Dismissed

Ajesh K. M v. Mohandas

Kerala HC8 Jun 2017WA/1129/2017

Case brief

AI extract

What is this about?

The Kerala High Court allowed civil remedies in a survey dispute regarding land classification. The bench granted the appellants leave to withdraw the writ appeal to file a civil suit in terms of Section 14 of the Kerala Survey and Boundaries Act, 1961, dismissing the writ proceedings. It is unclear if the court provided any ruling on the jurisdiction issue. And dismissed this appeal.

What did the court decide?

Leave granted to withdraw the appeal; writ petition dismissed as withdrawn with liberty to seek civil remedy.

Ajesh K. M Vs Mohandas — Civil Procedure and Limitation | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH &

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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THURSDAY, THE 8TH DAY OF JUNE 2017/18TH JYAISHTA, 1939

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WA.No. 1129 of 2017 IN WP(C).2703/2017

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AGAINST THE JUDGMENT IN WP(C) 2703/2017 DATED 23-05-2017

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APPELLANTS/PETITIONERS IN WPC :

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AJESH K.M., S/O.MADHAVAN, AGED 32 YEARS,

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RESIDING AT KOTTAPPARAMBIL, METHAMCODE, VANDAZHI P.O., ALATHUR TALUK, PALAKKAD DISTRICT.

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ELDHO, S/O.JOSE, AGED 22 YEARS, RESIDING AT KANTHALAM ROAD, VANDAZHI ALATHUR TALUK, PALAKKAD DISTRICT.

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BY ADV. SRI.BABY MATHEW

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RESPONDENTS/RESPONDENTS IN WPC :

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MOHANDAS, S/O.NARAYANAN, AGED 55 YEARS, RESIDING AT METHAMCODE, PLACHIKKADU, VANDAZHI P.O., PIN 678 684.

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THE TALUK SURVEYOR, ALATHUR TALUK, PALAKKAD DISTRICT – 678 541.

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ADDITIONAL TAHSILDAR, TALUK OFFICE, ALATHUR, PALAKKAD – 678 541.

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R1 BY SRI.V.A.JOHNSON (VARIKKAPPALLIL) R2 & R3 BY SR.GOVERNMENT PLEADER, SRI. V. TEKCHAND

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Navaniti Prasad Singh, C.J. & Raja Vijayaraghavan V., J.

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W.A. No. 1129 of 2017

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- - - - Dated this the 8^th day of June, 2017

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JUDGMENT

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Navaniti Prasad Singh, C.J.

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This appeal has a string of events attached to it. The appellants and the 1^st respondent are neighbours. Contiguous to their land is a strip of land which the appellants assert that it provides the only way/passage to their land which is a residential land. The said passage as per re-survey was recorded as 'Panchayat way'.

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It appears that the 1^st respondent filed an application before the Additional Tahsildar contending that the re-survey entry was wrong and in fact that land was also part of his holding. The Additional Tahsildar, after hearing the appellants alone, passed orders for correction of the survey entries holding it to be a wrong entry in favour of Panchayat, showing it as a way, and to be corrected as part of land holding by the 1^st respondent. When the appellants came to know of this, they filed a writ petition before this Court challenging the order of the

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WA No. 1129 of 2017

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Additional Tahsildar. As apparent from the order of this Court, they had challenged the same on the ground that they themselves and others were using that piece of land as an ingress and egress from their property and the Additional Tahsildar without notice to them passed orders adverse to them.

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Upon hearing the appellants and the 1^st respondent in that proceeding this Court directed the Additional Tahsildar to re-hear the matter after due notice to the parties. The appellants

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did not challenge that order of this Court on any ground whatsoever including that the Additional Tahsildar had no jurisdiction in the matter. That order delegating the resolution of the dispute to the Additional Tahsildar attained finality. On remand to the Additional Tahsildar, he heard the parties and once again ruled in favour of the 1^st respondent. While doing so, he also noticed Government Notifications which otherwise authorise the Additional Tahsildar to deal with survey disputes. It may be noted that the appellants did not challenge the authority of the Additional Tahsildar to decide the matter.

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WA No. 1129 of 2017

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-:3:-

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Once again the matter went against the appellants. Then

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they filed the writ petition and now for the first time urged that in terms of Section 13A of the Kerala Survey and Boundaries Act, 1961 the Additional Tahsildar had no jurisdiction in the matter. It has to be noticed that the learned single Judge, upon the appellants' own prayer, had remanded the matter to the Additional Tahsildar for decision. They had not challenged the authority of the Additional Tahsildar at any earlier occasion and only when the ultimate decision went against them, they now challenge the same and the learned single Judge refused to interfere and hence this appeal.

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We may note that there is a counter affidavit by the Government in which they have stated in paragraph 10 that by G.O.(MS) No.200/2010 dated 31.05.2010, considering heavy workload on the District Collectors, Additional Tahsildars were conferred with the powers of District Collectors in matters of correction of survey anomalies in the re-survey records.

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We have heard learned counsel for the appellants, learned counsel for the 1^st respondent and learned Government

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WA No. 1129 of 2017

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-:4:-

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Pleader. After some arguments learned counsel for the appellants seeks leave of this Court to withdraw the writ petition and this appeal, with liberty to challenge the order and seek such relief, interim or otherwise, as may be available to them from Civil Court in terms of Section 14 of the said Act or such other provision of law. If such an application is filed before the Civil Court, it would entertain the same on merits and decide the same. The 1^st respondent would not take technical objections to the jurisdiction of the Civil Court to decide the matter as in our view the decision by the competent court of civil jurisdiction would resolve the matter for all time to come.

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We accordingly grant leave to the appellants and dismiss this appeal as withdrawn.

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Navaniti Prasad Singh, Chief Justice

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Sd/- Raja Vijayaraghavan V., Judge

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ttb/08/06

Ajesh K. M v. Mohandas

Case brief

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Ajesh K. M v. Mohandas

Case brief

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