Gopi v. Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 26[TH] DAY OF JULY 2022 / 4TH SRAVANA, 1944** ## **RSA NO. 75 OF 2020** **AGAINST THE ORDER/JUDGMENTAS 94/2018 OF DISTRICT COURT, ALAPPUZHA** ## **OS 32/2013 OF ADDITIONAL MUNSIFF COURT, ALAPPUZHA** ## **APPELLANT/RESPONDENT/DEFENDANT:** **GOPI AGED 72 YEARS S/O. PAPPAN, KADUKKANATHARA HOUSE, THEKKEMURI, NEDUMUDY VILLAGE, ALAPPUZHA.** **BY ADVS. C.P.CHANDRASEKHARAN (CALICUT) APARNA C.MENON** ## **RESPONDENT/PETITIONER/PLAINTIFF:** **THOMAS, S/O. CHAKKO, AGED 67 YEARS, VALIYAVEEDU HOUSE, SOUTH MURI, NEDUMUDI, ALAPPUZHA.695 507** **BY ADV SRI.S.SANAL KUMAR** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21.07.2022, THE** **COURT ON 26.07.2022 DELIVERED THE FOLLOWING:** R.S.A.No.75/2020 **2** ## **JUDGMENT** This Regular Second Appeal has been directed against the judgment and decree in A.S.No.94/2018 on the file of District Court, Alappuzha which arise out of the judgment and decree in O.S.No.32/2013 on the file of Additional Munsiff's Court, Alappuzha. 2. Appellant is the sole defendant and respondent is the plaintiff. (The parties would hereinafter be referred as per their status before the trial court). 3. The suit was one for declaration and permanent prohibitory injunction. Plaintiff is the absolute owner of plaint schedule item No.1 property which includes garden land and pond. He obtained the same by virtue of Ext.A1 sale deed. On the southern side of the plaint schedule property there is panchayat gravel road and defendant is having 9.75 cents of property on the south of the said road. The plaint schedule property is having an extent of 29.250 cents and during resurvey the extent of R.S.A.No.75/2020 **3** property was reduced to 25.3 cents and the defendant's property was increased to 16.3 cents. But plaintiff continues to be in possession of his 29.250 cents. The Complaints filed before the resurvey authorities are in vain. The pond has been wrongfully included in the defendant's property as per the resurvey. Though relief was also claimed with respect to plaint item No.2 property which was refused by the two courts concurrently and it is not further challenged by the plaintiff. 4. Defendant filed written statement denying the plaintiff's right and title over the entire plaint schedule item No.1 property and according to him the pond described is not included in plaint item No.1 property and it belongs to the defendant and is in his possession and enjoyment. He is using the pond for pisciculture and no property was wrongly included in his property as alleged and he claims to be the absolute owner with respect to 16.3 cents of property. The complaint filed by the plaintiff before the statutory authorities claiming right over pond was discarded after due enquiries. 5. PWs 1 to 3 were examined and Exts.A1 and A2 and C1 and C2 series were marked from the side of the plaintiff and R.S.A.No.75/2020 **4** Exts.B1 to B4 marked from the side of the defendant. There was no oral evidence from the side of the defendant. 6. The learned Munsiff on evaluation of facts and circumstances and evidence granted perpetual injunction and plea for declaration was refused for the reason that the suit has not been filed within the time after the resurvey proceedings as per the Survey and Boundaries Act. Further finding that the plaintiff could not prove the case with cogent evidence so as to get the relief of declaration of right over plaint item No.2 property, the relief sought with respect to plaint item No.2 property was refused. The plaintiff took up the matter in appeal before the District Court, Alappuzha and as per the impugned judgment the learned District Judge, Alappuzha allowed the appeal and declared that the plaintiff is the title holder in possession of plaint item No.1 property and the relief of injunction granted by the learned Munsiff was also confirmed. 7. Aggrieved by the judgment and decree passed by the first appellate court, defendant came up in this Regular Second Appeal for the various grounds stated in the memorandum of appeal. R.S.A.No.75/2020 **5** 8. At the time of admission, this Court formulated the following substantial question of law, which reads thus: “Is the decree and judgment of the court below unsustainable for not properly considered the period of limitation stipulated in Surveys and Boundaries Act? 9. Adv. Sri. S. Sanal Kumar appears on behalf of the respondent/defendant and lower court records were called for and both sides were heard. 