Allowed

The Director,Department of Archaeology, v. .Madhavan Pillai, Sadasivan Nair, (Died)

Kerala HC11 Aug 2023SA/681/1993

Case brief

AI extract

What is this about?

The High Court allowed the second appeal against the decree of the lower appellate court, holding that the Travancore Devaswom Board did not have title to the property and thus the consent deed (Ext.A2) did not convey valid title. The plaintiff's alternative claims of tenancy and adverse possession were also rejected.

What did the court decide?

The judgment and decree of the lower appellate court were set aside and the suit was dismissed.

The Director,Department of Archaeology, Vs .Madhavan… — Landlord and Tenant | Kerala HC (2023)

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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 ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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FRIDAY, THE 11^TH DAY OF AUGUST 2023 / 20TH SRAVANA, 1945

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S.A. NO. 681 OF 1993

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AGAINST THE JUDGMENT DATED 27.07.1993 IN A.S.NO.197 OF 1992 OF THE DISTRICT COURT, THIRUVANANTHAPURAM AND THE JUDGMENT DATED 14.02.1992 IN O.S.NO.869 OF 1989 OF THE PRINCIPAL MUNSIFF, NEDUMANGAD

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APPELLANTS/2ND RESPONDENT/2ND DEFENDANT:

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1 THE DIRECTOR,DEPARTMENT OF ARCHAEOLOGY, KUMARAPURAM, TRIVANDRUM.

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2 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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BY ADVS.

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SRI C.P.PRADEEP- SR GOVERNMENT PLEADER

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RESPONDENTS/APPELLANT & PLAINTIFF/2ND RESPONDENT & 1ST DEFNEDANT:

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1 MADHAVAN PILLAI, SADASIVAN NAIR, (DIED) KANAKAVILAS, EAST OF KOYIKKAL, THEKKUMKARA MURI, NEDUMANGAD VILLAGE, NEDUMANGAD TALUK.*

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2 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.(RESPONDENT NO.2 IS TRANSPOSED AS APPELLANT NO.2 AS PER ORDER DATED 7.12.2022 IN IA 7/2019.)

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3 SASIKALA, (DIED)* D/O.SADASIVAN NAIR, RESIDING AT PRASANTHI, MELANKODY, NEDUMANGAD.**

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S.A.No.681 of 1993

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4 MOHANAKUMARAN NAIR, S/O.SADASIVAN NAIR, KAIKKAL HOUSE, VANTA, KARIPPUR.*

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5 VIJAYAKUMARI AMMA, D/O.SADASIVAN NAIR, KANAKAVILASAM, KOIKKAL, NEDUMANGAD.*

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6 SARADAMBIKA, DAUGHTER IN LAW OF LATE MADHUSOODHANAN NAIR, VAISHAK, THUMBODU, VALICODU, NEDUMANGADU P.O.*

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7 JAYASUDHA M.S., D/O. LATE MADHUSOODHANAN NAIR, VAISHAK, THUMBODU, VALICODU, NEDUMANGADU P.O.*

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8 SUJA M.S., D/O. LATE MADHUSOODHANAN NAIR, VAISHAK, THUMBODU, VALICODU, NEDUMANGADU P.O.*

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*ADDL.R3 TO R8 IMPLEADED AS LR'S OF DECEASED FIRST RESPONDENT VIDE ORDER DATED 12.03.2008 IN IA.1008/2007.

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9 JAYACHANDRAN, S/O.VELAPPAN NAIR, S/O.SASIKALA, KANAKAVILASAM, KOYIKKAL,, NEDUMANGAD P.O.,PIN-695 541.**

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**LEGAL HEIR OF DECEASED R3 IS IMPLEADED AS ADDL.R9 AS PER ORDER DATED 07.012.2022 IN IA.10/2019.

