Allowed

Mariyamma Thomas v. Raziya Iqbal

Kerala HC13 Dec 2017WA/381/2017

Case brief

AI extract

What is this about?

In this writ appeal, the High Court reviewed a judgment directing a fresh survey of land. The Court held the existing survey report was sufficient but vacated unnecessary observations on land terminology. It directed the District Collector to finalize proceedings within three months based on the existing report.

What did the court decide?

The appeal was disposed of; the learned single judge's direction for a fresh survey was modified to rely on the existing report; findings on 'virivu' were vacated; further proceedings to be completed

Mariyamma Thomas Vs Raziya Iqbal — Land Acquisition | 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 ACTING CHIEF JUSTICE MR.ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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WEDNESDAY, THE 13TH DAY OF DECEMBER 2017/22ND AGRAHAYANA, 1939

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W.A.No. 381 of 2017

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AGAINST THE JUDGMENT IN W.P.(C).NO.25180/2007, DATED 22.09.2016

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APPELLANT/REVIEW PETITIONER/RESPONDENT NO.6 IN WP(C):

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MARIAMMA THOMAS (WRONGLY SHOWN AS MARIAMMA JOSEPH IN WP(C)) W/O. SRI. JOSEPH THOMAS, AGED 67 YEARS, RESIDING AT 40/1823, SHENOY ROAD, KALOOR, KOCHI-682 017.

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BY ADVS.SRI.O.V.RADHAKRISHNAN (SR.) SRI.K.R.RADHAKRISHNAN NAIR

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RESPONDENTS/RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 5 IN THE WP(C):-

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1. RAZIYA IQBAL, AGED 61 YEARS, W/O LATE IQBAL, ALUNGAPARAMBIL HOUSE, A.S.MANSION, PULLEPPADY,

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CHITTOOR ROAD, KOCHI-682 018.

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STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001.

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DISTRICT COLLECTOR, ERNAKULAM DISTRICT, CIVIL STATION, KAKKANADU, ERNAKULAM-682 030.

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TAHSILDAR, KANAYANNOOR TALUK, ERNAKULAM-682 035.

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5. TALUK LAND BOARD, OFFICE OF REVENUE DIVISIONAL OFFICER, FORTKOCHI-682 001.

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6. DEPUTY DIRECTOR OF SURVEY, ERNAKULAM DISTRICT, CIVIL STATION, KAKKANADU-682 030.

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W.A.No. 381 of 2017 : 2 :

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R1 BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.N.M.MOHAMMED AYUB SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA R2 TO R6 BY GOVERNMENT PLEADER SRI.ARAVINDA KUMAR BABU

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.No. 381 of 2017

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APPENDIX

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PETITIONER(S)' ANNEXURES

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ANNEXURE-I PHOTOCOPY OF THE SALE DEED NO.1787 OF 1985 DATED 30-04-1985 OF THE SUB RECORD OFFICE, THRIPUNITHURA. ANNEXURE-II PHOTOCOPY OF THE GAZETTE NOTIFICATION NO.D1-725/91 DATED 03-02-1993 ANNEXURE-III PHOTOCOPY OF THE APPROVED RESURVEY SKETCH OF SURVEY NO.46 IN BLOCK NO.18 OF MANAKKUNNAM VILLAGE ANNEXURE-IV PHOTOCOPY OF THE SURVEY SKETCH IN RESPECT OF RESURVEY NO.46 OF BLOCK 18 MANAKKUNNAM VILLAGE ANNEXURE-V PHOTOCOPY OF THE BASIC TAX RECEIPT NO.56 DATED 18-08-1995 FOR THE YEAR 95-96 ANNEXURE-VI PHOTOCOPY OF THE BASIC TAX RECEIPT NO.5799886 DATED 05-10-2015 FOR THE YEAR 2015-16 ANNEXURE-VII PHOTOCOPY OF THE CERTIFICATE DATED 02-09-1995 ANNEXURE-VIII PHOTOCOPY OF THE PROCEEDINGS NO.G3.2767/06 DATED 18-04-07 ALONG WITH THE SKETCHES AND SUB DIVISION STATEMENTS APPENDED. ANNEXURE-IX TRUE COPY OF THE JUDGMENT DATED 26-11-2014 IN R.F.A NO.365 OF 2007(A) OF THIS HON'BLE COURT. ANNEXURE-X PHOTOCOPY OF THE LETTER DATED 22-11-2017 OF THE DISTRICT SURVEY DEPUTY DIRECTOR.

