Kerala High Court
Kunjappan vs Revenue Divisional Officer on 11 April, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
WP(C) NO. 34402 OF 2017 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 11TH DAY OF APRIL 2024 / 22ND CHAITHRA, 1946
WP(C) NO. 34402 OF 2017
PETITIONER/S:
1 KUNJAPPAN
AGED 68 YEARS
S/O VAREED, AGED 68B YEARS,VAZHAKKALA HOUSE,
KIZHAKKUMMURI VILLAGE,CHALAKUDY TALUK, THRISSUR
DISTRICT.
2 LAKSHMIKUTTY
W/O PRABHAKARAN,KOOTHUPALAKKAD HOUSE,KIZHAKKUMMURI
VILLAGE,CHALAKUDY TALUK, THRISSUR DISTRICT.
3 ANTONY
S/O KUNJUVAREED, PAINADATH HOUSE,KIZHAKKUMMURI
VILLAGE,CHALAKUDY TALUK, THRISSUR DISTRICT.
BY ADV SMT.SURYA BINOY
RESPONDENT/S:
1 REVENUE DIVISIONAL OFFICER
CIVIL STATION, THRISSUR-680 033.
2 TAHSILDAR
CHALAKUDY TALUK, CHALAKUDY,THRISSUR-680 307.
OTHER PRESENT:
SRI.B.S.SYAMANTAK, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 34402 OF 2017 2
P.V.KUNHIKRISHNAN, J
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W.P.(C.) No. 34402 of 2017
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Dated this the 11th day of April, 2024
JUDGMENT
The above writ petition is filed with following prayers :
"i) Declare that the respondents cannot evict the petitioners from their respective properties covered by Ext.P1 decree under the Kerala Land Conservancy Act.
ii) Call for records leading to Ext.P5 to P5(b) and issue a writ in the nature of certiorari quashing the same.
iii) In the alternative issue a writ in the nature of mandamus commanding the 1st Respondent to consider and pass orders on Exhibit P6 appeals filed by the Petitioners within such time as this Hon'ble Court may deem fit, until then staying the operation of Exhibit P5 order;
iv) issue such other orders, writs or directions as are deemed fit by this Hon'ble Court.
v) award cost of this proceedings to the petitioners."
[sic]
2. The 1st petitioner as well as the late husband of the WP(C) NO. 34402 OF 2017 3 2nd petitioner and the father of the 3 rd petitioner and their predecessors in interest are owners in possession of land in survey Nos.980 & 981 of Kizhakkummuri Village for the last several decades is the submission of the petitioners. They were residing in their respective properties after erecting residential houses is the further submission. In the year 1978, the Government had tried to evict the predecessors of the petitioners from their respective properties alleging that the aforesaid lands are Government lands. Hence, the 1 st petitioner and predecessors in interest of petitioners 2 and 3 as well as two others had filed a civil suit as OS No.445/1978 before the Munsiff Court, Irinjalakuda impleading the Kerala State Government as well as Government officials as defendants. The suit was contested and ultimately a decree declaring the ownership of the plaintiffs therein in the said properties was passed by the Munsiff Court, Irinjalakuda is the submission. A consequential permanent prohibitory WP(C) NO. 34402 OF 2017 4 injunction was also passed restraining the Government and its officials from entering the property or evicting the plaintiffs therein from entering the property is the further submission. Ext.P1 is the decree. The Government filed an appeal before the Sub Court, Irinjalakuda against Ext.P1 decree as AS No. 67/1986. The said appeal was also contested and ultimately dismissed. Ext.P2 is the decree. Therefore, it is submitted that the plaintiffs therein including the petitioners 1 and 2 and the predecessor in interest of the 2nd petitioner are declared as the owners of the respective properties mentioned as decree shcedule item Nos. 1,2 and 4 of Ext.P1 decree. Thus the properties within the boundaries mentioned in the decree schedule are