidence to improve the position after the finding in Ext.A7 judgment of this Court that he is not entitled to the declaration of his right in the other properties except the possession of the plaint schedule properties herein. . . . . . . . . . In spite of the fact that Chandy could not establish his right of possession in respect of the other lands in Ext.A7 suit, it has to be held that there was possession by Chandy in respect of the plaint schedule properties herein although it had not matured into any legal right as on the date of Ext.A7 suit. . . . . . . . It has to be made clear that the plaintiffs have not succeeded in establishing the title in respect of the plaint schedule properties.”

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6.We are wonderstruck as to how the court below could grant a decree in favour of the plaintiffs for recovery of an amount of `6,12,500/- after finding that Chandy or his legal heirs have no right or title. The parties have no case that their

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AS415/2002

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-: 7 :-

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possession of the property has become adverse to the interest of the State and that they have perfected their title by adverse possession and limitation. The mere possession sans title will not clothe the legal heirs of Chandy with any right to claim the value of the trees cut from the property before the plugging of Thenmala Dam. It should incidentally be stated that three of the plaintiffs (who are the legal heirs of Chandy) figure as petitioners in O.P.No.520 of 1986 on the file of this Court. The said writ petition was filed for rehabilitation and compensation on account of shifting due to the construction of the Thenmala Dam wherein it is practically conceded that they are only encroachers. The plaintiffs having encroached into the reserve forest area and been in possession of the same have no semblance of right to claim compensation for the trees cut. The impugned judgment and decree declaring the entitlement of the

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AS415/2002

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-: 8 :-

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plaintiffs for a sum of `6,12,500/- towards the value of the trees cut is set aside. The amount belongs to the State only which can be utilized by them and the plaintiffs are also not in possession of the property after the area is submerged in water by the Thenmala Dam.

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The Appeal Suit is allowed. No costs.

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Sd/-

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V.CHITAMBARESH, JUDGE

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Sd/-

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K.P.JYOTHINDRANATH, JUDGE

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Sha/160617

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-true copy-

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P.S. to Judge

State of Kerala v. v.C.Aniyankunju

Case brief

What is this about?

What did the court decide?

State of Kerala v. v.C.Aniyankunju

Case brief

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