Church of South India Trust Association and The Bishop of North Kerala Diocese of Church of South India v. Mariamma Abraham and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944 RSA NO. 433 OF 2015** **AGAINST THE JUDGMENT AND DECREE DATED 19.07.2014 IN OS 533/2011 OF SUB COURT,NORTH PARAVUR WHICH WAS CONFIRMED IN AS 64/2014 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR DATED 27/02/2015** ## **APPELLANTS/APPELLANTS/PLAINTIFFS:** 1 THE CHURCH OF SOUTH INDIA TRUST ASSOCIATION REPRESENTED BY RT.REV.B.N.FEN ITS ATTORNEY AND THE BISHOP OF NORTH KERALA DIOCESE OF CHURCH OF SOUTH INDIA, SHORNOOR VILLAGE. 2 THE ASSOCIATION REPRESENTED BY REV.MATHUNNI JOSEPH, TREASURER AND THE ATTORNEY NORTH KERALA DIOCESE OF CHURCH OF SOUTH INDIA. BY ADVS. SRI.PAUL K.VARGHESE SMT.A.A.GEETHA ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** (MARIAMMA ABRAHAM, THE 1ST DEFENDANT IN O.S.NO.533/11 IS NO MORE) 1 MARIAMMA @ GRACY,D/O.MARIAMMA ABRAHAM, AGED 80 YEARS, RESIDING AT VADAKKOOT HOUSE, CSI COMPOUND, ALUVA KARA OF ALUVA WEST VILLAGE, PIN-683101. 2 JACOB @ BABY,S/O.MARIAMMA ABRAHAM, AGED 76 YEARS,RESIDING AT VADAKKOOT HOUSE, CSI COMPOUND, ALUVA KARA OF ALUVA WEST VILLAGE. 3 SAMUEL @ ANIYANKUNJU, S/O.MARIAMMA ABRAHAM, AGED 74 YEARS, RESIDING AT VADAKKOOT HOUSE, CSI COMPOUND, ALUVA KARA OF ALUVA WEST VILLAGE. R.S.A.No.433/2015 2 - 4 DAVID @ KUNJUMON,S/O.MARIAMMA ABRAHAM, AGED 76 YEARS, RESIDING AT VADAKKOOT HOUSE, CSI COMPOUND, ALUVA KARA OF ALUVA WEST VILLAGE. - 5 JOY @ BABU S/O.MARIAMMA ABRAHAM, AGED 76 YEARS, RESIDING AT VADAKKOOT HOUSE, CSI COMPOUND, ALUVA KARA OF ALUVA WEST VILLAGE. (IT IS RECORDED THAT THE LEGAL HEIRS OF DECEASED MARIAMMA ABRAHAM (THE ORIGINAL 1ST DEFENDANT IN OS.NO.533/2011) ARE ALREADY IN THE PARTY ARRAY AS RESPONDENTS 1 TO 5 AS PER ORDER DATED 10.03.2022 VIDE MEMO DATED 10.10.2018.) - 6 THE STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM. - 7 THE DISTRICT SURVEY SUPERINTENDENT SURVEY AND LAND RECORDS, CIVIL STATION, ERNAKULAM. - 8 SUPERINTENDENT OF SURVEY AND LAND RECORDS (RE-SURVEY)ALUVA. - 9 ABDUL KHALEEL S/O.KOYAAKKUTTY, AGED 55 YEARS, RESIDING AT KOTTIALIKKARA, EDATHALA NORTH, EDATHALA DESOM, ALUVA EAST VILLAGE OF ALUVA TALUK. - 10 NABEESA (DIED) W/O.ABDUL KHALEEL, AGED 53 YEARS, RESIDING AT KOTTIALIKKARA, EDATHALA NORTH, EDATHALA DESOM, ALUVA EAST VILLAGE OF ALUVA TALUK. - 11 MOHAMMED ASLAM, S/O.UMMER, AGED 42 YEARS RESIDING AT MAROTTIKKAL HOUSE, PALLILAMKARA, THRIKKAKARA NORTH VILLAGE OF KANAYANNUR TALUK. - 12 HENNATH, W/O.MOHAMMAD ASLAM, AGED 37 YEARS, RESIDING AT MAROTTIKKAL HOUSE, PALLIAMKARA, THRIKKAKARA NORTH VILLAGE OF KANAYANNUR TALUK. - 13 LATHEEF S/O.MARAKKAR, AGED 49 YEARS BHUKKATTIL EDATHALA NORTH P.O., EDATHALA DESOM, ALUVA EAST VILLAGE OF ALUVA TALUK. - 14 ASHA, W/O.LATHEEF, AGED 41 YEARS, BHUKKATTIL EDATHALA NORTH P.O., R.S.A.No.433/2015 3 EDATHALA DESOM, ALUVA EAST VILLAGE OF ALUVA TALUK. 15 YASIR ARAFATH, S/O.UMMER, AGED 37 YEARS, RESIDING AT MAROTTIKKAL HOUSE, ROCKWELL ROAD, H.M.T.COLONEY P.O., PALLILAMKARA DESOM, THRIKKAKARA DESOM, THRIKKAKARA NORTH VILLAGE OF KANAYANNUR TALUK. 16 SHADAJ W/O.YASIR ARAFATH, AGED 42 YEARS, RESIDING AT MAROTTIKKAL HOUSE, ROCKWELL ROAD, H.M.T.COLONEY P.O., PALLILAMKARA DESOM, THRIKKAKARA DESOM, THRIKKAKARA NORTH VILLAGE OF KANAYANNUR TALUK. 17 (ADDL.R17) SHAMEENA K.A., AGED 38, W/O.MUJEEB REHMAN, CHEMPARAPALLIYIL HOUSE, ERATTUPETTA P.O., KOTTAYAM DISTRICT, PIN686 121. (ONE OF THE LEGAL REPRESENTATIVE OF THE DECEASED 10TH RESPONDENT IS IMPLEADED AS ADDL.RESPONDENT NO.17 AS PER THE ORDER DATED 15.10.2018 IN IA.3/2018). BY ADVS. SRI.EBIN MATHEW, SRI.C.P.SAJI, SRI.V.SUBHASH BHAT, SRI.DINESH R. SHENOY, AND SMT.DEEPA MOHAN P for R9, R11 TO R16 SMT.DAISY A PHILIPOSE, SRI.JAI GEORGE(K/000636/1996) AND SRI.ROHITH R. KARTHA(D/9713/2021) FOR R4 SRI.DINESH R. SHENOY FOR R17 GOVERNMENT PLEADER FOR R6, R7 AND R8 THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 20.12.2022, THE COURT ON 16.01.2023 DELIVERED THE FOLLOWING: R.S.A.No.433/2015 4 ## **M.R.ANITHA, J** ****************** R.S.A.No.433 of 2015 ---------------------------------------------Dated this the 16[th] day of January, 2023 ## **JUDGMENT** This R.S.A has been directed against the judgment and decree in A.S.No.64/2014 on the file of Additional District Judge, North Paravoor, which in turn arise out of the judgment and decree in O.S.No.533/2011 on the file of Sub Court, North Paravoor. 