ATLY GEORGE Vs. PAUL P.M.

JUDGEMENT

(1.) THE plaintiff has come up in appeal challenging the order of remand passed by the Additional Sub Judge, Irinjalakuda in A.S. No. 4/2008.

(2.) PLAINT A schedule property having an extent of 95 cents belonged to the father of the plaintiff. His case is this. There was a partly 'damaged and collapsed' building in the said property. The building was constructed by his predecessors in Plaint B schedule property (15 cents) forming part of the plaint A schedule property. The plaintiff's father allowed a Sub Centre of Elinjipra Health Centre to function in the building till alternative arrangement was made. It functioned till 10 years ago and thereafter the property was given back to the plaintiff's father. The plaintiff got the property as per a settlement executed by his father. While it was in his possession and enjoyment the second defendant -Municipality attempted to trespass into plaint B schedule property and unloaded some concrete slabs and pillars in it. He is entitled to declaration of his title to the plaint B schedule property, mandatory injunction directing removal of slabs and pillars and perpetual injunction restraining trespass. In the written statement the second defendant -Municipality contended that the plaintiff's father surrendered plaint B schedule land to the Government, which constructed a building, put up a boundary wall and dug a well in it. A Sub Centre of the Health Department functioned in the building for 30 years. In 1994 under Section 210 of the Kerala Municipalities Act administration, control and management of the property vested in the second defendant -Municipality. It is a trustee of the Government. Just before and after the institution of the suit, the plaintiff caused damage to the compound wall and the building. The police have registered a case. State of Kerala is a necessary party. The property is still in the possession and enjoyment of the Municipality. It prayed for dismissal of the suit. After the trial, the learned Munsiff decreed the suit. In appeal, the learned Sub Judge entered a finding that State of Kerala is a necessary party and remanded the case giving an opportunity to the plaintiff to implead in the suit the State of Kerala, District Medical Officer and Medical Officer of Primary Health Centre concerned. This is under attack in this appeal.

(3.) IT is an admitted fact that the plaintiff's father handed over possession of the plaint B schedule property to the Government. His definite case is that the Government gave back possession of the property to the plaintiff, who had already become the owner of the property, and it is now in his possession and enjoyment. The contention of the Municipality is that the plaintiff's father had surrendered the property to the Government and it never gave back possession to the plaintiff.