Regular Second Appeal Nos. 315 of 2020 and 60 of 2023, High Court of Kerala at Ernakulam

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA, 1945 ``` ## **`RSA NO. 315 OF 2020`** ``` AGAINST THE JUDGMENT AND DECREE DATED 30.03.2019 IN A.S.NO.16/2018 ON THE FILES OF THE SUB JUDGE, CHENGANNUR ARISING FROM THE JUDGMENT AND DECREE DATED 30.11.2010 IN O.S.NO.196/2009 ON THE FILES OF THE ``` ``` MUNSIFF’S COURT, CHANGANNUR ``` ## **`APPELLANTS/RESPONDENTS IN A.S./DEFENDANTS IN O.S:`** - **`1 KERALA GOVERNMENT, REPRESENTED BY THE DISTRICT COLLECTOR, ALAPPUZHA.`** - **`2 THE TAHSILDAR, TALUK OFFICE, CHENGANNUR.`** - **`3 THE VILLAGE OFFICER, VILLAGE OFFICE, ENNACKADU,`** - **`4 THE SURVEY SUPERINTENDENT, RE-SURVEY SUPERINTENDENT OFFICE, ALAPPUZHA BY ADV GOVERNMENT PLEADER SR GP - K DENNY DEVASSY`** ## **`RESPONDENTS/APPELLANTS IN A.S./PLAINTIFFS IN O.S.:`** - **`1 PERINGILIPPURAM SREE BHUVANESWARY TEMPLE, REP BY T.N.KANDERARU, THEKKUMANMADATHIL HOUSE, SUCHEENDRAM, KANYAKUMARI DISTRICT.`** - **`2 SREE BHUVANESWARY TEMPLE ADMINISTRATIVE COMMITTEE NO 119/95,`** - **`PERINGILIPPURAM MURI, ENNACKADU VILLAGE, CHENGANNUR TALUK, REP BY ITS PRESIDENT BALACHANDRAN, THOTTAYIL HOUSE, PERINGILIPPURAM MURI, ENNACKADU VILLAGE.`** - **`3 SREE BHUVANESWARY TEMPLE ADMINISTRATIVE COMMITTEE NO 119/95, PERINGILIPPURAM MURI, ENNACKADU VILLAGE, CHENGANNUR TALUK, REP BY ITS SECRETARY T.K.REGHUNATHAPILLAI, KARTHIKA HOUSE,PERINGILIPPURAM MURI, ENNACKADU VILLAGE.`** - **`BY ADVS. C.B.SREEKUMAR K.NATRAJ`** ``` 2 ``` ``` R.S.A. No. 315 of 2020 & ``` ``` R.S.A. No. 60 of 2023 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ORDERS ON 30.11.2023, ALONG WITH RSA NO.60/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. No. 315 of 2020 & ``` ``` 3 ``` ``` R.S.A. No. 60 of 2023 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA, 1945 ``` ``` RSA NO. 60 OF 2023 ``` ``` AGAINST THE JUDGMENT DATED 30.03.2019 IN A.S.NO.16 OF 2018 ON THE FILES OF THE SUB COURT, CHENGANNUR AROSE FROM THE JUDGMENT DATED 28.03.2018 IN O.S.NO.196 OF 2009 ON THE FILES OF THE MUNSIFF COURT, CHENGANNUR ``` ## **`APPELLANTS/(LEAVE TO APPEAL SOUGHT FOR VIDE SEPARATE APPLICATION:`** - **`1 UMA MOHAN W/O.MOHANKUMAR, MAHESH BHAVANAM, PERINGILIPPURAM MURI, ENNACKADU VILLAGE, CHENGANNUR TALUK, PIN-689624.`** - **`2 MOHANKUMAR, S/O.SREEDHARAN PILLAI, MAHESH BHAVANAM, PERINGILIPPURAM MURI, ENNACKADU VILLAGE, CHENGANNUR TALUK, PIN-689624.`** - **`3 UMESH MOHAN, S/O.MOHANKUMAR AND UMA MOHAN, MAHESH BHAVANAM, PERINGILIPPURAM MURI, ENNACKADU VILLAGE, CHENGANNUR TALUK, PIN-689624.`** - **`BY ADVS. JACOB P.ALEX JOSEPH P.ALEX MANU SANKAR P.`** ## **`RESPONDENTS/APPELLANTS & RESPONDENTS/PLAINTIFFS & DEFENDANTS:`** - **`1 PERINGILLIPURAM SREEBHUVANESWARI TEMPLE REP. BY ITS OORAZHAMA, T.N.KANDERARU, AGED 85 YEARS, (THEKKUMMADATHIL HOUSE, SUCHEENDRANM, KANYAKUMARI (DIST.) PERUMBARA MADATHIL, THRIPERUMTHURA MURI, CHENNITHALA VILLAGE, MAVELIKKARA TALUK, PIN-690104.`** - **`2 SREE BHUVANESWARI TEMPLE, ADMINISTRATIVE COMMITTEE NO.119/95, PERINGILLIPURAM MURI, ENNAKKADU VILLAGE, CHENGANNUR TALUK, REP. BY ITS PRESIDENT, BALACHANDRAN, AGED 68 YEARS, THOTTAYIL HOUSE,`** ``` 4 ``` ``` R.S.A. No. 315 of 2020 & ``` ``` R.S.A. No. 60 of 2023 ``` - **`PERINGILLIPURAM MURI, ENNAKKADU VILLAGE, PIN-689624.`** - **`3 SREE BHUVANESWARI TEMPLE, ADMINISTRATIVE COMMITTEE NO.119/95, PERINGILLIPURAM MURI, REP. BY ITS SECRETARY, T.K.REGHUNATHA PILLAI, AGED 60 YEARS, KARTHIKA HOUSE, PERINGILLIPURAM MURI, ENNAKKADU VILLAGE, PIN-689624.`** - **`4 KERALA GOVERNMENT (STATE OF KERALA) REPRESENTED BY THE DISTRICT COLLECTOR, CIVIL STATION, ALAPPUZHA, ALAPPUZHA, PIN-688001.`** - **`5 THE TAHSILDAR, CHENGANNUR TALUK OFFICE, CHENGANNUR, ALAPPUZHA, PIN689121.