NIRAMANGALAM SIVA KSHETHRA SAMITHY v. KOCHUKUTTAN NAIR

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** # **MONDAY, THE 12TH DAY OF MARCH 2012/22ND PHALGUNA 1933** ## **SA.No. 764 of 1998 (G)** **---------------------AS.98/1994 AND CROSS APPEAL OF I ADDL.DISTRICT COURT, THRISSUR OS.143/1991 OF MUNSIFF COURT, WADAKKANCHERY** **-------------** ## **APPELLANTS / RESPONDENTS 5 & 6 / ADDITIONAL DEFENDANTS 5 AND 6 :** **-------------------------------------------------------------------------------------------------------------** **1. NIRAMANGALAM SIVA KSHETHRA SAMITHY, REPRESENTED BY ITS SECRETARY P.S. SANKAR, S/O. PALATHIRUTHY LAKSHIMIKUTTY AMMA, KARUNATHRA VILLAGE, THALAPPILLY TALUK.** **2. SANKARAN NAMBEESAN, S/O. NIRAMANGALATHU PUSHPAKATHU SANKARAN NAMBISSAN, MANKARA DESOM, THALAPPILLY THALUK.** **BY ADV.SRI.P.RAMAKRISHNAN** ## **RESPONDENTS / APPELLANTS 1 & 2 AND PLAINTIFF 1 AND 2 / DEFENDANT 1 TO 4 :** **------------------------------------------------------------------------------------------------------------------------** **1. KOCHUKUTTAN NAIR, S/O. KIZHUVELI AMALU AMMA, KARUMATHRA VILLAGE DESOM, THALAPPILLY THALUK, TRICHUR DISTRICT.** **2. JANAKY AMMA, W/O. KOCHUKUTTAN NAIR, -DO-** **3. KERALA GOVERNMENT, REPRESENTED BY DISTRICT COLLECTOR, CIVIL LINES, TRICHUR.** **4. ASSISTANT DIRECTOR OF SURVEY, TRICHUR RANGE, SHORANUR, TRICHUR.** **5. RADHAKRISHNAN, S/O. MADHATHILATHU SANKUNNY NAIR, KARUMATHRA, THALAPPILLY TALUK, TRICHUR DISTRICT.** **...2/-** ## **SA.No. 764 of 1998 (G) -2-** **6. REVENUE DIVISIONAL OFFICER, CIVIL LINES, TRICHUR.** **R1 & R2 BY ADVS. SRI.P.RADHAKRISHNAN** **SMT. MEERA K. SRI.MADHU RADHAKRISHNAN R3 BY GOVT. PLEADER SMT. ROSE MICHAEL R5 BY BY ADVS. SRI.K.RAVEENDRAN SRI.A.K.SURENDRAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** ## P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - S.A.No.764 of 1998 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of March, 2012 ## J U D G M E N T Defendants 5 and 6 in O.S.No.143 of 1991, who along with other defendants, suffered a decree at the hands of the lower appellate court are the appellants. 2. The parties and facts are hereinafter referred to as they are arrayed before the trial court. 3. The suit was one for a declaration of title and other consequential reliefs. The plaint schedule property along with other items was obtained by the 1[st] plaintiff by virtue of a partition deed. He effected vast improvements in the plaint schedule property. The 1[st] plaintiff came to know that in resurvey the plaint schedule property was included in Sy.Nos.51/2, 3 and 4 and a pathway was shown running through the plaint schedule property. The 1[st] plaintiff filed a petition to assistant Director, Thrissur (Survey) Range on 12.10.1990 as well as to the Tahasildar on 18.06.1990. The Assistant Director replied by pointing out that since the ## -:2:- ## S.A.No.764 of 1998 resurvey was over, nothing could be done on that petition. Thereafter the 1[st] plaintiff had sent a complaint to the RDO on 01.11.1990, which too invoked the reply that since the resurvey has been effected nothing remained to be done. Since the Resurvey did not reflect the true state of affairs, the suit was laid for necessary reliefs. 4. The defendants 1, 2 and 4 resisted the suit. They pointed out that the suit was bad for want of notice under Section 80 CPC. Re-survey was done in accordance with law and necessary publication had been made and the resurvey had become final. The suit had been laid beyond one year as contemplated under Section 14 of the Kerala Survey and Boundaries Act and that suit is not maintainable. If the plaintiffs were aggrieved by any of the acts committed by the defendants, they ought to have taken recourse to the statutory remedies within the stipulated time. The plaintiffs have not raised objection for any of the acts done by the defendants in conducting the resurvey. They therefore prayed for the dismissal of the suit. -:3:- ## S.A.No.764 of 1998 5. 3[rd] defendant filed a written statement denying the allegations against him. 6. Defendants 5 and 6 got themselves impleaded as persons interested in the suit. According to them there exists a pathway through the plaint schedule property which is being used by the public and plaintiffs are not entitled to any reliefs. 7. Based on the above pleadings issues were raised. