PRIYA DILEEP, SREEJA SIVANANDAN, PONNAMMA SIVANANDAN and P. SIVANANDAN v. KERALA STATE REPRESENTED BY THE DISTRICT COLLECTOR, DIRECTOR OF RE-SURVEY, ASST. DIRECTOR OF RE-SURVEY, TAHSILDAR, VILLAGE OFFICER and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 3RD DAY OF APRIL 2012/14TH CHAITHRA 1934** ## **RSA.No. 312 of 2011 (F)** **---------------------------------AS.46/2005 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS. NO.40/1999 OF MUNSIFF COURT, MAVELIKARA.** **..........** ## **APPELLANT(S)/RESPONDENTS/PLAINTIFFS::** **-----------------------------------------------------------------** **1. PRIYA DILEEP, W/O.D.DILEEP KUMAR, PALLIYUDE THEKKETHIL, AKKANATTUKARA MURI THAZHAKKARA VILLAGE, MAVELIKARA TALUK.** **2. SREEJA SIVANANDAN, W/O.DHARMAJAN, SREEVILASOM THEKKEMANKUZHY, PULLIKKANAKKU P.O.** **3. PONNAMMA SIVANANDAN, PALLIYUDE THEKKETHIL, AKKANATTUKARA MURI THAZHAKKARA VILLAGE, MAVELIKARA TALUK.** **4. P.SIVANANDAN, S/O.LATE VELUTHAKUNJU, PALLIYUDE THEKKETHIL, AKKANATTUKARA MURI THAZHAKKARA VILLAGE, MAVELIKARA TALUK.** **BY ADVS.SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SMT.REVATHY P.NAIR** ## **RESPONDENT(S)/APPELLANTS/DEFENDANTS::** **-------------------------------------------------------------------** **1. KERALA STATE REPRESENTED BY DISTRICT COLLECTOR, COLLECTORATE, ALAPPUZHA PIN-688 001.** **2. THE DIRECTOR OF RE-SURVEY, DIRECTORATE OF RE-SURVEY, THIRUVANANTHAPURAM PIN-695 001.** **3. THE ASST.DIRECTOR OF RE-SURVEY, O/O.THE ASST.DIRECTOR OF THE RE-SURVEY, CHENGANNUR PIN-689 121.** **tss R.S.A. NO.312/2011** **4. THE TAHSILDAR, TALUK OFFICE, MAVELIKARA, PIN-690 101.** **5. THE VILLAGE OFFICER, VILLAGE OFFICE, THAZHAKKARA.** **6. RADHA, W/O.LATE RAJAPPAN, PALLIYUDE THEKKETHIL, AKKANATTUKARA MURI THAZHAKKARA VILLAGE, MAVELIKARA TALUK, PIN-690 102.** **7. R.RAJEES, S/O.LATE RAJAPPAN, PALLIYUDE THEKKETHIL, AKKANATTUKARA MURI THAZHAKKARA VILLAGE, MAVELIKARA TALUK, PIN-690 102.** **8. R.SANTHOSH, S/O.LATE RAJAPPAN, PALLIYUDE THEKKETHIL, AKKANATTUKARA MURI THAZHAKKARA VILLAGE, MAVELIKARA TALUK. (PVR PLASTIC WORKS, KALLUMALA, MAVELIKARA) PIN-690 102.** **9. R.RAMESH, S/O.LATE RAJAPPAN, PALLIYUDE THEKKETHIL, AKKANATTUKARA MURI THAZHAKKARA VILLAGE, MAVELIKARA TALUK (PVR PLASTIC WORKS, KALLUMALA, MAVELIKARA) PIN-690 102** **10.CHELLAMMA JANARDHANAN, W/O.JANARDHANAN, PALLIYUDE THEKKETHIL AKKANATTUKARA MURI, THAZHAKKARA VILLAGE MAVELIKARA TALUK, PIN-690 102.** ## **BY ADV. SRI.R.RAMADAS** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A. No.312 of 2011 -------------------------------------Dated this the 3[rd] day of April, 2012.** ## **JUDGMENT** The second appeal arises from the judgment and decree of learned Additional District Judge-I, Mavelikkara in A.S.No.46 of 2005 passing a decree based on a compromise between plaintiffs and 10[th] defendant and at the same time, interfering with the judgment and decree of trial court to the extent it concerned defendants 6 to 9. Plaintiffs are aggrieved and have preferred this second appeal. Parties are referred as plaintiffs and defendants as in the trial court for convenience. 2. Following substantial questions of law are framed for a decision: i. Did not the court below err in finding that the only issue which remains in appeal is whether any portion of the property of defendants/respondents in resurvey No.274/3 can be used as pathway for access to the A schedule, when the relief sought for against them is declaration of title, correction in resurvey plan and consequential injunction? ii. Did not the court below err in finding that appellants/plaintiffs admitted respondents' possession of 4.70 Ares (11 ½ cents), when plaint B schedule is only 9 ½ cents? iii. Has not the court below gone wrong by deciding the matter 2 RSA No.312/2011 in issue basing the resurvey plan, when the suit is one for correction in resurvey plan? iv. Was not the survey of plaint schedule property inevitable for proper adjudication of the matter in issue involved in the suit? 3. Plaintiffs sued for a declaration of title and possession of plaint A and D schedules, correction of the resurvey plan and for prohibitory injunction. Plaintiffs 1 and 2 are the daughters of plaintiffs 3 and 4. According to them, as per Ext.A1, gift deed executed by the father, 4[th] plaintiff got seven cents (described as plaint A schedule). On 09.09.1983, 4[th] plaintiff acquired another 7.25 cents as per Ext.A2, assignment deed executed by his brother, Parameswaran. Thus 4[th] plaintiff got 14 ¼ cents. On the same day Ext.A2, assignment deed was taken by the 4[th] plaintiff, he executed sale deed in favour of the 10[th] defendant regarding five cents (described as plaint C schedule). Thus, according to the plaintiffs, 4[th] plaintiff is the owner in possession of the remaining 9 ¼ cents after execution of assignment deed in favour of the 10[th] defendant. 