Land Law; P.T. Joseph Vs. Officer In Charge, Kerala Live Stock Development Milk Marketing Board, Kolahalamedu [Kerala High Court, 05-10-2016]

Land Reforms Act, 1963 (Kerala) –  Private Forest (Vesting and Assignment) Act, 1971 (Kerala) – Civil Procedure Code, 1908 – O. 41 R. 27 r/w. S. 151 – Additional Evidence – Purchase Certificates – Possession – Validity of – Can a Civil Court, while dealing with a suit for injunction and declaration of title decide upon the validity of purchase certificates which had already become final?

IN THE HIGH COURT OF KERALA AT ERNAKULAM

A. HARIPRASAD, J.

R.S.A. No.796 of 2009

Dated this the 5th day of October, 2016

AGAINST THE JUDGMENT AND DECREE IN AS NO. 108/2005 of SUB COURT, PALA DATED 10-10-2007 AGAINST THE JUDGMENT AND DECREE IN OS NO. 312/1997 of MUNSIFF COURT,PALA DATED 30-09-2005

APPELLANTS/APPELLANTS//PLAINTIFFS/& ADDITIONAL APPELLANTS 17 TO 22 (LEGAL HEIRS OF DECEASED 4TH APPELLANT)

P.T. JOSEPH, CHANGANACHERRY AND 27 ORS.

BY ADV. SRI.V.PHILIP MATHEW

RESPONDENTS/RESPONDENTS/DEFENDANTS

1. OFFICER IN CHARGE, KERALA LIVE STOCK DEVELOPMENT MILK MARKETING BOARD, KOLAHALAMEDU, P.O., ELAPPARA VILLAGE, PEERMADE TALUK, IDUKKI DISTRICT.

2. KERALA LIVE STOCK DEVELOPMENT MILK MARKETING BOARD, HEAD OFFICE, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR.

3. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM.

R1 & R2 BY ADVS. SMT.SUMATHY DANDAPANI (SENIOR ADVOCATE) SRI.MILLU DANDAPANI R3 BY GOVERNMENT PLEADER SHRI B.R.MURALEEDHARAN

JUDGMENT

Surviving plaintiffs and the legal heirs of plaintiffs 2 and 4 in O.S.No.312 of 1997 before the Munsiff’s Court, Pala are the appellants in this second appeal. Defendants in the suit are the respondents. The suit is one for declaration and permanent prohibitory injunction reliefs. After an elaborate trial, the first court dismissed the suit. Aggrieved by the dismissal of the suit, the appellants approached the Court of Subordinate Judge, Pala in A.S.No.108 of 2005. Lower appellate court also agreed with the findings of the trial court and dismissed the appeal.

2. Facts relevant, stated in nut-shell, are as follows:

The suit is for declaration of title and consequential prohibitory injunction relief. The plaintiffs separately purchased the properties described in the plaint schedule as per Ext.A1 series documents and they lie as a single plot without any division. Plaintiffs’ assignors were the cultivating tenants under the

Kerala Land Reforms Act, 1963

(in short, “KLR Act”) in respect of the properties and they obtained jenm right through Kottayam Special Munsiff’s Land Tribunal vide Ext.A2 series purchase certificates. Original plaintiffs 1 to 16 purchased their respective portions of the plaint schedule property from the above mentioned cultivating tenants as per Ext.A1 series documents. On the eastern side of the plaint schedule property, there is a stone wall. Adjacent to the stone wall, there are survey stones planted by the survey authorities as boundary. The property belonging to the defendants lies on the north-eastern portion of the plaint schedule property, which is beyond the boundary and survey stones. According to the plaint averments, the defendants have only one hectare of property in Kottayam District. On the south of the defendants’ property and on the east of the plaint schedule property, the forest land lies. Beyond the defendants’ property on the south, there is no stone wall upto a length of 100 ft. to demarcate the properties. But, there are clear demarcating feature by way of survey stones which separated the plaint schedule property from the forest land. The plaintiffs are residing about 85 kms. away from the plaint schedule property. It is alleged that the defendants and their men started grass cultivation by entering the plaint schedule property through the portions where there were no stone wall. Therefore, the plaintiffs filed the suit for aforementioned reliefs.

