Sebastian Joseph v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 RSA.No. 1000 of 2004() ---------------------AS.314/2001 of I ADDL. DISTRICT COURT, PALAKKAD OS.606/1993 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT ----------------------------- SEBASTIAN JOSEPH, S/O.JOSEPH, RESIDING AT CHARUSSERY HOUSE, MALAMPUZHA II VILLAGE, PALAKKAD TALUK. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, PALAKKAD. 2. THE TAHSILDAR, PALAKKAD TALUK, PALAKKAD. 3. THE VILLAGE OFFICER, MALAMPUZHA II VILLAGE, PALAKKAD TALUK. 4. THE EXECUTIVE ENGINEER, PWD IRRIGATION DIVISION, MALAMPUZHA. GOVERNMENT PLEADER SMT.K.T.LILLY. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/12/2011, ALONG WITH RSA NO.1007 OF 2004 WPC NO. 22582 OF 2007 THE COURT ON 08/12/2011 PASSED THE FOLLOWING: ## **M.L.JOSEPH FRANCIS, J. ----------------------------------------------R.S.A. Nos.1000 & 1007 of 2004 and W.P.(C) No.22582 of 2007** **----------------------------------------------Dated 8[th] December, 2011.** ## **J U D G M E N T** R.S.A.1000/04 is filed by the plaintiff in O.S.606/93 and R.S.A.1007/04 is filed by the plaintiff in O.S.483/93 on the file of the Sub Court, Palakkad. W.P.(C) No.22582/2007 is filed by the petitioner/plaintiff in I.A.1199/07 in O.S.483/93 on the file of the Sub Court, Palakkad. 2. O.S.606/93 is a suit for declaration that the plaint schedule property having 1 acre and 25 cents is not puramboke or Government land and for restraining the defendants from proceeding with the eviction proceedings against the plaintiff from the plaint schedule property. The plaintiff's case is that the plaint schedule property and adjacent properties belonged to Desamangalam Mana and the Mana executed a sale deed no.1133/1968 for the plaint property and adjacent land in favour of one Skaria Thomas and he assigned his right in favour of the plaintiff by sale deed no.2167/1976(Ext.A8) dated 26.6.1976 and that he was in possession of the plaint schedule property including the adjacent land. The property is coconut RSA 1000/04 & connected cases 2 plantation and there are 85 coconut trees more than 50 years old and the same was planted by the original Jenmi. The Jenmi was in actual possession till 1968 and the possession was transferred to the assignees. The boundaries shown in the sale deed will take in the plaint schedule property also. But the respondents are taking land conservancy proceedings against the plaintiff to evict him on the ground that the plaint property is Government puramboke land. They represented that the property is Sirkar land which is a clear mistake and on the representation, plaintiff applied for assignment of land. But such applications due to mutual mistake, as the land is private property for which basic tax is levied and paid by the plaintiff. Hence the suit was filed for declaration and injunction. The defendants contended that the suit is not maintainable. The property originally belonged to Mana but the same was acquired by the Government for Malampuzha Irrigation Project as per the Land Acquisition Act. The Mana has no right and the plaintiff also did not get any right. Eviction proceedings have been taken against the plaintiff and the proceedings have RSA 1000/04 & connected cases 3 become final. The case of misrepresentation by the revenue authorities was denied and they prayed for dismissal of the suit. 3. O.S.483/1993 was originally filed for injunction restraining the defendants from taking eviction proceedings against the plaintiff in respect of the plaint schedule property by means of an order of perpetual injunction. The suit was amended incorporating the prayers namely declaration that the plaint schedule properties are not Government land or land acquired by the Government under any other law and also declaring the right, if any, of the Government over the plaint schedule property as puramboke is barred by limitation and adverse possession. The plaintiff's case was that the plaint schedule property having 2 acres 34 cents originally belonged to one Narayanan Namboodiri and his wife of Desamangalam Mana who obtained the above property along with other properties by virtue of a partition deed No.112 of 1950 of Ottappalam S.R.O. Narayanan Namboodiri clear-fell the property and planted coconut saplings. He and his wife applied for permission for the sale of the properties obtained by them RSA 1000/04 & connected cases 4 under the partition deed as per the P.P.F. Act and the District Collector, Palakkad granted permission to sell the properties as per order dated 19.1.1967 and by order dated 3.1.1968. Narayanan Namboodiri sold the properties to various persons. He sold the plaint schedule property along with