KATHRINAL BRIDGETTE @ LEELAMMA Vs. SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) The Plaint schedule property was assigned to the Kanikar by the Maharaja of Travancore by a Royal Neet. From the Kanikar, the father of the appellants Varkki Varkki got this property and he cleared the forest and was enjoying it. While so, a provisional patta was issued to Varkki Varkki in proceedings P.C.7/66 as patta No.3197. The said Varkki Varkki constructed buildings, a well and also planted rubber, coconut trees etc. in the plaint schedule property. Subsequent to that, he had executed a gift deed No.455 of 1971 and another gift deed No.3751 of 1978 in favour of the appellants, his children. Thereafter, it was learnt that the patta issued to Varkki Varkki, the predecessor of the appellants was cancelled due to the influence of the 6th respondent, stating that the proceedings for issuance of patta to the predecessor of appellants was against the provisions of Kerala Land Assignment Act. In fact the appellants have perfected title over the plaint schedule property by adverse possession and limitation and stating all these facts appellants filed a suit before the Munsiff's Court, Neyyattinkara as O.S. No.230/81 which was partly decreed.

(2.) The appellants, after lapse of 36 years, having perfected their title by adverse possession and limitation, approached the District Collector, Trivandrum under Mass Contact Programme in the year 2002 for the granting of patta. On hearing, the 2nd respondent decided to recover possession of 3.10 Acres of land, which was admittedly enjoyed by the appellants and their predecessor in interest. Against the said order, appellants preferred a writ petition before the learned single Judge, which was dismissed. Highly aggrieved by the judgment of the learned single Judge, this writ appeal has been preferred.

(3.) According to them, the learned single Judge has taken a view that in an appeal filed in 1997, the patta issued to the predecessor of the appellants was cancelled. It is after the cancellation, that the suit was filed with the government on the party array. The trial court specifically found that the property in possession of the appellant's predecessor has to be construed as an occupation with effect from 28.09.1966. The said permissive occupation stands cancelled with effect from 27.07.1979. Thereafter the possession became adverse in nature as far as respondents are concerned. However, no steps have been taken to evict the appellants by resorting to the due process of law as directed by the learned Munsiff, in O.S.No.230/1981, the learned single Judge ought to have considered that immediately after the cancellation of patta, the continuation of the possession of land by the appellants can be treated as adverse from the very inception. On the other hand, from 1966 onwards, the appellants and their father Varkki Varkki are in uninterrupted possession of the plaint scheduled property. The learned Judge ought to have found that respondents 1 to 4 had no impediment in taking steps to evict the appellants and after the lapse of 50 years, respondents have no authority to evict the appellants from the plaint schedule property. The District Collector or Revenue Authorities declined to give patta to the appellants. The limit fixed for assignment of land came into effect only in the year 1968. Further, certain conditions came into effect as per G.O.(P) No.331/1968. It is an admitted fact that appellants' predecessor got patta as per P.C.7/66. The number of patta is 3197. Apart of that, Ext.R6(1) document is a communication produced in the counter affidavit, which is a document obtained after the filing of the suit and apart from that, that is only a communication based on a petition dated nil. Regarding Ext.R6(2), the District Collector has passed only an order remanding the question of assignment of three acres and ten cents of land to the petitioner's predecessor for a fresh enquiry. The 6th respondent has not produced any document to establish that he is having any right over the property, which is now in the possession of the appellant. The claim of possession of the 6th respondent has been rightly rejected by a competent civil court and the decree has become final. The respondents 6 to 10 have no right in the property. Therefore, the appellants pray for setting aside the judgment dated 20.06.2014 in W.P.(C).No.27313/2007 of this Court. Now, the question to be considered is whether the finding entered by the single Judge in the writ petition is to be interfered or not.