Thankam v. Tarur Panchayat and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY, THE 14TH DAY OF JUNE 2018 / 24TH JYAISHTA, 1940 SA.No. 284 of 2003 (A) AGAINST THE JUDGMENT AND DECREE DATED 3.10.2002 IN AS NO.159/1995 of I ADDITIONAL DISTRICT COURT,PALAKKAD AGAINST THE JUDGMENT AND DECREE DATED 23.12.1994 IN OS NO.115/1992 of MUNSIFF'S COURT, ALATHUR ## APPELLANT/1ST RESPONDENT IN A.S./PLAINTIFF:- THANKAM, W/O.APPUNNY, RESIDING AT KAMMANTHARA, VAVULLIAPURAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV.SRI.SUNNY MATHEW RESPONDENTS/APPELLANTS 1 AND 2 AND RESPONDENTS 2 TO 4 IN A.S./ DEFENDANTS 1 TO 5:- 1. TARUR PANCHAYAT, REPRESENTED BY ITS SECRETARY FORMERLY EXECUTIVE OFFICER), TARUR PANCHAYAT, ALATHUR TALUK, PALAKKAD DISTRICT. 2. PRESIDENT, TARUR PANCHAYAT AND CONVENOR OF ROAD COMMITTEE OF TARUR PANCHAYAT, TARUR, ALATHUR TALUK, PALAKKAD DISTRICT. 3. CHANDRAN, S/O.RAMAN ASARI, RESIDING AT KAMMANTHARA, VAVULLIAPURAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 4. KOYU, S/O.CHAMY,RESIDING AT KAMMANTHARA, VAVULLIAPURAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 5. GOPI, S/O.KUTTAPPAN, RESIDING AT KAMMANTHARA, VAVULLIAPURAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. - R1 & R2 BY ADV. SRI.T.C.SURESH MENON THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **A.HARIPRASAD, J. -------------------------------------S.A. No.284 of 2003 -------------------------------------Dated this the 14[th] day of June, 2018** ## **JUDGMENT** Heard the learned counsel for the appellant and respondents. 2. Appellant filed O.S.No.115 of 1992 before the Court of Munsiff, Alathur initially for prohibitory injunction against the respondents and later the suit was amended incorporating a prayer for mandatory injunction as well. 3. The suit was partly decreed by the trial court against which the respondents preferred an appeal before the District Judge, Palakkad as A.S.No.159 of 1995. The appeal was allowed and the judgment and decree passed by the trial court was set aside and consequently the suit was dismissed. Hence the plaintiff is in appeal. 4. Short facts are as follows:Plaint schedule properties belong to the plaintiff as evidenced from Ext.A1. It is the case in the plaint that the defendants/respondents approached the plaintiff/appellant and requested her to surrender some portions of her land for construction of a road starting from Vavulliapuram-Tharur public road and reaching upto Kammanthara. Appellant refused to surrender any portion of her land. Respondents forcefully trespassed upon the property and constructed a road. Despite filing a complaint before the police, her grievances were not 2 SA No.284 of 2003 redressed. Hence the suit was filed. Since pending the suit the construction was completed, the suit was amended incorporating a relief of mandatory injunction to direct the defendants to put the plaint schedule properties back into its original position. 5. Respondents filed a written statement contending that the appellant had surrendered 6½ cents of land from the plaint schedule property for construction of a road by virtue of Ext.B1 land relinquishment form prescribed under the Kerala Land Relinquishment Act, 1958 (in short, “the Act”) and the Rules made thereunder. It is also their case that the owners having properties in that area had also surrendered lands for formation of the road. The road was essential for peaceful existence of the persons in the locality and at the aegis of the panchayat, the construction work was completed. Government money to a tune of `1,00,000/- was utilized for construction of the road. The appellant is estopped from contending that she did not make any land relinquishment as contended by the respondents. 6. The appeal was admitted on the following substantial questions of law: i. When a statute prescribes that a certain thing has to be done in a certain manner, can that be done without following the modalities prescribed by the statute? 3 SA No.284 of 2003 ii. In the case of transfer of immovable property worth more than `100/- be it to a private party or to the Government, can it be done without executing a registered document, registered under the provisions of the Indian Registration Act? 7. I shall deal with the second substantial question of law initially. It is true, under the provisions of the Registration Act, 1908 and the Transfer of Property Act, 1882, no immovable property worth more than `100/- could be transferred without executing a registered instrument. But the provisions in the Act is an exception to the above said propositions. Section 4 of the Act is relevant for our purpose which is quoted hereunder: _“_ _**Procedure to be followed when lands are relinquished** .-(1)Where a registered holder or, a registered holder, cultivating tenant and intermediaries, if any, jointly intends or relinquish any land under Section 3, such registered holder or, as the case may be, such registered holder, cultivating tenant and intermediaries, if any jointly may submit an application in the prescribed form to the Revenue Divisional Officer of the Division in which the land is situate._ _(2) On receipt of the application mentioned in sub-section (1) the Revenue Divisional Officer shall, if satisfied, after such enquiry as he thinks necessary, that the registered holder or as the case may be, the registered holder, the cultivating tenant and the_ 4 SA No.284 of 2003 _intermediaries, if any, of the land jointly is or are competent to relinquish and has or have valid title in the land issue a notice in the prescribed form to all such persons as he may consider interested in the land, calling upon them before a date specified in the notice to show cause why the relinquishment may not be accepted._ _(3) The Revenue Divisional Officer shall, also affix a copy of the notice referred to in sub-section (2) on the notice board of his office and shall cause it to be published in such manner as may be prescribed in the village where the land is situate._ _(4) Any person interested