being enjoyed the petitioners as true owners on the basis of the declaration made by the civil court is the contention of the petitioners. The 1st petitioner had transferred his right in 7 cents of land which is the property mentioned as item No.1 in Ext.P1 WP(C) NO. 34402 OF 2017 5 decree schedule in favour of his son is the further submission. After the death of the father of the 3 rd petitioner namely, Kunjurvareed/1st plaintiff in Ext.P1 decree, his legal heirs including the 3rd petitioner had partitioned the property which is item No.1 in Ext.P1 decree schedule land is the contention. It is submitted that they are residing in their respective property after constructing residential houses. The 2nd petitioner is also residing in the decree schedule item No.3 property constructing a residential house, which was constructed by late husband of the 2 nd petitioner, Prabhakaran is the submission. The 3 rd petitioner and his brothers are jointly in possession of 1.45 acres of land in survey Nos. 980/2, 980/4, 980/5 and 981/2 in the Kizhakkummuri village is the contention. But, subsequently, a notice as per Sec.12 of the Land Conservancy Act was issued to the petitioners by the 2nd respondent and they were directed to appear for a hearing. The petitioners appeared WP(C) NO. 34402 OF 2017 6 before the 2nd respondent. It is submitted that without considering the contentions of the petitioners and the documents produced by the petitioners, the 2 nd respondent passed an order directing the petitioners to evict the land covered by Exts.P1 and P2. Aggrieved by the same, this writ petition is filed.
3. Heard the learned counsel for the petitioners and the learned Government Pleader.
4. The main prayer in this writ petition is against Exts.P5 to P5(b) proceedings. According to the petitioners, the property mentioned in Exts.P5 to P5(b) are covered by Exts.P1 and P2 decree which became final. A perusal of Exts.P5 to P5(b) would not show that the impact of Exts.P1 and P2 is properly considered by the authority concerned. Therefore, I am of the considered opinion that Exts.P5 to P5(b) is to be set aside and the matter is to be reconsidered by the 2nd respondent.
WP(C) NO. 34402 OF 2017 7
Therefore, this writ petition is disposed of with the following directions :
1) Exts.P5 to P5 (b) are quashed.
2) The 2nd respondent is directed to reconsider the matter in the light of Exts.P1 and P2 as expeditiously as possible.
Sd/-
P.V.KUNHIKRISHNAN JUDGE SKS WP(C) NO. 34402 OF 2017 8 APPENDIX OF WP(C) 34402/2017 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE DECREE IN OS NO.445/1978 OF MUNSIFF COURT IRINJALAKUDA DATED 15.03.1986.
EXHIBIT P2 TRUE COPY OF THE DECREE IN AS NO.67/86 OF SUB COURT IRINJALAKUDA DATED 21.06.1990 EXHIBIT P3 TRUE COPY OF THE RECEIPT ISSUED BY THE ELECTRICITY BOARD IN RESPECT OF THE 1ST PETITIONER'S HOUSE DATED 09.08.2017. EXHIBIT P4 TRUE COPY OF THE RECEIPT DATED 15.09.2017 NU B7//13139/17 EXHIBIT P5 TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER DATED 16.09.2017.
EXHIBIT P5A TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT TO THE 2ND PETITIONER DATED 16.09.2017 EXHIBIT P5B TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT TO THE 2ND PETITIONER DATED 16.09.2017 EXHIBIT P6 TRUE COPY OF THE NOTICE ISSUED UNDER THE LAND CONSERVANCY ACT TO 1ST PETITIONER DATED 16.09.2017 EXHIBIT P6A TRUE COPY OF THE NOTICE ISSUED UNDER THE LAND CONSERVANCY ACT TO 2ND PETITIONER DATED 16.09.2017 WP(C) NO. 34402 OF 2017 9 EXHIBIT P6B TRUE COPY OF THE NOTICE ISSUED UNDER THE LAND CONSERVANCY ACT TO 2ND PETITIONER DATED 16.09.2017 EXHIBIT P7 TRUE COPY OF APPEAL MEMORANDUM DATED 17.10.2017 FILED BY THE 1ST PETITIONER AS APPEAL NO. 17999/2017.