P. Hydrose v. State of Kerala and Tahsildar, Kanayannur Taluk Office

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN`** ``` WEDNESDAY, THE 26[TH] DAY OF JULY 2023 / 4TH SRAVANA, 1945 ``` ## **`SA NO.900 OF 2002`** ``` AGAINST THE JUDGMENT IN OS 113/1997 OF I ADDITIONAL MUNSIFF ``` ``` COURT, ERNAKULAM ``` ``` AS 204/2000 OF II ADDITIONAL DISTRICT COURT, ERNAKULAM ``` ## **`APPELLANT/PLAINTIFF:`** ``` P.HYDROSE PUTHUMANAYIL, KAINIKARA DESOM,KODUNGALLUR VILLAGE,, ALWAYE TALUK, REPRESENTED BY POWER HOLDER,, MOHAMMED, S/O.ABDULKHADER, RESIDING AT, KATTIPARAMBIL, MADAVANA DESOM, KUMBALAM VILLAGE, KANAYANNUR TALUK. ``` ``` BY ADVS. SRI.V.SANKARA RAJA KUM.ANAGHA LAKSHMY RAMAN SRI.K.A.SHAJI MATHEW SRI.S.VINOD BHAT ``` ## **`RESPONDENTS/DEFENDANTS:`** - **`1 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM,, CIVIL STATION, KAKKANAD, KOCHI-30.`** - **`2 THE TAHSILDAR KANAYANNUR TALUK OFFICE, ERNAKULAM, KOCHI-11. BY ADV GOVERNMENT PLEADER`** ``` SRI K.M.FAISAL- GOVERNMENT PLEADER ``` ``` THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` SA No.900 of 2002 2 ## **JUDGMENT** The appellant is the plaintiff in O.S.No.113 of 1997 on the file of the First Additional Munsiff Court, Ernakulam, which was one filed against the respondents herein-defendants for declaration and injunction. 2. Going by the plaintiff's averments, plaint A schedule properties were purchased by the plaintiff as per document No.1555 of 1985 of SRO, Erankulam. Subsequently, the plaintiff sold 3 cents of land to Sri. K.C. Kunjanbava and 5.950 cents of land was surrendered for a pathway from 37 cents of land in Sy.No.32/1 of Kumbalam Village. The balance extent in Survey No.32/1 is the plaint A schedule item No.2. The plaintiff is in actual possession and enjoyment of A schedule properties. The plaint B schedule property comprised in Survey No.415 of Kumbalam Village was purchased by the plaintiff as per Document No.2736 of 1985 of SRO, Ernakulam. Thus, the plaintiff is the absolute owner in possession of plaint A and B schedule properties. In the re-survey conducted by the Survey Department, a portion of A and B schedule properties was included in Block No.16, allotting Re-Survey No.8/16 for 8.327 cents (3.37 Ares) of land and ReSurvey No.8/18 for 938 Sq. links (0.38 Ares). Altogether land having an extent of 9.265 cents (3.756 Ares) was treated as the SA No.900 of 2002 3 registered holding. The balance extent of 32.785 cents of land was included in Block No.15, allotting Re-Survey No.295/1 and classifying the same as Kayal Puramboke. Thus, in the process of re-survey, the plaintiff's registered holding was converted into Kayal Puramboke without his knowledge. The property classified in re-survey as Kayal Puramboke is plaint C schedule property. Before effecting measurement of the properties, the Re-Survey Department did not issue notice to the plaintiff requiring him to produce the title deeds to verify his right and extent of the property. The plaintiff contended that the classification of his registered holdings as Kayal Puramboke is illegal and unjust. Therefore, the plaintiff is entitled to a declaration that the plaint C schedule property is part of his registered holding covered by document Nos.1555/85 and 2736/85 of SRO, Ernakulam and that, the classification of plaint C schedule property as Kayal Puramboke by the Re-Survey Department is illegal, unenforceable. The plaintiff sought for a permanent prohibitory injunction restraining the defendants from assigning plaint C schedule property and the part thereof under the Kerala Land Assignment Act. 3. The 2[nd] defendant filed a written statement on behalf of respondents 1 and 2, wherein it was contended that the plaintiff may have title over the A and B schedule properties as per SA No.900 of 2002 4 document Nos.1555/85 and 2736/85 of SRO, Ernakulam. But he does not have _de facto_ possession of the said properties. Plaint C schedule property is ‘Puzha’. It is not part of any registered holding. Nobody had possession over the plaint C schedule property. It was brought to the notice of the 2[nd] defendant Tahsildar, Kanayannur Taluk that V.A. Muhammed, the power of attorney holder of the plaintiff encroached upon Puzha Puramboke to an approximate extent of 30 cents, adjoining to 9 cents of land in Survey No.415 (Rr-survey No.195/1) of Kumbalam Village and put up fencing around