Remanded

Gandhi Smaraka High School & Another v. the Secretary & Another

Kerala HC22 Sept 2020RSA/1080/2009

Case brief

AI extract

What is this about?

This second appeal was disposed of as the lower appellate court incorrectly classified the property as puramboke land based on revenue records. Since the plaintiffs failed to prove title or identify the specific property, the suit was remanded for fresh consideration with an opportunity to adduce additional evidence.

What did the court decide?

Judgments and decrees of lower appellate court and trial court set aside. Suit remitted to trial court for fresh consideration and fresh adduction of evidence.

Gandhi Smaraka High School & Another Vs the Secretary… — Property and Title | Kerala HC (2020)

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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 C.S.DIAS

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TUESDAY, THE 22ND DAY OF SEPTEMBER 2020 / 31ST BHADRA, 1942

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RSA.No.1080 OF 2009

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AGAINST THE DECREE IN AS 65/2005 DATED 15-01-2009 OF PRINCIPAL SUB JUDGE,IRINJALAKUDA AGAINST THE DECREE IN OS 337/2002 DATED 28-02-2005 OF PRINCIPAL MUNSIFF COURT ,IRINJALAKUDA

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APPELLANTS/RESPONDENTS/PLAINTIFFS:

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1 GANDHI SMARAKA HIGH SCHOOL ASHTAMICHIRA P.O., THRISSUR DISTRICT, REPRESENTED BY MANAGER P.K.VIJAYAN.

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2 NSS KARAYOGAM NO.3302 ASHTAMICHIRA P.O., THRISSUR DISTRICT,, REPRESENTED BY PRESIDENT V.N.PANKAJAKSHY AMMA.

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BY ADV. SRI.K.G.BALASUBRAMANIAN

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RESPONDENTS/APPELLANTS/DEFENDANTS:

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1 THE SECRETARY, BLOCK PANCHAYATH, MALA, THRISSUR DISTRICT.

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2 STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, THRISSUR.

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R1 BY ADV. SRI.K.S.BHARATHAN R2 - BY GOVERNMENT PLEADER P M SATHEESH

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14-09-2020, THE COURT ON 22-09-2020 DELIVERED THE FOLLOWING:

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RSA.No.1080 OF 2009

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JUDGMENT

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Dated this the 22^nd day of September 2020

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The plaintiffs in O.S.No.337 of 2002 on the Court of the Munsiff, Irinjalakuda are the appellants. The defendants in the suit are the respondents in the appeal. The parties are, for the sake of convenience, referred to as per their status in the plaint.

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The plaintiffs had filed the suit, seeking a decree for recovery of possession of plaint 'B' schedule property from the defendants and for damages.

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The case of the plaintiffs, in brief, is that, the 2^nd plaintiff is an association of persons hailing from the Nair community and affiliated to the Nair Service Society, Changanassery. Plaint ‘A’ schedule property having a total extent of 1 acre and 30 cents was assigned by Ammaluamma to the 2^nd plaintiff by document No.1149/1113(M.E.) of the Mala Sub Registry. Pursuant to the assignment, the 2^nd plaintiff established a school in

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RSA.No.1080 OF 2009

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the property. The office of the plaintiffs is located in the same compound. The school is known as 'Gandhi Smaraka High School'. The school is recognized by the Government of Kerala under the provisions of the Kerala Education Act and the Rules framed there under. The nominee of the Karayogam is the Manager of the school.

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Sometime in the year 1960, the Mala Panchayat Committee requested the 2^nd plaintiff for ten cents of land and the building thereon, to temporarily house the office of the Village Extension Officer (Grama Sevakan). The plaintiffs were happy to cater to the public need. Accordingly, they allowed the office of the Village Extension Officer to function in the building. A compound wall was constructed separating the ten cents of land from the remaining 'A' schedule property. The ten cents of land and the building thereon are scheduled as plaint 'B' schedule property. The plaintiffs handed over the land and building to the defendants on the specific

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RSA.No.1080 OF 2009

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understanding that the same would be returned within a short time.

