Kerala High Court
Shamsudeen vs Travancore Devaswom Board on 17 November, 2000
Author: D. Sreedevi
Bench: D. Sreedevi
JUDGMENT D. Sreedevi, J.
S.A.191/90
1. This appeal is directed against the decree and judgment in A.S. No. 2/86 of the Additional Sub court, Quilon, which was filed against the decree and judgment in O.S. No. 195/79 of the Munsiff's Court, Adoor. The fourth and additional 12th defendants before the trial court are the appellants. The plaintiff, defendants 1 to 3, 5 to 11, 13 & 14 are the respondents herein.
2. The plaintiff is the Travancore Devaswom Board (hereinafter referred to as 'the Board'). The Board has filed the above suit for declaration of title to the plaint A schedule property, for dismantling and removing the plaint B schedule Erumadams and sheds etc. from plaint A schedule property and for recovery of possession of the same with mesne profits and also for perpetual injunction and for consequential reliefs.
3. The plaintiff's case, in brief, is this: The plaint schedule property belongs to the plaintiff. The said property, having an extent of 1 acre 18 cents, originally belonged to Chakkuvalli Temple and later it vested with the plaintiff. The plaintiff has filed the above suit on the allegation that defendants 1 to 11 trespassed into 6 cents of property and put up sheds and Erumadams. It is alleged in the plaint that the plaintiff has come to know of the trespass for the first time only on 15.1.1977.
4. Defendants 1 to 4, 6, 11, 12, and 15 contested the suit Defendants 1 to 4, 6and 11 would contend that they are doing business on the western side of Sasthamcotta Charummodu road. The Chakkuvalli Parabrahmam is on the eastern side of the Saslhamcotta Charummodu road. The property in their possession, according to him, is not part of Chakkuvalli Temple compound and it is not under the control and administration of the Devaswom. Thus the defendants claim possession over the property fora long period of time. They are paying the prohibitory tax to the Government from a long time past and were conducting business. They would also contend that even if the plaintiff had any right over the property, that has been lost by adverse possession. Additional defendants 12, 14 and 15 filed separate written statements. The contentions are similar to that of the first defendant.
5. The trial court, after taking evidence, held that the plaint schedule property belonged to the Devaswom. The Court also held that defendants 1 to 4, 8 to 10 and 12 were in possession of the property for more than a period of 12 years and that the plaintiff's title has been lost by adverse possession in respect of B Schedule items 1 to 4, 8 to 10 and 12. It also held that the suit was for recovery is not maintainable under S. 20A of the Land Conservancy Act. The trial court declared the plaintiff's title over the plaint B schedule items. Aggrieved by the said decree and judgment, the plaintiff filed A.S. 2/86 before the Additional Sub Court, Quilon. The learned Sub Judge set aside the findings of the trial court so far as it relates to the recovery of possession from the hands of the defendants and held that the suit is maintainable. Accordingly the suit was decreed declaring the title of the plaintiff over A Schedule property. The plaintiff was also allowed to demolish and remove the plaint B Schedule structures from the plaint A schedule property at the expenses of the defendants and to recover possession of the same from the defendant through court. Aggrieved by the said decree and judgment, the 4th and additional 12th defendant filed this appeal.
S.A. No. 258/90.
6. This appeal is filed by defendants 1 to 3 and 5 to 11 against the very same decree and judgment. The facts of the case are similar to that of the above appeal.
7. The questions of law involved in these cases are the following:
i) Has not the lower Appellate Court gone wrong in holding that S. 20A of the Land Conservancy Act is no bar to the suit?
ii) Was it not clearly illegal on the part of the court below to find that Ext. A1 settlement register, proved plaintiffs title to the A schedule properly inspile of the fact that the plaint A schedule properly is described as puramboke and inspite of the fact that the column relating to pattarndar is left blank? Does the mere mention of the name of the Devaswom in the remark column of Exl. A1 confer title on the Devaswom of the property mentioned in Ext. A1 ?
