Disposed

Jyothy P. v. State of Kerala

Kerala HC10 Dec 2018WP(C)/36882/2018

Case brief

AI extract

What is this about?

This writ petition challenged the Tahsildar's order rejecting an application for survey and mutation without prior notice. The Court held that the Tahsildar cannot correct resurvey anomalies himself and directed the respondent to file a revision petition before the District Collector under Section 13A of the Kerala Survey and Boundaries Act. The writ petition was disposed of accordingly.

What did the court decide?

The Tahsildar is restrained from proceeding for correction of resurvey mistakes; the 4th respondent must file a revision petition before the District Collector under Section 13A with notice to all par

Jyothy P. Vs State of Kerala — Property and Title | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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MONDAY ,THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940

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WP(C).No. 36882 of 2018

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PETITIONER/S:

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1 JYOTHY P., AGED 40 YEARS W/O RAMESH KUMAR, JYOHIS, PUNNAPRA VILLAGE, PUNNAPRA P.O, ALAPPUZHA.

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2 RAMESH KUMAR, AGED 42 YEARS S/O. MURALEEDHARA PANICKER, JYOTHIS, PUNNAPRA VILLAGE, PUNNAPRA VILLAGE, PUNNAPRA P.O, ALAPPUZHA DISTRICT.

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BY ADVS. SRI.R.SURAJ KUMAR SMT.V.DEEPA SRI.SUNIL J.CHAKKALACKAL

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RESPONDENT/S:

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1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE DISTRICT COLLECTOR ALAPPUZHA DISTRICT, CIVIL STATION, ALAPPUZHA.

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3 THE THAHASILDAR AMBALAPPUZHA, TALUK OFFICE, ALAPPUZHA.

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4 KAMALAMMA, AGED 94 YEARS, D/O KUTTOYAMMA, PALAZHI, TC 6/1270(2), KANJIRAMPARA P.O., THIRUVANANTHAPURAM, PIN-691030.

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5 REMADEVI, AGED 69 YEARS D/O KAMALAMMA, LAKSHMIPRABHA, CHINGOLI P.O., HARIPPAD.

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W.P.(C).No.36882 of 2018

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6 KUSUMAKUMARI, AGED 61 YEARS PALAZHI, TC 6/1270(2), KANJIRAMPARA P.O., THIRUVANANTHAPURAM, PIN-691030.

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BY ADVS.,SRI.S.PRASANTH, KUM.GAYATHRI MURALEEDHARAN SMT.V.A.HARITHA SRI.K.ARJUN VENUGOPAL SRI.R.NANDAGOPAL SRI.SIDHARTH B PRASAD

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OTHER PRESENT:

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SMT.A.C.VIDHYA,GOVT.PLEADER FOR R1 TO R3, SRI.SIDHARTH B PRASAD FOR R4 TO R6

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ALEXANDER THOMAS, J .

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W.P.(C).No.36882 of 2018

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Dated this the 10^th day of December, 2018.

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J U D G M E N T

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The main prayer in the Writ Petition (Civil)

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is as follows:

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“Issue a writ of mandamus or any other writ, order or direction to respondents 2 and 3 or any authority from measuring the property of the petitioners or from laying boundary stones therein without issuing notice to the petitioners under the Surveys and Boundaries Act, 1961.”

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2. Heard Sri.R.Suraj Kumar, learned counsel

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for the petitioners, Smt.A.C.Vidhya, learned

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Government Pleader appearing for respondents 1 to

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W.P.(C).No.36882 of 2018

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3 and Sri.Sidharth B. Prasad, learned counsel appearing for the contesting respondents 4 to 6.

