P.V. Varghese and Others v. The Secretary, Vadavukode Puthencruz Grama Panchayath and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` THURSDAY, THE 20[TH] DAY OF JANUARY 2022 / 30TH POUSHA, 1943 RSA NO. 11 OF 2006 ``` ``` AGAINST THE JUDGMENT & DECREE DTD. 30.9.2005 IN AS 192/2004 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR IN O.S.NO.415/1998 OF MUNSIFF’S COURT, PERUMBAVOOR ``` ## **`APPELLANTS/RESPONDENTS 1 TO 3/PLAINTIFFS:`** - `1 P.V.VARGHESE, S/O.LATE VARGHESE, POOPPANAL HOUSE, PUTTUMANOORKARA,, PUTHENCRUZ VILLAGE. (DIED)` - `2 P.V.PAULOSE SO.LATE VARGHESE DO. DO.` - `3 P.V.CHERIAN SO.LATE VARGHESE DO. DO.` - `ADDL.4 ALIAMMA,AGED 45 YEARS, D/O.LATE P.V.VARGHESE AND W/O.AVARACHAN, OLIKKAL, VALAMBOOR P.O., PATTIMATTOM.` - `ADDL.5 KUNJUMOL VARGHESE,AGED 43, D/O.LATE P.V.VARGHESE AND W/O.VARGHESE T.J., THACHETHU, KOKKAPPILLY P.O.` - `ADDL.6 P.V.GEORGE, (DIED) AGED 49 YEARS, S/O.LATE P.V.VARGHESE, THACHETHU, KOKKAPPILLY P.O.` ``` (LEGAL HEIRS OF DECEASED 1ST APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 4 TO 6 AS PER ORDER DATED 27.09.2017 IN IA.2074/2010) ``` - `ADDL.7 LISSY GEORGE,AGED 48 YEARS W/O.LATE.GEORGE P.V., POOPPANAL PUTTUMANOOR KARA,PUTHENCRUZ P.O., ERNAKULAM-682 308.` 2 R.S.A.No.11 of 2006 ``` ADDL.8JUBLE GEORGE,AGED 28 YEARS S/O.LATE.GEORGE P.V., POOPPANAL PUTTUMANOOR KARA, PUTHENCRUZ P.O., ERNAKULAM-682 308. ``` ``` ADDL.9JUBY MARIAM GEORGE,AGED 25 YEARS D/O.LATE.GEORGE P.V., POOPPANAL PUTTUMANOOR KARA, PUTHENCRUZ P.O., ERNAKULAM-682 308. ``` - `ADDL.10 JULY MARIAM GEORGE,AGED 25 YEARS D/O.LATE.GEORGE P.V., POOPPANAL PUTTUMANOOR KARA, PUTHENCRUZ P.O., ERNAKULAM-682 308.` ``` (LEGAL HEIRS OF DECEASED ADDL.APPELLANT 6 ARE IMPLEADED AS ADDL.APPELLANTS 7 TO 10 AS PER ORDER DATED 27.09.2017 IN IA.2458/2017) ``` ``` BY ADVS.SRI.P.JACOB VARGHESE (SR.) SRI.VIVEK VARGHESE P.J. ``` ## **`RESPONDENTS/APPELLANT/RESPONDENTS 4 TO 8/DEFENDANTS:`** - `1 THE SECRETARY THE VADAVUKODE PUTHENCRUZ GRAMA PANCHAYATH, PUTHENCRUZ P.O.` - `2 GOVERNMENT OF KERALA REP. BY THE DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION,, KAKKANADU P.O.` - `3 THE SUPERINTENDENT OF SURVEY AND LAND RECORDS ERNAKULAM DISTRICT, CIVIL STATION, KAKKANADU P.O.` - `4 THE TAHSILDAR KUNNATHUNADU TALUK PERUMBAVOOR.` - `5 THE VILLAGE OFFICER PUTHENCRUZ VILLAGE, PUTHENCRUZ P.O.` R.S.A.No.11 of 2006 3 ``` 6DEPUTY DIRECTOR OF SURVEY AND LAND RECORDS ERNAKULAM DISTRICT, COLLECTORATE, KAKKANADU P.O. ERNAKULAM. ``` ``` R1 BY ADV. SRI.M.P.MADHAVANKUTTY (SC) R2 TO R6 BY G.P.SRI.BAIJU RAJ ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.S.A.No.11 of 2006 4 ## **JUDGMENT** This appeal arises from the judgment and decree dated 30.9.2005 in A.S.No.192 of 2004 on the file of the Additional District Court, North Paravur. The appeal suit arose from the judgment and decree passed in O.S.No.415 of 1998 passed by the Munsiff’s Court, Perumbavoor. 2. The plaintiffs are the appellants and the defendants are the respondents. 3. The plaintiffs instituted the original suit for a declaration of their right, title, interest and possession over the plaint ‘A’ and ‘B’ schedule properties and for other consequential reliefs. 4. According to the plaintiffs, they acquired title and possession over the plaint ‘A’ schedule property as per purchase certificate No.1390/1970 in O.A.No.3719/1970 and over ‘B’ schedule property under purchase certificate No.5478/1975 in O.A.No.3720/1970. The properties are lying contiguously within a single plot. According to the plaintiffs, a Panchayat road runs on the northern and eastern sides of the plaint schedule properties. The Re-survey in respect of the plaint schedule properties was finalised in 1991. The plaintiffs approached the Village Officer for remitting the basic tax in respect of ‘A’ schedule R.S.A.No.11 of 2006 5 property in 1997. The Village officer, defendant No.4, refused to accept the tax. Plaintiff No.1 preferred a complaint before defendant No.1. Subsequently, it was revealed that a portion on the northern side of ‘A’ schedule property was marked as puramboke land. The plaintiffs caused to issue notice dated 1.6.1998 calling upon the defendants to rectify the mistake. 5. Defendant Nos.1 to 4 resisted the suit contending that the plaintiffs have not acquired title over the entire plaint schedule properties. The plaintiffs have encroached upon a portion of the puramboke land. The suit instituted by the plaintiffs is barred by limitation as provided under Section 14 of the Kerala Survey and Boundaries Act (for short “the Act”). 