Union of India represented by General Manager, Southern Railway, Chennai v. Alexander Sebastian and others

R.S.A.No.210 of 2020 **-** 1- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 12[TH] DAY OF DECEMBER 2023/21ST AGRAHAYANA, 1945** **RSA NO. 210 OF 2020** **AGAINST THE JUDGMENT IN AS 40/2019 OF ADDITIONAL DISTRICT COURT - IV** ## **KOTTAYAM** ## **OS 114/2011 OF PRINCIPAL SUB COURT, KOTTAYAM** ## **APPELLANT/APPELLANT/1ST DEFENDANT:** UNION OF INDIA, REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. BY ADVS. SRI.A.DINESH RAO, SC, RAILWAYS SRI MATHEW JOHN SRI S. BIJU ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS/DEFENDANTS 2 TO 4:** 1 ALEXANDER SEBASTIAN, 73 YEARS, S/O.LATE P.C.SEBASTIAN, PALLIVATHUKKAL, MUTTAMBALAM KARA, MUTTAMBALAM VILLAGE, KOTTAYAM, PIN - 686 002. 2 KOOLFOAM PRIVATE LTD., MUTTAMBALAM KARA, MUTTAMBALAM VILLAGE, KOTTAYAM, PIN - 686 002, REPRESENTED BY ITS MANAGING DIRECTOR, ALEXANDER SEBASTIAN. ***** 3 ABDUL KAREEM **(Died)** 74 YEARS, S/O.KUNJUMAKKAR, PANAMPARAMBATH HOUSE, NEENDOOR KARA, VADAKKEKKARA P.O., PARAVOOR TALUK, ERNAKULAM DISTRICT, PIN - 683 522. ***[It is reported that respondent No.3 died as per order dated 11.04.2023 in RSA 210/2020]** 4 ANNE GEORGE, W/O.T.P.THOMAS, AGED ABOUT 46 YEARS, THUMPASSERIL HOUSE, KANJIRAPPALLY, PIN - 686 507. 5 VINITHA K.A., W/O.ZAKHIER HUSSAIN, MADAVANA, VIJAYAPURAM VILLAGE, R.S.A.No.210 of 2020 **-** 2- VADAVATHOOR P.O., KOTTAYAM - 686 010. 6 STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KOTTAYAM, PIN - 686 001. 7 DEPUTY DIRECTOR OF RESURVEY, KOTTAYAM, PIN - 686 002. 8 TAHSILDAR, KOTTAYAM, PIN - 686 001. BY ADVS. SRI SREEKUMAR G.(CHELUR) (CAVEATOR) SRI.ZAKHIER HUZZAIN SMT.K.B.SONY, GOVT.PLEADER **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD** **02.08.2023, THE COURT ON 12.12.2023 DELIVERED THE FOLLOWING:** R.S.A.No.210 of 2020 **-** 3- ## **T.R. RAVI, J. -------------------------------------------R.S.A.No.210 of 2020** ## **-------------------------------------------Dated this the 12th day of December, 2023** ## **JUDGMENT** The second appeal has been filed by the 1[st] defendant in O.S.No.114/2011 on the file of the Principal Sub Court, Kottayam, against concurrent decrees of the trial court and the First Appellate Court. The suit was filed by respondents 1 to 5 for declaration of title and injunction with regard to properties scheduled as C and D in the plaint. The parties are referred to as per their status before the trial court. 2. Plaint A, B, and C schedule properties belonged to plaintiffs 1, 2, and 3, respectively. Plaint D schedule property is a pathway running through Plaint A, B, and C schedule properties, starting from K.K. Road on the northern side and ending in Plaint C schedule property belonging to the 3[rd] plaintiff. Plaint A and B schedule properties are part of 1.35 Acres of property situated in Old Survey No.105/13A and B of old Vijayapuram Village. During 1954-55, the 1[st] defendant, Railways, acquired properties situated in Old Sy. No.105/11, which was lying on the eastern side of plaint A and B schedule properties. After the re-survey, plaint A schedule R.S.A.No.210 of 2020 **-** 4- properties were assigned Re-survey No.56, and plaint B schedule property has been assigned Re-survey No.75. The 1[st] defendant's property, after re-survey, is included under Re-survey No.67 in Block 23 of Muttambalam Village. The case of the plaintiffs was that portions of plaint A and B schedule properties in Old Survey No.105/13 and C schedule property had been wrongly included in Re-survey No.67 as belonging to the 1[st] defendant. The portion of A and B schedule properties wrongly included in Re-survey No.67 has been shown separately as plaint D schedule property. It is contended that plaint D schedule property belongs to plaintiffs 1 and 2 and plaint C schedule property belongs to the 3[rd] plaintiff, subject to the 4[th] plaintiff's right of user of the same. It is on the above averments that the suit has been filed. 