3. Defendants 1 and 2 contended in the written statement that the suit is liable to be dismissed at the threshold because it is bad for nonjoinder of necessary parties. According to them, the Kerala Livestock Development Milk Marketing Board (in short, “Board”) is fully owned by the Government of Kerala and therefore the State Government is a necessary party. These defendants contended that the plaintiffs were never in possession and enjoyment of any portion of plaint schedule property. The vendors who allegedly assigned the lands to the plaintiffs were not cultivating tenants. The purchase certificates said to have been issued in the names of vendors of the plaintiffs were obtained by playing fraud on the Land Tribunal and therefore they are void. The Land Tribunal should not have issued purchase certificates in favour of the plaintiffs’ vendors as they did not produce any evidence to prove their tenancy right. Plaintiffs never got title or possession over any portion of the plaint schedule property on the basis of Ext.A1 series sale deeds. Those documents are created by the plaintiffs in collusion with their vendors. There is no well defined boundary for the plaint schedule property. The survey authorities never put any survey stones to demarcate the boundary. The plaint schedule property is a waste land with grass grown all over, coming within the scope of a private forest under the

Kerala Private Forest (Vesting and Assignment) Act, 1971

(in short, “Act of 1971”). It is a Government land and has been surveyed as Government land by the survey authorities. The Board is in possession of the entire extent of land including the plaint schedule property. The property along with other lands remained in the possession of the State Government from 1965 onwards. Indo-Swiss Project was carried on in the plaint schedule property. It was taken over by the Board in the year 1976. Accordingly the plaint schedule property came into possession of the Board in that year. Thereafter the properties were mainly used by the Board for the purpose of cattle development activities. It was also utilised for research on grass land management, fodder preservation, fodder seed production and other related activities. Earlier some of the predecessors-in-interest of the plaintiffs had instituted O.S.No.177 of 1985 before the trial court to restrain the defendants from trespassing upon the plaint schedule properties. Plaintiffs in that suit also relied on the same title and ultimately the suit was dismissed. Hence the present suit is barred by res judicata. Even if the plaintiffs had any right over the plaint schedule property, it has been lost by adverse possession and limitation. Thus the Board has perfected title by way of adverse possession. An order passed by the District Collector, Kottayam allowing mutation of the lands to the plaintiffs’ name had been stayed by the Revenue Board since the said order was issued without ascertaining as to whether the plaint schedule properties belonged to the plaintiffs.

4. State of Kerala was impleaded as additional 3 rd defendant. Additional 3 rd defendant also supported the plea raised by the defendants 1 and 2. According to the averments in the written statement of the additional 3 rd defendant, a total extent of 2619.38 hectares of land inclusive of the plaint schedule properties comprised in survey No.2651 of Koottickal Village belonged to Poovarani Devaswam. The above property got vested in the Government as per the KLR Act. Out of the above property an extent of 790.73 hectares of land was handed over to the Indo-Swiss Project. It is in respect of the above land the purchase certificates were issued to 12 members of Punjar Palace contrary to the provisions of law. They were paying land revenue till the year 1990. Re-survey was finalised in that area on 04.05.1993 and the notification was issued in the year 1993. As per the re-survey records, the plaint schedule property forms part of the Government land. In the basic tax register and re-survey field register the plaint schedule property is shown to be belonging to the Indo-Swiss Project, Kolahalamedu estate. After the re-survey, the plaintiffs had not remitted any land revenue. Even though the District Collector, Kottayam allowed mutation of property in the name of the plaintiffs on 21.02.1997, the above order was stayed by the Revenue Board and finally it was set aside. Against that decision the plaintiffs had filed O.P.No.24167 of 1998 before this Court. The matter was pending at the time of filing the written statement. According to the additional 3 rd defendant, plaintiffs have no right to file the suit and the property now belongs to the Board.

5. Heard Shri V.Philip Mathew, learned counsel for the appellants, Smt.Sumathy Dandapani, learned Senior Counsel appearing for respondents 1 and 2 and Shri Muraleedharan, learned Government Pleader appearing for the 3rd respondent.

6. After filing the appeal, the appellants have filed three applications, viz., I.A.Nos.1464 of 2016, 1934 of 2016 and I.A.No.2024 of 2016 by invoking