POYYAKANDATHIL KANNAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the plaintiff in O.S.No.308 of 2002 on the file of the Court of the Munsiff of Payyannur. The respondents are the defendants therein. The suit instituted by the petitioner for a permanent prohibitory injunction restraining the defendants and their officials from trespassing into the plaint schedule property or from committing acts of waste therein or from interfering with his peaceful possession and enjoyment thereof was dismissed after trial by judgment delivered on 27.3.2004. The plaint schedule property is a parcel of land 0.9890 hectares in extent, situate in re-survey Nos. 202/5, 202/6 and 202/7 of Peringome Village, Taliparamba Taluk, Kannur District. The plaintiff contended that he is in possession of the plaint schedule property, that he has also obtained a certificate of purchase from Land Tribunal, Payyannur, that on 10.11.2002 the officials of the defendants gathered near the plaint schedule proeprty and tried to trespass upon it and to cut and remove the cashew trees standing therein and to commit acts of waste.

(2.) Aggrieved by the decree dismissing the suit, the petitioner filed A.S.No.70 of 2004 in the Court of the Subordinate Judge of Payyannur. While the appeal was pending, the petitioner filed a memo to the effect that he is not desirous of prosecuting the appeal any further. The appeal was accordingly dismissed as not pressed by Ext.P7 judgment delivered on 30.9.2010. Within one month thereafter, to be exact on 28.10.2010, the petitioner filed I.A.No.1750 of 2010 (Ext.P8) praying that the appeal may be restored to file. The application was styled as one filed under Order 9 rule 9 of the Code of Civil Procedure. The petitioner had in the affidavit filed in support of the application averred that it was on account of the promise held out by the Village Officer of Peringome Village that he will receive tax from the petitioner in respect of the plaint schedule property in the event of the petitioner withdrawing the appeal that he filed a memo to the effect that he is not pressing the appeal, that after the appeal was dismissed when he went to the Village Office, the Village Officer declined to receive the tax and therefore, the appeal may be restored to file. I.A.No.1750 of 2010 was heard and dismissed by the lower appellate court on 8.2.2011. The order passed by the lower appellate court dismissing I.A.No.1750 of 2010 reads as follows:

(3.) The main ground raised in the original petition is that the petitioner filed a memo in the appeal to the effect that he is not desirous of prosecuting the appeal believing the promise of the Village Officer that if the appeal is withdrawn, he will receive the tax in respect of the plaint schedule property from the petitioner, that later, after the appeal was dismissed as not pressed, the Village Officer declined to accept the tax and therefore the petitioner was constrained to file an application to set aside the order dismissing the appeal as not pressed. The petitioner has also averred that when the Village Officer declined to receive the tax notwithstanding the promise held out by him earlier, he filed Ext.P5 representation dated 30.10.2010 before the Tahsildar, Taliparamba Taluk, that the Tahsildar in turn called for a report from the Village Officer, that the Village Officer submitted Ext.P4 report virtually admitting the petitioner's claim, but notwithstanding such a report, tax was not received from him and that was the reason why he is constrained to file the instant original petition challenging the order passed by the first appellate court on 8.2.2011 dismissing I.A.No.1750 of 2010 in A.S.No.70 of 2004.