`** - **`6 THE VILLAGE OFFICER, VILLAGE OFFICE, ENNAKKADU, ALAPPUZHA, PIN-689624.`** - **`7 THE SURVEY SUPERINTENDENT, RE-SURVEY SUPERINTENDENT OFFICE, ALAPPUZHA, PIN-688001. BY ADV SRI.C.B.SREEKUMAR – FOR R2 & R3 GP FOR R4 TO R7`** ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ORDERS ON 30.11.2023, ALONG WITH RSA NO.315/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 5 ``` ``` R.S.A. No. 315 of 2020 & R.S.A. No. 60 of 2023 ``` ## **JUDGMENT** ## **Dated this the 30[th] day of November, 2023** R.S.A. No.315 of 2020 has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.16 of 2018 dated 30.03.2019 on the files of the Court of the Sub Judge, Chengannur arose from decree and judgment in O.S. No.196 of 2009 dated 30.11.2010 on the files of the Munsiff Court, Chengannur. The appellants herein are the defendants who are the Government and its officials. The respondents are the plaintiffs in O.S. No.196 of 2009. 2. R.S.A. No.60 of 2023 has been filed at the instance of third party, who are aggrieved by the appellate judgment in A.S. No.16 of 2018 challenged in R.S.A. No.315/2020. The respondents in this second appeal are the plaintiffs and defendants in O.S. No.196 of 2009. 3. Heard the learned counsel for the appellants, the ``` R.S.A. No. 315 of 2020 & ``` ``` 6 ``` ``` R.S.A. No. 60 of 2023 ``` learned counsel for the third party as well as the learned Government Pleader in both appeals. 4. Parties in this appeal shall be referred as “plaintiffs”, “defendants” and “third party” hereinafter for convenience. 5. At the time of hearing, my learned predecessor admitted R.S.A. No.315 of 2020 by formulating the following substantial questions of law as per order dated 07.02.2023, which are as under: (a) Whether the plaint schedule property is identified? (b) Whether the declaration of right and title granted by the 1[st] Appellate Court is legal and proper? 6. Similarly, R.S.A. No.60 of 2023 was admitted by formulating the following substantial question of law as per order dated 07.02.2023, which is as under: (a) Whether the declaration of right and title granted by the 1[st] Appellate Court is legal and proper? 7. Originally the suit for declaration of title was filed ``` R.S.A. No. 315 of 2020 & ``` ``` R.S.A. No. 60 of 2023 ``` ``` 7 ``` by the plaintiffs representing Peringilipuram Sreebhuvaneswari Temple through its oorazhma right holder, seeking the relief to declare title and possession of plaint item No.3 property having an extent of 4.10 Ares inclusive of 2.30 Ares situated in Old Survey No.59/6A and Re survey Nos.351/1 and 351/2. According to the plaintiffs, plaintiffs obtained title and possession in respect of 3.30 Acres of land and the 1[st] plaintiff has been managing the administration of the Temple after possessing and enjoying the entire extent of land described as plaint item No.1 property. According to the plaintiffs, at the time of resurvey, a portion, more particularly, 2.30 ares in old survey No.59/6A and in resurvey No.351/1 wrongly included as puramboke road, though the same is part and parcel of plaint item No.1 property. Accordingly, plaintiffs filed suit for declaring title over plaint item No.3 property and also for mandatory injunction directing the defendants to make corrections in the revenue records accordingly. 