RSA No. 231 of 2012 (AS 6/2009 of Sub Court, Kasaragod in OS 44/2008 of Addl. Munsiff, Kasaragod)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 26TH DAY OF MAY 2014/5TH JYAISHTA, 1936** ## **RSA.No. 231 of 2012 ()** **----------------------AS 6/2009 of SUB COURT, KASARAGOD IN OS 44/2008 of ADDL.MUNSIFF, KASARAGOD** **---------** ## **APPELLANTS(APPELLANTS/DEFENDANTS):** **--------------------------------------------------------------** **1. AYSHA, W/O. ISMAIL ASHRAF, RESIDING AT BEEYARAM HOUSE, MANJATHADKAM SHIRIBHAGILU VILLAGE AND POST - 671 124 KASARAGOD TALUK AND DISTRICT.** **2. M. MOHAMMOOD,** **S/O. MOHAMMAD @ KUNHAMMAD RESIDING AT M.K. SABITH COTTAGE, MANJATHADKAM SHIRIBHAGILU VILLAGE AND POST - 671 124 KASARAGOD TALUK AND DISTRICT.** **BY ADVS.SRI.D.KRISHNA PRASAD SMT.O.K.SANTHA** **SMT.S.SANTHY** **RESPONDENT(RESPONDENT/PLAINTIFF) :** **-----------------------------------------------------------** **E.P.MOOSA S/O. ISMAILO, MANJATHADKAM SHIRIBHAGILU VILLAGE AND POST - 671 124 KASARAGOD TALUK AND DISTRICT.** ## **BY ADV. SRI.SURESH KUMAR KODOTH** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 231 of 2012 - - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of May, 2014. ## **JUDGMENT** Inspired by the nomenclature of A schedule property as pathway by the re-survey authorities and drawing strength from the decision in S.A. 734 of 1971 (reported in 1973 K.L.T. SN 12), the defendants who suffered a decree at the hands of the trial court which was confirmed in appeal have come up before this Court challenging the above decree. 2. The plaintiff claims to have obtained plaint A schedule property by virtue of Ext.A2 dated 19.3.1999. According to him, the property belongs absolutely to him as per the above document of title and the nomenclature made by the authorities showing the property as pathway was behind his back. According to him, he is in absolute possession and enjoyment of plaint A schedule property and the defendants have no manner of right over the property. RSA.231/2012. 2 3. The suit was resisted by the defendants by pointing out that if at all the plaintiff had any grievance regarding the nature of the property, it was for him to approach the re-survey authorities within the time stipulated under Section 14 of the Survey and Boundaries Act. It is also contended that proceedings have been initiated by the defendants and others before the Revenue Divisional Officer complaining about the act of the plaintiff in obstructing the public pathway. 4. On the above pleadings, issues were raised by the trial court and the parties went to trial. The evidence consists of the testimony of P.Ws. 1 and 2 and documents marked as Exts. A1 to A3(c) from the side of the plaintiff. The defendants examined D.W.1 and had Ext.B1 marked. Ext.C1 is the Commissioner's report. Exts. X1 and X2 are third party exhibits. RSA.231/2012. 3 5. Both the courts below on an appreciation of the evidence found that the re-survey authorities have nomenclatured the property as a pathway without notice to the plaintiff and he is not bound by the same. Finding that the plaintiff had obtained absolute right over the property by virtue of Ext.A2, he is in possession and enjoyment of the same and since the defendants failed to establish any right to use the said plot belonging to the plaintiff, the suit was decreed. 6. Notice was issued on the following substantial questions of law formulated in the memorandum of appeal: “a) When there was a survey by the survey authorities and when a party does not object to the same by invoking the provisions in the Kerala Survey and Boundaries Act, 1961 and does not also resort to the remedy of a suit under Section 12 thereof, can such a party collaterally attack such survey in independent proceedings? RSA.231/2012. 4 b) Is not a survey and the boundary fixed by the survey officers conclusive unless challenged and modified in accordance with the provisions in the Kerala Survey and Boundaries Act? c) When public records including Field Measurement Book (FMB) maintained by the public authorities show that a re-survey had been conducted and that a particular item of property has been reserved as a public pathway, can it be ignored by the plaintiff on the allegation that such re-survey and reservation were done without his knowledge and consent and particularly when the plaintiff had not challenged such proceedings by any process known to law? d) Whether the suit as framed without being one under Order 1 Rule 9 of the Code of Civil Procedure, is maintainable? (e) Have not the Courts below misread the pleadings and the evidence on record in deciding the suit? f) Having regard to the facts and circumstances of the case, has the lower appellate court considered the appeal as an appellate court of facts and in accordance with law?” RSA.231/2012. 