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3. Petitioners claim that they are in absolute ownership, possession and enjoyment of a total extent of 16 cents of property in Sy.No.103/1A of Punnapra Village, Punnapra Taluk, Alappuzha Revenue District. It is averred that 14 cents out of the said 16 cents had originally belonged to the 4^th respondent, which she had obtained as per registered partition deed No.1817/1951. Thereafter, the 4^th respondent had executed registered settlement deed No.1625/1994 of S.R.O., Alappuzha, whereby 7 cents out of 14 cents covered by the said partition deed was settled by her to the mother of the 1^st petitioner, Padmakumari. It may be noted that Padmakumari (mother of the 1^st petitioner) and contesting respondent No.5 (Remadevi) and the contesting 6^th respondent (Kusumakumari) are the 3 daughters of the 4^th respondent (Kamalamma). Further it is stated that the 4^th respondent had thereafter

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executed yet another registered settlement deed No.3339/2005, whereby her remaining 7 cents of property was also settled in favour of her daughter, Padmakumari, who is the mother of the 1^st petitioner. Further that, yet another 2 cents of property was obtained by the mother of the 1^st petitioner as per title deed No.2692/2005. Thus, it is claimed that Padmakumari had title to the above said 14 cents plus 2 cents of property totalling to 16 cents and that she in turn had executed registered settlement deed No.938/2010, whereby she had settled 14 cents plus 2 cents of property in favour of the 1^st petitioner and 2^nd petitioner, who is the husband of the 1^st petitioner. On this basis it is claimed by the

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petitioners that they are having title and possession in respect of the abovesaid 16 cents of property (viz, 7 cents + 7 cents + 2 cents = 16 cents). It is asserted that the said property is demarcated with well defined boundaries. While so, an application was filed by the 4^th respondent

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herein before the 3^rd respondent-Tahsildar stating that 5 cents out of 14 cents which she had obtained by registered partition deed No.1817/1951 has been left in the name of her sister by mistake crept in the resurvey and she sought rectification of the mistake by measuring out the property and to effect mutation with respect to the said extent in favour of the 4^th respondent. It is further stated that specific allegation of the 4^th respondent in the application is that the said 5 cents of property, which is part of 14 cents, was mistakenly included in re-survey No.22 in favour of the 4^th respondent's sister, Lekshmikkuttyamma. Survey and measurement was conducted and a detailed enquiry was conducted on the application submitted by the 4^th respondent

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and based on the report of the head surveyor pursuant to site inspection of the said property, it was found that the 4^th respondent has no possession over any property in re-survey Nos.20, 21, 22 and the properties comprised therein are under the absolute title and enjoyment of the petitioners.

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On the basis of the abovesaid aspects, more particularly, the report of the Taluk Head Surveyor, the 3^rd respondent-Tahsildar had passed Ext.P-1 order dated 9.11.2017 rejecting the request of the 4^th respondent in the abovesaid application by holding that the 4^th respondent has not been able to prove title or possession in respect of the said total area of 5 cents out of

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14 cents and that no relief could be granted to her on her request for correction of the alleged mistake in the resurvey and if the 4^th respondent has any grievance, it is for her to approach the civil court concerned.

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4. Earlier, during the pendency of the application filed by the 4^th respondent before the Tahsildar and prior to the issuance of order dated 9.11.2017 thereon, the petitioners have approached the Principal Munsiff's Court, Alappuzha, by filing O.S.No.99/2016 seeking declaration of title and permanent prohibitory injunction in respect of the abovesaid 14 cents of property. The abovesaid

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partition deed No.1817/1951 on the basis of which the 4^th respondent had obtained the property has been produced as Anx.A-1 therein. Anxs.A-2 and A-3 therein are the settlement deed Nos.1625/1994 and settlement No.3399/2005 on the basis of which the 4^th respondent, Kamalamma, had settled the property in favour of her daughter, Padmakumari, mother of the 1^st petitioner. The settlement deed No.938/2010, whereby Padmakumari (mother of the 1^st petitioner) had settled the properties in favour of the 1^st petitioner, has been produced as Anx.A-4 therein.