3. The 1[st] defendant has filed a written statement and an additional written statement. It is contended that the suit is not maintainable and is bad for the misjoinder of parties. According to the defendants, plaint D schedule property is not a pathway running through plaint A, B, and C schedule properties, and plaint C schedule property does not belong to the 3[rd] plaintiff. It is contended that plaint C and D schedule properties are part of the property in Re-survey No.67 in Block 23 and belong to the 1[st] defendant. Defendants 2 to 4 have also filed a written statement in R.S.A.No.210 of 2020 **-** 5- the same line as that of the 1[st] defendant. The parties went on trial, and Exts.A1 to A16, C1, C1(a), C2, and C2(a) were marked on the side of the plaintiffs, and the 1[st] plaintiff was examined as PW1. On the side of the defendants, Exts.B1 and B1(a) were marked, and oral evidence was tendered by DW1. 4. Initially, a commission was taken up, and the report was filed. The report was set aside, and thereafter, a second report was called for. In the second report, which has been marked as Exts.C1 and C1(a), it has been specifically reported that properties scheduled as C and D were part of plaint A schedule and B schedule properties. The trial court found that the 1[st] defendant has no property in Old Survey Nos.105/13A and B and 105/12. The properties acquired and belonging to the 1[st] defendant were situated in Old Survey No.105/11. There has been no acquisition for properties situated in Old Survey Nos.105/13A and B and 105/12. The trial court relied on the commission report and the plan, and Ext.B1, which was produced on the side of the defendants, which is the railway acquisition plan, and found that the railway has not acquired any property in Old Survey Nos.105/13A and B and 105/12 and that the property acquired by the railway was situated only in Old Survey No.105/11. The commission report specifically noted that plaint B and C schedule properties are wrongly included in Re- R.S.A.No.210 of 2020 **-** 6- survey No.67. The railway authorities are resting their case on the said mistake in the survey number. The request by the 1[st] defendant for setting aside the commission report was rejected, stating that the report was filed as early as on 31.07.2018, and the request for setting aside was made when the case was listed for trial. The court found that there are no reasons to support the contention of the 1[st] defendant that the commission report and plan were not properly and correctly prepared. It is also noted in the judgment that the report and plan have been prepared with the assistance of the Surveyor after proper measurement, identification, and demarcation of the plaint schedule properties. The 1[st] defendant challenged the decree and judgment in appeal before the Additional District Court, Kottayam. The District Court reconsidered the evidence on record and confirmed the judgment and decree of the trial court. The 1[st] appellate court noticed that the Ext.B1 acquisition plan and report, which is prepared on the basis of the acquisition made for the Railways, show that the property that has been acquired was only from Old Survey No.105/11. The court found that an extent of 0.250 Cents, which formed part of Old Survey No.105/12 (C schedule) and an extent of 11.490 cents in Old Survey No.105/13A and 13B (D schedule), are properties which belonged to plaintiffs 1 to 3 and there was no acquisition of these R.S.A.No.210 of 2020 **-** 7- properties. Ext.A1 sale deed with registration No.1077/1112 ME of S.R.O., Kottayam shows that plaint A and B schedule properties are part of the total extent of 1.35 Acres comprised in Survey No.105/13, which belonged to the grandfather of the plaintiffs Sri.P.C.Sebastian. 5. The entire extent of the property was sold to Airo Rubber Company. The Company sold the property to National Tyres and Rubber Company Ltd. Thereafter, the properties were again purchased by Sri.P.C. Sebastian in 1960 from the National Tyres and Rubber Company by virtue of Ext.A2 Sale Deed No.2554/1960. Thereafter, 40 Cents of the property (which is Plaint B Schedule property) were sold to the 2[nd] plaintiff Company by virtue of Ext.A3 Sale Deed No.2494/1966. Plaint A schedule property devolved on the legal heirs of Sri.P.C.Sebastian after his death, and by Ext.A4 Release Deed No.2993/1986 of Additional S.R.O., Kottayam, the 1[st] plaintiff obtained the property. Plaint C schedule property in Old Survey No.105/12 belonged to the predecessors-in-interest of plaintiffs 3 and 4 as per Ext.A7 Sale Deed No.337/1112 ME. The 3[rd] plaintiff purchased the C schedule property as per Sale Deed No.515/94 of Additional S.R.O., Kottayam, and the said document has been produced as Ext.A8. The title of the plaintiffs over the properties stands proved by the above said documents and there is R.S.A.No.210 of 2020 **-** 8- no case for the 1[st] defendant that the properties belonging to the plaintiffs on the basis of the above documents have ever been acquired. Aggrieved by the trial court and appellate court judgments and decree, the second appeal has been preferred by the 1[st] defendant. 