2. Plaintiffs are the appellants. (Parties would hereafter be referred as per their status before the trial court). Suit is one for declaration and for permanent prohibitory injunction. Plaint A schedule property is now comprised in Re-Survey No.44/89 and B schedule is in Re-survey No.44/68 (of Aluva Town Block). First defendant obtained an extent of 15 cents in old Survey No.160/1 of Aluva Village. A schedule property was on lease arrangements by virtue of registered lease deed of the year 1094 M.E in which property is in old Survey No.160/1 and not in old Survey No.206/2. Plaint B schedule is 16 cents in old survey No.206/2 R.S.A.No.433/2015 5 and there is no dispute with respect to plaint B schedule. Dispute is with respect to plaint A schedule and survey number has been corrected during the pendency of O.S.No.129/2002 of Aluva Munsiff's Court and the sub division is from 44/69 which stands in the name of plaintiff. Sub division was made by the revenue officials illegally violating the provisions of the Kerala Survey and Boundaries Act and the Rules (hereinafter be referred as 'the Act' and 'the Rules') behind the back of plaintiff who was not heard before assigning the new sub division number. There are no clear and well defined boundaries at the side showing the limits of new sub division. So, insertion of 44/89 in 44/69 is in clear violation of Rule 24 of the Rules. 3. In O.S.No.129/2002, Munsiff's Court accepted the erroneous and illegal plan. Meanwhile, wilful insertion of wrong survey number and illegal sub division was sought to be corrected and defendants 1 and 7 to 9 are given notice to that effect. After that, it has come to the notice of the plaintiff that defendants 1 to 6 have already created a partition deed in the year 2007, by virtue of which plaint A schedule property is again R.S.A.No.433/2015 6 divided among the issues of the first defendant. So, the whole extent of 6.07 Ares in wrongful survey No.44/89 is again divided into three and this information on 15.10.2011 has led to the filing of the suit. Defendants 7 to 9 did not comply the Rules when effected the sub division and the relief as against defendants 7 to 9 is reserved after complying the formalities under Section 80(c) C.P.C notice. So, the partition deed executed among defendants 1 to 6 has to be annulled. Defendants 1 to 6 have no right or title in A schedule so as to partition the property. Additional defendants had knowledge of the pendency of the case O.S.No.129/2002. Sale deed No.4442/2011 was created in between the first and the sixth defendants after receiving notice in the suit. Defendants 10 to 17, the purchasers are also fully aware of the pendency of the case and are not bona fide purchasers. So, defendants 10 to 17 are also to be restrained by way of permanent injunction from entering into plaint A schedule and from altering or disposing the property. So, the suit has been filed for declaring that defendants 1, 2 and 5 have no right and title in plaint A, B and E schedule in partition deed R.S.A.No.433/2015 7 No.2420/2007 and restraining defendants 7 to 9 from effecting any mutation with respect to these properties in favour of defendants 1, 2 and 5. A mandatory injunction directing defendants 7 to 9 to rectify survey No.44/89 as per the Act and Rules deleting it from the re-survey records and doing necessary corrections as per law and a permanent prohibitory injunction restraining defendants 10 to 17 and their men from entering into plaint A schedule and doing any work there and altering the nature of it is also