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BY ADVS. A.S.SHAMMY RAJ SRI.G.UNNIKRISHNAN SRI.P.PARAMESWARAN NAIR SRI.G.S.REGHUNATH SRI.G.UNNIKRISHNAN

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THIS SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 10.07.2023, THE COURT ON 11.08.2023 DELIVERED THE FOLLOWING:

S.A.No.681 of 1993

JUDGMENT

P.G. Ajithkumar, J.

The Director, Department of Archaeology, Kerala, the 2^nd defendant in O.S.No.869 of 1989 before the Munsiff’s Court, Nedumangad is the appellant. The suit was filed by the 1^st respondent seeking a decree of declaration of title and possession, setting aside Ext.A9 proceedings of the District Collector and injunction. The suit was dismissed by the learned Munsiff as per the judgement dated 14.02.1992. The appeal, A.S.No.197 of 1992 preferred by the 1^st respondent before the District Court, Thiruvananthapuram was allowed as per the judgment dated 27.07.1993. Those judgement and decree are assailed in this Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908.

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The 1^st respondent died and therefore his legal representatives were impleaded as additional respondents 3 to 8. This appeal was heard on the following substantial questions of law:

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i) When a Temple is vested with Travancore Devaswom

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S.A.No.681 of 1993

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Board by virtue of the provisions of Section 3 of the Travancore-Cochin Hindu Religious Institutions Act, 1950, were not the properties appurtenant to the Temple also vested in the Board?

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ii) Is the finding that on execution of Ext.A2, consent deed title to plaint B schedule property was divested in favour of the 1^st respondent totally against facts and law amounting to perversity?

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iii) Is not the decree declaring respondents’ right of pathway along plaint C Schedule property as a quasi easement totally against the pleadings and evidence amounting to a perverse finding?

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iv) Would not a voluntary assignment of title in respect of a part of the leasehold in favour of the tenant in consideration of determination of the lease foreclose the tenant from claiming leasehold rights any further?

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Heard the learned Special Government Pleader

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appearing for the appellant and the learned counsel appearing for additional respondents 3 to 8.

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Plaint A schedule property is one acre and 93 cents of land comprised in re-survey No.934/3 of Nedumangad Village. Koikkal Palace and Mallan Thampuran Temple are situated in the said property. This property originally belonged

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to the Royal Family of Travancore. In 1943 the property was transferred in favour of the Government of Travancore. Later, possession of the property was entrusted with the Travancore Devaswom Board, but by retaining the title with the Government.

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The plaintiff claims that plaint A schedule property excluding the Palace, the Temple and its premises was given in lease to his father, Sri.Madhavan Pillai by the Tahsildar, Nedumangad. The lease arrangement was attorned to by the Devaswom Board on 1121 M.E. and on the death of the father he, being the eldest son, obtained possession of the property and the Board attorned to the lease. He has effected improvements in the property. While so, on 28.02.1972 the Travancore Devaswom Board executed a consent deed assigning 25 cents on the south-eastern part of plaint A schedule property to the plaintiff in consideration of surrendering possession of the remaining portion of plaint A schedule. That 25 cents is plaint B schedule property. The plaintiff effected mutation and paid tax for the said property.

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He constructed a Kalyana Mandapam in plaint B schedule property in 1978, which was reconstructed by him in 1985. Pathway being used by the plaintiff to reach plaint B schedule property is along the rest of plaint A schedule, entering from the western side. The said pathway is plaint C schedule. The plaintiff had acquired the right of way along plaint C schedule by prescription. However, on 07.08.1988, the Assistant Sub Inspector of Police, Nedumangad issued Ext.A6 notice asking the plaintiff to surrender possession of plaint B schedule property and not to use plaint C schedule pathway. The plaintiff was constrained to file a Writ Petition before the High Court since the revenue authorities tried to obstruct use of the pathway by putting up a gate and obtained a favourable order. During the pendency of the present suit, the District Collector, Thiruvananthapuram cancelled the patta in favour of the plaintiff as per Ext.A9. In such circumstances, the plaintiff sought a decree as mentioned above in the suit.

