Kerala High Court
Lijo Joseph vs Grama Panchayath Kattapana on 10 October, 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
RSA NO. 398 OF 2024
AGAINST THE JUDGMENT & DECREE DATED 06.03.2024 IN AS NO.19 OF
2015 OF SUB COURT / KATTAPPANA ARISING OUT OF THE JUDGMENT &
DECREE DATED 28.02.2015 IN OS NO.173 OF 2010 OF MUNSIFF
COURT,KATTAPPANA
APPELLANT/APPELLANT/PLAINTIFF
LIJO JOSEPH
AGED 42 YEARS
S/O LATE M C JOSEPH, , MATTAPPALLIL HOUSE, KANCHIYAR
KARA, AYYAPANCOIL VILLAGE, UDUMNACHOLA TALUK, IDUKKI
DISTRICT, PIN - 685554
BY ADVS.
G.SREEKUMAR (CHELUR)
AKHIL VINAYAN
RESPONDENTS/RESPONDENTS/DEFENDANT
1 GRAMA PANCHAYATH KATTAPANA
REPRESENTED BY ITS SECRETARY KATTAPANA GRAMA PANCHAYAT,
KATTAPANA VILLAGE, KATTAPANA KARA, UDUMBANCHOLA TALUK,
IDUKKI DISTRICT, PIN - 685554
2 THE KATTAPANA MUNICIPALITY
, REPRESENTED BY ITS SECRETARY, KATTAPANA MUNICIPALITY,
KATTAPANA VILLAGE, KATTAPANA KARA, IDUKKI TALUK, IDUKKI
DISTRICT, PIN - 685554
RSA NO. 398 OF 2024 2
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3 LUKA
AGED 65 YEARS
S/O JOSEPH, , KARUKACHERIL HOUSE, KATTAPANA KARA,
SCHOOL KAVALA BHAGAM, KATTAPANA VILLAGE, IDUKKI
TALUK,IDUKKI DISTRICT, PIN - 685554
BY ADVS. UNNIKRISHNAN V. ALAPPATT ,SC (B/O) (R1 & R2)
SHRI. JESTIN MATHEW (R3)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
10.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA NO. 398 OF 2024 3
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Dated this the 10th day of October, 2024
JUDGMENT
1. The plaintiff in a suit for prohibitory injunction as well as
mandatory injunction is the appellant. The plaint schedule
property is an extent having 15 cents of land. The claim
of the plaintiff is that it belongs to the grandfather of the
plaintiff's father, Chandy Joseph, as per Ext.A1 gift deed of
the year 1983. It was gifted to the plaintiff's father. The
plaintiff's father executed Ext.A3 Will and on the death of
plaintiff's father the property came in to the possession of
the plaintiff. Since, the plaint schedule property is a non
patta land Ext.A1 gift deed could not be registered. The
father of the plaintiff's, M.C. Joseph, used to conduct
vegetable business in the shed in the plaint schedule
property once in a week. The cause of action is that the
defendant Panchayat without any authority dumped four
loads of soil and market waste in the plaint schedule
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property. Hence the suit was filed for injunction restraining
the defendants from entering in to the plaint schedule
property and also mandatory injunction to remove the
dumped soil and market waste.
2. The defendant opposed the suit prayers by filing a written
statement contending that, as per the Plaint schedule
description, the extent of the property would be 25 cents of
land. It is in the absolute ownership and possession of the
defendant, and the same is included in Ext. B1 Asset
Register. It was a part of the Cattle Market of the
Panchayat. The Panchayat has constructed shed in the
said property. The concrete poles are planted on the sides
of the property enclosing it. The plaintiff or his
predecessors did not have any possession over the plaint
schedule property. Ext.A1 gift deed is a fabricated
document. The land assignment application submitted by
the plaintiff is not with respect to the plaint schedule
property.
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3. The Trial Court dismissed the suit, holding that the plaintiff
is not in possession of the plaint schedule property. The
plaintiff filed an appeal before the First Appellate Court,
and the same was dismissed confirming to the judgment
and decree of the Trial Court.
4. I heard Shri. G. Sreekumar (Chelur), the learned counsel
for the appellant, Shri. Unnikrishnan V. Alapatt, the learned
Standing Counsel for the respondents 1 and 2 and Shri.
Jestin Mathew, the learned counsel for the 3rd respondent.
5. The learned counsel for the appellant contented that the
Trial Court as well as the First Appellate Court non suited
the plaintiff, finding that the plaintiff could not prove
possession of the plaint schedule property. Since the
evidence adduced by the plaintiff was disbelieved, it does
not mean that the plaintiff is not in possession of the plaint
schedule property or does not in any way prevent the
plaintiff from prosecuting with the land assignment
application already filed or to file a fresh application for
assignment. The learned counsel submitted that though no
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records were produced before the Trial Court, the said
property is included in the List of Assignable Land and
hence the plaintiff can maintain an application for
assignment of land. This fact is strongly disputed by the
learned counsel for the respondent specifically referring to
Ext.B1 Asset Register which would show that the property
belonged to the respondent Panchayat and not to the
Government.
6. After considering the evidence, the Trial Court as well as
the first Appellate Court came to the conclusion that the
plaintiff could not prove possession over the plaint
schedule property. This Court while exercising the
jurisdiction in Second Appeal cannot interfere in such
factual finding unless the same is perverse. I do not find
any perversity in the finding of the Trial Court as well as
the First Appellate Court.
7. The learned counsel for the appellant expressed an
apprehension that in case the appellant submits an
application for assignment, the impugned judgments may
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stand in the way of consideration of the said application.
The title of the property is not decided in the suit. If the
land is included in the assignable list of land, the plaintiff is
free to submit an application for assignment. If he is
eligible for the same such application has to be considered
independently. The impugned judgments have nothing to
do with such application. In view of the aforesaid facts, I
do not find any reason to interfere with the impugned
judgments and the Regular Second Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
mus