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The plaintiffs have further contended that the management of the 'B' schedule property and the building was transferred to the 1^st defendant. The building has become dilapidated. The compound is full of shrubs and snakes. Anti-social elements are gathering in the property. This has led to serious inconvenience to the management of the school. It is learnt that the defendants were planning to pull down the building. Hence, the 2^nd plaintiff requested the 1^st defendant to return the building and property. However, their demand was turned down by the defendants. Hence the suit.

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The defendants contested the suit. They filed a joint written statement. It is, inter alia, contended that the 2^nd plaintiff has no authority to institute the suit. The plaintiffs have allowed the defendants to function the office of the Village Extension Officer in 'B' schedule

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property. For the sake of administrative convenience, a compound wall was constructed separating the ten cents of land from 'A' schedule property. The allegation that the plaintiffs handed over the land and building on the specific understanding that the same would be returned within a short time is false. Plaint 'B' schedule property was surrendered in the year 1960 and, thereafter, the building was constructed by the Block Development Officer, Mala. Only vacant property was surrendered to the Commissioner for Rural Development. Thereafter, the Commissioner constructed the compound wall. The plaintiffs did not hand over any building.

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Subsequently, the defendants sought leave of the court and amended the written statement. Paragraph 6(a) was incorporated in the written statement, inter alia, contending that plaint 'B' schedule property is a puramboke land.

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The plaintiffs did not file any rejoinder/replication

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to the amended written statement.

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The 2^nd plaintiff examined himself as PW-1 and Exhibits A-1 - to A-11 were marked in evidence through him. The Secretary of the 1^st defendant was examined as DW-1 and Exhibits B-1 to B-12 were marked. The Village Officer was summoned and examined as DW2 and Exhibits X-1 and X-2 were marked.

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The trial court, after evaluating the evidence and materials on record, decreed the suit by permitting the plaintiffs to recover possession of ‘B’ schedule property on the strength of Exhibit A-1 title deed. The plaintiffs' prayer for mesne profits was dismissed.

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The defendants preferred A.S.No.65 of 2005 before the Court of the Subordinate Judge, Irinjalakuda. The lower appellate court, after re-appreciating the pleadings and materials on record, by the impugned judgment and decree, set aside the judgment and decree in O.S.No.337 of 2002.

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It is aggrieved by the judgment and decree passed by the lower appellate court that the plaintiffs have filed this second appeal.

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This Court admitted the second appeal and formulated the following substantial questions of law:-

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“a) Whether on the facts and in the circumstances of the case, was the learned Subordinate Judge holding against Ext.A1 on the basis that the land was shown as puramboke in revenue register can entries in the revenue records be sufficient to avoid admitted registered deeds?

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(b) Whether on the facts and in the circumstances of the case, was not the learned subordinate judge in error in not following the decision of this Court in 1990 (2) KLT 721?

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(c) whether on the facts and in the circumstances of the case, the appellants having established title to the property, was it open to the respondents to upset the same without establishing any better title?

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(d) Whether on the facts and in the circumstances of the case, were not the respondents estopped from disputing the title of the appellants after having obtained possession of the property?”

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RSA.No.1080 OF 2009

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Heard Shri.K.G.Balasubramanian, the learned counsel appearing for the appellants, Shri.K.S.Bharathan, the learned counsel appearing for the 1^st respondent and Shri.P.M.Satheesh, the learned Government Pleader appearing for the 2^nd respondent.