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The appellant filed written statement controverting the entire claim of the plaintiff, except that he has been in

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possession of plaint B schedule property. It was contended that the property never vested with the Travancore Devaswom Board and the arrangement was just entrusting of the Temple with the Travancore Devaswom Board and allowing beneficial enjoyment of the property appurtenant thereto. Therefore the Devaswom Board did not have any right or authority to lease out the property to anyone. Legality of Ext.A1 rent receipts and also Ext.A2 consent deed was seriously challenged. Since the title was vested with the Government, the plaintiff could not claim right and title to the property even if he was in possession of the property and got executed Ext.A2. It was in the said circumstances, the mutation effected in his favour was cancelled by the District Collector, Thiruvananthapuram. Koikkal Palace and Mallan Thampuran Temple are centuries old. Therefore the appellants invoking the provisions of Section 4 of the Kerala Ancient Monuments and Archaeological Sites and Remains Act, 1968 (for short “Ancient Monuments Act”) declared the said structure as ancient monuments and the area to be protected area. The plaintiff did not choose to

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S.A.No.681 of 1993

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file any objection to the draft notification. The final notification was issued on 27.05.1980 vide Ext.B5. The plaintiff therefore has no right to claim title to plaint B schedule property or to continue in possession of the same. The construction in plaint B schedule property is an unauthorised one. The right of way claimed by the plaintiff is also refuted.

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Before the learned Munsiff, PWs.1 to 4 were examined and Exts.A1 to A13 were produced by the plaintiff. The appellants produced Exts.B1 to B7. Ext.C1, C1(a), X1 and X2 were also admitted in evidence.

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The learned Munsiff concentrated more on the history than the evidence on record and the law. It was narrated how and when Koyikkal Palace and Mallan Thampuran Temple might have been built and how right and title to plaint A schedule property and the structures thereon succeeded from royal regime to the popular government by referring to various historical literature. Thereafter considered the genuineness of Ext.A1 series rent receipts and Ext.A2 consent deed. The learned Munsiff concluded that Ext.A1

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series receipts could not be received as genuine ones and also would not prove due payment rent for the plaint A schedule property by the plaintiff. The learned Munsiff held Ext.A2 void ab initio for two reasons; firstly, its executant, the Devaswom

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Commissioner of the Travancore Devaswom Board did not have authority to execute that document and secondly, its execution was not in conformity to the provisions of the Registration Act, 1908 and the Kerala Registration Rules, 1958.

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It was also held that the Travancore Devaswom Board did not have title to plaint A schedule property for being transferred to the plaintiff and that the transfer is hit by Section 7 of the Transfer of Property Act, 1882. The question therefore is whether the plaintiff was able to establish from the evidence brought on record that he obtained valid title to plaint B schedule property.

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Apart from claiming title and possession of the plaint B schedule property, the plaintiff claimed a declaration with respect to plaint C schedule pathway. His claim was that

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he has prescribed easement right of way along plaint C schedule pathway. During the course of arguments the learned counsel appearing for additional respondents No. 3 to 8 submitted that the said respondents were not insisting on their claim of right of way any further. It is submitted that they acquired an alternative pathway and therefore they no longer require plaint C schedule pathway. On recording that submission we leave off the claim for the pathway. What remains is the relief of declaration of title and possession of plaint B schedule property and also the consequential reliefs.

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The case of the plaintiff was that his father obtained possession of plaint A schedule property on lease in the year 1121 M.E. on an yearly pattam (rent) of Rs.60/-. The property which originally belonged to the Royal Family of Tranvocore was transferred in 1943 to the Government of Travancore and later to the Travancore Devaswom Board. The father of the plaintiff, who came in possession of the property in 1121 M.E. (1946 AD) continued as the lessee by attornment and he used to pay yearly rent to the Devaswom

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Board. Exts.A1 to A1(d) are five receipts, according to the plaintiff, evidencing payment of the said rent. The learned counsel appearing for additional respondent Nos.3 to 8 would contend that the said receipts coupled with the recital in

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Ext.A2 sufficiently would prove the possession of Sri.Madhavan Pillai, and in succession, the plaintiff of plaint A schedule property. The submission of the learned Special Government Pleader, who is appearing for the appellant, in this regard is that Ext.A1 series cannot be said to be genuine receipts inasmuch as all these receipts were seen issued in the same year and manipulations are writ large on the face of the receipts. As regards Ext.A2 the contention of the learned Special Government Pleader is that the Commissioner of the Travancore Devaswom Board did not have any authority to execute it, since the title to the property was vested with the Government.