6. Notice was issued to the respondents before admission of the second appeal. The records of the trial court and the District Court were called for, and the case was heard in detail at the admission stage itself. 7. Heard Sri Mathew John, learned Standing Counsel for the appellant/Railways and Sri G.Sreekumar(Chelur) on behalf of respondents 1, 2, 4 and 5. 8. The first contention raised by the counsel for the appellant is that the courts below ought to have set aside the commission report and ordered a total station survey, which alone could have helped in identifying the property. Another contention is that the mandatory requirement of Section 80 notice has not been complied with since plaintiffs 1 and 2 did not issue any notice, and the 3[rd] plaintiff alone had issued notice. A petition had been filed under Section 80(2) of the Code of Civil Procedure to waive the requirement of notice, was allowed, and the order was challenged in appeal. It was contended that the total extent of property available R.S.A.No.210 of 2020 **-** 9- in Re-survey No.67 was not fixed. In support of the contention that notice under Section 80 had not been issued, reliance is placed on the judgment of a Division Bench of the Allahabad High Court in **Himachal Steel Rerollers and Fabricators V. Union of India &** **Ors.** reported in **[AIR 1988 Allahabad 191]** . Specific reference is made to paragraphs 15 and 16 of the judgment. The Division Bench had held that the bar of notice under Section 80(1) can be removed only when requisite leave of the court had been obtained before the institution of the suit, and such leave cannot be obtained after the institution of the suit. Another contention taken is that there is a difference between the area claimed in the suit and the area that has been found by the commissioner and decreed by the court. It is contended that the eastern boundary of the railway property should have been first fixed, and the western boundary should have been fixed later on the basis of the extent. Reliance is placed on the judgment in the **State of Himachal Pradesh V. Keshav Ram and** **Others** reported in **(AIR 1997 SC 2181)** to submit that no title over a disputed land can be claimed without documentary evidence. 9. The counsel for the plaintiffs submitted that Exts.A1 to A4 title deeds would show that properties are situated in Old Survey No.105/13 and that two factories were functioning on the property. It was submitted that Exts.A13 and A14 are the notices which had R.S.A.No.210 of 2020 **-** 10- been issued to the railway. Exts.A5 and A6 are tax receipts relating to 1.35 Acres of land, and the plaint schedule properties form part of the said extent. Exts.A7 to A9 are the title deeds that prove the 3[rd] plaintiff's title with regard to properties scheduled as C schedule and situated in Old Survey No.105/12A. It is submitted that Exts.A11 and A12 would show that after re-survey, 14 Cents of the property had been reduced from the total extent of the properties of the plaintiffs. It is pointed out that in paragraph 13 of the trial court judgment, the court has specifically found that the D schedule property was part of plaint A and B schedule properties, which were in turn part of 1.35 Acres of property in Old Survey No.105/13. The court specifically found that the plaintiffs had title over the plaint schedule properties. It is pointed out that when the 1[st] defendant filed the appeal before the 1[st] appellate court against the judgment of the trial court, no challenge had been raised against the commission report. It is further pointed out that, admittedly, the railway had acquired properties only from Old Survey No.105/11. Ext.A10, which is the BTR relating to Re-Survey No.67, shows that it includes properties coming under Old Survey Nos.105/12 and 105/13 as