The High Court dismissed the appeal against the first appellate court's reversal of a preliminary decree of partition. The first appellate court found the suit regarding forest land to be collusive. The High Court held there was no substantial question of law and the appeal failed.
Appeal dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940
RSA.No. 906 of 2007(G)
AGAINST THE JUDGMENT AND DECREE DATED 30-03-2007 IN AS 83/2004 of ADDITIONAL DISTRICT COURT (ADHOC)-II, THODUPUZHA
AGAINST THE JUDGMENT AND DECREE DATED 29-07-1999 IN OS 307/1997 of MUNCIFF COURT,THODUPUZHA
APPELLANT/1ST RESPONDENT/PLAINTIFF:
LAKSHMIKUTTY, D/O.CHIRUTHA, AGED 70 YEARS (DIED) CHANJAPLACKAL HOUSE, PERINGASSERY KARA,, UDUMBANNOOR VILLAGE, THODUPUZHA TALUK.
LR.S IMPLEADED AS ADDL. A2 + A3
ADDL. APPELLANTS
2. C.SURESH, S/O.LAKSHMIKUTTY, AGED 57 YEARS,PERINGASSERY KARA, UDUMBANOOR VILLAGE,, PERINGASSERY P.O., THODUPUZHA-685 581
3. C.SUNIL, S/O. LAKSHMIKUTTY, AGED 56 YEARS,PERINGASSERY KARA, UDUMBANOOR VILLAGE,, PERINGASSERY P.O., THODUPUZHA – 685 581 LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 AND 3 AS PER THE ORDER DATED 22.05.2018 IN I.A.NO.1084/2018
BY ADV. SRI.ALEXANDER JOSEPH
RESPONDENT/:
1 DAMODHARAN, S/O.RAMAN, CHANJAPLACKAL HOUSE, PERINGASSERY KARA, UDUMBANOOR VILLAGE,, PERINGASSERY P.O., THODUPUZHA.
2 RAJAMMA W/O.BHASKARAN AGED 57 YEARS RESIDING AT BUILDING NO.T.C.3/1292,, MANKULAM LINE, PATTAM PALACE P.O., THIRUVANANTHAPURAM - 4.
RSA.No. 906 of 2007 2
3 PREETHI D/O.BHASKARAN AGED ABOUT 30 YEARS, RESIDING AT BUILDING NO.T.C.3/1292,, PATTAM PALACE P.O., MANKULAM LINE,, THIRUVANANTHAPURAM - 4.
RSA.No. 906 of 2007 3
D/O.RAMAN, MUTHANATTU, MALAYINCHI P.O., PALAMATTOM, THODUPUZHA.
18 LEELA RAMAN, AGED NOT KNOWN DO.RAMAN CHANJAPLACKAL HOUSE, MOOLAKKADU P.O.,, PERINGASSERY, THODUPUZHA.
19 RAMANI VIJAYAN AGED NOT KNOWN, D/O.RAMAN, KOOMBANKALLIL HOUSE,, NALIYANI P.O., KOOVAKANDAM, THODUPUZHA.
THE NAME OF THE 15TH RESPODENT IS STRUCK OFF FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 13.11.2008 IN I.A.NO.2448/2008.
BY ADVS.
SRI.B.RAJESH SRI.S.K.MURALEEDHARA KAIMAL
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA.No. 906 of 2007 4
JUDGMENT
Aggrieved by the reversal of the decree and
judgment of the trial court granting a preliminary decree of the partition by the first appellate court by dismissing the suit, the plaintiff came up with this appeal.
collusive one and there is nothing to be partitioned. Aggrieved by the said decree of first appellate court the plaintiff came up with this appeal.
of one of the daughter. Admittedly, the property in
question is a forest land. A contention was raised by
RSA.No. 906 of 2007 5
the learned counsel for the appellant that this property was already included in Peringassery Hillmen settlement. The plaintiff claims a heritable right over the forest land having an extent of six acres based on Sections 3 and 4 of Scheduled Tribe and other Traditional Forest Dwellers (Recognition of Forest Right) Act 2006 . Section 3 deals with forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers. The rights which are recognised under Section 3 is limited to hold and live in the forest land and for cultivation for livelihood and community rights and right of ownership over minor forest produce which has been traditionally collected from forest and such other community rights such as fishing, grazing.
A right under Pattas or leases or grant also recognized. But it is subject to the restriction imposed under Section 4 of the Act, though the rights are heritable is not amenable for any alienation or transfer. It is also not amenable for any partition.
RSA.No. 906 of 2007 6
Tribes and other Traditional Forest Dwellers over any portion of forest land. The non-incorporation of Government as a party to the suit itself is so fatal to the case advanced by the plaintiff claiming right over
forest land based on a deed of partition. No
substantial question of law much less any question of law brought to the notice of this court in order to have an interference with the decree and judgment of the first appellate court.
Hence, appeal fails, dismissed. No costs.
Sd/-
P.SOMARAJAN, JUDGE
pm
// TRUE COPY // PA TO JUDGE
2 issues framed by the court
Whether the High Court can interfere with the first appellate court's finding that the suit for partition of forest land was collusive.
Whether the plaintiff has a substantial question of law to challenge the dismissal of the suit under the Scheduled Tribe and other Traditional Forest Dwellers (Recognition of Forest Right) Act, 2006.
Lakshmi Kutty
Damodharan
P. Somarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