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It can be seen from Ext. A2 that leasing out of the premises of Koikkal Palace to Sri.Madhavan Pillai in the year 1121 M.E. is acknowledged by the Travancore Devaswom

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Board. The learned Munsiff held Ext.A2 to be a document void ab initio , whereas the lower appellate court held that the Travancore Devaswom Board had every authority to execute such a document and by virtue of it title to plaint B schedule property was validly transferred in favour of the plaintiff. In the said circumstances, the question required to be considered first is whether the Travancore Devaswom Board had title to plaint B schedule property for being transferred to the plaintiff.

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Ext.B7 is a copy of the Government proceedings dated 18.02.1955 transferring a few Palaces in favour of the Travancore Devaswom Board. Item No.12 in Ext.B7 is Koikkal Palace, Nedumangad. It would prove that till such time possession of Koikkal Palace, Nedumangad was with the Government. Ext.B7 does not indicate that the Temple and the whole of plaint A schedule property were transferred to the Travancore Devaswom Board. Then arises the application of Section 3 of the Travancore-Cochin Hindu Religious Institutions Act, 1950 (for short “TCHRI Act”) in order to

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ascertain whether the Mallan Thampuran Temple and whole of plaint A schedule property were vested with the Travancore Devaswom Board.

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Section 3 of the TCHRI Act reads,-

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“3. The administration of Incorporated and unincorporated Devaswoms and of Hindu Religious Endowments and all their properties and funds as well as the fund constituted under the Devaswom Proclamation, 1097 M. E. and the Surplus Fund Constituted under the Devaswom (Amendment) Proclamation, 1122 M. E. which were under the management of the Ruler of Travancore prior to the first day of July 1949, except the Sree Padrnanabhaswamy Temple, Sree Pandaravaga properties and all other Properties and funds of the said temple, and the management of all institutions which were under the Devaswom Department shall vest in the Travancore Devaswom Board.”

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If plaint A schedule property and the Temple

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thereon were covered by the Devaswom Proclamation, 1097 M.E., it would have been vested with the Travancore Devaswom Board. But the plaintiff did not produce any evidence in order to show that the Mallan Thampuran Temple

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was covered by the Devaswom Proclamation, 1097 M.E. Of course, Koikkal Mallan Thampuran Temple is an incorporated Devaswom, included in schedule I for the purpose of Section 2(c) of the TCHRI Act. Section 2(c) defines “incorporated Devaswoms and unincorporated Devaswoms”, which reads:-

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"Incorporated Devaswoms" means the Devaswoms mentioned in Schedule I; and "unincorporated Devaswoms" means those Devaswoms including Hindu Religious Endowments whether in or outside Travancore which were under the management of the Ruler of Travancore and which have separate accounts of income and expenditure and are 'separately dealt with.”

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Therefore, it can be inferred that the Koikkal Mallan Thampuran

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Temple was vested with the Travancore Devaswom Board, although it is not able to ascertain from the available evidence on which date such vesting took place. That fact is, however, not sufficient to prove that title to Koikkal Palace and also the land where the Palace and the Temple are situated vested with the Travancore Devaswom Board.

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The plaintiff was examined as PW1. He did not assert, with reference to any document, that the title to the

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property was vested with the Travancore Devaswom Board. Whereas, PW2, the Tahsildar, Nedumangad produced Ext.X2 the assessment register and deposed before the court based on the said register and records that plaint A schedule property continued to be a puramboke land meaning thereby it has always been a Government land.