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RESPONDENT(S)' ANNEXURES

NIL

//True Copy//

P.A. To Judge

ANTONY DOMINIC, Ag. CJ & DAMA SESHADRI NAIDU, J.

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W.A.No.381 of 2017

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-------------------------------------------Dated this the 13th day of December, 2017.

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JUDGMENT

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Antony Dominic, Ag. CJ.

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This appeal arises from the judgment of the learned single Judge in W.P.(C).No.25180 of 2007.

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The deceased husband of the first respondent owned 6.90 acres of land in Survey No.3/1 of Manakunnam Village. In a proceedings

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under the Kerala Land Reforms Act, where he was the declarant, an order directing to surrender 4.74 acres was passed and the declarant was allowed to retain

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the remaining 2.16 acres. The case of the appellant

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is that, of the 2.16 acres, 1.26 acres and 'virivu' were

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W.A.No.381 of 2017 -2-

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sold to her by a sale deed executed on 30.04.1985. It is also stated that 90 cents were also assigned to one C.K.Premachandran, on 30.04.1985 itself.

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Subsequently, by Ext.P1 order in

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C.R.P.No.1168 of 1984, the declarant was held entitled to resume 74 cents of land out of the 4.75 acres surrendered by him. The land was not resumed and restored to the possession of the declarant or his legal heirs and finally, by Ext.P9, it was reported that the 74 cents is in the possession of the appellant herein. This led to initiation of proceedings under the Kerala Land Conservancy Act, which was challenged by the appellant in a writ petition before this Court. An interim order was passed, staying further proceedings against the property purchased by the appellant on 30.04.1985. That order was challenged in appeal and the appeal and the writ petition were heard together

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W.A.No.381 of 2017

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and were disposed of by Ext.P13 judgment wherein this Court directed the District Collector to pass final order in the matter and ordered that status quo shall be maintained in the meanwhile.

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The District Collector issued Ext.P14

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proceedings, whereby he directed the Deputy Director of Survey and Land Records to conduct a survey of land in Survey No.3/1 of Manakunnam Village. Accordingly, Ext.P15 proceedings were issued by the Deputy Director of Survey and Land Records, the

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relevant portion of which reads thus:

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“¨ ØÞÙºøcJßW ÎßºîÍâÎßÏÞÏß ¯æx¿áJßGáU ØíÅÜ¢ ùàØVæÕ 45, 51 ®KßÕ ØÌíÁßÕß×X ØVæÕ æºÏñí 45/1,2,3 ; 51/1,71,72 ®KßBæÈ ÈOV æµÞ¿áJßGáUÄßW 45/1, 51/1 ®KßÕ ØVAÞV µÞÏÜÞÏß ÈßÜÈßVJßÏá¢ 45/2, 51/72 ®KßÕ ÌÙáÎÞÈæMG èÙçAÞ¿ÄßÏáæ¿ ©JøÕí dÉµÞø¢ dÖàÎÄß ùØßÏ §µíÌÞÜßÈí ©U 74 æØaÞÏá¢ ùàØVæÕ 45/3, 51/71 ®KßÕ ÎßºîÍâÎßÏáæ¿ ØíÅÜÎÞÏá¢ ÄÏîÞùÞAßÏßGâU Øíæµºîí ¥¢·àµøßºîáæµÞIá¢ ùàØVæÕ 51_æa Ìß.xß.¦ùßW ÎáXØVæÕ 3/1 µâ¿ß ©ZæM¿áJßæµÞIá¢ 17_3_07_W µÃÏKâV

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W.A.No.381 of 2017

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ÄÞÜâAí ØVæÕÏV ÄÏîÞùÞAßÏ ùàØVæÕ 45, 46, 51 ®KßÕÏáæ¿ çµÞùßçÜ×X Øíæµºîí ùgá æºÏñáæµÞIá¢ §ÄßÈÞW ©JøÕÞµáKá.åùÕÈcá ùßAÞVÁáµ{ßW ¦ÕÖcÎÞÏ ÎÞx¢ ÕøáçJIÄÞÃí.”