sought for. 4. Defendants 1 and 5 filed written statement contending that the suit is barred by limitation. At the time of filing O.S.No.129/2002 of the Munsiff's Court, Aluva, plaintiffs were aware of the allotment of re-survey No.44/89. In A.S.No.90/2005 filed against judgment in O.S.No.129/2002 it has been found that the assignment of sub division No.44/89 is legal and proper and no appeal has been filed against the same and it has become final. In A.S.No.90/2005 and A.S.No.169/2008 the right of the first defendant over plaint A schedule has been declared. No appeal has been filed against both judgments by the plaintiff. R.S.A.No.433/2015 8 So, the suit is barred by res judicata. Plaintiffs have no locus standi to file the suit on behalf of Church of South India. Plaint A schedule property is lying separately demarcated with boundary stones. There was barbed wire fencing earlier and it has been decayed and lost during the passage of time. When the plaintiffs raised false claim with respect to plaint schedule property, O.S.No.129/2002 was filed by the first defendant. Re-survey plan has been correctly prepared. Though application for mutation was filed earlier, due to the pendency of O.S.No.129/2002, no steps were taken by the authorities. The partition deed executed is legal and proper. 5[th] defendant has not received any portion of plaint schedule property. Defendants have every right to deal with the property as per the partition deed. The valuation made is not proper. Hence they prayed for dismissal of the suit. 5. Defendants 7, 8 and 9 filed separate written statement. Old Survey number of the property is 206/2. No illegal correction has been made, as alleged. It is denied that sub division has been made without notice to the plaintiff. Resurvey is conducted on the basis of possession and boundaries of R.S.A.No.433/2015 9 the properties. As per the survey Adalath S.A.No.49/2002, 9[th] defendant took possession with regard to the prevailing Act and Rules and has not done anything illegal. Form No.7 has been prepared correctly and nothing is done illegally. Defendant is holding property as per the title deeds. Before taking decision in Survey Adalath, notice was issued to the plaintiff under the certificate of posting but he did not submit any objection. Plaintiff has no cause of action against defendants and is not entitled for any relief, as sought for against them. 6. Defendants 10 to 17 filed separate written statement disputing the authority of Dr.K.P.Kuruvilla to represent the trust and it is contended that the suit is not maintainable either in law or on facts. The suit is barred by res judicata. Church has no right over plaint A schedule property. All other contentions in the written statement of defendants 1 and 5 are also reiterated. 7. PW1 to PW3 were examined. Exts.A1 to A21 were marked from the side of the plaintiff. Exts.B1 to B13 were marked from the side of the 5[th] defendant. Exts.C1 and C1(a) were also marked. 10 R.S.A.No.433/2015 8. On evaluating the facts and circumstances and evidence adduced, the trial court found that the dispute with respect to ownership of plaint A, B and E schedule in the partition deed No.2420/2007 has already been settled in O.S.No.129/2002. So, the suit is barred by res judicata. It is also found that defendants 10 to 17 obtained ownership from the person who is found to be having exclusive right, ownership and possession and hence no injunction can be granted against them. Hence, the suit has been dismissed, against which first appeal was filed and Additional District Court, North Paravur by the impugned judgment somehow found that the suit is not barred by limitation. The finding of the trial court that the suit is barred by res judicata is not concurred. On the other hand, it is found that the case of the plaintiff that 6 Ares and 7 sq.meters of land comprised in Survey No.44/89 was earlier the property of the plaintiff comprised in Survey No.44/69 cannot be