the encroached area. On receipt of the information the Village Officer, Kumbalam, was given appropriate instructions to stop the unauthorised encroachment and the construction of fencing by trespassing into Puzha Puramboke. Accordingly, the Village Officer issued a stop memo to V.A. Mohammed by affixture at his residence. Muhammed, the power of attorney holder of the plaintiff, filed a petition dated 17.03.1995 before the 2[nd] defendant stating that as per document Nos.1555/85 and 2756/85 of SRO, Ernakulam the plaintiff has got 51 cents of land that, out of which 37 cents was in Survey No.732/1 and 5 cents was in Survey No.732/2 and the remaining 9 cents in Survey No.415 of Kumbalam Village. However, in re-survey records, only an extent of 9.327 cents in Re-survey Nos.8/16 and 8/18 has been shown SA No.900 of 2002 5 as the property belonging to the plaintiff. That discrepancy has to be corrected. 4. In the written statement, the 2[nd] respondent pointed out that, as per the village records Survey No.732/1 of Kumbalam Village has an extent of 32.99 Ares and it stands registered in the name of Damodaran Kunjan Namboothiripad as per Tandaper No.78. The extent of land in Survey No.732/2 is 2.02 Ares as per Thandaper No.210, which stands registered in the name of Arithrathan Namboothiripad. In Survey No.415 an extent of 63.3194 hectares is classified as Puzha Puramboke. As per resurvey records, the portion of Survey No.732/1 & 2 has been included in Re-survey Nos.8/8, 8/15, 8/16, 8/14 and 8/18. Resurvey No.8/8 has an extent of 19.60 Ares and it stands registered in the joint name of the plaintiff and one Smt. Sunitha. Out of that 19.60 Ares, 17 Ares (42 cents) is seen sold to one Shahul Hameed as per document No.2692/96 of SRO, Kumbalam and the area remaining in that re-survey number is only 2.60 Ares. Re-survey No.815 has an extent of 2.40 Ares and it lies as a pathway. Resurvey No.8/16 has an extent of 3.37 Ares and it stands registered in the name of the plaintiff as per Thandaper No.2327. Re-survey No.8/14 has an extent of 0.90 Ares and Re-survey No.8/18 has an extent of 0.38 Ares under Thandaper No.465 in the name of SA No.900 of 2002 6 Damodaran Kunjan Namboothiripad. The plaintiff is in occupation of 0.38 Ares in Re-survey No.8/18. Puzha Puramboke in Survey No.415 has been included in Re-survey No.295/1 in Block 15. The re-survey was carried out on the basis of _de facto_ possession with specific boundaries. Out of a total extent of 16.92 Ares, 3.37 Ares is in Re-survey No.8/16, 9.38 Ares is in Re-survey No.8/18 and the remaining 2.60 Ares is in Re-survey No.8/8. The balance area of 10.57 Ares is included in Re-survey No.295/1. It is lying as Puzha Puramboke, without any boundaries. By virtue of provisions in the Kerala Land Conservancy Act, the lands lying as Kayal/Puzha are the properties of the Government. The issue relating to the land, which is the subject matter of the suit, has been already adjudicated by the High Court in the judgment dated 13.01.1997 in O.P.No.16077 of 1996. The said original petition was filed when the plaintiff encroached upon the C schedule properties. The plaintiff was the 5[th] respondent in that original petition. The High Court found that the property in question is Kayal Puramboke. Thereafter, Tahsildar, Kanayannur, evicted the plaintiff under the provisions of the Kerala Land Conservancy Act. The plaintiff has not preferred any appeal from the decision of the High Court and that finding has become final and conclusive. Therefore, the suit is barred by _res judicata_ . SA No.900 of 2002 7 5. Before the trial court, on the side of the plaintiff, he was examined as PW1 and Exts.A1 to A6 were marked. On the side of the defendants, DW1 was examined and the judgment of the High Court dated 13.01.1997 in O.P.No.16077 of 1996 was marked as Ext.B1. The report and sketch of the Advocate Commissioner were marked as Exts.C1 and C1(a). 6. After considering the pleadings and evidence on record, the trial court arrived at a conclusion that there is no cogent and convincing evidence to prove that the plaintiff has obtained any pattayam and thandaper number for the properties included in Exts.A2 and A3. The trial court found that the plaintiff failed to prove that the property in plaint C schedule is part of his registered holding and that, he has possession over it. Therefore, the plaintiff is not entitled to get the declaration and injunction as prayed for. Accordingly, the suit was dismissed and both parties were directed to suffer their respective costs. 