in the land may, before the date specified in the notice, file an objection before the Revenue Divisional Officer showing cause why the relinquishment should not be accepted._ _(5) When the period for filing objections is over, all objections received shall be enquired into by the Revenue Divisional Officer and he may pass orders either accepting or rejecting the application for relinquishment._ _(6) The Revenue Divisional Officer may at any stage of the proceedings reject the application on any of the following grounds, namely:-_ _(I) that the registered holder, or as the case may be, the registered holder, cultivating tenant and the intermediaries, if any, jointly, is not, or are not, competent to relinquish the land;_ 5 SA No.284 of 2003 _(ii) that the title of the registered holder, the tenant or the intermediaries, if any, is defective;_ _(iii) that there are arrears of land revenue due on the land;_ _(iv) that the land is not accessible except through land not belonging to the Government;_ _(v) such other grounds as may be prescribed.”_ 8. Rule 3 of the Kerala Land Relinquishment Rules, 1958 shows that every application for relinquishment of a registered land should be in writing in Form A appended to the Rules. According to the learned counsel for the respondents, Ext.B1 is an application for relinquishment of land belonging to the plaintiff, which was duly signed by her and witnessed by two competent witnesses, who have been examined as DWs 1 and 3. The lower appellate court disbelieved the contention that the plaintiff/appellant did not sign Ext.B1. When the plaint, vakalath and her affidavit were shown, she even denied the signatures thereon, indicating that she was untruly denying the signature on Ext.B1, which is similar to the other signatures. Therefore, on facts, the lower appellate court came to the conclusion that Ext.B1 is a prescribed form for land relinquishment signed and submitted by the plaintiff herself. This being a second appeal, reappreciation of facts cannot be ventured at this stage. Therefore, I have no hesitation to affirm the view taken by the lower appellate court that 6 SA No.284 of 2003 Ext.B1 evidences a proper land relinquishment. 9. It is clear that once the land relinquishment is established, there is no need for insisting for a registered document for surrendering a property. Therefore, this question of law is decided against the appellant. 10. Another point canvassed by the learned counsel for the respondents is that even if follow up actions pursuant to Ext.B1 were not established by the defendants/respondents, the plaintiff/appellant has no right to claim back the property. Reliance is placed by the learned counsel on **Natarajan v. Village Officer (2013 (1) KLT 846)** wherein a Division Bench held as follows: _“8. On submission of an application, the registered holder expresses his intention to unconditionally surrender the land to the Government. What is contemplated in sub-s.(2) is the requirement of notice to any other person who is interested in the land, indicating a tenant or any person in possession of such land or disclosed from the revenue records to have a right over such land. Sub-s.(3) again provides for the affixture of the notice in the notice board of the office of the R.D.O. and sub-s.(4) permits any person interested in the land to file an objection before the R.D.O. Sub-s. (5) contemplates an order, either accepting or rejecting the relinquishment. S.4C speaks of vesting of relinquished lands in Government on acceptance in consequence of an order by the R.D.O., or in appeal or_ 7 SA No.284 of 2003 _revision. On a reading of the above Sections, we are of the view that the relinquishment by a registered holder as against him, operates unconditionally, on an application being made under the Act. The act of relinquishment is a voluntary act of the registered holder which is unilateral and takes effect from the date of the application. This is, for reason of the application being an expression of the intention to unconditionally surrender the possession and rights over the land to the Government. The procedure contemplated is to ensure that no further claims are raised on the land by a third party on one count or another. It cannot be gainsaid that if no order is passed, the land reverts back to the registered holder who had relinquished his rights, If no order is passed, definitely by the relinquishment there is no vesting and cannot be final as against any third-party claiming title, possession or any other right over such land. In the instant case, the appellant does not claim any such right over the land in addition to the right of his father. The appellant's claim is as an assignee of his father and what the father, the original registered holder, could not have claimed, definitely the assignee cannot claim.”_ It is therefore clear that Ext.B1 should be taken as a validly signed application for land relinquishment by the plaintiff/appellant and even in the absence of proving the subsequent steps taken in that regard as required under Section 4 of the Act, the plaintiff has no right to claim back the 8 SA No.284 of 2003 property. 11. Learned counsel for the appellant contended that proper procedure for land relinquishment has not been complied with in this case as it is not evident from the records produced. This contention can be answered by observing that the Division Bench decision mentioned above holds the field. There is no material to hold that the requirements under the Act were not complied with in this case. The records would show that the relinquishment procedure has been completed insofar as the appellant is concerned and it was properly done. Therefore, the first substantial question of law is also decided against the appellant. In the result, I find no merit in the appeal. Hence it is dismissed. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks** 9 SA No.284 of 2003 ## **A.HARIPRASAD, J.** **S.A.No.284 of 2003** ## **JUDGMENT** **14[th] June, 2018**