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5. As stated hereinabove, Padmakumari, mother of the 1^st petitioner, had obtained another 2 cents

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of property on the basis of sale deed No.2692/2005. Further that the mother of the 1^st petitioner, had later transferred the abovesaid property coming to 16 cents (7 cents + 7 cents + 2 cents = 16 cents) covered by settlement deed Nos.1625/1994, 3399/2005 and sale deed

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No.2692/2005 in favour of the 1^st petitioner and 2^nd

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petitioner, who is the husband of the 1^st

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petitioner.

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6. On the basis of the pleadings and evidentiary materials on record, the Principal Munsiff's Court, Alappuzha, had dismissed the said O.S.No.99/2016 as per Ext.P-2 judgment dated 16.10.2018. it was found therein that as per Anx.A-2 settlement deed, the 4^th respondent, Kamalamma, had transferred 2.83 ares (7 cents) and as per Anx.A-3, only 1.90 ares (4.694 cents) was transferred by 4^th respondent in favour of her daughter, Padmakumari, mother of the 1^st petitioner. Therefore, the 1^st petitioner's predecessor-in-interest, Padmakumari, had title only over 11.694 cents of property out of the 14

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cents and not the entire extent of the abovesaid 14 cents, as claimed by the plaintiffs therein/petitioners herein. Further it is also observed therein that as per Anx.A-1, right over the entire 14 cents of property was not transferred by R-4, Kamalamma to Padmakumari, the predecessor-in-interest of the petitioners. On that

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basis the civil court has also found in Ext.P-2 judgment that as per Anx.A-4 settlement deed, the petitioners have secured right only for 13 cents 120 sq.links of property and not for the 16 cents (14 cents + 2 cents =16 cents) as alleged by them. On this basis, the civil court has held in Ext.P-2 judgment that declaration of title for the entire 16 cents cannot be granted and consequently, permanent prohibitory injunction for the said 16

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cents also cannot be granted and accordingly dismissed the suit. It is stated that the petitioners have challenged Ext.P-2 judgment of the civil court by filing Ext.P-3 Appeal Suit as A.S.No.85/2018 on the file of the District Court, Alappuzha, which is said to be pending. It will be pertinent to refer to para 15 of Ext.P-2 judgment

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which reads as follows:

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“15.	On going th	rough	the recitals of	Ext.A2 and
A3, it can	be seen that	the e	ntire 14 cents	of property
was not tra	nsferred in	favour	of Padmakumari	who is the
mother of	the 1^stplain	tiff.	As per Ext.A2,	2.83 ares
approximate	ly seven cent	s and	as per Ext.A3 1.	90 ares i.e
4.694 cent	s of proper	ties	were transferr	ed. Thus
Padmakumari	got title ov	er 11	cents of propert	y only. So
Padmakumari	who does	not	have right	over the
entire 14	cents of pro	perty	cannot transfer	right and
title whic	h she does	not	possess. She	can only
transfer w	hat she has	rece	ived from the	transferor
in Ext.A2	and A3.	So	it is clear	from the
documents	itself tha	t th	e right over	entire 14

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cents of property was not transferred in the name of the plaintiffs herein. The plaintiffs doesn't have a case that they obtained title and possession over the plaint scheduled property as per Ext A4 settlement deed. As per Ext A4, the properties in Ext A2 and A3 and another sale deed was transferred in favour of the plaintiffs by the first plaintiff's mother and the total extent of property conveyed as per Ext.A4 is 13 cents 120 sq.links. As rightly pointed out by the learned counsel for the defendants, the description of the property on Ext A4 is clear. The plaintiffs cannot claim that as per Ext A4, their title deed they got right over the entire plaint schedule property ie the C schedule property in the Ext A1 deed. As per Ext.A4, plaintiffs got title over 13 cents 120 sq. links of property. As rightly pointed out by the learned counsel for the defendant, the attempt of the plaintiffs is to get a declaration with respect to 14 cents of property mentioned in the prior deed Ext A1 merely by interpreting the recitals in Ext A2 and Ext A3 by which their predecessor in interest got title. I am satisfied that a declaration cannot be granted by merely interpreting the recitals in Exts A2 and A3. It is admitted fact that the plaint scheduled property originally belonged to first defendant by way of Ext A1. As per the recitals in Ext A2 and A3 a total of 11 cents of property was transferred to the mother of the first plaintiff. So it can be made out that only 11 cents of property was conveyed to the mother of first plaintiff and she cannot transfer a property which exceeds what was given to her. Hence they are not entitled to have a declaration of their title with respect to the plaint scheduled property as sought for. Considering the above aspects, I am satisfied that the plaintiffs are not entitled to get a declaration that the 1^st defendant has transferred entire property in the 'C' schedule in the above said deed and that she has no subsequent interest or possession over the plaint schedule property after the execution of settlement deed Nos.1625/1994 and 3399/2005 of Alappuzha SRO. The injunction sought for is consequential to the relief for declaration. The possession of plaintiffs over the entire 14 cents of property mentioned as plaint schedule property is not proved satisfactorily. There is nothing in Ext C1 series in support of the plaintiffs case. I am satisfied that the plaintiffs have not approached the court with clean hands and they are not entitled to get a decree as sought for.”