6. Defendant No.5, the Panchayat contended that the northern and southern sides of the plaint schedule properties are puramboke lands comprised in resurvey No.281/2017 in Block No.39 of Puthencruz village. The properties comprised in resurvey No.281/2017 in Block No.39 are vested with the 5[th] defendant Panchayat and are in the exclusive possession and enjoyment of the Panchayat. The Panchayat has erected a public water tap in that portion of the land. An electric post with sodium vapour lamp was also installed in the property of the Panchayat. R.S.A.No.11 of 2006 6 7. The parties went to trial. During the trial, PWs 1 and 2 were examined and Exts.A1 to A11 were marked on the side of the plaintiffs and Ext.B1 was marked on the side of the defendants. Exts.C1 to C2(a) were marked as Court exhibits. 8. The trial Court decreed the suit declaring plaintiffs’ right, interest and possession over plot Nos.1 and 2 in Ext.C1 plan. A mandatory injunction was also granted in favour of the plaintiffs directing defendants 1 to 4 to rectify the mistakes in the survey records. The court below also granted a permanent prohibitory injunction in favour of the plaintiffs restraining the defendants from trespassing upon plot Nos.1 and 2 in Ext.C1 plan. 9. Defendant No.5 Panchayat challenged the said judgment and decree in A.S.No.192 of 2004 before the First Appellate Court. The First Appellate Court reversed the decree and judgment of the trial Court holding that the suit is hit by Section 14 of the Survey and Boundaries Act and the plaintiffs are not entitled to the relief of rectification of resurvey records as it is hit by Section 34 of the Specific Relief Act. 10. Aggrieved by the judgment and decree of the First Appellate Court, the plaintiffs have filed this Regular Second Appeal. R.S.A.No.11 of 2006 7 ## 11. This Court admitted the appeal on the following substantial questions of law:- 1. Is not the plaintiffs entitled for declaration on the basis of the title documents, purchase certificates issued by the land tribunal and the orders correcting the wrong resurvey measurements ? 2. Whether the resurvey measurement, sketch prepared by the resurvey officers, final and conclusive and is not civil court competent to declare mistakes and direct correction. 12. Heard Sri.Vivek Varghese P.J., the learned counsel for the appellants/plaintiffs, Sri.Baiju Raj, the learned Government Pleader and Sri.M.P.Madhavankutty, the learned counsel appearing for defendant No.5 Panchayat. 13. The case of the plaintiffs is that they are the absolute owners in possession of plaint ‘A’ and ‘B’ schedule properties. They acquired title to these properties under Exts.A1 and A2 purchase certificates. 14. A Panchayat road runs on the northern and eastern sides of the plaint ‘A’ and ‘B’ schedule properties. 15. In the resurvey, the north-eastern portion of ‘A’ schedule property was demarcated as puramboke land by the survey authorities. 16. Defendant Nos. 1 to 4 challenge the claim of the plaintiffs that they have title over the entire `A’ and `B’ schedule R.S.A.No.11 of 2006 8 properties. According to defendants 1 to 4, the plaintiffs have encroached upon a portion of the puramboke land, which is in possession of defendant No.5 Panchayat. 17. The Panchayat also raised the contention that the property claimed to be in possession of the plaintiffs, comprised in resurvey No.281/2017, is in the actual possession and enjoyment of the Panchayat. The Panchayat erected a public water tap and electric post with sodium vapour lamp on that property. 18. The plaintiffs were non-suited by the First Appellate Court mainly on the ground that the suit is hit by Section 14 of the Survey and Boundaries Act and Section 34 of the Specific Relief Act. 19. The First Appellate Court found that as the resurvey was finalised in 1991, the original suit instituted by the plaintiffs in 1998 for rectification of the mistakes in the resurvey is not maintainable because of the bar contained under Section 14 of the Act. The learned counsel for the appellants/plaintiffs contended that the dispute centres around the title of the properties, and the findings on the fixation of the survey boundaries by the survey authorities cannot be taken as conclusive on the dispute relating to the title of the properties. The learned counsel contended that the present suit which centres around the title of the plaintiffs over `A’ and `B’ schedule properties will not come within the R.S.A.No.11 of 2006 9 ambit of Section 14 of the Survey and Boundaries Act. The learned counsel for the plaintiffs further contended that the survey authorities are not empowered to change the nature of the land by exercising the powers under the Act. It is also contended that the survey authorities are only empowered to determine the boundaries of the properties and the decisions rendered by the survey authorities by exercising the powers under the Survey and Boundaries Act will not affect the right and title of the parties over the properties in dispute. 