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A13(a) from the side of the plaintiff. The defendants had DWs 1 to 3 examined and had Exts.B1 and B3 marked. The trial court found that the suit is hit by Section 14 of the Kerala Survey and Boundaries Act and dismissed the suit. The aggrieved plaintiffs carried the matter in appeal as AS.No.98 of 1994. The defendants 5 and 6 filed cross appeal. The lower appellate court allowed the appeal and dismissed the cross appeal. 8. Notice is seen issued on the following questions of -:4:- ## S.A.No.764 of 1998 law:- 1. Whether Section 14 of the Surveys and Boundaries Act permits an adjudication of the decisions beyond the period of limitation in any circumstances? 2. Whether the suit is barred by limitation, under Section 14 of the Act and Article 100 of the schedule of Indian Limitation Act,1963? 3. Does Section 80 of CPC postulates constructive notices, before the suit is filed, and whether a petition can be construed as notice. 4. Whether there is residuary rights available to be decided in the suit, when the suit is barred by limitation? 5. On the facts, whether the lower courts were right in coming to the conclusion that the public of Karumathara had no right of way over plaint scheduled properties. 9. The learned counsel appearing for the appellant raised only one point for the consideration of this Court at the time of argument. According to the learned counsel, the suit is barred by Section 14 of Kerala Survey and Boundaries Act and the suit is barred for want of notice of notice under Section 80 of CPC. According to the learned counsel the absence of notice vitiate the whole proceedings and he relied on the decision reported in **Prem Lala Nahata and another v. Chandi Prasad Sikaria (2007(2)** -:5:- ## S.A.No.764 of 1998 ## **SCC 551)** . 10. The learned counsel appearing for the respondent on the other hand pointed out that Ext.A10 has not been denied in the written statement and if that be so, Section 14 is not a bar. Apart from the said fact, according to the learned counsel Section 14 can have no application to the facts of the case since the issue involved is one for declaration of title etc. The learned counsel also pointed out that the courts below had found that no relief as such was sought for against the 3[rd] defendant and the reliefs are confined to representations made as per Exts.A5, A6 and A8. The lower appellate court was of the view that those communications can be treated as notice under Section 80, therefore there is compliance with statutory requirements. The learned counsel also pointed out that although Exts.A6. A7 and A8 may not be strictly in terms of Section 80, it serves the purpose for which Section 80 has been enacted and a liberal approach has to be adopted in considering the contention based on Section 80 of CPC. In support of his -:6:- ## S.A.No.764 of 1998 contention, the learned counsel relied on the decision reported in **Ghanshyam Das v. Dominion of India (1984 SC 1004)** . 11. As rightly noticed by the lower appellate court Section 14 can have no applications to the facts of the case. Section 14 of the Kerala Survey and Boundaries Act reads as follows:- 14. Right to institute a suit in respect of boundary of the property surveyed.- (1) Any person deeming himself aggrieved by the determination of any boundary under Section 9, Section 10 or Section 11 may, subject to the provisions of the law of Limitation in force for the time being, institute a suit within one year from the date of the notification under Section 13 to set aside or modify the said determination and survey shall, if necessary, he altered in accordance with the final decree in the suit and the alteration, if any, shall be noted in the records. (2) In any suit under sub-section(1), the plaintiff shall join as parties to the suit all persons whom he has reason to believe to be interested in the boundary which is subject to the suit. 12. A reading of the provision leaves one in no doubt that the suit is confined to matters covered by provisions under Section 9, 10 and 11. A reading of the plaint in the ## -:7:- ## S.A.No.764 of 1998 case on hand does not indicate that, it is aggrieved by any of the order passed under Section 9,10 and 11 that the suit has been filed. 13. The main relief sought for in the suit is a declaration regarding the title to the suit property and also for a declaration that there is no puramboke area in the plaint schedule property and there is no way running through the plaint schedule property as now seen in resurvey records. 