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From the above, the probable finding that can be arrived at is that title to plaint A schedule property has been with the Government all throughout. The Travancore Devaswom Board obtained possession of Koyikkal Palace by virtue of Ext.B7. Mallan Thampuran Temple was vested with the Travancore Devaswom Board as can be seen from Schedule I to the TCHRI Act. But, there is absolutely no evidence or a statutory provision enabling to have a finding that the Travancore Devaswom Board acquired title to one acre and 93 cents of land, upon parts of which, both the Palace and Temple are situated.

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When there is no recital in Ext.A2 regarding derivation of title to the said property in favour of the

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Travancore Devaswom Board, can the plaintiff fall upon this document to prove that he obtained paramount title to plaint B schedule property? Two aspects are required to be considered before answering that question; right of the Travancore Devaswom Board to make such an alienation and the validity of Ext.A2.

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As pointed out above, the learned Munsiff held that Ext.A2 is void ab initio . Non-compliance of the provisions of the Registration Act and the Kerala Registration Rules is the main reason for which the Munsiff found Ext.A2 to be a void document. Another reason is that the Devaswom Commissioner could not validly present such a document for registration. It was also held that the Travancore Devaswom Board has no valid title to the property and hence there could not be a valid transfer in view of the provisions of Section 7 of the Transfer of Property Act.

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It is nobody’s case that Ext.A2 was not registered. Endorsements on the reverse of its first sheet carries endorsements regarding registration. When a document is

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registered, the presumption is that the registering officer has gone through the necessary statutory requirements before such registration. Unless there is a contention for the opposing party that there was fraud on registration or noncompliance of a provision of law regarding registration, the court cannot jump to a conclusion that the document is an invalid one.

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The Apex Court in Ishwar Dass Jain (Dead) through LRs v. Sohan Lal (Dead) by Lrs. [(2000) 1 SCC

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434] held that there is a presumption of the correctness of the endorsement on a document made by the Sub-Registrar under S.58 of the Registration Act. The Apex Court explained the said principle in Bhagat Ram and another v. Suresh and others [(2003) 12 SCC 35] and held that the certificate of registration under Section 60 of the Registration Act raises a presumption under Section 114, Illustration (e) of the Evidence Act that he had regularly performed his duty and therefore the facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be

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presumed to be correct without formal proof thereof. In

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Jamila Begum (dead) through LRs. v. Shami Mohammed (dead) through LRs. and another [(2019) 2 SCC 727] the said principle was reiterated. It was further held that the registration of a deed reinforces the valid execution of the deed. A registered document carries with it a presumption that it was validly executed and it is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law.

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The appellant did not specifically challenge the factum of registration of Ext.A2 or adduce any evidence to show that there is patent illegality in registering this document. In the circumstances, the finding of the learned Munsiff that Ext.A2 is void ab initio for want of valid registration is wrong. The lower appellate court reversed the aforesaid findings of the Munsiff and held that the Travancore Devaswom Board duly had authorised the Devaswom Commissioner to execute Ext.A2, a fact which is narrated in Ext.A2 itself, and therefore it is a valid document. For that

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purpose, Section 86 of the TCHRI Act was placed reliance on. Section 86 prohibits alienation of properties owned by religious institutions except with the sanction of the Board. The said provision is applicable to institutions as defined in Section 61(6) in Chapter VI of Part II of the TCHRI Act. Part II of the TCHRI Act relates to Cochin Devaswom Board and Section 86 applies to an alienation by a religious institution other than incorporated Devaswoms under the Cochin Devaswom Board alone. Therefore, the said provision has no application to this case. Part I of the TCHRI Act governs the Temples under the Travancore Devaswom Board and there is no similar provision in Part I. However, having the alienation as per Ext.A2 is by the Board itself through its Devaswom Commissioner, the question need be considered is only whether the Devaswom Board was capable of alienating plaint B schedule property.