5 7. Learned counsel appearing for the appellants contended that the courts below have grossly erred both on facts and in law in decreeing the suit when the plaintiff has not challenged the re-survey conducted by the re-survey authorities and not filed suit within the time stipulated under Section 14 of the Survey and Boundaries Act. In support of the above contention, the decision in S.A. 734 of 1971 (reported in 1973 K.L.T. SN 12) was relied on. According to the learned counsel, the attempt of the plaintiff is to reduce a public pathway into his possession by adopting a dubious method. That cannot be permitted. 8. Learned counsel appearing for the respondent on the other hand contended that the provisions of the Survey and Boundaries Act have nothing to do with the nomenclature of the property and it is not a dispute regarding the boundaries determined by the re-survey authorities. Learned RSA.231/2012. 6 counsel went on to contend that apart from the contention that plaint A schedule is a public pathway, the defendants have not adduced any evidence to establish the said fact and if as a matter of fact it is a public pathway, necessarily it has to vest with the local authority. There is no evidence to show that there is a public pathway vested in the local authority. The defendants have also not examined any person to show that the public were using plaint A schedule as a public pathway. According to the learned counsel no grounds are made out to interfere with the judgment and decree of the courts below and the appeal is only to be dismissed. 9. After having heard learned counsel for the appellants and respondent, having perused the records and having gone through the decisions pertaining to the issue at hand, it is felt that there is considerable force in the submission made by the learned counsel for the respondents. It is not in dispute that plaint A schedule property was RSA.231/2012. 7 purchased by the plaintiff as per Ext.A2 document already referred to. The defence set up is that the attempt of the plaintiff is to reduce the said pathway into his possession. 10. The main contention raised is that in the re-survey conducted by the authorities plaint A schedule is shown as pathway. If the plaintiff is aggrieved, he has to take necessary steps under the Survey and Boundaries Act. 11. The above contention has to fail for more than one reason. First of all the dispute is not regarding the boundaries as determined by the re-survey authorities but pertaining to the title and nature of the property involved in the suit. Therefore, the question regarding the applicability of Section 14 of the Act as determined in the decision reported in S.A. 734 of 1971 (reported in 1973 K.L.T. SN 12) may not have any application to the facts of the case. In fact with regard to the question as to the title to the property and nomenclature of the property, the issue was considered in the RSA.231/2012. 8 decisions reported in Kannan v. Kannan (1964 K.L.T. 228), Ibrahim v. Saythumuhammed (2013(4) K.L.T. 435) and Venugopalan Nair v Saraswathy Amma (2013(4) K.L.T. 717). In all these decisions, it was held that when the matter relates to the title to the suit property or nature of the property, the decision of the survey authorities cannot be treated as final and Section 14 of the Act has no bearing to a suit by the person concerned who is aggrieved by the determination of the nature of the property by the re-survey authorities. 12. The principle laid down in the above decisions apply to the facts of the present case. Apart from the above fact, even though the defendants contended that the documents of title of the persons owning property adjacent to the property in question shows the public pathway as boundary, for reasons best known to the defendants, owner of none of the adjacent properties were examined to establish the claim of the defendants. Further, though it was claimed RSA.231/2012. 9 that the proceedings before the RDO were initiated by the persons in the locality with regard to the pathway, no documents have been produced to establish that fact also. 12. Again as per the existing law, if there is a public pathway, it has to vest with the local authority. There was no attempt from the side of the defendants to show that the pathway in question has vested with the local authority so as to term it as a public pathway. 13. Even though the courts below have not adverted to these aspects, it is clear that the issue is not regarding the determination of the boundaries by the re-survey authorities. Both the courts below found that plaint A schedule property was nomenclatured as a pathway without notice to the plaintiff. For the above reasons, this Court finds no reason to take a different view than the one taken by the courts below. RSA.231/2012. 10 This appeal is without merits and it is liable to be dismissed. I do so. However, there will be no order as to costs. P. BHAVADASAN, JUDGE sb.