8. The defendants/Government resisted the suit and filed written statement. The defendants/Government raised ``` 8 ``` ``` R.S.A. No. 315 of 2020 & ``` ``` R.S.A. No. 60 of 2023 ``` contention that in respect of property having an extent of 3.30 Acres in Block No.3 and Thandaper No.1731, the plaintiffs do not have any documents. The specific contention raised by the defendants is that 2.30 Ares of property included in resurvey No.350/1 is a public road and the same is not the property of the plaintiffs. Accordingly, the defendants prayed for dismissal of the suit. 9. The trial court appreciated the contentions based on evidence and finally dismissed the suit. 10. But, on appeal, the learned Sub Judge who heard A.S. No.16/2018 challenging the verdict of the Munsiff in O.S. No.196/2009, reversed the said finding and finally granted decree declaring title of the plaintiffs over item No.3 property and also granted mandatory injunction directing the defendants to make necessary corrections in the revenue and resurvey records with respect to item No.3 property. 11. It is argued by the learned counsel appearing for the third party that in a suit for declaration of title, it is the duty of the plaintiffs to prove the title independently. The ``` R.S.A. No. 315 of 2020 & ``` ``` R.S.A. No. 60 of 2023 ``` ``` 9 ``` learned counsel relied on the decisions of the Apex Court reported in **[(2014) 2 SCC 269] Union of India and Others v. Vasavi Cooperative Housing Society Limited and Others, [(2019) 6 SCC 82] Jagdish Prasad Patel (Dead) Through Legal Representatives and Another v. Shivnath and Others, [(2007) 6 SCC 186] Suraj Bhan and Others v. Financial Commissioner and Others, [(2004) 10 SCC 779] Karnataka Board of WAKF v. Government of India and Others** . 12. The learned Government Pleader also placed the latest decision on this point rendered by the Apex Court reported in **[2023 KHC 6998 : 2023 INSC 1009 : 2023 LiveLaw (SC) 999 : 2023 SCC OnLine SC 1483] Kishore Kumar P. v. Vittal K. Patkar** to assert the same point argued by the learned counsel for the third party. 13. In so far as the law regarding the relevancy of revenue records in the matter of title, it is the trait law that revenue records do not confer title upon anybody. The Apex Court referred the earlier precedents in paragraph No.11 of ``` R.S.A. No. 315 of 2020 & R.S.A. No. 60 of 2023 ``` ``` 10 ``` **Kishore Kumar P.** ’s case (supra) and held as under: Contention advanced on behalf of the plaintiff that through the record of rights the plaintiff has established his title by a preponderance of probabilities is not sustainable. As noted above, the plaintiff failed to produce a single document of title in respect of the suit property. In a dispute with respect to determination of title, merely pointing out the lacunae in the defendant's title would not suffice. Having instituted the suit for declaration, the burden of proof rested on the shoulders of the plaintiff to reasonably establish the probability of better title, which the plaintiff in the present case, has manifestly failed to do. 14. It is relevant to note that, the learned counsel for the third party submitted that, the trial court rightly dismissed the suit, since the plaintiffs failed to prove title upon plaint item No.3 property. But, the Appellate Court has given heavy reliance on Ext.A6 field register to find title. It is argued by the learned counsel for the third party that the Field Register has no significance in so far as the question ``` 11 ``` ``` R.S.A. No. 315 of 2020 & ``` ``` R.S.A. No. 60 of 2023 ``` of title is concerned and as per Section 65 of the Survey and Boundaries Rules, 1964, records to be prepared by the survey officer in the case of cadastral survey seen provided and in Section 65(i) of the Rules filed register is referred to the effect that “field register showing the number and area of each survey field and sub-division, and as far as ascertainable, the tenure and ownership of the same”. Similarly, Section 65(ii) of the Rules also refers “record of measurement or field measurement book plotted to scale and showing measurement taken for each field and subdivision”. 