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As pointed out above, there is no material to show that plaint A schedule property was ever vested with the Travancore Devaswom Board. It cannot now be disputed that

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Mallan Thampuran Temple was vested with the Board having it been included in schedule-I to TCHRI Act and the Koyikkal Palace was transferred to the Board by virtue of Ext.B7 proceedings. But as is seen from Ext.X2, which is a copy of the Assessment Register relating to the property in question, the tenure of plaint A schedule property property is pumraboke .

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The nature of tenures is described in Travancore State Manual Volume-III. In Chapter 15 the Puramboke lands are denoted as Government land. There is no evidence to show that the tenure of plaint A schedule has ever been changed as Devaswom land. What constitutes the Devaswom Lands is discernible from Sections 3 and 27 of the TCHRI Act. All the Devaswom properties and covered by the Devaswom Proclamation of 1097 M.E. stood vested with the Travancore Devaswom Board by virtue of Section 3 of the TCHRI Act. Section 27 of the TCHRI Act reads,-

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“27. Immovable properties entered or classed in the revenue records as Devaswom Vaga or Devaswom Poramboke and such other Pandaravaga lands as are

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in the possession or enjoyment of the Devaswoms mentioned in schedule I after the 30^th Meenam 1097 corresponding to the 12^th April 1922 shall be dealt with as Deva8wom properties. The provisions of the Land Conservancy Act of 1091 (IV of 1021) shall be applicable to Devaswom lands as in the case of Government lands.”

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Therefore, the properties denoted in the revenue records as any of the said tenures can be the Devaswom properties. In the absence of any evidence to show that the tenure of pliant A schedule property was ever mentioned in the revenue records as a Devaswom property the only conclusion possible is that the Devaswom Board, or for that matter, the Devaswom Commissioner did not have any authority to alienate plaint B schedule property which is a part of plaint A schedule property.

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Section 7 of the Transfer of Property Act describes the persons competent to transfer an immovable property. A person having entitlement to a transferable property or authorisation to dispose of a transferable property, which is not his own, alone is competent to transfer such a property. When it is proved that the

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Devaswom Board did not own plaint A schedule property, but only has ownership/control over the Temple thereon, transfer by the Travancore Devaswom Board of plaint B schedule property in favour of the plaintiff falls outside the competence to transfer under Section 7 of the Transfer of Property Act and therefore, Ext.A2 did convey title in favour of the plaintiff.

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The learned counsel appearing for respondent Nos.3 to 8 would submit that the predecessor-in-interest of the said respondents obtained the property in 1121 M.E. on lease, and therefore, the title to the property would stand vested with him in view of the provisions of the Travancore Devaswom Pattom Rules, 1951. In this regard, the learned counsel placed reliance on the decision of this Court in

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Rev.Fr.Victor Fernandez v. Albert Fernandez and others

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[1971 KLT 1] . From the recitals in Ext.A2 and also from Ext.A1 series as well as the oral testimony of PWs.1 and 2 it it is proved that the predecessor-in-interest of respondents 3 to 8 had leasehold right in the property. But, only if the said property is a Devaswom land, the provisions of Travancore

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Devaswom Pattom Rules will be applicable. Rule 3(5) of the Pattom Rules describes the 'holdings' and sub-rule (7) defines ‘land’. These definitions are clear enough to indicate that Devaswom lands alone are dealt with under the provisions of the Rules. As stated above, plaint A schedule property did not ever constitute a Devaswom land and therefore the claim of ownership to plaint A schedule property under the provisions of the Pattom Rules does not succeed. That apart, Rule 5 of the Pattom Rules prohibits leasing out of lands in the vicinity of Devaswom and therefore, if at all plaint A schedule property was a Devaswom land, it would fall within the mischief of the claim of the plaintiff that title to plaint B schedule property was acquired by him under the Pattom Rules is untenable.

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In Rev.Fr.Victor Fernandez [1971 KLT 1] the question was regarding which all properties come within the purview of ‘estate’ as defined in Article 31A(2)(a) of the Constitution of India. That interpretation was required for the purpose of deciding the constitutionality of Settlement

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Proclamation 1061 M.E. Such a question does not arise in this case and therefore the principle laid down in the aforesaid decision does not have application here.