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7. It appears that presumably on the fact

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findings made by the trial court in Ext.P-2

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judgment, wherein it was held that the 4^th respondent-Kamalamma, had transferred the

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property, for which the petitioners have got right only in respect of 11.694 cents of property instead of 14 cents of property covered by the abovesaid 2 settlement deeds, the 4^th respondent had again filed an application before the 3^rd respondent-Tahsildar for necessary orders for correcting the alleged mistakes in the resurvey. It appears that the main point canvassed by the 4^th respondent is that the petitioners could claim right only in respect of 11.694 cents of property on the basis of Anxs.A-2 & A-3 settlement deeds and not for 14 cents of property, etc. It is further seen that without notice to the petitioners and 4^th respondent, the Tahsildar had ordered the Taluk Surveyor to survey and measure the property. Petitioners would point out that survey and measurement was sought to be effected by the Surveyor with the aid of the Police. The main points urged by the petitioners are as follows:

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The 3^rd respondent-Tahsildar has already taken a considered view in the matter as reflected in Ext.P-1 proceedings dated 9.11.2017 as between the very same parties and it is not open to the 4^th respondent to reopen Ext.P-1 proceedings by again entertaining the application on the plea of the 4^th respondent by pleading that facts found out by the trial court in Ext.P-2 judgment are correct, etc. Further it is pointed out that the said proceedings now sought to be set aside which was issued by the 3^rd respondent-Tahsildar is illegal and improper for the simple reason that no prior notice was given to the petitioners.

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8. Accordingly, the learned Government Pleader has made available written instructions of the 3^rd respondent wherein it is stated that prior to Ext.P-2 judgment dated 16.10.2018 of the Principal Munsiff's Court in O.S.No.99/2016, the 5^th respondent-Remadevi had submitted application before the 3^rd respondent for mutation of land in old Sy.No.1A of Punnapra Village with regard to

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the partition deed executed in 1951 and the application was submitted by the 5^th respondent on behalf of 4^th respondent. That in furtherance of the said application, the Taluk Surveyor had inspected the site and had reported by the 3^rd respondent that there are indeed resurvey anomalies and the anomalies are to be sorted out and no survey of the land in question has been carried out, etc., and that the land will be surveyed after issuing notice to all the parties including the present writ petitioners.

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9. It is the clear stand of the

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3^rd respondent-Tahsildar as disclosed in the written instructions furnished by him to the learned Government Pleader that according to him there has been anomalies/mistakes in the resurvey in respect of the land in dispute and those resurvey anomalies have to be sorted out first. The request made by the 4^th respondent in the earlier application which led to the impugned Ext.P-1 proceedings dated 9.11.2017 was also on