4[th] plaintiff executed Ext.A8, settlement deed in favour of plaintiffs 1 and 2 regarding plaint A and D schedules, described in the plaint schedule as 7 and 2 ¼ cents respectively. Plaint B schedule is 9.5 cents belonging to defendants 6 to 9. According to the plaintiffs, when the resurvey was effected, there happened mistake as regards the 2 ¼ cents. The resurvey depicted 2 ¼ cents as situated on the northern side of plaint C schedule (five cents 4[th] plaintiff had assigned to the 10[th] defendant). According to the plaintiffs, the 2 ½ cents is situated towards south and south-west of plaint C schedule and correction and 3 RSA No.312/2011 other reliefs were accordingly sought for. 4. Contention of 10[th] defendant is that the southern portion of plaint C schedule does not belong or is in the possession of plaintiffs. Defendants 6 to 9 to whom plaint B schedule (situated on the west of plaint C schedule) belong, contended that plaintiffs have no right or possession of any portion of property towards southern side of plaint B schedule. 5. Trial court granted a decree in favour of plaintiffs as prayed for, based on Exts.C1 and C1(a). Trial court found that the blue and red shaded portions in Ext.C1(a) is the plaint D schedule (2¼ cents) and accordingly declared title and possession of plaintiffs. Direction was issued to respondents 1 to 5 to carry out necessary correction in the resurvey records. 6. Defendants 6 to 9 challenged that judgment and decree in appeal. In the course of that appeal, there was a compromise between plaintiffs and the 10[th] defendant and a compromise petition was filed. The first appellate court accepted the compromise petition and based on that, the appeal was allowed to the extent judgment and decree of trial court concerned defendants 6 to 9 (appellants in the first appellate court). Certain directions were also issued pursuant to the compromise between plaintiffs and the 10[th] defendant. That judgment and decree of first appellate court are under challenge in this second appeal. 7. It is contended by the learned counsel for appellants/plaintiffs that first appellate court has not addressed itself to the dispute between plaintiffs and defendants 6 to 9. It is pointed out by the learned counsel that first 4 RSA No.312/2011 appellate court has accepted the contention raised by defendants 6 to 9 solely on the strength of compromise between plaintiffs and the 10[th] defendant. It is contended that the compromise between plaintiffs and 10[th] defendant do not in any way advance the claim of defendants 6 to 9 so far as the red shaded portion in Ext.C1(a) is concerned. It is also pointed out by the learned counsel that the 2 ¼ cents marked in blue and red shade in Ext.C1(a) is the only means of access to the plaintiffs to the public road. 8. Learned counsel for respondents 6 to 9/defendants 6 to 9 contends that there is no reason to interfere with the judgment and decree of the first appellate court. It is also argued by the learned counsel that evidence of plaintiffs would reveal that access from plaint A schedule is towards north. 9. I have been given a copy of the compromise petition filed by plaintiffs and 10[th] defendant where the dispute between them is resolved. But based on a settlement between plaintiffs and the 10[th] defendant alone, there could be no correction of the resurvey records. Moreover the settlement between plaintiffs and the 10[th] defendant apparently cannot have any bearing on the dispute between plaintiffs and defendants 6 to 9. For, compromise between plaintiffs and 10[th] defendant is as regards providing access to the 10[th] defendant to the plaint C schedule through the disputed 2 ¼ cents (described as plaint D schedule in the plaint) and marked in blue and red colour in Ext.C1(a). Hence, notwithstanding the compromise between plaintiffs and 10[th] defendant, contention of the plaintiffs as against defendants 6 to 9 and vice versa concerning red shaded portion in Ext.C1(a) was required to be resolved by the 5 RSA No.312/2011 first appellate court. 