8. Both the Courts below concurrently held that the plaint schedule property originally belonged to the Devaswom and later it vested with the Travancore Devaswom Board. Exl. A1 is the settlement register in respect of Sy. No. 62/7. In the remark column of Ext. Al it is mentioned as "Chakkuvalli Kshethram". The column for the name of pattadar is left blank. The property is described as puramboke. Thus, it shows that the property belonged to Chakkuvalli Temple, S. 27 of the Travancore-Cochin Hindu Religious Institution Act provides that all immovable properties entered or classed in revenue records as Devaswom vaka or Devaswom puramboke and such other pandaravaga lands as are in the possession and enjoyment of the Devaswoms mentioned in Schedule 1 after the 30th Meenam 1097 corresponding to 12th April, 1922 shall be dealt with as Devaswom properties.
9. Ext. A1 goes to show that this property is entered in the revenue records. Therefore, this property is a property that belong to the Devaswom. The properties of the Devaswom shall be dealt with as Government lands for the purpose of eviction of trespassers. The plaintiff has also produced Ext. A2 true copy of the auction diary whereby Devaswom-authorities have leased out the property for Kulhakapaltam for a period of one year. Ext. A2(a) is the diary of the year 1952. These documents go to show that the Devaswom was in possession and enjoyment of the property. In the light of Exts. A1 to A3, both the courts below came to the conclusion that the plaint schedule property belongs to Devaswom. Devaswom properties have now become vested with the Travancore Devaswom Board. I do not find any reason to upset the said finding.
10. Learned counsel for the appellants submitted that the suit itself is not maintainable in view of S. 20A of the Land Conservancy Act. S. 20A of the Act relates to bar of jurisdiction of civil courts. It reads as follows:
"(1) No Civil Court shall have jurisdiction to entertain any suit or proceeding for the eviction of any person who is in unauthorised occupation or any land which is the properly of Government, whether a poramboke or not, or the recovery of any fine, assessment, or prohibitory assessment or the value of any trees destroyed or appropriated or any compensation or damages, payable under this Act or cost of eviction or removal of encroachments, or any portion of such fine, assessment, prohibitory assessment, value of trees, compensation, damages or cost.
(2) No suit, prosecution or other legal proceeding shall lie against the Government or the Board of Revenue or any officer of the Government for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made thereunder".
11. In the light of the above Section no civil suit is maintainable for eviction of the trespassers who are in occupation of the Government lands whether puramboke or not. By virtue of S. 50 of the Travancore Cochin Hindu Religious Institution Act, all unassigned lands belonging to any Devaswom under the sole management of the Board shall be deemed to be the property of the Government for the purpose of the Land Conservancy Act, 1091 and all the provisions of that Act shall, so far as they are applicable, only to such lands assigned by the Devaswom to any person. This land is an unassigned land belonging to the Devaswom. At present, the Travancore Devaswom Board is in sole management of the property. Therefore, this property shall be deemed to be the property of the Government far the purpose of Land Conservancy Act, 1091 and as such S. 20A of the Act squarely applies to the facts of this case and hence, there is a bar of jurisdiction of civil courts for eviction of the defendants who are in occupation of the land. The suit is filed for declaration of title and consequential injunctions also. Therefore, the suit is maintainable for declaration and injunction.
12. The defendants' contention is that the plaintiff's title has been lost by adverse possession as they have been conducting business for more than a period of 12 years. In order to constitute adverse possession, the possession must be in denial of the title of the true owner. It must be adequate in continuity in publicity and extent and a plea is required to show when possession became adverse, so that the starting point of limitation against the party affected can be found. The definite averments is that they were in long possession of the respective plots. None of the defendants state that they were in adverse possession of the plaint property. All have a case that the property does not belong to the Devaswom and some of the defendants specifically state that the property is a Government land. These statements only show that the defendants had no intention to possess the plots adverse to the interest of the plaintiff. All the documents, except, Exts. BI3, B26 and B30 came into existence within the period of 12 years prior to the date of the suit. In the absence of any evidence to show that the possession of the defendants is adverse to the true owner Devaswom, it cannot be said that they have perfected title. The plaintiff's title, therefore, cannot be said to be lost by adverse possession and limitation. I do not find any reason to upset the findings entered by the learned Sub Judge on the question of title of the plaintiff.
In the result, S.A. 191/90 is allowed in part and the decree and judgment of the Court below regarding the recovery of possession with mesne profits are set aside. In all other respects the decree and judgment of the First Appellate Court are confined.
In view of the decision in S.A. 191/90, S.A. 258/90 is dismissed.