Kerala High Court
Rajendra Kumar vs State Of Kerala on 5 June, 2025
2025:KER:39870
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 5TH DAY OF JUNE 2025 / 15TH JYAISHTA, 1947
RSA NO. 809 OF 2016
AGAINST THE JUDGMENT AND DECREE DATED 28.10.2015 IN AS
NO.75 OF 2010 OF II ADDITIONAL DISTRICT
COURT ,THIRUVANANTHAPURAM ARISING OUT OF THE JUDGMENT
AND DECREE DATED 07.10.2003 IN OS NO.552 OF 1992 OF I
ADDITIONAL SUB COURT,THIRUVANANTHAPURAM
APPELLANT/APPELLANTS/PLAINTIFFS:
1 RAJENDRA KUMAR
AGED 68 YEARS, S/O.CHANDRASEKHARAN NAIR,
PERMANENT RESIDENT OF NOORANI VEEDU, PACHALLOOR
DESOM, THIURVALLOM, THIRUVANANTHAPURAM,PIN-695
027 (NOW RESIDING AT THAMMANAM, VENNIYOOR,
VENGANOOR P.O., THIRUVANANTHAPURAM DISTRICT,
PIN-695 023).
2 RADHAMMA [DIED]
AGED 82 YEARS, D/O.KAMALAKSHIAMMA, PERMANENT
RESIDENT OF NOORANI VEEDU, PACHALLOOR DESOM,
THIURVALLOM, THIRUVANANTHAPURAM,PIN-695 027
(NOW RESIDING AT PANDARAVILA VEEDU, PACHALLOOR
P.O., THIRUVANANTHAPURAM DISTRICT,
PIN-695 027).
3 VIJAYAKUMAR
AGED 67 YEARS, S/O.C.S.NAIR,
PERMANENT RESIDENT OF NOORANI VEEDU,
PACHALLOOR DESOM, THIURVALLOM,
THIRUVANANTHAPURAM, PIN-695 027
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(NOW RESIDING AT TC No.58/100(1) LAKSHMISREE,
MOOVANDANVILA, PACHALOOR P.O.,
THIRUVANANTHAPURAM DISTRICT, PIN-695 027).
4 MOHANACHANDRAN NAIR
AGED 64 YEARS, S/O.C.S.NAIR, PERMANENT RESIDENT
OF NOORANI VEEDU, PACHALLOOR DESOM,
THIURVALLOM, THIRUVANANTHAPURAM,PIN-695 027
(NOW RESIDING AT TC 65/2595, KRISHNAMANDIRAM,
PACHALLOOR P.O., THIRUVANANTHAPURAM DISTRICT,
PIN-695 027).
BY ADVS.
SHRI.G.RAJAN POTAYIL
SHRI.GOPIKRISHNA S.
SMT.YAMUNA RANI V.G.
SHRI.PRAVEEN K. JOY
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO
GOVERNMENT,KERALA STATE SECRETARAIT,
THIRUVANANTHAPURAM,PIN-695 001.
2 THE SECRETARY
WATER AUTHORITY, JALABHAVAN, WATER WORKS
COMPOUND, VELLAYAMABALAM, TRIVANDRUM-695 033.
3 RADHA DEVI
AGED 78 YEARS, W/O.LATE GOPALAKRISHNAN NAIR,
RESIDING AT NIKUNJAM, VANDITHADOM, PACHALLOOR,
THIRUVANANTHAPURAM-695 027.
4 MANOJKUMAR
AGED 57 YEARS, S/O.LATE GOPALAKRISHNAN NAIR,
RESIDING AT NIKUNJAM, VANDITHADOM, PACHALLOOR,
THIRUVANANTHAPURAM-695 027.
5 VASANTHAKUMARI
AGED 58 YEARS, D/O.P.KAMAKSHI AMMA,
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RESIDING AT NOORANI VEEDU, , PACHALLOOR, DESOM,
THIRUVALLOM THIRUVANANTHAPURAM-695 027.
6 VIJAYALAKSHMI
AGED 68 YEARS, D/O. P.KAMAKSHI AMMA, RESIDING
AT NOORANI VEEDU, , PACHALLOOR, DESOM,
THIRUVALLOM, THIRUVANANTHAPURAM-695 027.