20. The learned Government Pleader and the learned counsel for the 5[th] respondent, per contra, contended that the dispute in the present case relates to the boundaries of the properties, and hence, the dispute would come within the ambit of Section 14 of the Act. It is submitted that the suit is not maintainable and it is barred by limitation. 21. The plaintiffs have instituted the original suit for a declaration that they have right, title and possession over `A’ and `B’ schedule properties based on the pleading that they have acquired title over the properties by virtue of Exts.A1 and A2 title documents. The suit as framed by the plaintiffs is not a suit for rectifying the mistakes that crept in the resurvey records. R.S.A.No.11 of 2006 10 22. The issue regarding title and possession over the property is to be decided by the Civil Court. Section 9 of the Code of Civil Procedure gives that power to the Civil Court unless it is expressly or by necessary implication taken away. The question whether the plaintiffs have title and possession over the suit properties is basically a matter which the Civil Court has to decide after recording evidence based on the materials placed before it. Therefore, Civil Court alone has the power to decide on a dispute regarding the title and possession even when the resurvey has become final and the suit is not brought within the period prescribed in Section 14 of the Act. This view is fortified by the decisions of this Court in **Kannan** v. **Kannan (1964 KHC 67)** and **Sarala and Another** v. **Vijayan and Another (2013 (3) KHC 419)** . Therefore, this Court is of the view that the finding of the First Appellate Court that the suit is hit by Section 14 of the Act cannot be sustained and the same is liable to be set aside. 23. The First Appellate Court thereafter recorded the finding that the suit is hit by Section 34 of the Specific Relief Act on the ground that a prayer for declaration of title without seeking a further relief of rectification of resurvey records cannot be granted. In the present suit, in addition to the declaratory relief, the plaintiffs have prayed for directing the official defendants by way of a mandatory injunction to R.S.A.No.11 of 2006 11 rectify the mistakes in the resurvey records and also prayed for a permanent prohibitory injunction against the defendants. As per Section 34 of the Specific Relief Act, no court shall make any declaration as provided therein where the plaintiff can seek further relief than a mere declaration of title and omits to do so. In the case on hand, the plaintiffs have sought for consequential reliefs required in the facts and circumstances of the case and so this Court is of the view that the suit cannot be held to be hit by Section 34 of the Specific Relief Act. So, the finding of the First Appellate Court to that effect is also liable to be set aside. 24. In view of the finding that the suit was hit by Section 14 of the Act and Section 34 of the Specific Relief Act, the First Appellate Court has not re-appreciated the issues relating to right title, possession etc., in respect of the properties, of the competing parties. Being the final fact appreciating court, the First Appellate Court is expected to re-appreciate the entire questions of fact and law. In **Santhosh Hazari** v. **Purushottam Tiwari (Deceased) By LRS [(2001) 3 SCC 179]** , the Apex Court held that first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind and record R.S.A.No.11 of 2006 12 findings supported by reasons on all the issues arising along with the contentions put forth and pressed by the parties for decision of the Appellate Court. In the present case, this Court is of the view that there had not been effectual adjudication of the lis in the First Appellate Court. The resultant conclusion is that the matter is liable to be remitted to the First Appellate Court for fresh adjudication in accordance with law. In the result, this regular second appeal stands allowed by way of remand. The judgment and decree passed by the First Appellate Court are set aside. The matter is remitted to the First Appellate Court for passing revised judgment in accordance with law. The parties are directed to appear before the First Appellate Court on 3.3.2022. The First Appellate Court shall dispose of the appeal expeditiously. The parties are directed to bear their respective costs. Sd/- **K.BABU Judge** TKS