Kerala High Court
President vs Radha Suresh on 13 March, 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
WEDNESDAY, THE 12TH DAY OF JULY 2017/21ST ASHADHA, 1939
LA.APP. NO. 634 OF 2014 ()
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AGAINST THE JUDGMENT IN L.A.R. NO.1/2012 OF THE COURT OF THE
SUBORDINATE JUDGE, KANNUR DATED 13-03-2014
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APPELLANT(S)/ CLAIMANT NO.1 :
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PRESIDENT ,
EDAPPARA CHAMUNDESWARI TEMPLE,
P.O MORAZHA, KANNUR DT.
BY ADVS.SRI.K.R.AVINASH (KUNNATH)
SRI.ABDUL RAOOF PALLIPATH
RESPONDENT(S)/CLAIMANTS 2 TO 4 :
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1. RADHA SURESH
MANAGER, MORAZHA WEST LP SCHOOL,
MORAZHA, KANNUR - 670 331.
2. THE GOVERNMENT OF KERALA,
REPRESENTED BY DISTRICT COLLECTOR,
KANNUR - 670 001.
3. CHENICHERI CHATHOTH SURESHKUMAR
S/O KUNHAPPA NAMBIAR, TALIPARAMBA AMSOM,
TRICHAMBARAM DESOM,
REPRESENTED BY ITS POWER OF ATTORNEY HOLDER
M.MOHANAN, S/O. K.V.M. WARRIER,
MAHADEVAGRAMAM, PAYYANNUR - 670 307,
KANNUR DT.
R1 & R3 BY ADV. SRI.M.SASINDRAN
R2 BY GOVERNMENT PLEADER ADV.SMT.DIVYA C. BALAN
THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON
12-07-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
NS
P.D. RAJAN, J.
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L.A.A. No.634 of 2014
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Dated this the 12th day of July, 2017
J U D G M E N T
This appeal is preferred by the 1st claimant against the judgment in L.A.R. No.1 of 2012 of the Subordinate Judge, Kannur. The Special Tahsildar, Kannur made a reference under Sec.30 of the Land Acquisition Act in which, the 1st and 3rd respondents herein are claimants 2 and 4. An extent of 0.0021 hectors in R.S. No.100/10 and an extent of 0.0018 hectors in New Survey No.100/17 of the Morazha Amsom was acquired by the acquisition authority and the compensation awarded was deposited in the court. Since the claimants had not produced any valid documents and failed to adduce evidence to prove their right, the above reference was made to the court. After hearing both sides, the learned Subordinate Judge held that D claimant (3rd respondent) is entitled to get the amount deposited in the above case and directed to issue cheque for Rs.7,494/- in her favour after levying the process fee. Being aggrieved L.A.A. No.634 of 2014 2 by that, the 1st claimant preferred this appeal.
2. The appellant's case is that, the acquired land originally belonged to Edappara Chamundeswary temple and the other claimants are unnecessary parties in this matter. According to him, there was S.M. 217 of 1997 before the Payyannur Land Tribunal with respect to 54 cents of land in Re-survey No.100/10 of Morazha Amsom Desom on the basis of a registered Will No.4/1968 of S.R.O. Kalliassery, which was executed by one Lakshmikutty Amma authorising one Rajalakshmi Amma to manage the Morazha West L.P. School. As per the will Rajalakshmi Amma has to manage the Morazha L.P. School in the name of minor Suresh who is the husband of Radha Suresh.
3. The appellant contended that he had permitted the 3rd respondent to erect a school building in the Devaswom Land and he has no right of ownership over the land. The Will only deals with the management of the school and no property is vested with the other claimants as per the Will. The S.M. proceeding was L.A.A. No.634 of 2014 3 dismissed by the Land Tribunal, Payyannur on 30.05.2007 and no appeal was preferred against that order. Hence, the permission to erect the school building is only a licence which will not confer any tenancy right or ownership over the land of Edappara Chamundeswary temple. Since the school structure was erected covering 10 cents of land, the other claimants have no right to receive the amount deposited, hence the appellant alone is entitled to receive the award.
4. In the lower court, the 1st respondent filed a written objection contending that the property taken by the Land Acquisition Authorities comprised in Survey No.100/10 of Morazha Amsom is the part of 54 cents of landed property in the possession of Morazha West L.P. School and they are enjoying the property as of right. The property originally belonged to one Kunhappa @ Chathu Nambiar who had executed a registered Will on 25.05.1938 in favour of Pappinissery Manikoth Narayanan Nambiar. After the death of Chathu Nambiar in the year 1938, Narayanan Nambiar was in absolute L.A.A. No.634 of 2014 4 possession and enjoyment of the property. After his death, the property devolved upon his legal heirs and Lakshmikutty Amma had been enjoying the property and she possessed the property without any objection peacefully. Thereafter, Laksmikutty Amma executed a Will No.4/1968 of S.R.O., Kalliassery and now her grand son Suresh Kumar is enjoying the property. Both parties adduced evidence in the trial court. The evidence consists of oral evidence of AW1, and documentary evidence of Exts.A1 to A5. From the side of A claimant, RW1 was examined and documentary evidence of Ext.B1 to B5 were marked. The learned Subordinate Judge held that the D claimant (3rd respondent) in this appeal is entitled to get the amount of Rs.7,494/- deposited in this case and awarded accordingly.
5. The learned counsel appearing for the appellant contended that the title of the disputed property was not proved in the trial court and the property was not properly identified. In this context, I have examined whether the question of identity of the L.A.A. No.634 of 2014 5 property was raised in the Court below. In the claim petition, the appellants have no dispute with regard to identity of the property, but the claim was only with regard to the deposited amount. Therefore, the new contention with regard to identity is hereby rejected. Evidence shows that Ext.A1 is the copy of the Will No.8/1938 executed by Kunhappa Nambiar @ Chathu Nambiar in favour of Lakshmikutty Amma. Ext.A3 is another Will, No.4/68 S.R.O. Kalliassery executed by Lakshmikutty Amma, Ext.A4 is the copy of the purchase certificate and Ext.A5 is the Land Tax Receipt. The above evidence in Exts.A1 to A4 shows that, Ext.A3 Will was the last Will of Lakshmikutty Amma, the properties as per the Will devolved upon her legal representatives. Therefore, the other claimants have right to receive the compensation from the Government. Subsequently, on the basis of Purchase Certificate, the statement was amended which was approved by the Court below. After execution of Ext.A3, respondents 1 and 3 were possessing the property. The 3rd respondent claimed that, as per the Will L.A.A. No.634 of 2014 6 executed by Lakshmikutty Amma, he is in possession of the land. Besides this, the 1st claimant is his wife. Therefore, the 3rd respondent is rightly managing the school and possessing the property as per the Will. It is true that the appellant/temple authority is managing the property adjacent to the property of respondents 1 & 3. Even though, Exts.B1 to B5 were produced in the trial court, that itself is not sufficient to entertain the claim of identity. In the absence of any pleadings and evidence with regard to the identity of the property in the trial court, the new contention of identity at this appellate stage is unsustainable in law. If such a claim was raised in the trial court and sufficient pleadings and evidence are available, I can consider the claim of identity at this appellate stage.
There is no merit in this appeal and it is dismissed accordingly.
Sd/-
P.D. RAJAN,
JUDGE
/ True Copy /
NS P.A. To Judge