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IN THE HIGH COURT OF KERALA
M. Sasidharan Nambiar, J.
Kumaran – Petitioner
Versus
State of Kerala – Respondent
R.S.A. No.261 of 2004
Decided On : 07-06-2011
Specific Relief Act, 1963 - Section 36 - Land Conservancy Act, 1957 - Sections 11 and 20A - Appellants contended that as the plaint B schedule property forms part of plaint A schedule property, respondents are not entitled to take any action pursuant to the respective notice served on them - When appellant pursuant to assignment in his favour namely Ext.A20 has taken possession of property and holds possession and constructs building which is an act of possession, with no intention of claiming or occupying land beyond what actually belongs to him, will not such possession support plea of adverse possession and limitation - Does Section 20A of Land Conservancy Act operate as a bar to file a suit by the plaintiff who is admittedly in possession of plaint A schedule property - Held, When appellants are not claiming any right, title or possession to the property in survey No.743, courts below were justified in holding that appellants could be evicted from the property in survey No. 743 - If it is a PWD road puramboke land as provided under the Land Conservancy Act - Even if an encroacher is to be evicted under the provisions of Land Conservancy Act, there should be a notice as provided under section 11 and thereafter there should be a final order accompanied by a notice in Form C served on the encroacher as provided under Rule 11 of Kerala Land Conservancy Rules - Appeal dismissed.
Certainly. Based on the provided legal document, here are the key points summarized:
The case involved disputes over property rights, specifically between the appellants and the respondents, concerning the nature and extent of land claims and encroachments (!) (!) .
The appellants claimed that the disputed property (plaint B schedule) was part of their title property (plaint A schedule) and that the respondents' notices to evict were not justified because the land in question was not separate from their property (!) .
The respondents argued that the disputed land was part of a government road puramboke (public land), and that proceedings under the Land Conservancy Act were initiated correctly to remove encroachments on public land, with proper notices being issued as required by law (!) (!) .
The lower courts found that the appellants did not claim any right over the government land (survey No. 743) and that their claims were limited to their own property. The courts also held that proceedings under the Land Conservancy Act were valid because the land in question was indeed government puramboke (!) .
The courts emphasized that for eviction proceedings under the Land Conservancy Act, proper statutory procedures, including notices and final orders, must be followed. The absence of such procedures would invalidate eviction actions, but in this case, the respondents had adhered to the legal requirements (!) (!) .
The courts dismissed the appeals, concluding that the appellants were not entitled to a permanent injunction because the respondents had the right to proceed under the Land Conservancy Act to evict encroachers from government land, provided all procedural requirements were met (!) (!) .
The question of adverse possession was considered but ultimately found not to be central to the decision, given that the respondents' proceedings were initiated lawfully, and the appellants did not claim any rights over the government land (!) .
Overall, the judgment confirmed that the authorities acted within their legal rights when initiating proceedings to remove encroachments on government land, and that the appellants' claims to the disputed land were not supported by sufficient evidence to override statutory procedures (!) (!) .
Please let me know if you need further analysis or specific legal advice regarding this case.
Plaintiff in O.S.660/1998 on the file of Munsiff's Court, Wadakkancherry is the appellant in R.S.A.261/2004. Plaintiff in O.S. 661/1998 of the same court is the appellant in R.S.A.348/2004. Respondents are the same defendants in both the suits. First respondent is the State and the second respondent,the Assistant Executive Engineer, PWD Roads Sub Division. When the PWD (Roads and Sub Division), Wadakkancherry issued Ext.A13, 14 and 15 notices to the appellants as well as the plaintiff in O.S.662/1998 directing them to vacate the road puramboke property in survey No.743 allegedly encroached by them, appellants and the plaintiff in O.S.662/1998 instituted the respective suits seeking a decree for permanent prohibitory injunction. The decree sought for in all the suits is restraining the defendants from trespassing into any portion of the plaint A schedule property and causing any damage to the building situated therein or taking possession of the plaint B schedule properties by trespass or causing any damage to the improvements thereon, by a permanent prohibitory injunction. Plaint A schedule property is the property admittedly belonging to the plaintiffs. Plaint B schedule property is alleged to be the encroached portion of the road puramboke, which according to plaintiffs are not portions of road puramboke but portions of the plaint A schedule property. Appellants contended that as the plaint B schedule property forms part of plaint A schedule property, respondents are not entitled to take any action pursuant to the respective notice served on them. Respondents in their written statement contended that the respective appellants encroached upon a portion of the road puramboke by extending their building in the plaint A schedule property and as they are encroachers of the Government puramboke land, Government is competent to evict them by recourse to the provisions of Kerala Land Conservancy Act and the notices were issued under the provisions of Kerala Land Conservancy Act and hence the appellants are not entitled to the decree sought for.
2. Learned Munsiff tried all the three suits together and on the evidence found that appellants are not claiming any right over any portion of the property comprised in survey No.743, which is a road puramboke, and they are only claiming right and title to the property covered under their title deed which is the plaint A schedule property and therefore they are not entitled to a decree for injunction in respect of the road puramboke land. All the suits were dismissed. Plaintiff in O.S.662/1998 did not challenge the judgment. Appellants filed A.S.284/2000 and A.S.336/2003 respectively challenging the dismissal of their suits. Learned Additional District Judge, Thrissur on reappreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. Though applications were filed under Rule 17 of Order VI of Code of Civil Procedure before the first appellate court, to raise a plea based on adverse possession in respect of the Government land, learned Additional District Judge dismissed those applications also. These appeals are filed challenging the said common judgment.
3. The appeals were admitted formulating the following substantial questions of law.
1. Does Sec.20A of Land Conservancy Act operate as a bar to file a suit by the plaintiff who is admittedly in possession of the plaint A schedule property?
2. When the appellant pursuant to the assignment in his favour namely Ext.A20 has taken possession of the property which is to the immediate east of the Thrissur-Shornur Road and holds possession and constructs a building which is an act of possession, with no intention of claiming or occupying land beyond what actually belongs to him, will not such possession support the plea of adverse possession and limitation?
3. Will not the animus to hold the property openly under the claim or colour of title in derogation of title of all others, whoever they be, known or
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