well. It is hence contended that there is a wrong inclusion of properties in Re-survey No.67, since the Railways had not acquired any property from Old Survey Nos.105/12 and 105/13. R.S.A.No.210 of 2020 **-** 11- Exts.B1 and B1(a) plans are referred to show that even the plan of the railway regarding the acquired properties do not show any property in Old Survey No.105/12 and 105/13. Another contention raised by the counsel is that the 1[st] defendant had not raised any counter-claim regarding the reduction of extent. It is hence submitted that the concurrent judgments of the trial court and the 1[st] appellate court are not liable to be interfered with. 10. Admittedly, the 1[st] defendant has no case that any property situated in Old Survey Nos.105/12 and 105/13 was acquired on behalf of the Railways. The admitted case is that the properties acquired for the Railways were earlier forming part of properties in Old Survey No.105/11. A re-survey proceeding cannot by itself grant title to properties that were wrongly included in the Survey number allotted to the properties of the Railways. The Railways have not adduced any evidence to show that only properties that have been acquired on behalf of the Railways are included in Re-survey No.67. As such, merely since properties in Old Survey Nos.105/12 and 105/13 are now included in Re-survey No.67, no title over properties in Old Survey Nos.105/12 and 105/13 will pass on to the 1[st] defendant. Going by Exts.B1 and B1(a) plans, which are admittedly plans prepared by the Railways at the time of acquisition, no land situated in Old Survey Nos.105/12 R.S.A.No.210 of 2020 **-** 12- and 105/13 has been acquired. As such, the claim by the railway for the properties in Old Survey Nos.105/12 and 105/13 is absolutely without any legal basis. The trial court, as well as the 1[st] appellate court, has found that the properties in plaint C and D schedule properties originally formed part of plaint A and B schedule and that no part of the plaint properties are properties situated in Old Survey No.105/11. There is no reason for setting aside the reports which have been prepared with the help of a Surveyor solely on the basis of the contention that a total station survey is required. 11. The contention of the 1[st] defendant (appellant in the Second Appeal) that the suit is bad for want of notice under Section 80 of the Code of Civil Procedure relying on the decision in **Himachal Steel Rerollers (supra)** of the High Court of Allahabad cannot be sustained. This Court had in **Parangodan v. State of Kerala [AIR 1989 Ker. 276]** held that for the purpose of obtaining leave of the Court to maintain an action, Section 80(2) of the Code of Civil Procedure does not require a separate application and an express order. This Court had held that the leave can even be implied from what the Court does. This Court also held that the prayer for leave can be in any form. In the case on hand, admittedly, a request for leave had been submitted, and the same had been granted. R.S.A.No.210 of 2020 **-** 13- 12. In view of the judgments of this Court, I am inclined to follow the said judgment. Moreover, it can be seen from the judgment of the High Court of Allahabad that the Court was concerned with whether the plaintiff had made out a _prima facie_ case for issuance of a temporary injunction, and it was specifically found that the conditions of irreparable injury and balance of convenience had not been made out. The reasoning of the trial court, as well as the First Appellate Court regarding the want of notice, are confirmed. With regard to the contention raised based on **Keshav Ram** (supra), the appellant had not raised any counterclaim in the suit with regard to the properties in old survey No.105/12 and 13, which have been found to be wrongly included in Re-survey No.67. The appellant also does not have a case that the properties in the above survey numbers were ever acquired for the Railways after paying compensation. On the admitted facts, the dictum in the judgment relied on does not apply to this case. No grounds have been made out warranting interference with the judgment of the trial court and the First Appellate Court. The Second Appeal fails and is dismissed. **==> picture [324 x 49] intentionally omitted <==** Sd/- **T.R. RAVI JUDGE** pn/dsn