*7 UDHAYA
AGED 52 YEARS, W/O.LATE MANOJ KUMAR, RESIDING
AT T.C.7/1848, A-27 (1), SREE CHITHRA NAGAR,
PONGUMMUDU, THIRUMALA, THIRUVANANTHAPURAM
DISTRICT, PIN - 695 017.
*8 HARI
AGED 26 YEARS, S/O.LATE MANOJ KUMAR, RESIDING
AT T.C.7/1848, A-27 (1), SREE CHITHRA NAGAR,
PONGUMMUDU, THIRUMALA, THIRUVANANTHAPURAM
DISTRICT, PIN - 695 017.
(THE LEGAL HEIRS OF DECEASED 3RD AND 4TH
RESPONDENTS ARE IMPLEADED AS ADDL. RESPONDENTS
7 AND 8 AS PER ORDER DATED 24.01.2019 IN
IA.1/2018)
*9 ADDL.R9 THE DIRECTOR
SURVEY AND LAND RECORDS, DIRECTORATE OF SURVEY,
VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 014
*10 ADDL.R10 THE TAHSILDAR (RESURVEY)
THIRUVANANANTHAPURAM TALUK, TALUK OFFICE, FORT,
THIRUVANANTHAPURAM- 695023
(ADDL. RESPONDENTS 9 AND 10 ARE IMPLEADED AS
PER ORDER DATED 31.05.2023 IN IA. 1/2023)
*11 G.RADHAKRISHNAN
AGED 55 YEARS, S/O GOPAKUMAR, RESIDING AT HEERA
POINT, 5C, MARAPPALAM, PATTOM P.O.,
THIRUVANANTHAPURAM - 695 004
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*12 G. RAJESH KRISHNAN
AGED 53 YEARS
S/O GOPAKUMAR, RESIDING AT NAVANEETH TC 58/770,
(1), C.G.O COMPLEX ROAD, VELLAYANI P.O,
THIRUVANANTHAPURAM-695522.
(THE LEGAL HEIRS OF DECEASED RESPONDENT NO.6
ARE IMPLEADED AS ADDL.RESPONDENTS 11 AND 12 AS
PER ORDER DATED 09.09.2024 IN IA.NO.5/2024)
*13 SURESH KUMAR S
S/O .LATE K.RADHAMMA, AGED 62, RESIDING AT
PANDARAVILA VEEDU, PACHALLOOR P.O,
THIRUVANANTHAPURAM DISTRICT-695027.
*14 JAYAKUMAR S
AGED 60 YEARS, S/O.LATE K.RADHAMMA, RESIDING AT
PANDARAVILA VEEDU, PACHALLOOR P.O,
THIRUVANANTHAPURAM DISTRICT-695027.
*15 CHANDRALEKHA
AGED 52 YEARS, S/O.LATE K.RADHAMMA, RESIDING AT
PANDARAVILA VEEDU, PACHALLOOR P.O,
THIRUVANANTHAPURAM DISTRICT695027.
*16 UNNIKRISHNAN S
AGED 45 YEARS, S/O.LATE K.RADHAMMA, RESIDING AT
PANDARAVILA VEEDU, PACHALLOOR P.O,
THIRUVANANTHAPURAM DISTRICT695027. (THE LEGAL
HEIRS OF DECEASED 2ND APPELLANT ARE IMPLEADED
AS ADDL.RESPONDENTS 13 TO 16 AS PER ORDER DATED
09.09.2024 IN IA.NO.3/2024)
BY ADVS.
SMT.PARVATHY S. KRISHNAN, FOR ADDL.R7 AND R8
SRI.V.R.GOPU, FOR R11 TO R16
SRI.SUMAN CHAKRAVARTHY
SRI.RAHUL VENUGOPAL, FOR R5 TO R6
SMT.S.L. SYLAJA, GOVERNMENT PLEADER, FOR R1
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY
HEARD ON 05.06.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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"C.R"
EASWARAN S., J
--------------------------------
R.S.A No.809 of 2016
-------------------------------
Dated this the 5th day of June, 2025
JUDGMENT
Can State of Kerala claim absolute right, title and interest
over properties relinquished in favour of erstwhile Travancore
State in the absence of any particular statute governing the
procedure for such relinquishment is the essence of the
dispute raised in this Regular Second Appeal ?.
