C.A. Joseph vs The District Collector Collectorate, Ernakulam - 682 030 and Others

Justice Thomas P. Joseph

Plaintiff in O.S. No. 1676 of 2004 of the First Additional Munsiff Court, Ernakulam is aggrieved by the dismissal of that suit as confirmed by the learned First Additional District Judge, Ernakulam in A.S. No. 167 of 2009. The suit was originally laid against respondents 1 to 3 for a declaration that appellant/plaintiff has perfected title over the suit property, described as 2.85 cents in Survey No. 944/6 by adverse possession and the law of limitation and for consequential injunction. Appellant claimed that his father was in possession of the suit property from 1954 onwards and after the death of the father, he is in possession and enjoyment of the said property. He has reclaimed a portion of the suit property and planted coconut saplings.

Respondent 1 and 2, the District Collector and the Revenue Divisional Officer remained absent in the courts below. The 3rd respondent/3rd defendant, the Corporation of Cochin contended that the suit is not maintainable under Sections 563 and 544 of the Kerala Municipality Act. It denied claim of the appellant that he has perfected title over the suit property by adverse possession.

Respondents 4 to 7 got themselves impleaded as additional defendants 4 to 7 and contended that the court has no jurisdiction to entertain the suit in view of Section 20(a) of the Land Conservancy Act. They also contended that appellant had made a claim before the authority concerned for assignment of the suit property under provision of the Kerala Land Assignment Act, that application was rejected by the appropriate authority and its appeal also ended in dismissal, appellant has thus acknowledged and accepted title of the State over the suit property and hence the plea of adverse possession cannot stand. They contended that suit property is part of the public thodu and the way in Survey.No 944/6.

The trial court referring to the contentions raised by respondents 4 to 7 as to their right through the suit property, observed that it is not necessary to go into that question since the claim of the appellant is only for a declaration of title on the strength of adverse possession and for injunction. The trial court held that the appellant failed to prove his case that he has perfected title by adverse possession and hence no relief could be granted to the appellant. The trial court also noticed that though extent of the suit property stated in the plaint schedule is 2.85 cents, the Advocate Commissioner in Exts.C2 and C2(a) has reported the puramboke thodu as having an extent of 4 cents. The trial court also observed that the appellant did not take steps to amend the plaint in accordance with Ext.C2(a)

The first appellate court, it is pointed out observed in paragraph 11 of this judgment that in the suit property, there is an electric line drawn on posts and water taps installed, thereby affecting the case of the appellant that he has exclusive possession of the suit property. On the plea of adverse possession, the first appellate court confirmed the finding of the trial court.

The learned counsel for the appellant has contended that the court below did not take into account the fact that the appeal from the decision of the Tahasildar on the application for assignment of the suit property was withdrawn by the appellant. It is also contended by the learned counsel that first appellate court was not right in observing as if the appellant has no exclusive possession of the suit property.

The question for decision now is whether any substantial question is involved on the finding entered by the courts below? The title claimed by the appellant over the suit property is purely based on adverse possession and the law of limitation. According to the appellant, adverse possession started in the year, 1954 with his father taking possession of the suit property and that was continued by the appellant after the death of his father. But, it has come in evidence that some time in the year 2004, appellant applied to the Tahsildar for assignment of the suit property obviously under provisions of the Kerala Land Assignment Act and the Rules. The learned counsel submits that the said application was made as provided under Rule 6 of the Rules on the ground that the suit property is indispensably required for the beneficial enjoyment of the registered holding of the appellant. Whatever that be, Ext.B3 shows that the said application was rejected by the Tahsildar. It is also admitted that the appellant had preferred an appeal against that order to the R.D.O. concerned. Ext.P4 is the order dated 14/12/2004 of the RDO. The learned counsel submits that the appeal was withdrawn and accordingly it was dismissed. If the appeal was withdrawn, it follows that the order of the Tahsildar rejecting the application stands. At any rate, by making an application for assignment to the Tahsildar, the appellant has accepted and acknowledged title of the State over the suit property. That was in the year, 2004. It is held in Mandal Revenue Officer Vs. Goundla Venkaiah and Another, that payment of revenue and application for assignment of the land would negative the plea of adverse possession. The Supreme Court also alerted the courts to be vigilant about the claims being made by encroachers of Government property. The suit is filed in the year 2004. Hence the contention of the appellant that he has perfected title by adverse possession and limitation cannot stand. The courts below were right in holding so.

As regards the grievance of the appellant as to the finding entered by the first appellate court as to the exclusive possession of the appellant, it is not necessary for going me to that observation. I also find from paragraph 11 of the judgment of the first appellate court was made based on the existence of the electric post and drawal of electric line and water taps. Having heard the learned counsel and gone through he judgments under challenge I do not find any substantial question of law involved in this appeal.

The second appeal is dismissed.