10. According to the learned counsel for the defendant, defendant established through Ext.B2 title deed that he obtained 6 ares of property which is inclusive of paddy land and pond as described in Ext.B2 and he has also been paying tax with respect to 6 ares of property as borne out by Exts.B3 and B4 tax receipts and hence the first appellate court went wrong in declaring the right of the plaintiff with respect to the plaint item No.1 property having an extent of 29¼ cents. It is also her contention that though the plaintiff relied upon Ext.A1 the actual extent of property possessed by him is only 23.35 cents. It is further contended that no steps was taken and no documents also produced by the plaintiff to prove that he had taken any appropriate steps in order to correct resurvey records and no R.S.A.No.75/2020 **6** step was also taken within the stipulated time as per the Survey and Boundaries Act and that would disentitle the plaintiff for raising any objection with respect to the resurvey. It is further contended that documentary evidence Exts.B1 to B4 produced from the side of the defendant have not been properly appreciated. 11. Learned counsel for the plaintiff on the other hand would contend that the right and title of the plaintiff over the entire plaint item No.1 property is established through Ext.A1, the title deed, and the reduction in extent of the property as per resurvey is of no effect because revenue records will not confer title upon any property. He would also contend that plaintiff has taken out a survey commission and demarcated the plaintiff's property as well as the defendant's property as per Ext.C1 series and no objection was filed to the report and plan and at the time of examination of the commissioner before the court no question was put challenging the survey plan produced as Ext.C1(b). Plaintiff and one witness was also examined apart from the advocate commissioner to prove the case. There was no oral evidence from the side of the defendant. So, according to him, R.S.A.No.75/2020 **7** there is no reason whatsoever to interfere with the judgment and decree passed by the first appellate court. 12. The main contention of the learned counsel for the appellant is with regard to Ext.B2, the Sale Deed, executed in her favour in the year 2004 and according to her that would prove the disputed pond is included in the defendant's property. She would contend that in the schedule of Ext.B2 there is specific description regarding the pond which according to her establishes the right and title of the defendant and apart from that tax receipt Exts.B3 and B4 were also produced to prove that the defendant is in possession of 6 ares of property. 13. The specific case of the plaintiff is that Ext.B2 document was executed after the resurvey and by which the pond was mistakenly included in the property of the defendant. In this context it is relevant to look at Ext.B1 which is the prior title deed of Ext.B2 by which the predecessor in interest of the defendant obtained the property and the defendant's property is item No.1 in the schedule in which the extent of property has been described as 9¾ cents and the improvements and excess land therein. Obviously the description of pond is absent in plaint R.S.A.No.75/2020 **8** item No.1 property. So also the Ext.C1 and C1 (b) the survey commission and plan clearly demarcate the plaint item No.1 property as per the title deed which is inclusive of the pond also. Moreover in between the plaintiff's property and the defendant's property there is a gravel road also. PW3 is the Advocate Commissioner. Ext.C1 is the report produced along with the survey measurement and Ext.C1(b) is the sketch. No objection to the commissioner's report has been filed and no question was also put to the commissioner by the defence challenging the measurements effected. So the commissioner's report and survey sketch also conclusively prove that the plaint schedule property having 29.250 cents of property is in the possession of plaintiff and Ext.A1 the title deed also proves his right and ownership over plaint plaint item No.1 property. So the whole issue arose when resurvey was carried out and there was some shortage in extent of plaint item No.1 property and defendant attempted to claim right over the pond seeing excess land as per the resurvey in the defendant's property. 