Kerala High Court
Beepathumma vs Chelakkara Grama Panchayath on 1 August, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 1ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946
RSA NO. 18 OF 2022
AGAINST THE DECREE AND JUDGMENT DATED 27.07.2021 IN AS NO.73
OF 2014 OF PRINCIPAL SUB COURT, THRISSUR ARISING OUT OF THE
ORDER/JUDGMENT DATED IN OS NO.908 OF 2008 OF PRINCIPAL
MUNSIFF COURT,THRISSUR
APPELLANT/APPELLANTS/PLAINTIFFS:
1 SHEEBA,
AGED 38 YEARS
D/O. CHITTILAPPILLY VEETIL,
VARUTHAPPAN,
CHELAKKARA VILLAGE,
TALAPPILLY TALUK,
THRISSUR 680 586.
2 SHIBU,
AGED 32 YEARS
S/O. CHITTILAPPILLY VEETIL,
VARUTHAPPAN,
CHELAKKARA VILLAGE,
TALAPPILLY TALUK,
THRISSUR 680 586.
BY ADVS.
MADHU RADHAKRISHNAN
M.D.JOSEPH
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 CHELAKKARA GRAMA PANCHAYATH,
CHELAKKARA VILLAGE,
TALAPILLY TALUK,
REP. BY SECRETARY CHELAKKARA,
GRAMA PANCHAYATH OFFICE
PIN 680 586.
2 STATE OF KERALA,
REP. BY DISTRICT COLLECTOR,
COLLECTORATE,
AYYANTHOLE,
RSA NOS.18 & 8 OF 2022
2
THRISSUR
PIN 680 003.
3 MUHAAMMEDKUTTY, (DELETED)
S/O. KULAPPURATH
VEETTIL HASSAN,
CHELAKKARA VILLAGE,
TALAPPILLY TALUK,
PIN 680 586.
[THE DECEASED 3RD RESPONDENT IS REMOVED FROM THE
PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER
ORDER DATED 13.07.2023 IN IA.2/2023]
BY ADV P.C.SASIDHARAN - R1 (B/O)
SR. GOVERNMENT PLEADER SRI DENNY DEVASSY- R2
SRI. BINOY VASUDEVAN - R3
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 01.08.2024, ALONG WITH RSA.8/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
RSA NOS.18 & 8 OF 2022
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 1ST DAY OF AUGUST 2024 / 10TH SRAVANA, 1946
RSA NO. 8 OF 2022
AGAINST THE ORDER/JUDGMENT DATED 27.07.2021 IN AS NO.74 OF
2014 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT /
COMMERCIAL COURT, THRISSUR ARISING OUT OF THE
ORDER/JUDGMENT DATED IN OS NO.909 OF 2008 OF PRINCIPAL
MUNSIFF COURT,THRISSUR
APPELLANT/APPELLANTS/PLAINTIFFS:
BEEPATHUMMA
AGED 64 YEARS
D/O KULATHINKAL VEETTIL,
MANURAVUTHAR,
CHELEKKARA VILLAGE,
TALAPPILLY TALUK,
THRISSUR,
PIN-680586.
BY ADVS.
MADHU RADHAKRISHNAN
NELSON JOSEPH
DEEPAK ASHOK KUMAR
M.D.JOSEPH
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 CHELAKKARA GRAMA PANCHAYATH
CHELAKKARA GRAMA VILLAGE,
TALAPILLY TALUK,
REPRESENTED BY SECRETARY,
RSA NOS.18 & 8 OF 2022
4
CHELAKKARA GRAMA PANCHAYATH OFFICE,
CHELAKKARA,
THRISSUR DISTRICT,
PIN-680586.
2 STATE OF KERALA
REPRESENTED BY DISTRICT COLLECTOR,
COLLECTORATE,
AYYANTHOLE,
THRISSUR DISTRICT, PIN-680003.
3 MUHAAMMEDKUTTY,(DELETED)
S/O KULAPPURATH VEETTIL HASSAN,
CHELAKKARA VILLAGE,
TALAPPILLY TALUK,
THRISSUR DISTRICT,
PIN-680586.