other properties to one Mathew and Annamma Mathew as per sale deed no.1141/68 and 1146/68 of Ottappalam S.R.O. The boundaries of the property thus sold to them were clearly specified in the document. The plaint schedule property was included in the sale deed even though the Survey number of the property was not included therein. Over and above the improvements effected by Narayanan Namboodir the assignees also effected substantial improvements and they were in actual physical possession and enjoyment of the property and the property comprised in the above sale deeds were finally purchased by the plaintiff as per sale deed nos.2992/91 and 2995/91 of S.R.O., Palakkad and ever since the plaintiff was in actual possession and enjoyment of the property. The 2[nd] defendant initiated land conservancy proceedings on the ground that the RSA 1000/04 & connected cases 5 plaint schedule property is Government puramboke land against the plaintiff's predecessor in interest and the plaintiff. As a matter of fact, the property is not puramboke land. The proceedings taken was under a mistake. The revenue authorities represented that the land is puramboke land and on application the property will be assigned to the person in possession and on the basis of the representation an application for assignment was made. Since the application was made on such representation, there is no estoppel for the plaintiff claiming right over the property and the suit was filed for injunction originally. As the plaintiff was in possession in continuation of the possession of the predecessor who had effected plantation which were over more than 50 years of age. The defendants filed written statement contending that the suit is not maintainable in law. Narayanan Namboodiri had no right or possession at the time of assignment deed of 1968. The boundary in the assignment deed do not cover the plaint schedule properties. The assignees or others have not effected improvements in the plaint schedule property. There is no RSA 1000/04 & connected cases 6 misrepresentation as alleged. The Desamangalam Mana or assignees have no manner of title or possession over the plaint schedule property after acquisition by Government under the Land Acquisition Act. The properties will come within the catchment area of the Malampuzha reservoir. Plaintiff has no right and hence prayed for dismissal of suit. Originally the plaintiff filed the suit for injunction alone and hence notice under Section 80 of the Civil Procedure Code was not issued to the Government. But, subsequently, Section 80 notice was issued and the plaintiff sought amendment of the plaint for incorporating the prayer for a declaration that in view of the long uninterrupted possession of the land, the Government lost their right by adverse possession and limitation and that the plaintiff obtained right over the property by adverse possession for more than 50 years as evidenced by the plantation in the property. 4. In the Sub Court, both the above suits were jointly tried and evidence was recorded in O.S.483/1993. PW1, PW2, DW1 and CW1 were examined and Exts.A1 to A10, B1, C1, C1 RSA 1000/04 & connected cases 7 (a) and Ext.X1 were marked. The learned Sub Judge, on considering the evidence found that the plaintiffs in both the suits have no title and possession over the plaint schedule property in each case and both the suits were dismissed without costs. Against the judgment and decree in O.S.606/1993, the plaintiff filed appeal as A.S.314/2001 and the plaintiff in O.S.483/1993 filed A.S.315/01, before the Additional District Court, Palakkad. The learned Additional District Judge, on considering the evidence on record dismissed both the appeals. Against the judgment in A.S.314/01, the appellant filed R.S.A.1000/04 and the appellant/plaintiff in A.S.315/01 filed R.S.A.1007/04 before this Court. This Court, as per common judgment in the above Second Appeals dated 31.1.2007, dismissed R.S.A.1000/04 and allowed 1007/04, and the judgment and decree of the court below in O.S.483/93 was set aside and the case was remanded back to the Sub Court, Palakkad, with a direction to decide the issue regarding adverse possession afresh and the parties were given liberty to adduce evidence with respect to their pleadings and contentions. After RSA 1000/04 & connected cases 8 remand of O.S.483/1993, the plaintiff filed I.A.1199/07 before the Sub Court, Palakkad under Order 26 Rule 9 and Section 151 of the Civil Procedure Code, for appointment of an Advocate Commissioner which was dismissed by the Sub Court as per order in that I.A. dated 20.7.2007. Challenging that order, the petitioner/plaintiff filed W.P.