PHILIP Vs. SKARIA

JUDGEMENT

(1.) Plaintiffs are the appellants. O.S. 28/79 on the file of the Subordinate Judge, Thodupuzha was filed by them for recovery of possession of 6 acres 67 cents of land and a building standing thereon on the strength of their previous possession alleging dispossession by the defendants. The defendants denied possession and dispossession alleged by the plaintiff's and contended that they are in independent possession. They also pleaded that the suit is not maintainable in view of the provisions contained in S.20A of the Kerala Land Conservancy Act, here-in-after called 'the Act'. The Trial Court accepted the entire case of the plaintiffs, but dismissed the suit solely on the ground that it is not maintainable in view of S.20A of the Act. In A.S. 40/81 the only point urged and considered was whether the suit is maintainable. The District Judge, Thodupuzha agreed with the Subordinate Judge in this respect and dismissed the appeal. Hence the plaintiffs have come up in second appeal.

(2.) Admittedly, the plaint Schedule.6 acres 67 cents is land belonging to the Government. Item No. 2 is a building standing thereon. That was constructed by the plaintiffs. Plaintiffs were in possession from the year 1959 onwards. Item No. 2 was registered in the Panchayat in the name of the plaintiffs. Plaintiffs alleged that the Ist defendant was appointed as a watcher to look after the property and building. While so, he asserted hostile title and attempted to take forcible possession of the property. Therefore the plaintiffs filed O.S. 68/74 against him for injunction and the suit was decreed evidenced by Ext. A8 decree. The further case of the plaintiffs is that thereafter defendants I and 2 approached the Tahsildar for Land Assignment and got an order of assignment of the plaint schedule property in their favour. It is said that this order was obtained mis-representing facts regarding possession. Plaintiffs filed a petition and consequently the assignment in favour of the defendants was cancelled on 8-12-1977. The suit was filed on the allegation that on 11-12-1977 defendants reduced the property to their possession by force. Mesne profits at the rate of Rs. 500/- per year was also claimed by the plaintiffs.

(3.) Defendants contended that the plaint schedule property in O.S. 68/74 is not the same as the plaint schedule property in this case. They claimed that the 1st defendant is in possession of 3.42 acres and 2nd defendant is in possession of 3.25 acres and their possession is independent of the plaintiffs. First defendant denied the fact that be was watcher of the plaintiffs. They also contended that they are not aware of the cancellation of the assignment in their favour. Second defendant contended that he was not a party to O. S.68/74. They claimed to have effected valuable improvements and contended that in case of eviction they are entitled to get value of improvements.