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Challenging Ext.P15 and to direct

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respondents 2 to 5 to restore possession of 74 cents of land, the writ petition was filed. By the judgment under appeal, the learned single Judge held that, Ext.P15 could have been treated only as a report submitted in compliance with Ext.P14 and ordered that, a survey be conducted by the 5th respondent with

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notice to the parties and on that basis, the District Collector shall decide the matter in compliance with

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Ext.P13 judgment of this Court.

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In so far as the expression 'virivu' contained

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in the title deed of the appellant is concerned, the learned single Judge has observed in paragraph 10

W.A.No.381 of 2017

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thus:

“10. However, it has to be observed that the 6^th defendant has a contention that the term “virivu” in the sale deed executed in her favour by the original declarant would indicate more properties comprised in the same survey number, having been conveyed than the 1.26 acres specified therein. The said contention, if accepted, would definitely lead to absurd results. The vernacular term as seen from Gundart Nighandu (Dictionary) means: expansion, breadth etc. The contextual meaning that is attributable to the expression '1.26 acres and virivu' can only be the 'entire breadth and expanse of property comprised in 1.26 acres coming within the boundaries shown in the schedule' and not an inch more can be claimed by the vendee. There can neither be any substantial right asserted on the strength of such figurative expressions used in legal documents to supply legalese to the text nor can there be a substantive claim of title created by that. All contentions of the petitioner and the other legal heirs as also the 6^th respondent, except that claimed on the strength of the expression “virivu”, are left open. The District Collector shall finalize the proceedings under the Land Conservancy Act within three months from the date of receipt of the report on survey. Needless to say that resumption

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in that event shall be expedited.”

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We heard the learned Senior counsel appearing for the appellant, the learned Senior counsel for the first respondent and the learned Government Pleader appearing for the official respondents.

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On hearing the rival submissions made before us, we are inclined to agree with the learned single Judge that Ext.P15 could be taken only as a report submitted in compliance with Ext.P14. On receipt of such a report, further action that the District Collector has to take, has to be in compliance with Ext.P13 judgment of this Court. It is evident from Ext.P15 itself that subsequent to Ext.P14, a survey has been conducted. A copy of Ext.P15 proceedings and the survey sketch were produced by the appellant as

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Annexure VIII, along with this appeal. In that view of

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W.A.No.381 of 2017 -7-

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the matter, the direction of the learned single Judge th that a survey should be conducted by the 5 respondent in the writ petition and that the District Collector should consider the matter afresh in the light of that survey, were quite unwarranted. Therefore, it is ordered that Ext.P15 and its enclosures, including the survey sketch will be placed before the District Collector, as ordered by the learned single Judge and on that basis, the District Collector shall consider the matter again, as ordered by the learned single Judge. It is made clear that in the event the District Collector feels that the survey conducted is lacking in any respect, it is up to him to consider whether a fresh survey is needed or not.

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In so far as the observations made by the learned single Judge in paragraph 10 of the judgment are concerned, we find that those observations were

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W.A.No.381 of 2017 -8-

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unnecessary and are beyond the pleadings and reliefs in the writ petition. Therefore, the findings and observations contained in paragraph 10 of the judgment will stand vacated.

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It is directed that further proceedings based on the aforesaid directions shall be completed by the District Collector with notice to the parties, at any rate, within three months from the date of receipt of a copy

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of this judgment.

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The appeal is disposed of as above.

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Sd/-

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ANTONY DOMINIC, ACTING CHIEF JUSTICE.

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Sd/-

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DAMA SESHADRI NAIDU, JUDGE.

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Bb/16/12/2017

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[True copy]

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P.A to Judge

Mariyamma Thomas v. Raziya Iqbal

Case brief

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Mariyamma Thomas v. Raziya Iqbal

Case brief

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