(C) 22582/2007. This Court, as per order in R.P.312/07 dated 12.6.2007 reviewed and recalled the judgment of this Court in R.S.A.1000/04. As per order in R.P.781/07 dated 28.9.2007, this Court reviewed the judgment in R.S.A.1007/04. 5. Heard the learned counsel for the appellants in both the Second Appeals, learned counsel for the petitioner in W.P.(C) 22582/07 and the learned Government Pleader appearing for the respondents. 6. At the time of hearing, learned counsel for the appellant in R.S.A.100/04 raised the following arguments : Since respondents admitted that the plaint schedule property and adjacent properties belonged to Desamangalam Mana and that they were acquired by the Government as per the Land RSA 1000/04 & connected cases 9 Acquisition Act, the burden was on the respondents to prove that the property in question is part of the property acquired as per the Land Acquisition Act. On non-production of the documents relating to the land acquisition, in spite of the order dated 17.3.2001, the court failed to take adverse inference against the defendants and held that the property was not acquired and the same belonged to the Mana and the plaintiff got right over the same. The courts below acted illegally in holding that the property was acquired without any evidence whatsoever and even without the production of the documents relating to the acquisition in spite of the order of the court. The plaint schedule property has not been identified by the Commission with reference to the original survey plan as admitted by him as CW1 and the court below dismissed the application, I.A.1041/2001 filed, for remitting the report for rectification. The action of the court below is illegal, arbitrary and amounts to shutting out the evidence of plaintiff. The courts below failed to consider that the plaint schedule property is part of item No.576 allotted to 11[th] sakha as per Ext.A1 RSA 1000/04 & connected cases 10 partition deed. 7. Learned counsel for the appellant in R.S.A.1007/04 made similar submissions. Learned counsel for the petitioner in the Writ Petition submitted that the Writ Petition has become infructuous, in view of the order of this Court in the Review Petition. Learned Government Pleader supported the judgment and order under challenge. 8. Learned counsel for the appellants in both the appeals submitted that the Advocate Commissioner, who filed Ext.C1 Commission report and Ext.C1(a) plan has not identified the disputed property in both the suits, based on title deeds of the plaintiff, even though there was such a direction by the trial court. 9. The case of the plaintiff in O.S.483/93 is that the plaint schedule property in that suit along with other properties originally belonged to Desamangalam Mana and as per Ext.A1 partition deed no.112/1950, the plaint schedule properties and other properties were allotted to the share of one Narayanan Namboothiri and he sold the plaint schedule property to one RSA 1000/04 & connected cases 11 Mathew and Annamma Mathew as per Ext.A2 assignment deed No.1141/68 and Ext.A3 assignment deed No.1146/68 of SRO, Ottappalam. The plaintiff purchased the plaint schedule property as per the assignment deed no.2992/91 and 2995/91 of SRO, Palakkad. PW1 is the brother and power of attorney holder of the plaintiff in O.S.483/93. PW1 deposed that item no.576 in the 11[th] Sakha in Ext.A1 partition deed is the property involved in O.S.483/93 and O.S.606/93. The total extent of the property in item no.576 is about 35 acres lying as a single block. 10. According to the case of the plaintiff in O.S.606/93, the plaint schedule property in that suit along with other adjacent properties belonged to Desamangalam Mana and that Mana executed a sale deed for the plaint schedule property and adjacent property in favour of one Scaria Thomas as per sale deed no.1133/1968 and he assigned his right in favour of the plaintiff by Ext.A8 sale deed no.2167/1976 and the plaintiff is in possession of the plaint schedule property along with the adjacent land. The main dispute is with regard RSA 1000/04 & connected cases 12 to the identity of the plaint schedule property in both cases. According to the plaintiffs in both the cases, the disputed property is a portion of the property purchased by them whereas the defendants would contend that the plaint schedule property in both the cases are puramboke land. 11. Learned counsel for the appellants submitted that there is a mistake in the survey number mentioned in the documents in favour of the appellants and the disputed properties are included in the title deeds of the appellants. Learned counsel invited my attention to the decision of this Court reported in **Krishnan v. Mathai** (1957 KLT 42), in which it