The plaintiffs in O.S No.552 of 1992 on the files of I
Additional Sub Court, Thiruvananthapuram, in a suit for
declaration of title, recovery of possession and mandatory
injunction of the plaint schedule property are the appellants
herein.
2. The brief facts necessary for the disposal of the
appeal are as follows:-
The plaintiffs are the members of Noorani tarwad, who
were in possession of 1 Acre of property in Survey No.169/4A
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of Thiruvallam Village, which is scheduled in the plaint.According to the plaintiffs, the property was given to erstwhile
State of Travancore, ruled by the Royal Family, during 1952
on the assurance that, it would be acquired, on payment of
compensation or the Government would cease to occupy the
said property whenever so demanded by the Tharwad. There
were several yielding trees in the said property and the
plaintiffs were collecting the usufructs from the said property.
The occupation of the 1st defendant was purely permissive.
Even at the time of filing of the suit, the plaintiffs were shown
as the owners of the property in the revenue records. Finding
that the Government is occupying the property without paying
compensation and that making substantial improvements
therein, the plaintiffs decided to issue a lawyer’s notice on
20.08.1991, calling the State of Kerala to surrender the
vacant possession of the land by terminating the licence to
use the occupied plaint schedule property. To the said notice,
on 01.01.1992, the District Collector, Thiruvananthapuram,
replied by requiring the plaintiffs to produce documents to
show their possession. Thus, after issuing notice under
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Section 80 of the Civil Procedure Code, the plaintiffsapproached the Sub-Court, Thiruvananthapuram, seeking for
a mandatory injunction directing the defendant to hand over
the vacant possession of the plaint schedule property.
Subsequently, the suit was amended by incorporating a
prayer for declaration of title and also recovery of possession.
This was by order dated 04.02.1993. The defendant entered
appearance and contested the suit by raising an issue
regarding maintainability of the suit. According to the
defendant, the property was given as a gift to the erstwhile
State of Travancore and that subsequent to the coming into
force of the Kerala State, the property stood vested with the
State of Kerala. It was further contended that, except Ext.A1
Partition Deed, no other document is produced by the
plaintiffs to substantiate their claims that they are in
possession of the plaint schedule property. Additional written
statement was also filed to controvert the contentions raised
pursuant to the amendments made by the plaintiffs. In the
additional written statement it was specifically contended that
the Karanavar of the Tarwad gifted the plaint schedule
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property to the Government for establishing the Government
Office through which the locality was developed and the land
value of the plaint schedule property held by the plaintiffs also
increased. The ultimate aim of the Karanavar of the plaintiffs
is the welfare and development of the family and the property
that the Karanavar, who was one competent to surrender or
gift the property for the welfare of the family, cannot be
challenged at this point of time. On behalf of the plaintiffs,
Exts.A1 to A9 documents were produced and on behalf of the
defendants Exts.B1 to B5 documents were produced. PW1
was examined on behalf of plaintiffs and DW1 was examined
on behalf of the defendants. The Trial Court on the basis of
the material evidence and pleadings on record framed the
following questions:-
1. Whether the suit is not maintainable?
2. Whether the defendant had given any
assurance in 1952 that the plaint schedule
property would either be acquired on payment of
compensation or cease to occupy the same
whenever demanded as alleged in the plaint?
3. Whether the plaint schedule land was
surrendered to the Government free of costs in
1952 by the then karanaver of the plaintiffs
family ?
4. Whether the plaintiffs or their predecessor in
interest had ever possessed the plaint schedule
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property any time?
5. Whether the plaintiffs are entitled to get
possession of the property with mesne profits as
prayed for ?
6. Reliefs and costs ?
Addl. Issue No.7 :- Whether the plaintiffs are
entitled to the declaration as sought for?
3. On appreciation of the pleadings and evidence, the
Trial Court came into conclusion that the claim for declaration
of the title and possession is not maintainable inasmuch as
Ext.A1 Partition Deed did not include the plaint schedule
property towards the ‘Thavazhi’ of the plaintiffs. Accordingly,
the suit was dismissed. Aggrieved by the judgment and
decree, the plaintiffs preferred A.S No.75/2010. The District
Court by judgment dated 28.10.2015, confirmed the findings
of the Trial Court by holding that the plaintiffs’ predecessor
had gifted the property to the State of Kerala and therefore
there is a valid relinquishment. By holding so, the District
Court rejected the argument of the appellants, that in order to
constitute a valid relinquishment, the procedures under the
Kerala Land Relinquishment Act, 1958, has to be followed and
that it has no retrospective effect. Thus the appeal was
dismissed and therefore the plaintiffs are before this Court
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with the present appeal.
4. Heard Shri.Praveen K. Joy, the learned counsel
appearing for the appellants, the learned Government Pleader
for the State of Kerala and Shri.Suman Chakravarthi, the
learned Standing Counsel appearing for the Corporation of
Thiruvananthapuram, which was subsequently impleaded as
the additional 17th respondent in the appeal.
5. The learned counsel appearing for the appellants
would point out that as per Ext.A6 Thandaper register, which
was issued on 10.04.1987, the name of the plaintiffs are
shown as the owner of the plaint schedule property. In order
to substantiate the fact that after the alleged gift in favour of
the State of Kerala was made by the Karanavar and that the
Government had acted upon the said gift and have done
changes in the revenue records, an attempt has been made
by the Government to produce Ext.B4, which is a
subsequently created document and will not confer any title
over the plaint schedule property in favour of the State of
Kerala. It is further pointed out that no relinquishment was
done by the Karanavar and it was only a temporary
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entrustment and the plaint schedule property has been
reserved for future partition in Ext.A1 Deed. Therefore, the
plaintiffs’ family being the rightful claimant over the plaint
schedule property was perfectly justified and in maintaining
the suit for declaration of title and recovery of possession. The
mere silence on the part of the plaintiffs to question the
permissive occupation of the State Government over the
plaint schedule property will not ipso facto lead to a
conclusion that the plaintiffs have given up their rights over
the plaint schedule property. It is further pointed out that, if
the Government had any intention to assert the right over the
plaint schedule property, they would have done so prior to the
issuance of notice under Section 80 of the Code of Civil
Procedure. Only when the notice was issued by the plaintiffs,
the District Collector required the appellants to produce the
evidence to show their possession.
6. Per contra, the learned Government Pleader
appearing on behalf of the State of Kerala would contend that
there is no reservation in Ext.A1, which would entitle the
plaintiffs to claim absolute right title and interest over the
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property, in the absence of any prior title deed, over which
the plaintiffs claimed the right title and interest. The Partition
Deed alone cannot confer any title in favour of the plaintiffs.
In absence of such a document, the Trial Court rightly found
that on consideration of Ext.A1, the plaintiffs do not have any
title over the plaint schedule property.
7. Shri.Suman Chakaravarthy, the learned Standing
counsel appearing for the Corporation of
Thiruvananthapuram, contended that from 1952 onwards, the
property is vested with the Government and after the States
Reorganisation Act, the State of Kerala became the rightful
owner of the property. A Veterinary Hospital has been
established in the said property and there after the property
stood vested with Thiruvallam Panchayat and once the
Thiruvallam Panchayat merged with the Trivandrum
Corporation, the property became included in the Asset
Register of the Trivandrum Corporation and thus vested with
them. At this point, the learned counsel would point out that
several community development activities have been carried
out and the plaintiffs were always obstructing them on the
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premises, that they have a right over the property. It is further
pointed out that as per the provisions of Section 60(b) of the
Indian Easements Act, 1882, even if it is assumed that it is a
licence, cannot be revoked, if the licensee had made
substantial constructions and put up structures pursuant to
the licence agreement. Therefore, it is prayed that the
dismissal of the suit, which was also confirmed by the First
Appellate Court, does not require any interference.
8. When the appeal was admitted on 26.09.2016,
this Court framed the following substantial questions of law:-
(i) Whether the First Appellate Court was justified in
drawing an analogy from the provisions of the Kerala
Land Relinquishment Act in respect of a transaction that
admittedly arose prior to its enactment?
(ii) Whether the principles in the Kerala Land
Relinquishment could be applied retrospectively more
particularly since the said enactment itself is brought
into force with prospective effect?
(iii) Whether the question as to the applicability of the
provisions of Kerala Land Relinquishment Act could
have been resorted to in the judgment more particularly
since the said issue was never mooted by the parties?
(iv) Whether in the light of the stand that the plaint
schedule property was gifted to the Government, the
Courts were justified in upholding the said claim in the
absence of any document to evidence the transfer of
any right in favour of the Government?
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(v) Whether the courts below have erred in denying a
relief to the plaintiffs on the sole score that the partition
deed did not include the plaint schedule property?
(vi) Whether the mere fact that the partition deed made
mention of a gift in favour of the Government could
have served as a ground to deny the title and
possession of the plaintiffs?
9. In the light of substantial questions of law framed
as above, it becomes imperative for this Court to answer the
same on the findings presented, in order to see whether the
plaintiffs can succeed in the suit for declaration of title.
10. The facts as narrated above, would clearly show
that the plaintiffs are asserting their right over the plaint
schedule property based on Ext.A1 Partition Deed. The
perusal of Ext.A1 Partition Deed would show that the C
schedule is allotted to the 2nd plaintiff. The plaint schedule
property forms part of item No.4. The description of item No.4
reads as under:-
സർവെ നൂറ്റി അറുപത്തിഒൻപതിൽ നാലു് ഏ മൂന്നേക്കർ ഒരു
സെന്റുള്ള താന്നി നിന്ന വിള ഉള്ളിട്ട തട്ട് ഒന്നു പുരയിടത്തിൽറോഡിനു കൊടുത്ത കിഴക്കേയറ്റം തെക്കു വടക്കു നീളത്തിൽ
അഞ്ചു് സെന്റ്റ് നീക്കിയുള്ള രണ്ഠേക്കർ തൊണ്ണൂറ്റി ആറു്സെൻ്റ് വസ്തുവിൽ ഒരേക്കർ വസ്ത
ു കമ്മ്യൂണിറ്റി
പ്രോജക്ടിന് ഭാഗം കൊടുത്തത് നീക്കി ശേഷമുള്ള ഒരേക്കർ
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തൊണ്ണൂറ്റി ആറു് സെൻ്റുള്ള നിധി ഇരുന്ന വിള പുരയിടവും
അതിലുള്ള വൃക്ഷങ്ങൾ മുതലായതും”
11. A cursory reading of the description of the property
would show that, when the properties were partitioned by the
Karanavar, extent of 1 Acre 4 cents was not reserved for the
branches of the 2nd plaintiff. Of course, it is the specific
contentions of the learned counsel for the appellants that it
was reserved to be claimed later after getting the property
from the Government. However, read as may, this Court could
not find any said reservations in Ext.A1, which would entitle
the plaintiffs to claim right title and interest over the property
at a later point of time. Therefore, it is clear that the plaint
schedule property was not allotted to the share of the 2 nd
plaintiff-P.Kamalakshi Amma.
12. Can the plaintiff’s still claim title over the property
not allotted to them under the partition deed?. This question
assumes importance especially since, the plaintiff’s have not
adduced any evidence to show that other than Ext.A1, they
had derived right title and interest over the plaint schedule
property by virtue of another deed. Presumably realising that
there are no other documents other than Ext.A1 to claim title
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over the plaint schedule property, the plaintiffs set up their
case contenting before this Court, that the Karnavar was not
competent to execute any gift deed or any deed of
conveyance thereby,transferring the plaint schedule property
to the erstwhile State of Travancore in the year 1952.
However, pertinently, neither the 2nd plaintiff nor the 3rd
plaintiff had any such case between 1960 and 1992. The
callousness on the part of the plaintiff’s, to question the
dedication of the property in favour of the erstwhile State of
Travancore either before 1956 or immediately thereafter,
would show that the parties never intended to claim any right
over the plaint schedule property. It is only during 1991, that
the plaintiffs turned around and raked up their claim, raising a
plea that, what was permitted was only a licence to occupy
and not a gift or relinquishment. However, it must be noted
that, at no point of time, a challenge was raised as regards,
the exclusion of plaint schedule property in Ext.A1.
Therefore, this court cannot but hold, that the appellant-
plaintiff’s failed to establish title over the plaint schedule
property.
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13. The learned counsel for the appellants, fervently tried
to point out that as per the revenue records, the property is
still vests with them. Therefore the dedication in favour of the
State is bad. This argument has basic infirmities. Firstly, the
plaintiff’s miserably failed to establish their title. Secondly,
there is no document to show that, the right of the plaintiff’s
to claim back the plaint schedule property was reserved under
Ext.A1. Therefore, even assuming that in the revenue records,
the plaintiff’s name finds a place, that by itself will not
entitled them to sustain their plea, in view of the settled
position that the revenue records do not confer any title over
the property. If that be so, it must be held that the plaintiffs
had no right title and interest over the property at the time of
institution of the suit.