upheld and it is found that all the allegations against the revenue authorities and the re-survey authorities are baseless and hence discarded. It is also found that over plaint A schedule property, the plaintiff is not R.S.A.No.433/2015 11 having any right and it has been transferred by the predecessors in office of the plaintiff church. The declaratory relief sought for by the plaintiff is found to be unsustainable and ultimately confirmed the dismissal of the suit by the trial court. Against which the plaintiff church approaches this Court in second appeal. At the time of admission, the following substantial question of law has been formulated. _“Cannot the civil court declare that the entries in the survey records is wrong and set aside the same by virtue of the provisions of Survey and Boundaries Act?”_ 9. Notice was issued to the respondent. It is submitted by counsel for both sides that the impugned judgment in first appeal A.S.No.64/2014 arose out of O.S.No.533/2011 on the file of Sub Court, North Paravur as well as A.S.No.176/2011 arising out of O.S.No.129/2002 were heard together as per an order of this Court procured at the instance of the appellant. Hence R.S.A.No.430/2015 and R.S.A.No.433/2015 were heard together. R.S.A.No.430/2015 which was heard along with this appeal has been allowed by setting aside the judgment and decree and the R.S.A.No.433/2015 12 case has been remanded to the trial court for appointing a fresh Commissioner with the help of Taluk Surveyor and to identify the plaint A and B schedule property which is one and the same in the present suit as well as in O.S.No.129/2002. 10. Defendants produced judgments Exts.B1 and B2 remand orders in A.S.No.90/2005 dated 20.11.2006 arising out of the judgment and decree in O.S.No.129/2002 and Ext.B2 which is the subsequent remand order in A.S.No.169/2008 dated 09.12.2010 which was filed against the revised judgment in O.S.No.129/2002 as per Ext.B1 order. As per Ext.B2 the trial court appointed a Commissioner with aid of Taluk Surveyor and Exts.C5 and C5(a) report and plan have been produced and the learned Munsiff decreed the suit accepting Exts.C5 and Ext.C5(a) and the first appellate court confirmed with judgment and against which R.S.A.No.430/2015 was filed before this court. While disposing that R.S.A it has been found by this Court that there was a previous case O.S.No.492/1986 the certified copy of the plaint in that case was marked as Ext.B3 in O.S.No.129/2002. That was a case filed by the plaintiff church against the first R.S.A.No.433/2015 13 defendant and her two sons. Ext.B4 in O.S.No.129/2002 is the certified copy of the written statement and Ext.B6 is the certified copy of the judgment in that case. 11. While appreciating the pleadings and judgments in that case, it could be found that the first defendant herein contended their right and title with respect to properties covered by Ext.A7 certified copy of the sale deed No.589/1966 as well as Ext.A9 certified copy of the purchase certificate No.71/79 separately in that case but the court while considering that issue in paragraph No.10 of Ext.B6 referred above categorically found that the version given by DW1, the first defendant that the properties under Exts.A9 and A7 are adjacent properties, cannot be true. In that case, the suit was filed by the church seeking for a permanent injunction for restraining the defendants and her sons from destroying the compound wall separating the property of the church and the defendants and to restore the demolished portion of the compound wall to its original position and also to remove the water connection and pipeline which were erected by the defendants adjacent to the eastern compound wall of the R.S.A.No.433/2015 14 plaintiff's church in that case. First defendant's contention in that case was that the compound wall has been put up by them in their property and that was disbelieved by the court and the court found that the defendant demolished the