14. In Kannan v. Kannan [1964 KLT 228 : 1964 KHC 67] quoting Sri Sri Sri Krishna Chandra Gajapathi Narayana Deo v. R.S.A.No.75/2020 **9** Pragada Ramamurthy Pantulu [AIR 1952 Mad. 68] it has been found that conclusiveness under Section 13 of the Survey and Boundaries Act arises not from any jurisdiction with which the survey officer is endowed for adjudicating title to immovable property, but is simply an indirect result of the fixation of the survey boundary, where title to the property has to be determined not with reference to the survey demarcation, but on other and perhaps more cogent materials, the demarcation can be regarded as but one circumstance affecting the decision on title. 15. Though the defendant raised contention and a substantial question of law has also been formulated with respect to the period of limitation of one year prescribed as per the Survey and Boundaries Act, the learned District Judge has rightly quoted Venugopalan Nair v. Saraswathy Amma [2013 (4) KLT 717 : 2013 (4) KLJ 511 wherein a learned Single Judge of this Court has held that even beyond the period of one year, after finalization of resurvey, a suit on title, disputing the resurvey is maintainable. Article 65 of the Limitation Act, 1963 prescribes period of 12 years for possession of immovable property based R.S.A.No.75/2020 **10** on title. Resurvey said to have been finalized in 2004. Ext.B3 tax receipt produced from the side of defendant is also of the year 2004. Plaintiff has sought for declaration based on his title over plaint item No.1 property. If it is taken as a suit based on title the suit filed within 12 years when the resurvey has become finalized is also perfectly maintainable. In this case actual possession has not been divested from the plaintiff also. Only a mistake is crept in resurvey with respect to the extent of land of plaintiff and defendant. 16. Hence suit for declaration and consequential relief has been sought for. As per Article 58 of Limitation Act, 1963, the period to obtain relief of declaration is 3 years when the right to sue accrues. Cause of action alleged in the plaint is on 11.01.2013 when the defendant attempted to trespass upon plaint schedule property. Taking on that angle also suit filed within 3 years of the cause of action is well within time. 17. The next question is whether the defendant can claim any right over the property based on resurvey. In this context the learned counsel brought to my attention Thomas and Ors. v. Philip [2022 (4) KHC 451] wherein it has been held that while R.S.A.No.75/2020 **11** dealing with Sections 9, 3 and 10 of Survey and Boundaries Act, 1961 that merely because a portion of the plaintiff's property is shown in the resurvey records as with defendant's survey number, it will not lead to an inference that possession was with the defendant and it is also held that changes in extent of property in resurvey would not confer any title. 18. In the present case the fact that as per resurvey the extent of property of the defendant has been increased as 6 ares instead of 9¾ cents described in Ext.B1 will not confer any title upon the defendant to 16 and odd cents of property. So the prayer for declaration of right of plaintiff with respect to the plaint item No.1 property as noted by the commissioner in Ext.C1(b) plan granted by the first appellate court is perfectly legal and proper. It is also relevant in this context to note that the defendant did not enter the box and make himself available for cross-examination so as to substantiate the contentions raised in the written statement with regard to the possession and ownership of the excess extent of land obtained by him. Though the learned counsel for the defendant vehemently contended that they were enjoying the pond and were doing pisciculture in the R.S.A.No.75/2020 **12** pond for the last several years apart from the contentions in the written statement there is no evidence whatsoever to prove the possession and enjoyment of the pond by the defendant. 19. So, from the above, it can be concluded that plaintiff established his right, title and possession over plaint item No.1 and hence the first appellate court rightly granted the declaration as sought for and confirmed the order of permanent prohibitory injunction with respect to item No.1 granted by the learned Munsiff. I find no reason whatsoever to interfere with the judgment and decree passed by the courts below. In the result, appeal is found to be devoid of any merit and hence dismissed. Parties shall bear their respective costs. Sd/- **M.R.ANITHA** SHG **JUDGE**