7. Challenging the judgment and decree dated 30.10.1999 of the trial court in O.S.No.113 of 1997, the plaintiff filed A.S.No.204 of 2000 before the Additional District Court, Ernakulam. That appeal ended in dismissal by the judgment dated 22.06.2002, confirming the findings of the trial court. Feeling aggrieved, the appellant/plaintiff is before this Court in this second SA No.900 of 2002 8 appeal, invoking the provisions under Section 100 of the Code of Civil Procedure, 1908. 8. On 14.02.2003, when this appeal came up for admission, notice was ordered on the question of law formulated in the memorandum of the second appeal. 9. Heard the learned counsel for the appellant/plaintiff and the learned Government Pleader for the respondents/defendants. 10. The learned counsel for the appellant/plaintiff would contend that the findings of the courts below in the impugned judgments are perverse and patently illegal, which are liable to be interfered with in this second appeal. 11. On the other hand, the learned Government Pleader would contend that the findings of the courts below, which are based on the pleadings and evidence on record and neither perverse nor patently illegal, warrant no interference in this second appeal. 12. The plaintiff filed O.S.No.113 of 1997 before the Munsiff Court, Ernakulam, on 14.01.1997, seeking a declaration that the plaint C schedule property is part of his registered holding covered by document Nos.1555/85 and 2736/85 of SRO, Ernakulam and that, the classification of plaint C schedule property as Kayal SA No.900 of 2002 9 Puramboke by the Re-Survey Department is illegal, unenforceable. The plaintiff sought for a permanent prohibitory injunction restraining the defendants from assigning plaint C schedule property and the part thereof under the Kerala Land Assignment Act. 13. The burden is on the plaintiff to prove that the property comprised in Survey No.415 of Kumbalam Village is not puramboke land. He failed to produce Thandaper register of Survey No.415 (Re-survey No.295/1) of the Kumbalam Village. He failed to produce tax receipts to show that any portion of the property comprised in Survey No.415 of Kumbalam Village is his registered holding. If any portion of the property comprised in Survey No.415 of Kumbalam Village was a registered holding of the plaintiff, the patta number could have been seen from the basic tax receipt. There was nothing on record to show that the plaintiff paid basic tax for any portion of the property comprised in Survey No.415 (Re-survey No.295/1) of Kumbalam Village. In Exts.A2 and A3 documents, i.e., document Nos.1555/85 and 2736/85 of SRO, Ernakulam, the Thandapper number is not mentioned. Though it is stated in Ext.A3 document that the vendor has obtained Patta No.B6LA.73/68, the Patta was not produced before the trial court. Ext.A3 document would show that the SA No.900 of 2002 10 ## property covered by that document is lying as Puzha. 14. The plaintiff was the 5[th] respondent in O.P.No.16077 of 1996 filed before this Court, by Nature Lovers Movement, seeking a writ of mandamus commanding the District Collector, Ernakulam and the Tahsildar, Kanayannur not to assign the Kayal Puramboke of Ernakulam District to anybody and cancel the assignments already given in respect of rivers/backwaters, and for other consequential reliefs. That original petition was disposed of by Ext.B1 judgment dated 13.01.1997. In paragraph 2 of that judgment, this Court dealt with the encroachment of Puzha Puramboke by the plaintiff, who was the 5[th] respondent in that original petition. Paragraphs 2 and 3 of that judgment read thus; “2. In the instant case, it is evident from the counter affidavit filed by the second respondent that 30 cents adjoining 9 cents of land comprised in Sy.No.415 with resurvey No.295/1 was tried to be encroached upon. In fact, fencing has been made around the encroached area. Village Officer has reported on 09.10.1996 regarding the encroachment on the basis of which the Tahsildar referred the matter to the Revenue Inspecter, Tripunithura, for further verification and on 10.10.1996 the Revenue Inspector, Nadana, Tripunithura, reported that there was encroachment in the Kayal Puramboke comprised in Sy.No.295/1 and it was to be summarily evicted under Section 11(3) of the Land Conservancy Act. On the basis of the report, Village Officer, Kumbalam was directed to issue SA No.900 of 2002 11 a stop memo to one V.A. Mohammed, Vathapallil House, Madavana, and the notice was served by affixture. According to the report, the encroacher has erected certain poles around the encroached area and nothing further has been done. The attempt of the encroacher is clear that he wanted to appropriate 30 cents of land, which is valuable Government land. Encroachment, it was found, was very recent and the land in question is classified as Puzha Puramboke as per re-survey records. The second respondent has stated in the counter affidavit that steps are being taken for summary eviction. The District Collector has also given instructions to avert any further action from the encroachers and also for summary eviction. In view of the said circumstances, the grievance raised by the petitioner is redressed. Accordingly, there will be a direction to respondents 1 to 3 to see that river puramboke is not encroached upon by anybody. If anybody encroaches upon the river Puramboke he has to be summarily evicted. I also direct the respondents to take appropriate action to recover the loss sustained by the State in taking proceedings against them for encroaching upon the Government land. The entire procedure will be completed within a period of two months from the date of receipt of a copy of this judgment. With the above observations, the original petition is disposed of.” 15. By Ext.B1 judgment, this Court directed the District Collector, Ernakulam, the Tahsildar, Kanayannur and the Village Officer, Kumbalam to see that river puramboke is not encroached upon by anybody. If river puramboke is encroached upon by SA No.900 of 2002 12 anybody, he has to be summarily evicted. In Ext.B1 judgment, this Court noticed that the encroacher (appellant herein) erected certain poles around the encroached area and nothing further has been done. The attempt of the encroacher is clear that he wanted to appropriate 30 cents of land, which is valuable Government land. The encroachment was very recent and the land in question is classified as Puzha Puramboke as per the re-survey records. Steps are being taken for summary eviction of the encroacher (appellant herein) and the District Collector has given instructions to avert any further action from the encroachers and for summary eviction of the encroachers. 16. In **Sarvepalli Ramaiah v. District Collector, Chittoor [(2019) 4 SCC 500]** , following the law laid down in **Susetha v. State of T.N. [(2006) 6 SCC 543]** , **M.C. Mehta v. Union of India [(1997) 3 SCC 715]** and **Intellectuals Forum v. State of A.P. [(2006) 3 SCC 549]** , the Apex Court emphasised the need to retain and restore water bodies and held that water bodies are inalienable. The land comprised in water bodies cannot be alienated to any person, even if it is dry. On the facts of the case on hand, the Apex Court held that the Division Bench of the High Court of Andhra Pradesh rightly held that Puramboke tank cannot be alienated. No patta can be SA No.900 of 2002 13 granted in respect of tanks and water bodies including those that might have dried up or fallen into disuse. 17. The trial court as well as the lower appellate court, on a proper appreciation of the pleadings and evidence on record concurrently found that the plaintiff failed to prove that plaint C schedule property is part of his registered holding. Ext.A3 document would show that the property covered by that document is lying as Puzha. In Ext.B1 judgment, this Court noticed that the plaintiff encroached upon the land classified as Puzha Puramboke as per the re-survey records and erected certain poles around that area. It cannot be said that an issue necessary for the disposal of the suit or the appeal was omitted to be determined by the trial or the lower appellate court. The reasoning of the trial court and the lower appellate court are neither perverse nor patently illegal, warranting interference by this Court in this second appeal filed invoking the provisions under Section 100 of the Code of Civil Procedure, 1908. In the result, this second appeal fails and the same is accordingly dismissed. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** yd