15. As pointed out by the learned counsel for the third party as well as by the learned Government Pleader, the trial court meticulously analyzed the evidence with reference to Ext.X1 and Ext.A6 field register. It is noticed that Ext.X1 is a file relating the dispute in the resurvey generated during the pendency of the present suit and as per which also no correction made to include plaint schedule item No.3 property as the property of the plaintiffs in revenue records. ``` 12 ``` ``` R.S.A. No. 315 of 2020 & ``` ``` R.S.A. No. 60 of 2023 ``` 16. In paragraph No.11 of the trial court judgment, the trial court found that the plaintiffs failed to establish that plaint schedule item No.3 was part of the property of the plaintiffs comprised on old survey No.59/6A and the same remains as road puramboke as evident from the revenue records. 17. However, the Appellate Court wrongly understood and appreciated the facts of the case. On perusal of the appellate judgment, it appears that paragraph No.10, the Appellate Court found that “admittedly, 1[st] plaintiff Temple had a total extent of 3 acres and 30 cents, as per the grant given by the erstwhile rulers, as stated above”. On perusal of the pleadings or the evidence rendered from the otherside, nowhere such an admission was made and the specific case of the Government was that the records to prove title of the plaintiffs in relation to 3.30 Acres of land not produced by the plaintiffs. Therefore, the Appellate Court went wrong in holding that it was admitted by the defendants in any manner. ``` R.S.A. No. 315 of 2020 & ``` ``` R.S.A. No. 60 of 2023 ``` ``` 13 ``` 18. It is relevant to note that the Appellate Court given much emphasis to Ext.A6 which is a field register to find title of the plaintiffs over plaint schedule item No.3 property, even though field register could not be given emphasis to confer title. It is relevant to note that in the instant case, plaintiffs are in possession and enjoyment of property excluding 2.30 Ares scheduled as item No.3. Absolute title in relation to the said property is also not available. But the possession of the plaintiffs over the said property excluding 2.30 Ares is not in dispute. Coming to item No.3 having an extent of 2.30 Ares, the same was specifically included in resurvey No.351/1, lies as Government puramboke road and according to the third party, the same is the public road which is the only access available to the house of the third party. 19. The upshot of the discussion is that the plaintiffs miserably failed to prove title over the plaint item No.3 property. Since the plaintiffs miserably failed to prove title in respect of item No.3 property, the Appellate Court went wrong in declaring title merely relying on Ext. X1 and ``` R.S.A. No. 315 of 2020 & ``` ``` R.S.A. No. 60 of 2023 ``` **==> picture [13 x 8] intentionally omitted <==** Ext.A6 field register, against the well settled law that revenue records do not confer title. 20. In the result, these regular second appeals stand allowed. The decree and judgment, under challenge, in A.S. No.16/2018 dated 30.03.2019 stand set aside and the verdict of the learned Munsiff Court stands restored. Consequently the suit stands dismissed. Coming to the nature of these cases, parties shall suffer their respective costs. All interlocutory application also stands dismissed. **Sd/-** ## **A. BADHARUDEEN** **JUDGE** SK ``` 15 ``` ``` R.S.A. No. 315 of 2020 & ``` ``` R.S.A. No. 60 of 2023 ``` ## **`APPENDIX OF RSA 315/2020`** ``` RESPONDENT ANNEXURES Annexure R3(1) ``` ``` True copy of the judgment of this Hon'ble Court in W.P(C).No.22422 of 2020 dated 21.10.2020 ```