10. I have been taken through the judgment of learned Additional District Judge. Learned Additional District Judge has referred to the various contentions raised between plaintiffs and defendants 6 to 9 and the evidence on record. It is seen from paragraph 9.3 of the judgment that first appellate court took the view that the decree passed by the trial court is liable to be set aside (in favour of defendants 6 to 9) in the light of the compromise (between plaintiffs and the 10[th] defendant), no relief is sought for with respect to the portion of property owned by defendants 6 to 9 and hence plaintiffs failed on that ground. In paragraph 10, learned Additional District Judge has referred to the compromise between plaintiffs and the 10[th] defendant and states that in the light of that compromise, they can resolve their dispute in accordance with Ext.C1(a), plan subject to the compromise. Learned Additional District Judge proceeds to say that plaintiffs and 10[th] defendant can apply for necessary corrections as per the compromise. It appears from paragraph 10 of the judgment of first appellate court that it has proceeded on the assumption that plaintiffs have not asked for any relief against defendants 6 to 9 and hence the suit against them is liable to be dismissed. The suit is disposed of after recording the compromise between plaintiffs and 10[th] defendant. 11. Before the trial court, there was dispute between plaintiffs and 10[th] defendant as to title and possession of the blue shaded portion in Ext.C1(a), whether it forms part of property belonging to the plaintiffs? As per Ext.C1(a), the green shaded portion on the north of plaint C schedule is the portion to which RSA No.312/2011 6 plaintiffs are entitled as per resurvey and comprised in survey No.274/2. According to the plaintiffs, resurvey to that extent is not correct and their entitlement is to the blue and red shaded portions towards south and south-west of plaint C schedule. Compromise entered between plaintiffs and 10[th] defendant may be relevant for deciding whether the green shaded portion on the north of plaint C schedule belongs to the plaintiffs or to the 10[th] defendant. But, that compromise cannot affect claims made by defendants 6 to 9 so far as the red shaded portion in Ext.C1(a) is concerned. That question has to be decided on the merit of the case de hors the compromise entered between plaintiffs and the 10[th] defendant. 12. In the light of the above I am inclined to think that the matter has to go back to the first appellate court for fresh decision. Equally the decree based on compromise between plaintiffs and 10[th] defendant also has to go since that has to be decided along with the contention raised by the plaintiffs and defendants 6 to 9 as to the entitlement to the blue and red shaded portions in Ext.C1(a). Substantial questions of law framed are answered as above. Resultantly, second appeal is allowed as under: i. Judgment and decree of learned Additional District Judge, Mavelikkara in A.S.No.46 of 2005 are set aside. A.S.No.46 of 2005 is remitted to the court of learned Additional District Judge-I, Mavelikkara for fresh decision on merit to the extent it concerned the appeal preferred by defendants 6 to 9. ii. First appellate court shall, while deciding the appeal filed by 7 RSA No.312/2011 defendants 6 to 9 consider the compromise petition filed by plaintiffs and 10[th] defendant as well and pass appropriate orders on the compromise petition as well. iii. Having regard to the contentions raised, parties are directed to maintain the present lie, condition and position of plaint A and D schedules until disposal of the appeal or other appropriate orders are passed by the learned Additional District Judge, whichever is earlier. iv. Learned Additional District Judge is directed to decide the appeal as early as possible having regard to the oldness of the case. v. Parties shall appear before the learned Additional District Judge-I, Mavelikkara on 25.05.2012. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**