14. In the above backdrop, this Court proceeds to
consider the substantial questions of law raised as above.
The first three questions which have been framed by this
Court for consideration is as regards the sustenance of the
dedication or the gift or the so called gift in favour of erstwhile
State of Travancore before the Kerala Land Relinquishment
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Act came into force. It is pertinent to mention that the
indisputable facts shows that in the year 1952, there was a
dedication or as a gift going by the terminology used in Ext.A1
in respect of plaint schedule property in favour of erstwhile
State of Travancore. Nobody knows exactly, what is the
nature of transactions entered by the parties. Plaintiff’s
presume that no registered documents were executed by the
parties concerned for the said dedication. There are no
enabling provisions under the Kerala Land Relinquishment
Act, 1958, which applies to the relinquishment made prior to
1956. That be so, the provisions of the Kerala Land
Relinquishment Act will not apply in the present case. In fact,
this court must say that the question of law framed as such is
improper especially since the Land Relinquishment Act does
not have any retrospective operation. True, the first appellate
court, was carried away by drawing analogy from the
provisions of the Kerala Land Relinquishment Act 1958.
However, that by itself will not improve the case of the
appellants, since the conclusion drawn by the first appellate
court is sustainable for other reasons. Therefore, while
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answering the questions of law 1 to 3 raised above, it is held
that though, the Kerala Land Relinquishment Act 1958 does
not have retrospective effect, still the relinquishment in favour
of the erstwhile Travancore State is not invalid and that the
analogy drawn by the first appellate court is totally
unwarranted.
15. Before moving forward, this court is required to
consider whether there was any enabling statute which
permitted the individuals to relinquish the right over their
property in favour of the erstwhile State of Travancore. It
must be remembered that prior to 1956, when the State of
Kerala was formed, the erstwhile State of Travancore was
ruled by the Royal King. During the pre-independence period,
there were hardly any laws which controlled the
relinquishment of land in favour of the Maharaja. The
Travancore State was largely a princely state, where the
Maharaja enjoyed a considerable degree of internal
autonomy. Therefore, when such relinquishment or
dedication is required, it is done predominantly through a
royal declaration.
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16. The status of the property held by the erstwhile State
of Travancore, underwent a drastic change once the State of
Kerala was formed in the year 1956. By virtue of States
Reorganisation Act 1956, (Act 37 of 1956), the right title and
interest over the plaint schedule property stood vested with
the State of Kerala. After the States Reorganisation Act came
into existence, the entire asset got automatically vested with
the State Of Kerala. By virtue of Section 5 of the Act, the
territory of Travancore Cochin, excluding the territories
mentioned under Section 4, stood vested in the State of
Kerala. By virtue of Section 76 of the Act 37 of 1956, all
assets of the erstwhile Travancore state stood vested with the
State of Kerala. Hence, irrespective of manner by which the
relinquishment of the plaint schedule property took place in
favour of erstwhile State of Travancore, once Act 37 of 1956
was promulgated, the State of Kerala became the custodian of
all the assets of the erstwhile princely State. Therefore, when
there is a statutory vesting of the property, in the favour of
the State of Kerala, the plaintiff’s cannot be heard to contend
that the relinquishment in the year 1952 was not proper and
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hence the consequent holding is also invalid.
17. That apart, Article 295 (2) of the Constitution of India,
succinctly delineates the manner in which succession to
property, assets rights , liabilities and obligations are evolved.
Article 295 (2) reads as under.
1 Xxxxxxx
2 Subject as aforesaid, the Government of
each State specified in Part B of the First
Schedule shall, as from the commencement
of the corresponding Indian State as regards
all property and assets and all rights,
liabilities and obligations, whether arising
out of any contract or otherwise, other than
those referred to in clause (1).
Reading of Article 295(2) would dispel any doubt as regards
the entitlement of the State of Kerala to hold the property in
question. Therefore when the Constitution guarantees a right
in favour of the State, the courts cannot ignore the same and
hold a roving enquiry as to whether relinquishment was
proper or not. Moreover, it must be remembered that the
plaintiff’s failed miserably in their attempt to prove that the
alleged relinquishment was contrary to the existing law. In the
light of the above discussions, this court holds that the
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possession of the plaint schedule property by the State of
Kerala is protected under Section 76 of the Act 37 of 1956 as
well as under Article 295(2) of the Constitution of India and
hence the fourth question of law is answered against the
appellant.