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The learned counsel appearing for the appellants argued that the lower appellate court has gone wrong in holding that ‘B’ Schedule property is a puramboke land only for the reason that a sub-division was effected as per Exhibit X-2 document. The finding of the lower appellate court is based on the inconsistent pleas taken in the written statement. In one breath the defendants have stated that the 'B' schedule property was surrendered in the year 1960 and in the other breath the defendants have contended that the land is a puramboke land. The above pleas cannot go hand-in-hand, but this aspect was not considered by the lower appellate court. Moreover, there is no material on record to substantiate how the

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sub-division was effected as per Exhibit X-2. As per the provisions of the Transfer of Property Act, 1882 and Rules 2, 3 and 12 of the Transfer of Registry Rules,1966, there should be a valid transfer, to enable the authorities to effect a sub-division in the revenue records. The lower appellate court has arrived at the finding based on surmises. He relied on the decision of this Court in John v. Thaikkad Panchayat [1990 (2) KLT 721] to fortify his argument that a Panchayat has to comply with Rule (3) of the Kerala Panchayats (Acquisition and Transfer of Immovable Properties) Rules, 1963, to acquire a property. He also contended that Section 65 of the Kerala Panchayats Act, 1960, makes it mandatory that even free surrender of land can only be by way of a gift and it does not exempt the panchayat from complying with the provisions of the Transfer of Property Act and the Registration Act. He submitted that the second appeal may be allowed by setting aside the impugned judgment

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and decree of the lower appellate court and restoring the judgment and decree of the court of the first instance.

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The learned counsel appearing for the 1^st respondent, on the contrary, argued that there is no inconsistent plea in the written. According to him, the surrender of the property, which was prior to 1960, squarely falls within the purview of abandonment/ relinquishment as defined under Explanation I to Section 3(1) of the Kerala Land Conservancy Act, 1957 and Section 11 (a) of Kerala Escheats and Forfeitures Act, 1964. It was subsequent to the abandonment/relinquishment of the property by the plaintiffs, that mutation was effected in the revenue records and the sub-division was assigned for 'B' schedule property, whereby it was separated from plaint 'A' schedule property. Exhibits X-1 and X-2 prove that the plaint ‘A’ schedule and ‘B’ schedule properties are two separate items belonging to two different entities.

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Exhibits B-1 and X-2 establish that ‘B’ schedule property is in the ownership and possession of the defendants. Moreover, on 22.06.1998, the plaintiffs issued Exhibit B-6 letter requesting the defendants to cut and remove a tree from the property. This action proves that the plaintiffs were aware that 'B' schedule property belongs to the defendants. He relied on a Division Bench decision of this Court in Natarajan R v. Village Officer, Kanayannur Taluk & others [2013 (2) KHC 26], wherein it has been held that an act of relinquishment is a voluntary act of a registered holder. Therefore, the finding of the lower appellate court is legal and proper, warranting no interference by this Court under Section 100 of the Code of Civil Procedure.

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The learned Government Pleader appearing for the 2^nd respondent argued that there is no evidence forthcoming from the plaintiffs to substantiate that they are the owners of 'B' schedule property, which is

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described in Exhibit X-2 as puramboke land as early as on 26.07.1980. Exhibit X-1 also shows that the property belongs to the defendants, which is prior to Exhibit X-2. Therefore, the fact that the property belongs to the defendants is established from the revenue records at least from the year 1980 onwards. The suit was instituted only on 13.02.2002 i.e., after a long lapse of more than two decades of making the entry in the revenue records and four decades after the alleged handing over. There is no bona fides on the part of the plaintiffs in seeking a decree for recovery of possession, which is only an experimental litigation. Likewise, in view of Sections 13 and 13A of the Kerala Survey and Boundaries Act, 1961, the property is defined as puramboke land. Therefore, the second appeal is only to be dismissed.

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The appellants have sought for formulating an additional substantial question of law, as per I.A. No.2576

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of 2016, that:- "Is not the surrender of plaint B schedule property alleged by the respondents hit by Section 6 Kerala Education Act and hence void"?, This Court finds that the said substantial question of law is not germane in this second appeal because Exhibit X-1 was assigned by the erstwhile owner in favour of the 2^nd plaintiff ― Karayogam, and there is no material on record to prove that the property belongs to the school. Thus, I am of the opinion that there is no necessity to formulate the above additional substantial question of law. Hence the application is dismissed.

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After perusing the pleadings and materials on record and hearing the arguments advanced by the learned counsel for the respective parties, in addition to the substantial questions of law already formulated by this court on 12.01.2010, I formulate the following additional substantial questions of law:

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(e) Whether the plaintiff can maintain a suit for

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recovery of possession solely on the basis of the title deed, without properly identifying the property with the revenue records, when the defendants have claimed that the property is a puramboke land ?

