Kerala High Court
Ouseph Mathai vs State Of Kerala on 19 January, 2012
Author: Harun-Ul-Rashid
Bench: Harun-Ul-Rashid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID
THURSDAY, THE 19TH DAY OF JANUARY 2012/29TH POUSHA 1933
SA.No. 297 of 2000 (B)
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AS.6/1997 of SUB COURT, PALA
OS.512/1990 of MUNSIFF COURT, PALA
APPELLANT/PLAINTIFF:
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OUSEPH MATHAI,
PARELKULANGARA HOUSE, MELAMBARA KARA,
THALAPPALAM VILLAGE, MELAMBARA P.O.,
MEENACHIL TALUK, KOTTAYAM DISTRICT.
BY ADV. SRI.N.SUBRAMANIAM
RESPONDENTS 1 & 2/DEFENDANTS 1 & 2:
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1. STATE OF KERALA, REPRESENTED BY
DISTRICT COLLECTOR, KOTTAYAM.
2. THE THALAPPALAM PANCHAYATH, NOW
THE THALAPPALAM GRAMA PANCHAYATH,
REPRESENTED BY SECRETARY
(PREVIOUSLY EXECUTIVE OFFICER)
THALAPPALAM, MELAMBARA P.O - 686 594,
(VIA) BHARANANGANAM, KOTTAYAM DISTRICT.
BY GOVERNMENT PLEADER MR.PADMALAYAN FOR R1.
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19-01-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SA.No. 297 of 2000 (B)
ORDER ON C.M.P.NO.798/2000
DISMISSED.
19.1.2012 SD/- HARUN-UL-RASHID, JUDGE.
// TRUE COPY //
P.A TO JUDGE
HARUN-UL-RASHID, J.
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S.A.No.297 Of 2000
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Dated this the 19th day of January, 2012.
J U D G M E N T
The following substantial questions of law are framed in the second appeal.
1. Whether the Lower Appellate Court is right in interpreting conditions 6, 15 & 18 in Form No.D of Kuthakappattom Rules by which the Kuthakappattom tenant is disabled from cutting and removing the trees admittedly planted by such tenant in the Kuthakappattom land, when none the conditions specified in condition numbers 15 & 18 have happened.
2. Whether the interpretation given by Lower Appellate Court to conditions 6, 15 & 18 of Kuthakappattom Rules Form D is correct or sustainable?
3. Whether the local authority is justified in recovering any amount from Kuthakappattom tenancy is exempted as per explanation 1B to Section 3 of the Kerala Land Reforms Act 1 of 1964.
4. When a Kuthakappattom lease has not expired or cancelled or when Kuthakappattom lands are not resumed, is not such a Kuthakappattom tenant entitled to cut and remove the rubber trees standing in such Kuthakappattom lands and is the local authority justified in recovering any amount from such a party either as security for cutting of the trees planted by Kuthakappattom tenant or as value of the trees so cut.
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S.A.No.297 Of 2000
5. Whether the courts below are justified in refusing the prayer for declaration prayed for the plaintiff.
6. In the facts and circumstances of the case, whether the Judgments and Decrees of the courts below are sustainable?
2. The plaintiff in O.S.No.514/1990 on the file of the Munsiff Court, Pala is the appellant. The appeal is directed against the judgment and decree dated 16.3.1999 in A.S.No.6/1997 on the file of the Principal Sub Court, Pala. The 2nd defendant is the contesting defendant. The suit was filed against the defendants for declaration of plaintiff's ownership over the rubber trees and for realisation of the security amount collected by the 2nd defendant Panchayath. The trial court dismissed the suit. The lower appellate court confirmed the findings recorded by the trial court and dismissed the appeal. The parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit.
3. The case of the plaintiff is that 4.8 acres of land comprised in Sy.No.85/1-2 of Thalappalam Village and the puramboke land having an extent of 12= cents in Sy.No.86/1 ::3::
S.A.No.297 Of 2000 lying adjacent to the said registered land are in the possession and enjoyment of the plaintiff. The registered land having an extent of 4.08 acres is obtained by him by virtue of a partition deed and the adjacent purambode land by way of kuthakappattom grant from 1938 onwards. It is averred that the plaintiff had paid kuthakappattom for the period from 1938 to 1968 to the Government and thereafter till 1974, to the 2nd defendant Panchayath. It is pleaded that the puramboke and the adjoining registered lands are planted with rubber trees, that the puramboke land is necessary for the beneficial enjoyment of the registered land and as the rubber trees in the property became old, the plaintiff cut and removed the standing rubber trees for the purpose of re-plantation. It is further stated that the 2nd defendant Panchayath objected the cutting and removal of the trees claiming that the puramboke land and the rubber trees planted in the puramboke land are vested with it. According to the plaintiff he had every right to cut and remove the rubber trees standing in the kuthakappattom land. It is the definite case of the plaintiff that even though the puramboke land is vested with the Panchayath, the Panchayath will not get any right over ::4::
S.A.No.297 Of 2000 the rubber trees planted by the plaintiff and therefore, not entitled to obstruct removal of the rubber trees. The 2nd defendant Panchayath realised Rs.10,000/- as security amount and the plaintiff apprehends that the Panchayath may confiscate the rubber trees and therefore the suit was filed for the above mentioned reliefs.
4. Defendants 1 & 2 filed separate written statements. In the written statement filed by the 1st defendant it is pointed out that the Government is a unnecessary party to the suit since no relief is sought against it and the suit is bad for want of notice under Section 80 of the Code of Civil Procedure.
5. In the written statement filed by the 2nd defendant it is inter alia stated that the Panchayath collected licence fee from the plaintiff for the period from 1967-68 to 1973-74 for occupation and use of the adjoining puramboke land by way of kuthakappattom grant.
6. On the side of the plaintiff, Exts.A1 to A12 were marked and on the side of the defendant Ext.B1 was marked. Exts.C1 report and C1(a) plan were marked as court exhibits. Parties did not adduce any oral evidence.
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S.A.No.297 Of 2000
7. The plaintiff contended that he has planted rubber trees in the property and therefore has every right to cut and remove the same. The case pleaded by the plaintiff is that the plaint schedule property which is 12= cents of thodu puramboke land is in his possession and enjoyment along with his registered land by way of kuthakappattom grant from 1938 onwards and he paid kuthakappattaom from 1938 to 1968 to the Government and to the 2nd defendant till 1974. Going by the pleadings and evidence it is clear that the plaintiff is in possession and enjoyment of the property by way of kuthakappattom grant and that he has planted the rubber trees in the property in dispute. In paragraph 4 of the written statement of the 2nd defendant it is admitted that there are rubber trees in the plaint schedule property. The question decided by the courts below is as to whether the plaintiff is entitled to cut and remove the rubber trees admittedly planted by him.
8. It is not disputed that the plaint schedule property is vested with the 2nd defendant Panchayath by virtue of Kerala Panchayath Act, 1967. The learned counsel for the plaintiff submits that the vesting of the plaint schedule property by the ::6::
S.A.No.297 Of 2000 Panchayath by way of Act 22 of 1967 will only be subject to the kuthakappattom grant granted by the Government. It is not disputed that the plaintiff is enjoying the property by way of kuthakappattom grant. The licence will be subject to terms and condition set out in the Rules. Condition Nos.6, 15 & 18 reads as follows:
"6. That the lessee shall manure the trees and keep the property such a condition as not to diminish the letting value or yielding capacity;
15. That the lessee shall not commit waste on the property, put up permanent structures, sink wells etc, erect walls, plant more trees, open roads or pathways or do any act or abet the commission of any act which would obstruct Government servant in the discharge of their duties or in any way prejudice the interest of the Government. He shall not in any way interfere with the land or make any alteration in the lie of the land. He shall not do anything that will otherwise injuriously affect the land or trees or diminish their letting value. If the lessee however desire to carry out any permanent improvements on the land such as construction of dwelling houses, digging of wells, planting of trees etc. he shall do so only after obtaining the previous sanction in writing of the Officer or authority who sanctioned the lease. The lessee shall not ::7::
S.A.No.297 Of 2000 be entitled to any compensation for the improvements effected by him in the event of the lease being determined or at the expiry of the period of the lease;
18. That on the expiry of the lease or in the event of the cancellation of the lease or in the event of resumption of the property, the lessee shall unless he has taken a further lease surrender the property intact to the Proverthicar. If he does not so surrender he will be considered a tenant holding over liable to be proceeded against and evicted under Act IV of 1091. He will not however, be entitled to compensation for any trees planted to or any improvements that he might have made on the land or for any structures raised by him thereon and not removed".
9. The courts below considered the conditions set out in Form No.D appended to the Kuthakappattom Rules and held that on a plain reading of condition No.18 would show that the lessee is permitted only to remove the structures raised by him in the kuthakappattom land and he has never been permitted to cut and remove the trees standing in the land whether the trees are planted by him or not. The court accepted the contentions that the plaintiff has absolutely no right to cut and remove the trees in the property because it would not come within the ambit of enjoyment by taking usufructs.
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S.A.No.297 Of 2000
10. The learned counsel for the appellant invited the attention of this Court to Section 2(57), Section 3(1) and the explanation in 1B of the Kerala Land Reforms Act and contended that the plaintiff is in possession of the property as on 1.4.1964 and also on 1.1.1970 and therefore exemption provided under Section 3(1) of the Act 1 of 1964 is inapplicable to him and that by virtue of explanation 1B to Section 3(1) such lands shall not be deemed to be lands vested in a local authority, if the plaintiff was continuing in possession of such lands at the commencement of Act 1 of 1964 as amended by Act 35 of 1969. The learned counsel therefore submits that the rubber trees planted by him shall belong to him and if those trees are cut, the landlord will only be entitled to get one half of the market value of timber trees so cut. In short, the contention is that the plaintiff, as a kuthakappattom lessee, has become a cultivating tenant in respect of the plaint schedule property and he is entitled to cut and remove the trees which was planted by him which was admitted by the Panchayath also. The kuthakappattom grant is governed by the terms and conditions set out in Form D appended to Kuthakappattom Rules. The grantee can enjoy the ::9::
S.A.No.297 Of 2000 property subject to the terms and conditions set out in Form D. Therefore the plaintiff is not entitled to claim the rights available to a tenant under Act 1 of 1964. Such a person cannot be regarded as a cultivating tenant under the Kerala Land Reforms Act and therefore, the said contention is unsustainable.
11. Relying on condition No.6 the 2nd defendant contended before the courts below that the lessee has absolutely no right except to manure the trees and that as per that condition the lessee has absolutely no right to do anything which would diminish the letting value or the yielding capacity. It is pointed out that cutting and removal of the trees standing in the puramboke land whether it is planted by the lessee or not would amount to diminish the letting value of yielding capacity and therefore the plaintiff who is the lessee has absolutely no right to cut and remove the rubber trees standing in the puramboke land. The courts below held that the ownership of the plaint schedule property is vested with the Panchayath and therefore the ownership of the trees standing in the property also vests with the Panchayath in spite of the fact that the trees were planted by the plaintiff. The lower appellate court also referred ::10::
S.A.No.297 Of 2000 to condition No.15 of Form No.D and the court below held that on a combined reading of condition Nos.6, 15 & 18 would clearly show that the lessee who is the plaintiff in this case has absolutely no right to plaint new rubber trees in the kuthakappattom property and if at all he had planted any such trees, he has absolutely no right to cut and remove the same. In these circumstances, the courts below accepted the stand taken by the 2nd defendant that it has every right to realise the security amount from the plaintiff because the plaintiff without any authority whatsoever cut and removed the rubber trees standing in the kuthakappattom land.
12. There is no dispute regarding the fact that the plaintiff is in possession and enjoyment of an extent of 12.5 cents in Sy.No.86/1 lying adjacent to his registered land. He is holding the said land by way of kuthakappattom grant from 1938 onwards. It is not disputed that the plaintiff cultivated the entire land including the kuthakappattom land with rubber and as the rubber trees became old the plaintiff cut and removed the rubber trees for the purpose of re-plantation. Under condition No.18 set out in Form D appended to Kuthakappattom Rules, a ::11::
S.A.No.297 Of 2000 kuthakappattom lessee is not entitled to compensation for any trees planted thereto or any improvement that he may have made on the land or for any structures raised by him there and not removed. The said condition shows that the lessee is not entitled to compensation for the trees planted, improvements made etc., that he has got the right to remove the improvements, trees etc. So long as there is no prohibition in improving the property and planting trees, condition No.18 permits the lessee to remove the trees planted by him. The 2nd defendant Panchayath is not justified in objecting the cutting and removal of the trees. It is true that the land is vested with the Panchayath. The rubber trees planted by the lessee in the puramboke land will vest with the Panchayath ifnot removed by the lessee and therefore, he had every right to cut and remove the rubber trees standing in the kuthakappattom land. Therefore, the realisation of Rs.10,000/- as security amount by the 2nd defendant Panchayath is not legal. The finding of the lower appellate court that the 2nd defendant Panchayath has every right to realise the security amount from the plaintiff and that the plaintiff has no right to cut and remove the rubber trees ::12::
S.A.No.297 Of 2000 planted by him is unsustainable in law. The plaintiff is entitled to the reliefs sought for in the suit.
In the result, the appeal is allowed. The decree and judgment passed by the court below is set aside. The plaintiff is entitled to the reliefs sought for in the suit. Suit is decreed. It is declared that the plaintiff is the owner of the rubber trees and collection of the security amount by the 2nd defendant Panchayath is illegal. The plaintiff is entitled to realise the security amount from the 2nd defendant Panchayath. No order as to costs.
HARUN-UL-RASHID, Judge.
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