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the same subject matter of correction of alleged mistakes in the resurvey. The 3^rd respondentTahsildar has already taken a view in the matter by holding that no such mistakes are disclosed in the resurvey and it was found that the contention of the 4^th respondent is factually not tenable and her remedy is to approach the civil court as ordered in Ext.P-1 order. Petitioners had approached the civil court seeking for declaration of title and grant of temporary injunction and they have failed in their attempt as evident from Ext.P-2 judgment dated 16.10.2018 wherein there are specific findings made in para 15 thereof against the petitioner and in favour of the 4^th respondent to the extent it is found that the title that was conveyed to the petitioners' predecessor-in-interest would come only to 11.694 cents (7 cents + 4.694 cents = 11.694 cents). Merely because the trial court has found those factual issues in favour of the 4^th respondent to that extent and which is against the petitioners

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will not by itself enable the 3^rd respondentTahsildar to correct the alleged anomalies/mistakes in the resurvey whereby the entire extent of land in question has been shown

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in the resurvey records as in the title and possession of the petitioners. Even going by the very stand taken by the 3^rd respondent the resurvey anomalies have to be sorted out first. Hence the

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4^th respondent's attempt to have a revision or

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review of Ext.P-1 proceedings by filing an application for grant of mutation in respect of the deficit area in question will not enable the 3^rd respondent-Tahsildar to exercise his jurisdiction inasmuch as what is involved primarily now is for correction of the anomalies in the re-survey. That crucial aspect of the matter has been finalised by him against the 4^th respondent and in favour of the petitioner. For correction of the alleged mistakes, anomalies in the resurvey, the remedy of the 4^th respondent is not to approach the 3^rd respondent again but to

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approach the District Collector under Sec.13A of the Kerala Survey and Boundaries Act, 1961. If the 4^th respondent is successful in getting resurvey corrected by the 2^nd respondent-District Collector by invoking revisional jurisdiction under Sec.13A, then consequently, she also could seek mutation in respect of the deficit area in question.

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10. In that view of the matter, it is ordered that the 3^rd respondent cannot now proceed further to exercise his jurisdiction for correction of mistakes/anomalies in the resurvey in respect of the land in dispute is concerned. It is for the the 4^th respondent to file appropriate revision petition under Sec.13A of the Kerala Survey and Boundaries Act, upon which the said authority may consider the said plea after due notice to the 4^th respondent and the petitioners and any other affected parties. If such revision petition is so filed by the 4^th respondent before the 2^nd respondent under Sec.13A then the 2^nd respondent

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may ensure that effective measures for survey, measurement and demarcation of the boundaries of the properties is conducted with the aid and assistance of the Taluk Surveyor/Surveyor concerned with notice to the 4^th respondent, petitioners and any other neighbouring property owners concerned. The process of survey should be conducted on the basis of old survey records, resurvey records, title deeds of the parties and any other relevant materials to ascertain whether there are any mistakes in the resurvey wherein it

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has shown the entire extent of land to be in the name of the petitioners, herein etc. A comprehensive report of the surveyor along with a survey sketch should be furnished to the 4^th respondent and petitioners and it is for the parties to submit written submissions before the 2^nd respondent, who will thereafter afford a reasonable opportunity of being heard to the 4^th respondent and the petitioners and then may finalise the request made by the 4^th respondent in

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the revision proceedings without much delay. The entire process in this regard may be endeavoured to be completed by the 2^nd respondent-District Collector within a period of 3 months from the date of submission of the said revision petition by the 4^th respondent.

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With thee observations and directions, the above Writ Petition (Civil) will stand finally disposed of.

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Sd/-

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ALEXANDER THOMAS,

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JUDGE.

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Bkn/-

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE ORDER NO. N5 17974/15 DATED 09.11.2017

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EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 16/10/2018 IN O.S. NO. 99/2016 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, ALAPPUZHA.

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EXHIBIT P3 TRUE COPY OF THE APPEAL MEMORANDUM DATED NIL

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EXHIBIT P4 TRUE COPY OF THE PLAINT DATED NIL IN O.S. NO. 121/2018 ON THE FILE OF THE MUNSIFF'S COURT, ALAPPUZHA.

Jyothy P. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Jyothy P. v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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