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(f) Whether the appellate court was justified in holding that plaint ‘B’ schedule property was puramboke land solely based on Exhibits X-1 and X-2, without there being a declaration under the Kerala Land Conservancy Act, 1957, and when the defendants have admitted that ‘B’ schedule property was handed over by the plaintiffs?

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As the substantial questions of law (a) to (f) are intertwined, they are answered as follows:

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QUESTIONS (c) and (e):

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In response to paragraph (4) of the plaint, wherein it is averred that ‘B’ schedule property and the building were handed over to the defendants in the year 1960, the defendants have averred that ‘B’ schedule property was really surrendered in the year 1960 and thereafter a building was constructed by the Block Development Officer, Mala. It is also averred that only vacant land was freely surrendered to the Commissioner, who constructed the compound wall. However, in the

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amended written statement the defendants took up the plea that the property is a puramboke land.

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Undisputedly, the second plaintiff, in whose favour the assignment deed was executed, is an Association of persons governed by its bylaws. Other than for the omnibus plea in the plaint, there is no evidence on what basis ‘B’ schedule property was temporarily handed over to the defendants in the year 1960. The trial court decreed the suit on the basis on Exhibit A-1 assignment deed, which shows that the plaintiffs have title over one acre and 30 cents of land; that Exhibit B-1 and X-1 which shows that the plaintiffs now have only one acre and 20 cents and that DW-2 had deposed that 10 cents of land in Survey No.350/2 has its roots in Survey No.350 (the ― parent survey number) the property covered by Exhibit A-1.

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Similarly, the trial court rejected the plea of the defendants that that ‘B’ schedule property is not a

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puramboke land because the alleged surrender was not carried out by the plaintiffs as per the provisions of the Kerala Land Relinquishment Rules, 1958 or the Kerala Panchayat’s (Acquistion and Transfer of Immovable Properties) Rules, 1963. Thus, the purported surrender is invalid and the plaintiffs have title over ‘B’ schedule property and are hence entitled for a decree for recovery of possession.

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It is pertinent to note that the plaintiffs have banked their case solely on Exhibit A-1 and a few correspondences. Even after the defendants took up the defence that ‘B’ schedule property is a puramboke land, the plaintiffs did not seek to get an Advocate Commissioner appointed to identify the property with the assistance of the revenue officials or revenue records. Even more interesting is that, PW-1 admitted in his crossexamination that he was not aware whether ‘B’ schedule property was puramboke land or not. It is trite law that,

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in a suit seeking a decree for recovery of possession on the basis of title, the initial onus of proof is on the plaintiff to prove his title. This Court in William Babu v. Helma Roy [2018 (1) KLT 828] has held that when the reliefs of declaration and recovery of possession based on title are sought, the plaintiff has to stand on his own legs and prove his title and not on the weakness of the defence or absence of title of the defendants.

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It is to be remembered that, the case of the plaintiffs is that the property was temporarily handed over in the year 1960. The suit was instituted after 42 years, seeking a decree for recovery of possession on the strength of Exhibit A-1. Whether the claim was time barred or not is a different question. Nevertheless, without any proper identification of plaint ‘A’ and ‘B’ schedule properties with reference to Exhibit A-1, and also dehors Exhibits B-1, X-1 and X-2 records, the trial court decreed the suit solely on the basis of title of the

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plaintiffs in Exhibit A-1.

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According to me, the plaintiffs have failed to prove the identity of the ‘B’ schedule property based on Exhibit A-1.

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QUESTIONS (a) and (f) :

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It is settled law in a plethora of precedents that revenue records cannot supersede or override registered title deeds. But, in view of my finding on Questions (c) and (e), question (a) has lost significance.