14. The plaintiff has also averred that he came to know about the resurvey as per Ext.A10 issued by the Tahasildar and thereupon immediately filed his objection to the authorities concerned. It is significant to notice that this specific averment in the plaint is not seen controverted by the respondents 1 to 4 in the written statement. If Ext.A10 is to be taken as notice, the suit is perfectly within time. However one has to notice that the suit is not for change of boundary but one for a declaration of title and also for a declaration that no puramboke land is included in -:8:- ## S.A.No.764 of 1998 the plaint schedule property. The lower appellate court has rightly come to the conclusion that Section 14 can have no application to the facts of the case. That finding is fully justified going by the materials on record. 15. As far as Section 80 is concerned, as per decision reported in **Prem Lala Nahata and another v. Chandi Prasad Sikaria (2007(2) SCC 551)** it is observed as follows:- Order 7 Rule 11(d) speaks of the suit being “barred” by any law”. According to Black's Law Dictionary, bar means, a plea arresting a law suit or legal claim. It means as a verb, to prevent any legal objection. According to Ramanatha Aiyar's Law lexicon, “bar” is that which obstructs entry or egree; to exclude from consideration. It is therefore necessary to see whether a suit bad for misjoinder of parties or of causes of action is excluded from consideration or is barred entry for adjudication. As pointed out already, on the scheme of the Code, there is no such prohibition or a prevention at the entry of a suit defective for misjoinder of parties or of causes of action. The court is still competent to try and decide the suit, though the court may also be competent to tell the plaintiffs either to elect to proceed at the instance of one of the plaintiffs or to proceed with one of the causes of action. On the scheme of the Code of Civil procedure, it cannot therefore be held that a suit barred for misjoinder of parties or of causes of action is barred by a law, here the Code. This may be contrasted with the failure to comply with Section 80 of the Code. In a case -:9:- ## S.A.No.764 of 1998 not covered by sub-section (2) of Section 80, it is provided in sub-section (1) of Section 80 that “no suit shall be instituted” This is therefore a bar to the institution of the suit and that is why courts have taken the view that in a case where notice under Section 80 of the Code is mandatory, if the averments in the plaint indicate the absence of a notice, the plaint is liable to rejected. For, in that case, the entertaining of the suit would be barred by Section 80 of the code. The same would be the position when a suit hit by Section 86 of the Code is filed without pleading the obtaining of consent of the Central Government if the suit is not for rent from a tenant. Not only are there no words of such import in Order 1 or Order 2 but on the other hand, Rule 9 of Order 1, Rules 1 and 3 of Order 1 and Rules 3 and 6 of Order 2 clearly suggest that it is open to the court to proceed with the suit not withstanding the defect of misjoinder of parties and misjoinder of causes of action and if the suit results in a decision, the same could not be set aside in appeal, merely on that ground, in view of Section 99 of the Code, unless the conditions of Section 99 are satisfied. Therefore by no stretch of imagination, can a suit bad for misjoinder of parties or misjoinder of causes of action be held to be barred by any law within the meaning of Order 7 Rule 11 (d) of the Code. Thus, when one considers Order 7 Rule 11 of the Code with particular reference to clause (d) it is difficult to say that a suit which is bad for misjoinder of parties or misjoinder of causes of action, is a suit barred by any law. A procedural objection to the impleading of parties or to the joinder of causes of action or the frame of the suit, could be successfully urged only as a procedural objection which may enable the court either to permit the continuance of the suit as it is or to direct the plaintiff or plaintiffs to elect to proceed with a part ## -:10:- ## S.A.No.764 of 1998 of the suit or even to try the causes of action joined in the suit as separate suits. 