18. Before proceeding to answer the other questions
raised by this Court, it is necessary to deal with the
precedents, cited across the Bar by the learned counsel for
the appellants. The learned counsel for the appellants relied
on the decision of the Division Bench of this Court in
Natarajan v. Village Officer [2013 (1) KLT 846] and the
decision of the Hon’ble Supreme Court in State of Haryana
v. Mukeshkumar and others [(2011)10 SCC 404]. The
Division Bench decision in Natarajan (supra) dealt with a
case of a relinquishment under Section 4 of the Kerala Land
Relinquishment Act, 1958. It was held that even in the
absence of any formal order under Section 4 would not lead to
an automatic restoration of land in favour of the registered
holder, who had voluntarily relinquished the same. It is the
specific case of the learned counsel for the appellants that the
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reliance placed by the First Appellate Court to the aforesaid
decision is completely misconceived, since the decision arose
out of the applicability of the Kerala Land Relinquishment Act,
1958. Therefore, it is contended that the findings of the First
Appellate Court are erroneous and perverse.
19. However, this court is of the considered view that the
above decision is not applicable to the facts of this case
inasmuch as the same arose under the provisions of the
Kerala Land Relinquishment Act 1958. This court has already
held that in the light of Article 295(2) of the Constitution of
India and also the provisions contained under the States
Reorganisation Act 1956, the State of Kerala is entitled to hold
the property, Hence the aforesaid contention is liable to be
rejected.
20. Insofar as the decision in Mukeshkumar(supra) is
concerned, the learned counsel for the appellants submitted
that the State cannot claim adverse possession being a
welfare State and cannot acquire the land of the citizen by
adverse possession. Though, the proposition laid down by
the Supreme Court cannot be disputed, in the facts of the
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present case, the possession by the State of Kerala is not
based on adverse possession but on the basis of a
relinquishment made by the Karnavar of the Tarwad of the
appellants. That be so, the possession is pursuant to a grant
and hence the question of adverse possession will not apply.
Here the defence set up by the State of Kerala is not by
adverse possession.
21. Lastly, it is contended by the learned counsel for the
Appellant that as per the provisions of Travancore/Cochin
Land Conservancy Act (Act 19 of 1951) the holders of the land
are subjected to the payment of land revenue to the
Government. Section 3(1)(c) provides for the payment of land
revenue by any other registered holder of land in proprietary
right. Based on the aforesaid provision, it is contended with
reference to the additional documents produced along with I.A
No.2/2022, that these properties were included in the register
and therefore it could not have been relinquished.
22. However, the above argument is thoroughly
misconceived. Explanation -I to Section 3 reads as under
Lands once registered in the name of a person
but subsequently abandoned or relinquished and
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all lands held by right of escheat, purchase ,
resumption, reversion or acquisition under the
Travancore or Cochin Land Acquisition Act are the
property of the Government within the meaning
of the section.
Therefore, even if a person was subjected to payment of fee
over a holding in favour of erstwhile State of Travancore,
inasmuch as the right over the said holding was relinquished,
by virtue of the Explanation -I, it becomes the property of the
Government. The above provision would dispel any doubt as
regards the question- in whose favour the proprietary rights
stood vested?. Therefore, the additional documents produced
before this court in an application under Order 41 Rule 27,
will not improve the case of the appellants. Hence this court is
of the considered view that the application under Order 41
Rule 27 is not at all germane to the issue raised in this appeal
and accordingly the same is rejected.
23. That apart, when the plaintiff’s failed to prove that they
derived the right title and interest over the plaint schedule
property through any document other than Ext.A1 and in the
absence of any reservations in favour of the plaintiff’s,
whereby the right to claim partition is reserved on the plaint
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schedule property as and when the property reverts back to
them from the Government the entire edifice on which the
case is built up collapses. Resultantly, questions of law 5 and
6 are answered against the appellant.
As an upshot of the above discussions, this court
holds that the courts below have correctly appreciated the
facts and law in question while negating the claim of the
plaintiffs. The concurrent finding of fact and law by the courts
below does not call for any interference by this Court.
Accordingly the appeal fails and the same is dismissed. Costs
made easy.
Sd/-
EASWARAN S.
JUDGE
AMR