ANTONY Vs. KERALA STATE GOVERNMENT

JUDGEMENT

(1.) Plaintiff in O.S.130/94 on the file of the Munsiff Court, Alathur, is the appellant herein. The suit was one filed by the plaintiff for declaration and permanent injunction with following allegations.

(2.) The plaint schedule properties belonged to in jemn to Poomullimana. The said properties along with other properties were entrusted with Kanakkannur Kandakathil veedu as per Kanam charthu and the properties were partitioned as per partition deed No.2379/1933 of Sub Registrar's Office, Alathur and the plaint schedule properties were allotted to the share of Bhaskaran Nair, S/o. Kamalakshyamma and others and they were in possession and enjoyment of the same. While so the forest authorities had taken possession of the property alloted to Bhaskaran Nair and others in the partition deed as vested forest under the Kerala Private Forest (Vesting and Assignment) Act, 1971 (hereinafter called 'the Act') as Private Forest. Said Bhaskaran Nair and others filed O.A.106/85 before the Forest Tribunal, Palakkad for resumption of those properties on the ground that it was not a private forest and the said application was allowed and it was held that it was not a private forest vested under the Act and even if it is a private forest, they were entitled to get exemption under Sec. 3 of the Act and directed the forest authorities to return the property. Though State filed M.F.A. 522/87 before this court, the same was dismissed by this court on 25.09.87. Thereafter the Government had restored 54 acres in survey No.43 of Kazhani Amsom, Pattura Desom of Alathur Thaluk as per letter No.2398/E2/92F FWLD 13.03.992 and Bhaskaran Nair and others were in possession of the same. As per the orders of the forest tribunal, 3.67 acres of land was exempted and Government in their letter mentioned above stated that only so much land had been taken by them and the remaining land if any would be with the said Bhaskaran Nair and others and this property is shown as plaint-A schedule property. Thus Bhaskaran Nair and others were in possession of 3.67 acres of land. While so, they assigned that property to the plaintiff as per sale deed No.195/94 of Alathur Sub Registrar's Office and he has been in possession and enjoyment of the same. The present survey numbers and boundaries were shown in the document and the property ordered in favour of Bhaskaran Nair and others as per the order of the forest tribunal was assigned to the plaintiff and he is in possession and enjoyment of the same by putting up boundaries by way of fencing on the east, south and north. He had for the purpose planting coconut saplings, dug pits. The plaintiff and his brother are having properties near the plaint schedule property and it is being managed by a manager.

(3.) While so on 27.07.94, third defendant and his staff trespassed into the plaint schedule property and removed certain coconut saplings. While that was questioned, they told that plaintiff had no right over the same and it was forest land. In fact the forest authorities had no right over the same. The property released by the forest department as per the orders of the forest tribunal as land taken by them is shown as plaint-A schedule and the remaining property in the possession of his predecessor and latler assigned is shown as plaint-B schedule. The defendants were trying to trespass into the plaint-B schedule property and they had no right over the same. It was not part of forest land as well. Since the relief claimed was emergent in nature and he prayed for dispensing with notice to the first defendant/government under whom defendants 2 and 3 were working under Sec. 80 of the Code of Civil procedure. Since the defendants were making some claims, the plaintiff filed the above suit for declaration that plaint-A and B schedule properties were not forest land and it was a land exempted and directed to be returned by the forest tribunal as per order in O.A.106/85 to Bhaskaran Nair and others and it was in the possession of Bhaskaran Nair and others and thereafter with the plaintiff on the basis of sale deed and for injunction restraining the defendants and their men from trespassing into the plaint schedule property causing any obstruction to the peaceful possession and enjoyment of the plaintiff.