was held : “The evidence supplied by boundaries, extent, survey numbers and lekhoms forms the determining factors when the identity of the property is put in issue. If all these factors harmonise there is little difficulty to identify the property in dispute. But when some of them are in conflict with the rest as when the extent and survey numbers do not agree with the boundaries usually the boundaries predominate and the rest is regarded as erroneous or inaccurate descriptions. This is not an inflexible rule and the guiding principle is to apply that rest which is most unlikely to be vitiated by error.” RSA 1000/04 & connected cases 13 ## 12. In the decision reported in **Savithri Ammal Vilasini Ammal v. Jayaram Pillai Padmavathi Amma** (1989 ## (2) KLJ 709), it was held : “In cases where there is a difference in the extent and the boundary covered by a document, one or the other which is clearer and more specific has to be preferred. In some cases it may be the boundary. In some other cases it may be the extent and in yet other cases it may be the side measurements. There is no invariable rule in this regard. The rule is one of construction. It is not unalterable, inflexible or invariable.” Learned counsel for the appellants, relying on the decision of this Court in **Joy Cherian v. George Cherian** (2009(3) KLT 64) submitted that if the earlier Commission report suffered from some deficiency, which could be supplied by further enquiry, the court can direct the same Commissioner without setting aside the previous report and that power can be exercised by appellate court also. 13. In O.S.483/93, the plaintiff filed a petition as I.A.2709/97 to remit the Commission report and plan and to measure out the plaint schedule property in O.S.606/93 and O.S.483/93 with reference to Ext.A1 partition deed and sale RSA 1000/04 & connected cases 14 deeds 1141 and 1146/1968 and to ascertain whether the plaint schedule properties in both cases are the portions of property covered by that partition deed, and that petition was alloted by the Sub Court. 14. When the Commissioner, who filed Ext.C1 Commission report and Ext.C1(a) plan was examined as CW1, he admitted that he has not examined the titled deeds of the plaintiffs in both the suits while measuring the properties. When the second defendant in both the suits was examined as DW1, he admitted that the disputed properties are not measured out in accordance with the documents produced by the plaintiff. Since the main dispute involved in both the suits relates to the identity of the disputed property with reference to the title deeds of the parties, Ext.C1 report and Ext.C1(a) plan will not help the court to decide the issues involved in both the suits. Therefore, I am of the view that in order to resolve the disputes involved in both the cases, the properties involved in both cases should be measured out by an Advocate Commissioner with reference to the documents produced by RSA 1000/04 & connected cases 15 the plaintiffs in both the suits, with the assistance of a Taluk Surveyor or Village Officer on the basis of survey records available, and the properties should be identified in accordance with those documents and to decide all the issues involved in both the suits in accordance with law. For that purpose, both the cases have to be remanded to the Sub Court, Palakkad. Since the Second Appeals are disposed as above, there is no necessity for this Court to answer the questions of law raised in the appeals. Accordingly, both the above appeals are allowed and the judgment and decree in O.S.Nos.606 and 483 of 1993 on the file of the Sub Court, Palakkad are set aside and both the cases are remanded to the Sub Court, Palakkad and that court is directed to decide the cases afresh, after giving sufficient opportunity to both sides to adduce further evidence and to identify the disputed properties in both the cases with reference to the documents produced from the side of the plaintiffs and defendants, with the help of an Advocate Commissioner and with the assistance of a Taluk Surveyor or RSA 1000/04 & connected cases 16 Village Officer. If the plaintiffs file fresh commission applications for that purpose, the learned Sub Judge is directed to pass appropriate orders in accordance with law. Parties in both the suits are directed to appear before the Sub Court, Palakkad on 28.2.2012. In view of the remand of both cases, the Writ Petition has become infructuous and therefore, that Writ Petition is dismissed with liberty to the petitioner to file a fresh Commission application before the court below. There is no order as to costs. **Sd/-** **M.L.JOSEPH FRANCIS, JUDGE.** tgs (True copy) P.S. to Judge.