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Ext.B5 is a Gazette Notification dated 27.05.1980. This is a notification issued under Section 4(3) of the Kerala Ancient Monuments Act. Koikkal Palace along with 1.93 Acres of land comprised in Sy.No.934/3 of Nedumangad Village was declared as per the said notification as an ancient monument required to be protected. Ext.B5 preceded Ext.B1 Gazette Notification. In Ext.B1, the Government had notified its intention to declare Koikkal Palace and 1.93 Acres of land around it as a protected monument under the Ancient Monuments Act and the public were called upon to submit objections, if any, in that matter. Indisputably, no objection was submitted by the plaintiff. After necessary enquiry, the Government had issued Ext.B5 notification. Once such a notification is issued, it is conclusive evidence under Section 4(4) of the Kerala Ancient Monument Act of the fact that the monument and the area mentioned in the notification became

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a protected area. That also is a reason to disentitle the plaintiff from claiming title to plaint B schedule property.

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As stated above, the plaintiff did not obtain title to plaint B schedule property by virtue of Ext.A2. The further contention of the plaintiff was that even if Ext.A2 did not confer title to plaint B schedule property, his right as a lessee with respect to that property would subsist. The alternative claim is that in the light of his possession from 1121 M.E. onwards asserting title, he has perfected title to plaint B schedule property by way of adverse possession and limitation.

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The Apex Court in M/s Muneer Enterprises v. Ramgad Minerals and Mining Ltd. and others [(2015) 5

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SCC 366] held that when a lease is terminated once by a surrender, the same would not revive or survive on any account. In that case, the lease was relating to mining. However, the said principle is applicable here as well. The specific recital in Ext.A2 is that in consideration of the surrender of remaining property, Ext.A2 was executed for

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conveying plaint B schedule property to the plaintiff. Thereby the lease was terminated. Therefore, the plaintiff is foreclosed from claiming any tenancy right in respect of plaint A schedule property.

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Following execution of Ext.A2, mutation was effected in favour of the plaintiff and land tax was paid by him. Exts.A8 and A8(a) are the receipts for payment of tax by him. The receipts are dated 18.06.1997 and 19.06.1997 respectively. Subsequently, as per Ext.A9 dated 26.04.1990 the District Collector, Thiruvananthapuram cancelled the transfer of registration in favour of the plaintiff. The learned counsel appearing for respondent Nos.3 to 8 would submit that as per Rule 18(iv) of Transfer of Registry Rules, 1966 an order for transfer of registry can be revised, cancelled or altered by the District Collector within one year alone and therefore Ext.A9 is bad in law. The period of one year in Rule 18(iv) of the Transfer of Registry Rules was amended to change the period as 5 years, with effect from 10.08.1984. Ext.A9 order was passed by the District Collector within a

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period of five years from effecting mutations in the name of the plaintiff and therefore Ext.A9 does not suffer from such a defect.

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The claim of title by the plaintiff by adverse possession and limitation was declined by the trial court. A claim of adverse possession being a hostile assertion involving expressly or impliedly in denial of title of the true owner, the burden is always on the person who asserts such a claim to prove by clear and unequivocal evidence that his possession was hostile to the real owner. It shall also be proved that the person claiming such a right possessed the property with such characteristics for the statutory period. The reasons stated by

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the trial court are sound and one after taking into account the said aspects. Hence that claim of the plaintiff also is untenable.

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In conclusion, we hold that the finding of the lower appellate court that Ext.A2 is a valid document by which the plaintiff obtained title to plaint B schedule property is incorrect and not sustainable in law. Therefore, this appeal is liable to be allowed.

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S.A.No.681 of 1993

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The appeal is allowed. The judgement and decree of the

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lower appellate court are set aside. The suit stands dismissed.

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No costs.

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Sd/-

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