Kerala High Court
Thomas Jose vs State Of Kerala on 6 March, 2025
RSA NO. 535 OF 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 6TH DAY OF MARCH 2025 / 15TH PHALGUNA, 1946
RSA NO. 535 OF 2024
AGAINST THE JUDGMENT DATED 25.03.2024 IN AS NO.32 OF 2017 OF
SUB COURT, CHERTHALA
ARISING OUT OF THE JUDGMENT DATED 31.03.2017 IN OS NO.83 OF 2013
OF PRINCIPAL MUNSIFF COURT, CHERTHALA
APPELLANT/APPELLANT/PLAINTIFF:
THOMAS JOSE
AGED 65 YEARS
S/O LATE THOMAS, VAZHATHARA POOMITTATHU, POOCHAKKAL.P.O,
PANAVALLY, CHERTHALA, PIN - 688526
BY ADVS.
T.JAYAKRISHNAN
R.KRISHNAKUMAR (CHERTHALA)
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DISTRICT COLLECTOR ALAPPUZHA
CIVIL STATION, ALAPPUZHA, PIN - 688001
3 THE TAHSILDAR, CHERTHALA TALUK
TAHSILDAR, CHERTHALA TALUK, CHERTHALA, PIN - 688524
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4 THE VILLAGE OFFICER, PANAVALLY
PANAVALLY VILLAGE OFFICE, CHERTHALA, PIN - 688526
OTHER PRESENT:
SRI.DENNY DEVASSY-SR.GP
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
06.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
1. The appellant is the plaintiff in the suit. The suit was one for
permanent prohibitory injunction against the State, District
Collector, Tahsildar and Village Officer as defendants.
2. As per the plaint allegations, the plaintiff is having 10 cents of
land, which he derived as per E schedule item No.2 of Ext.A1
Partition Deed. On the western side of the plaintiff's property,
the property belonging to his brother Antony Thomas is
situated, which is having 14.200 cents. Against the said
property, revenue recovery proceedings were initiated. The
Revenue Authorities failed to identify the said property and
hence could not take possession of the same. The cause of
action for the suit is that on 20.09.2013, the Village Officer,
along with the Taluk Surveyor, came to the property of the
plaintiff and started measuring the same, alleging that it is the
property belonging to the brother of the plaintiff, Antony
Thomas. Hence, the suit was filed.
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3. The third defendant filed Written Statement and other
defendants filed Memo adopting the Written Statement of the
third defendant. The contention of the third defendant is that
the plaint schedule property is not in the possession of the
plaintiff, and it is owned and possessed by the defendants as
early as on 24.05.1989 as a bought-in-land in revenue recovery
proceedings. The Government has transferred 14.200 cents of
land belonging to Antony Thomas under the 'Kerala
Government Bhoorahitha Keralam 2013' Programme. In view
of the rival contentions, an Advocate Commissioner was
appointed with the assistance of the Taluk Surveyor to identify
the plaint schedule property belonging to the plaintiff and the
property belonging to Antony Thomas. The Plan prepared by
the Taluk Surveyor was marked as Ext.C1(a). In C1(a) plan, the
plaint schedule property of the plaintiff is shown in green
shade, and the property purchased by the Government
belonged to Antony Thomas is shown in orange (yellow '
according to the Trial Court) colour. Green shaded plot within
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'abcde' is situated on the east, and orange shade plot within
'efghijkla' is situated in the west.
4. The Trial Court found that the plaintiff's property, which he
derived as per Item No.E2 of Ext.A1 Partition Deed, is situated
on the north-eastern side of the total extent having 80 cents
and the same is situated in Survey No.8/5-4, whereas the
property of the brother of the plaintiff, Antony Thomas, which
is purchased by the State, having an extent of 14.200 cents, is
situated on the western side of the property of the plaintiff. In
view of the said identification, the Trial Court dismissed the
suit holding that the claim of the plaintiff that his property is
not the green shaded plot is unsustainable and that the suit is
an attempt to save the brother of the plaintiff and hence the
plaintiff is not entitled to get any relief of injunction.
5. Though the plaintiff filed an Appeal before the First Appellate
Court, the appeal was dismissed, confirming the judgment of
the Trial Court.
6. I heard the learned counsel for the appellant,
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Sri.T. Jayakrishnan.
7. The learned counsel for the appellant contended that a specific
finding is made by the Trial Court that the plaint schedule
property is a part and parcel of 14.200 cents of property set
apart to the share of the plaintiff's brother Antony Thomas,
which was taken by the Revenue Authorities under the revenue
recovery proceedings. If the said finding of the Trial Court is
sustained, the State and its officers can very well proceed
against the property of the plaintiff, which is included in the
plaint schedule property.
8. On the other hand, the learned Government Pleader who
appeared for the respondents contended that there could not
be a grievance for the plaintiff as the issue raised in the suit is
settled by Ext.C1(a) Plan, in which the property belonging to
the plaintiff and the property purchased by the Government in
revenue recovery proceedings having 14.200 cents of land
belonged to the brother of the plaintiff, is clearly demarcated
and hence there is no confusion on the matter. There is no
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clarification required.
9. I have considered the rival contentions.
10. On going through the description in the plaint schedule
property, it is seen that 10 cents of land which is situated in
survey No.8/5-4 of Panavally Village, which is described as Item
No.2 in the E schedule of Ext.A1 Document is included.
Ext.C1(a) Plan would reveal that the said 10 cents of plaint
schedule property is clearly identified by the Advocate
Commissioner on the north-eastern side of the entire property
by marking the said property in green colour within 'abcde'.
The survey number also tallies with the plaint schedule
property, i.e., 8/5-4. On the immediate western side of the said
green shaded plot belonging to the plaintiff, 5.74 Ares
equivalent to 14.200 cents of land, is clearly marked by the
Advocate Commissioner in orange colour within 'efghijkla'
identifying the same in Survey No.8/5-3. The Trial Court, as
well as the First Appellate Court, rendered judgment relying
on Ext.C1(a) Plan. In view of the Ext.C1(a) plan, there could not
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be any confusion on the issue. The observation rendered by the
Trial Court that the plaint schedule property is a part and
parcel of 14.200 cents of property set apart to the plaintiff's
brother Antony Thomas is only a mistake in view of the clear
demarcation of the property of the plaintiff and the property
purchased by the Government in revenue recovery proceedings
from his brother in Ext.C1(a). Hence, I am of the view that the
appellant/plaintiff need not have any apprehension on account
of the aforesaid mistaken observation of the Trial Court. The
green shaded plot within 'abcde' situated in Survey No.8/5-3 in
Ext.C1(a) is the plaintiff's property and the same is not included
in the property purchased by the Government.
11. Accordingly, the Appeal is dismissed with above
observation by this Court.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Shg/