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Coming to Question (f) that is whether the lower appellate court was justified in holding that ‘B’ schedule property was a puramboke land based on Exhibits X-1 and X-2, without there being a declaration under the Kerala Land Conservancy Act, 1957. I answer the same as follows:

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The lower appellate court had allowed the appeal by setting aside the judgment and decree of the trial court principally on the strength of the oral testimony of

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― DW-2 the revenue official and Exhibits X-1 and X-2 revenue records, which show that plaint ‘A’ and ‘B’ schedule properties are separate and independent properties.

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The lower appellate court failed to take note of the fact that the defendants, who initially admitted that plaint ‘B’ schedule property was handed over by the plaintiffs, have miserably failed to prove by what proceeding and when the said property was declared as a puramboke land, as contended in the written statement. Other than for a specious plea in the amended written statement that the property has become a puramboke land, no material was produced in Court other than Exhibits X-1 and X-2 revenue records. Even though the learned counsel for the respective parties have placed reliance on various enactments and rules mentioned above, the same do not find a place in the pleadings or in the lower appellate court judgment.

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It is to be borne in mind that Rules 2, 3 and 12 of the Transfer of Registry Rules,1966, makes it incumbent that for transfering or sub-dividing a property in the revenue register, it can only be made, inter alia, by voluntary action of owners and that too by a registered assignment deed. Again, without there being any materials placed on record to prove the entries made in Exhibits X-1 and X-2 pertaining to ‘B’ schedule property, the entries are shrouded in mystery especially considering that the 2^nd defendant is the highest authority of the revenue department in the District.

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There is no iota of proof whether the alleged surrender/relinquishment by the plaintiffs was under the Kerala Land Conservancy Act, 1957 or Kerala Escheats and Forfeitures Act, 1964, as contended before this Court. Hence, with the pleadings and materials available on record, the finding of the lower appellate court that ‘B’ schedule is a puramboke land is erroneous and cannot be

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accepted and is hence set aside.

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QUESTIONS (b) and (d):

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Going by the pleading and materials available on record, it is seen that ‘B’ schedule property was admittedly handover by the plaintiffs, in the year 1960, to house the office of the Village Extension Officer (Grama Sevakan), which was under the Revenue Department. The Panchayats Act (Kerala) came into force only in the year 1960. It is not discernible from averments in the plaint whether the Mala Panchayat was then governed by the provisions of the said Act. Therefore, it is not possible to conclude whether the decision in John v. Thaikkad Panchayat (supra) is applicable to the facts of the case.

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With reference to question (d), I hold that it can be decided only if there is proper determination on the other substantial questions of law discussed above.

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In light of the discussions and findings above, I am of firm opinion that the lower appellate court has

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gone wrong in arriving at the finding that the ‘B’ schedule property is a puramboke land, with the materials available on record. Similarly, in view of the lack of pleadings as well as materials on record I hold that the plaintiffs have not established that they are the owners of ‘B’ schedule property. In the said situation, the suit is only to be remitted back to the trial court for fresh consideration by giving both the parties a fresh opportunity to adduce/produce additional evidence and substantiate their respective contentions, if they so desire.

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In the result, this second appeal is disposed of by setting aside the judgments and decrees in A.S.No.65 of 2005 of the court of the Subordinate Judge, Irinjalakkuda and O.S.No.337 of 2002 of the Court of the Munsiff Court, Irinjalakkuda. O.S.No.337 of 2002 is remitted back to the trial court for fresh consideration. The trial court shall, untrammeled by the observations in this judgment, decide

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the suit afresh after giving the parties a fresh opportunity to adduce/produce additional evidence. The parties are directed to appear before the Court of the Munsiff, Irinjalakuda, on 19.10.2020 either in person or through their counsel. As the suit is of the year 2002, every endeavour shall be made by the learned Munsiff to consider and dispose of the case, as expeditiously as possible. In the facts of the case, there will be no order as to costs.

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Sd/-

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C.S.DIAS JUDGE

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kkj

Gandhi Smaraka High School & Another v. the Secretary & Another

Case brief

What is this about?

What did the court decide?

Gandhi Smaraka High School & Another v. the Secretary & Another

Case brief

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