16. However it needs to be noticed that strictly speaking, no relief is sought for against the 1[st] defendant which is the state. As already noticed the reliefs relate to the declaration of title and the declaration that no puramboke in the plaint schedule property and for consequential correction of the survey records. The court below has construed Exts.A5, A6 and A8 to defendants 2 and 4 and has come to the conclusion that even though though these representations do not strictly come under Section 80, they contained the essential ingredients contemplated under Section 80 and that is sufficient in law. The lower appellate court chose to rely on the decision in **Ghanshyam Das v. Dominion of India (1984 SC 1004)** wherein it is held as follows:- In the ultimate analysis, the question as to whether a notice under Section 80 of the Code is valid and not is a question of judicial construction. The privy Council and this Court have applied the rule of strict compliance in dealing with the question of identity of the person who issues the notice the person who brings the suit. This Court has however adopted ## -:11:- ## S.A.No.764 of 1998 the rule of substantial compliance in dealing with the requirement that there must be identity between the cause of action and the reliefs claimed in the notice as well as in the plaint. As already stated, the Court has held that notice under this section should be held to be sufficient if it substantially fulfils its object of informing the parties concerned of informing the parties concerned of the nature of the suit to be filed. On this principle, it has been held that though the terms of the section have to be strictly complied with, that does not mean that the notice should be scrutinized in a pedantic manner divorced from common sense. The point to be considered is whether the notice gives sufficient information as to the nature of the claim such as would enable the recipient to avert the litigation. Section 80 of the Code is but a part of Procedure Code passed to provide the regulation and machinery, by means of which the Courts may do justice between the parties. It is therefore merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it. In Sangram Singh v. Election Tribunal, Kotah (1955) 2 SCR 1 : (AIR 1955 SC 425) Vivian Bose, J. in his illuminating language dealing with the Code of Civil Procedure said : “ It is procedure, something designed to facilitate justice and further its ends : not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherness of justice be used to frustrate it.” Our laws of procedure are based on the principle that ## -:12:- ## S.A.No.764 of 1998 “as far as possible, no proceedings in a court of law should be allowed to be defeated on mere technicalities”. Here, all the requirements of Section 80 of the Code were fulfilled. Before the suit was brought, the Dominion of India received a notice of claim from Seth Lachman Dass. The whole subject of serving a notice under Section 80 is to give the Government sufficient warning of the case whch is going to be instituted against it was that the Government, if it so wished, settle the claim without litigation or afford restitution without recourse to a court of law. That requirement of Section 80 was clearly fulfilled in the facts and circumstances of the present case. 17. As rightly noticed by the lower appellate court the 1[st] respondent is only a formal party and no relief as such is sought against the 1[st] respondent. Further as far as the other defendants are concerned to whom Exts.A5 and A6, A8 has been send, as rightly noticed by the lower appellate court there is substantial compliance with Section 80 and that would be sufficient in law. It is true that there is no threat of instituting a suit in any those documents, if relief is not granted to the plaintiff by the authority concerned. But that may not be necessary at all, considering the purpose for which Section 80 notice is entitled to be served. 18. The court below has taken a practical approach to ## -:13:- ## S.A.No.764 of 1998 the issue and has come to the conclusion that Exts.A5,A6 and A8 are sufficient compliance with notice under Section 80. It is essentially a question of fact. The lower appellate having relied on the evidence on record had come to the conclusion that Exts.A5, A6 and A8 satisfy the requirements of the notice under Section 80. It is not shown that findings are either perverse or unwarranted by the evidence on record or in contrary to law. If that be so, this Court will not be justified in interfering with the findings of the courts below. The result is that the appeal is without any merits and is liable to be dismissed. I do so confirming the judgment and decree of the lower appellate court. There will be no order as to costs. ## P.BHAVADASAN, JUDGE kkj -:14:- S.A.No.764 of 1998