compound wall and the relief sought for restoration of compound wall is denied only for the reason that the plaintiffs have accused the acts of the defendants. But, at the same time, plaintiff church was allowed to realise Rs.500/- towards demolishion of the part of the compound wall. It is also fond that the plaintiff church put up the compound wall on the boundaries of their property and the defendants shifted their pipeline to the western side of the compound wall and that act is unauthorised and defendants were directed to remove the pipeline and suit was decreed allowing the plaintiff to restore the compound wall to its original position to a length of 17 feet and get the water connection and pipeline erected by the defendant unauthorisedly near the compound wall situated on the eastern side of the schedule property of the defendants removed and the defendants were permanently restrained from trespassing into the plaint schedule property and R.S.A.No.433/2015 15 commit waste therein and that judgment has become final. So, it could be seen that, in that case also, the first defendant contended about the properties obtained by them separately as per Exts.A7 and A9 and it has been found that those properties are not lying adjacently. It is with respect to that property, now the allegation has been made by the plaintiff church. It is contended by the plaintiff Church that a new sub division has been created as 44/89 in 44/69 which is a part of the plaintiff's property without complying the statutory formalities. Admittedly, this new sub division number has been assigned to the property covered by Ext.A7 during the pendency of O.S.No.129/2002. The judgment and decree passed in O.S.No.129/2002 concurrently by two courts after the two remands has been set aside by this Court and case has been remanded to the trial court for appointing a fresh Commissioner with the aid of Taluk Surveyor so as to identify the plaint A and B schedule property. Since the dispute in this case is also with respect to the very same A schedule property, in the light of the judgment in R.S.A.No.430/2015, without any further discussion, the judgment R.S.A.No.433/2015 16 and decree passed in this case also is only to be set aside. 12. It is true that a contention has been raised by the defendants that the suit is barred by limitation in view of Section 14 of the Survey and Boundaries Act, 1923 by which the suit is to be filed within one year. According to the defendants, it is during the pendency of O.S.No.129/2002 that sub division 44/89 was assigned to A schedule and the plaintiff was well aware of that fact during the pendency of the case itself but the present suit has been filed only after the dismissal of O.S.No.129/2002 and hence it is hopelessly barred by limitation. 13. In this context, it is relevant to quote **Cheriyanad Grama Panchayath v. State of Kerala and Others : 2019 (4)** **KLT 916 : 2019 (5) KHC 699** wherein a learned Single Judge of the court has held that one year period enumerated under S.14 of the Act can only be applied in a suit challenging determination of boundary made under Sections 6, 7, 9 or 10 of the Act. One of the reasons for dismissal of the suit by the trial court is limitation. The first appellate court rightly found that the suit is not barred by limitation by quoting **Venugopal v. Saraswathi** R.S.A.No.433/2015 17 **Amma : 2013 (4) KLT 717.** In this case, relief sought in the plaint is to declare that defendants 1, 2 and 5 have no right and title in plaint A, B and E schedule in the partition deed No.2420/07 and further to declare that re-survey No.44/89 of Aluva Town block is erroneous, illegal and void. The right and title of the defendants with respect to A, B and E schedule in the partition deed which is the plaint A schedule has also been questioned and declaration in that regard has also been sought for. So, the suit cannot be categorised as one disputing the resurvey alone since the title of the defendants 1, 2 and 5 with respect to A schedule (A, B and E in partition deed No.2420/07 also arises for consideration. 