(THE DECEASED 3RD RESPONDENT IS REMOVED FROM THE
PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER
ORDER DATED 13.07.2023 IN IA.2/2023)
BY ADV P.C.SASIDHARAN - R1 (B/O)
SR. GOVERNMENT PLEADER SRI DENNY DEVASSY- R2
SRI. BINOY VASUDEVAN - R3
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 01.08.2024, ALONG WITH RSA.18/2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
RSA NOS.18 & 8 OF 2022
5
JUDGMENT
1. Both these Regular Second Appeals arise from two suits
which are disposed by a common judgment and hence I
consider both these appeals together.
2. The parties are referred according to their status before
the Trial Court.
3. R.S.A. No.18/2022 arises from O.S. No.908/2008 in
which the plaintiffs are the sister and brother. R.S.A.
No.8/2022 arises from O.S. No.909/2008.
4. The suits were filed for permanent prohibitory injunction
restraining the Panchayat Authorities from forcefully
evicting the plaintiffs in both the suits from the respective
plaint schedule properties. The plaint schedule property in
O.S. No.908/2008 is 2.46 cents. The plaint property in
O.S. No.909/2008 is 1.82 cents. According to the plaintiffs
they have been in possession of the plaint schedule
RSA NOS.18 & 8 OF 2022
properties for the last nearly 40 years and they have been
residing in the building constructed therein after paying
land tax as well as property taxes for the same. The
cause of action for the suit is that the Panchayat issued
Eviction Notices to evict them from the plaint schedule
properties. The contention of the plaintiffs are that they
have perfected their title by adverse possession and
limitation.
5. The defendant - Panchayath opposed the prayers in the
suits on the ground that the suits are not maintainable
since statutory notice under Section 249 of the Kerala
Panchayat Raj Act was not given to the Panchayath prior
to the filing of the suits; that the plaint schedule properties
are road puramboke lands and the plaintiffs constructed
residential buildings in the plaint schedule properties
encroaching into the same; that the plaint schedule
RSA NOS.18 & 8 OF 2022
properties are required for the maintenance of the road.
The claim of the plaintiffs that they have perfected their
title by adverse possession and limitation was also
disputed by the Panchayath.
6. The Trial Court dismissed both the suits. The plaintiffs
filed appeals before the First Appellate court and the First
Appellate Court dismissed the same confirming the
judgment and decree passed by the Trial Court.
7. I heard the learned counsel for the appellant Sri. Madhu
Radhakrishnan, the learned counsel for the 1st
respondent Sri. P. C. Sasidharan, and learned Sr.
Government Pleader Sri. Denny Devassy for the 2nd
respondent and Sri. Binoy Vasudevan for the 3rd
respondent.
8. The learned counsel for the appellant submitted that the
documents produced before the Trial Court would show
RSA NOS.18 & 8 OF 2022
that the plaintiffs have been in possession of the plaint
schedule properties for the last nearly 40 years. He
invited my attention to the various documents produced
before the Trial Court which included the Election Id Card,
Ration Card, Electricity Invoice, BSNL Invoice and
property tax receipts. According to him the Trial Court as
well as the Appellate court ought to have upheld the claim
of the plaintiffs that they have perfected their title over the
plaint schedule properties by adverse possession and
limitation especially when the contention of the
defendants that they are encroachers into the plaint
schedule properties. He contended that the Trial Court
and Appellate Court ought to have granted injunction at
the least till the plaintiffs are rehabilitated in alternate
places as undertaken by the Panchayath in their written
statement on the basis of Ext.A10 Government Order
RSA NOS.18 & 8 OF 2022
issued by the Government. He also submitted that the
Exts.A1 and A9 Reply Notices contain all the ingredients
of the Notice under Section 249 of the Panchayat Raj Act
and hence that said Notice is to be treated as a Notice
under Section 249 and the suit should not have been
dismissed on the ground of want of notice.
9. On the other hand the learned counsels for the
respondents submitted that the claim on the basis of
adverse possession and limitation is not sufficiently
proved before the Trial Court. The learned counsel for the
defendant submitted that going by the pleading and
evidence adduced by the plaintiffs, it is specifically
admitted that the occupation on the road puramboke by
the plaintiffs is by way of permission granted by the
Panchayath. In view of the said pleadings, the claim of
adverse possession and limitation could not be raised by
RSA NOS.18 & 8 OF 2022
the plaintiffs. They also contended that Exts.A1 and A9
Reply Notices are only Replies and it do not contain the
ingredients which are to be included under Section 249 of
Kerala Panchayath Raj Act.
10. It is clear from the impugned judgment that the claim
of the plaintiffs on the basis of adverse possession and
limitation was rejected relying on the pleading of the
plaintiffs in the plaint that they are in possession of the
plaint schedule properties with the permission and
knowledge of the defendants. When the 2 nd plaintiff in
O.S. No.908/2008 and the plaintiff in O.S. No.909/2008
were examined as PWs 1 and 2, they re-iterated their
stand in the plaint that they have been occupying the
plaint schedule properties on the basis of permission
granted by the Panchayath. In view of the said pleadings
and evidence, the claim of the plaintiffs on the basis of
RSA NOS.18 & 8 OF 2022
adverse possession and limitation is unsustainable. That
apart, the documents clearly show that the plaintiffs had
been paying prohibitory tax to the Government. If the
plaintiffs had perfected their title by adverse possession
and limitation there was no need for them to pay the
prohibitory tax to the Government accepting the title of
the Government. Admittedly the plaint schedule
properties are road puramboke.
11. With respect to the contention that Exts.A1 and A9
Reply Notices are sufficient Notices under Section 249 of
the Panchayath Raj Act, it is seen that the plaintiffs have
not disclosed the cause of action and the relief claimed in
Exts.A1 and A9 Reply Notices which is mandatory under
Section 249 of the Panchayath Raj Act. It do not disclose
any intention of the plaintiff to file the suits. So it cannot
be treated as a statutory notice as required under Section
RSA NOS.18 & 8 OF 2022
249 of the Kerala Panchayath Raj Act. So the dismissal of
the suits for want of notice under Section 249 of the
Kerala Panchayath Raj Act also is perfectly valid and
legal.
12. It is seen from the pleadings that the Panchayath
considered the case of the plaintiffs compassionately and
to took decision to provide alternate accommodation to
the plaintiffs. According to the Panchayath, they have
already arranged alternate accommodation to the
plaintiffs but the plaintiffs are not ready to occupy the
same. The plaintiffs when examined have admitted that
they have not inspected the place offered by the
Panchayath. Since the plaint schedule properties are
road puramboke, the plaintiffs do not have any right to
remain there. In view of the offer made by the
Panchayath to provide alternate accommodation, the
RSA NOS.18 & 8 OF 2022
plaintiffs cannot have any grievance in the matter.
13. The learned counsel for the Panchayath provided
copy of the judgment dated 20/06/2024 in WP(C)
No.2366/2022 of this Court. The said writ petition is filed
by the 1st plaintiff in O.S. No.908/2008 and the plaintiff in
O.S. No.909/2008. The said writ petition was dismissed
by this Court holding that the plaintiffs do not have any
legal right to remain in possession of the property. It is
seen from the said judgment that the Panchayath has
undertaken to make the alternative houses habitable at
their cost if the plaintiffs herein vacate the unauthorised
occupation. I have no reason to believe that the
Panchayath will not honour that undertaking.
14. The learned counsel for the appellant prayed that an
injunction may be ordered at least till the date of
occupation of alternate accommodation with title is
RSA NOS.18 & 8 OF 2022
provided to them by the Panchayat. Such a request
cannot be entertained in this appeal. The learned counsel
for the appellants submitted that appellants have filed writ
appeal against the judgment in W.P(C) No.2366/2022. So
the plaintiffs can very well pray for similar direction in the
writ appeal. Accordingly, these Regular Second Appeals
are dismissed .
Sd/-
M.A.ABDUL HAKHIM
JUDGE
sms