14. Yet another argument advanced by the learned counsel is with regard to the maintainability of the prayer for declaratory relief. It has been found by the first appellate court that only a party to the document can file a suit disputing the allotment of shares and it is further found that the plaintiff has no case that they are entitled to any property covered by the partition deed since they are not the legal heirs of Mariamma, the R.S.A.No.433/2015 18 first defendant. The findings so entered into by the first appellate court is basically wrong because the very basis of the plaintiff's case is that the first defendant has not obtained any property covered in re-survey No.44/89, which is described as plaint A schedule property and plaintiff is disputing the right and title of defendants 1, 2 and 5 over plaint A schedule property and they have no dispute with respect to plaint B schedule property covered by Ext.B9 purchase certificate. Their case is that the property comprised in old survey No.160/1 has been corrected as 260/2 in Ext.A7 sale deed and the property comprised in survey No.44/69 stand in the name of plaintiff and contended that division No.44/89 has been obtained during the pendency of O.S.No.129/2002 by influencing the revenue officials. So, the finding of the first appellate court that the plaintiff has no case that they are entitled to any property covered by the partition deed or they are not the legal heirs of Mariamma etc. are baseless. The contention of the learned counsel for the defendants that as per Section 34 in order to claim a declaratory relief a person entitled to any legal character or to any right as to R.S.A.No.433/2015 19 any property belonging to him alone can seek for relief and here the plaintiff has sought for a declaratory relief with respect to property covered by the defendants and hence it is not maintainable is also against the purport of Section 34 of the Specific Relief Act. Section 34 expressly provides that any person entitled to any illegal character or to any right as to any property, may institute a suit against any person denying, or interested to deny his title to such character or right. So, the Section is very clear that declaration can be sought for with respect to right of any property against any person denying his title or right etc. Here the specific case of the plaintiff is that the property described in plaint A schedule belongs to the church and defendants created a new sub division during the pendency of O.S.NO.129/2002 with respect to that property and thereby they denied the right of the plaintiff over plaint A schedule property and hence in order to declare their right with respect to that property described in plaint A schedule, the declaration has been sought to the effect that defendants 1, 2 and 5 have no right and title in A, B and E schedule in the partition deed which is alleged R.S.A.No.433/2015 20 to be the property described in A schedule. So the relief sought for in the plaint cannot be said as not maintainable as per Section 34 of the Specific Relief Act. The first appellate court also found against the plaintiff and found the documents challenged by the plaintiff in this case as valid in view of the disposal of O.S.No.129/2002. Since the judgment and decree in that case has already been set aside the findings made in this case based on the judgment in O.S.No.129/2002 is to be set aside. In the result, the Regular Second Appeal allowed, judgment and decree in O.S.No.533/2011 of the Sub Court, North Paravur as confirmed in A.S.No.64/2014 on the file of Additional District Judge, North Paravur is set aside and case remanded to Principal Subordinate Judge's Court, North Paravur for fresh disposal, in accordance with law. Parties shall bear their respective cost. ## (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge