IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 RFA.No. 462 of 2009() --------------------------- OS.721/1991 of PRL.SUB COURT,TRIVANDRUM .................... APPELLANT/ADDL. 6TH DEFENDANT: -------------------------------------------- CORPORATION OF TRIVANDRUM,CORPORATION BUILDINGS, TRIVANDRUM, REP. BY ITS SECRETARY. BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE ADVS. SRI.P.K.MANOJKUMAR SMT.SUSHYA RAJAN RESPONDENT(S): PLAINTIFFS AND DEFEDANTS 1 TO 5: ----------------------------------------------------------------- 1. NAZEEBA BEEVI, SHYLA MANZIL KADAMPATHUKONAM KALLUVATHUKKAL, PARIPPALLY QUILON, NOW RESIDING AT EENTHIVILA VEEDU,ATTIPRA PANCHAYAT,SREKARIAM, TRIVANDRUM. 2. MOHAMMED BASHEER, SON OF ABDUL RAHIMAN RESIDING AT DO.DO. 3. HAJIRA BEEGAM, RESIDING AT KOPRAPURA VEEDU, VAYYAMOOLA, PALKULANGARA, TRIVANDRUM. 4. THE EXECUTIVE OFFICER, ATTIPRA, PANCHAYAT, TRIVANDRUM. 5. THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM. 6. THE DISTRICT COLLECTOR, TRIVANDRUM. 7. THE VILLAGE OFFICER, ATTIPRA VILLAGE, TRIVANDRUM. * 8. IGNATITIOUS D'CRUZ, MANITHOTTAM, BUNGLOW MUTTATHARA, VALIATHURA, TRIVANDRUM. (DIED) * ADDL. R9 IMPLEADED 9. CELIN D'CRUZ, W/O.LATE IGNATITIOUS D'CRUZ,MANITHOTTAM, BUNGLOW MUTTATHARA,VALIATHURA, THIRUVANANTHAPURAM * CAUSE TITLE IS AMENDED BY INCLUDING THE NAME OF ADDL.9TH RESPONDENT(LEGAL REPRESENTATIVE OF 8TH RESPONDENT) IN THE APPEAL AS PER ORDER DATED 08/12/2010 ON I.A. NO.4361/2010. R1 TO R3 BY ADVS. SRI.S.V.RAJAN SRI.R.SUDHISH R4 TO 7 BY GOVT. PLEADER SRI.P.P.PADMALAYAN R9 BY ADV. SRI.P.V.SREEDHARAN THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01/12/2011, THE COURT ON 22/12/2011 PASSED THE FOLLOWING: svs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No. 462 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of December, 2011. JUDGMENT Aggrieved by the decree dated 17.10.2008, the Corporation of Trivandrum, who is the successor in interest of Attipra Panchayat and who is the additional sixth defendant in the suit, has come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. 1.56 acres of land comprised in Sy. No.2466/23A/1/2/3 of Attipra village was acquired by the fifth defendant as per Ext.A1 dated 3.11.1978. Eversince the said gift deed, the fifth defendant had been in exclusive possession and enjoyment of the property. While so, the second plaintiff purchased 1.31 acres of land as per Ext.A2 dated 9.5.1984 from the fifth defendant. The balance 35 cents was sold as per Ext.A3 dated 9.5.1984 to one Yoosuf. Subsequently, Yoosuf assigned the property in favour of the R.F.A.462/2009. 2 plaintiffs and the plaintiffs thus came to be in possession and enjoyment of the entire 1.56 acres of land. The complaint was that the second defendant, without authority, initiated proceedings for recovery of some amount said to have been due as customs dues from one L.Antony D'cruz as required by the Assistant collector of Customs against the suit properties. The defendants have no right to proceed against the plaint schedule property for the alleged dues from Sri. L. Antony D'cruz. No amounts were due from the plaintiffs or their predecessors in interest. The plaintiffs have made considerable improvements in the property. The first defendant Panchayat, out of illmotive and spite towards the plaintiffs, along with the connivance of the other defendants are attempting to demolish the compound wall of the plaint schedule property and trying to evict the plaintiffs. Pointing out that no proceedings could be initiated against the plaint schedule property for any alleged dues from Sri. L.Antony D'cruz, the suit was laid. R.F.A.462/2009. 3 3. The fifth defendant remained ex-parte. 4. The first defendant resisted the suit. They pointed out that the suit was bad for want of notice as contemplated under the Panchyat Raj Act. According to them, in pursuance to the implementation of the seven point programme envisaged by the Government, the first defendant decided to procure 3 acres of land to establish a sports stadium and public burial ground for the Panchayat. It was then they came across the revenue sale of the property of Sri. L.Antony L. D'cruz and they participated in the auction sale of the 3 acres of property comprised in Sy. No.2466/2 and 2466/4 of Attipra village. They bid in the auction as the highest bidder and deposited auction price of Rs.61,750/- on 28.6.1980. The fifth defendant had filed objection before the Collector, which was rejected. Inspite of the sale, no steps were taken by the State Government to confirm the sale and to hand over possession of the property to the Panchayat. Ultimately, the first defendant had to R.F.A.462/2009. 4 approach this court by filing O.P.9184 of 1989 for a direction to the District Collector to confirm the same and to deliver possession of the property. As per the orders of this court, revenue authorities confirmed the sale, measured the property, prepared a plan and mahazar and delivered the property to the first defendant. Eversince then, the Panchayat has been in possession and enjoyment of the property. They also contended that the plaintiffs most probably concocted and fabricated documents with the aid of the defaulter for whose dues the properties were brought to sale and those documents are not binding on the Panchayat. They prayed for a dismissal of the suit. 5. Defendants 2 to 4 filed a joint written statement, in which they contended that the suit is not maintainable. They too contended that an extent of 3 acres of land in Sy. No. 2466/2 and 4 of Attipra Village owned by Sri. L.Antony D'cruz was attached for realisation of customs dues of Rs.21,000/- after following the necessary R.F.A.462/2009. 5 procedures. Property was brought to sale and the first defendant Panchayat purchased the property in the revenue sale. Later on, the property was delivered to them. It is pointed out that the present plaintiffs filed O.S. 721 of 1991 before the Sub Court, Trivandrum against the auction sale and the suit was dismissed on 25.3.1999. The revenue sale was conducted in accordance with law and the same was assailed by the plaintiffs. They therefore prayed for a dismissal of the suit. 6. The additional sixth defendant adopted the written statement filed by the first defendant. After amendment of the plaint, additional written statement was filed by the first defendant. 7. On the basis of the above pleadings, issues were raised. The evidence consists of the testimony of P.Ws.1 to 5 and documents marked as Exts.A1 to A35 from the side of the plaintiffs. The contesting defendants examined D.Ws.1 and 2 and had Exts.B1 to B8 marked. R.F.A.462/2009. 6 Exts. C1 and C1(a) are the commission report and plan. Ext.X1 series are third party exhibits. On a consideration of the materials before it, the court below came to the conclusion that the plaintiffs are entitled to succeed and passed a decree which reads as follows: “The title and possession of the plaintiffs over the plaint schedule property as shown in Ext.C1 plan is hereby declared. It is also declared that revenue recovery proceedings initiated for the alleged dues of one Antony D'Cruz against the plaint schedule property is null and void and not binding on the plaintiff and the plaint schedule property. A permanent injunction is hereby granted restraining the defendants from proceeding with the revenue recovery proceedings against the plaintiffs or the plaint schedule property. The prayer for realisation of damages and mesne profits are dismissed. Considering the nature of the case, parties are directed to bear their respective costs. Exts.C1(a) plan will be appended to the decree.” R.F.A.462/2009. 7 8. It is the above decree that is assailed in this appeal. 9. The question that arises for consideration is whether the court below was justified in declaring that the revenue sale is null and void and not binding on the plaintiffs and on the plaint schedule property. 10. Learned counsel appearing for the appellant pointed out that the court below was not justified in decreeing the suit without properly identifying the property which was covered by the revenue sale and the property over which the plaintiffs lay claim. Learned counsel drew the attention of this court to the fact that the plaintiffs claim property in Sy. No.2466/23A/1/2/3 of Attipra village whereas the additional sixth defendant lays claim to 3 acres of land comprised in Sy. No.2466/2 and 4 of Attipra village. There is nothing to show that the revenue sale was with respect to the property over which claim was made by the plaintiffs and without verifying whether it was the same property R.F.A.462/2009. 8 which was brought to sale in the revenue proceedings, the court below has gone to pass a decree in favour of the plaintiffs. There was no justification for the lower court to hold that the revenue sale is null and void without ascertaining the true state of affairs. Learned counsel therefore went on to point out that there is no justification for the decree now passed by the court below. 11. Learned counsel appearing for the respondents on the other hand pointed out that the court below has considered the entire aspects and found that the revenue sale is not binding on the plaint schedule property. The finding was arrived at on an appreciation of the evidence in the case and it is essentially a question of fact. Unless it is shown that the findings are perverse or totally unwarranted by the facts, interference at the appellate stage is not called for. 12. Infact the real issue involved is the identity of the property. As rightly pointed out by the learned counsel R.F.A.462/2009. 9 for the appellant, the plaintiffs lay claim to the property comprised in Sy. No.2466/23A/1/2/3 of Attipra Village. The revenue sale was in respect of the property comprised in Sy.No.2466/2 and 4 of Attipra Village. In order to succeed, the plaintiffs have to show that though the property that was brought to sale was comprised in Sy. No.2466/2 and 4, in fact proceedings were initiated against the plaint schedule property and that was brought to sale. The court below, without entering into the finding as to whether the two properties are the same, came to the conclusion that the plaintiffs have succeeded in establishing their case. 13. The definite case of the plaintiffs was that 1.56 acres of land comprised in Sy. No.2466/23A/1/2/3 of Attipra village originally belonged to the fifth defendant was assigned to them and they were in possession and enjoyment of the same. Their further case is that the defaulter, namely, Sri. Antony L. D'cruz had no right over the property comprised in Sy. No.2466/23A/1/2/3. R.F.A.462/2009. 10 14. Initially, the suit was dismissed for want of identification of the property. An appeal was preferred by the defendants as A.S.793 of 1999. The appeal was allowed and the matter was remanded to the trial court to give an opportunity to the plaintiffs to get their property identified. After remand, the plaintiffs sought for issuance of commission and got the property identified. Ext.C1 is the commission report and Ext.C1(a) is the plan. 15. The grievance was that in the revenue sale 3 acres of land comprised in Sy. No.2466/2 and 4 was sold. Under the guise of taking possession and delivering that property to the first defendant, the property which belonged to the plaintiffs were taken possession of. At the outset itself, it may be noticed that even going by the claims of both parties, i.e., the plaintiffs and defendants, the property which belonged to the plaintiffs and the property in relation to which revenue sale was initiated are lodged in entirely two different survey numbers. R.F.A.462/2009. 11 16. Plaintiffs rely on Exts.A2 to A7 and A31 and A32 and Ext.X1 to establish their case. Among the above documents, Exts.A2 to A7 are title deeds. Ext.A31 is the extract of BTR of Block No.18. Ext.A32 is the BTR of old Sy. No.2466/23A. Ext.A33 is the field measurement sketch of R.Sy. No.131/5. One may at once refer to the commission report and plan. The plan shows that the red shaded portion is the plaint schedule property. According to the report filed by the commissioner, 1.56 acres of land lodged in previous Sy. No.2466/23A, after resurvey is in R.Sy. No.131/5 of Block 18 of Attipra Village. The commissioner says that he was able to identify the plaint schedule property with respect to its lie and the title deeds produced by the plaintiffs. He made mention of the improvements seen made in the property and also about the demolished house. He also gives the boundaries of the properties located by him. It is also pointed out by the Commissioner that the property lies within well defined boundaries. R.F.A.462/2009. 12 17. Exts.B1 to B4 were produced by the defendants to prove their case. One may refer to Ext.B3 at this point of time. That is the sketch of the property comprised in Sy. No.2466/27A, B and 28A and B. When one compares with the commission sketch namely Ext.C1(a), Exts.A33 and A34, it becomes clear that the property delivered to the first defendant is not the property claimed by the plaintiffs. It is significant to notice that though the plaintiffs had got their property identified, there was no move from the side of the first defendant or additional sixth defendant to get the property involved in the revenue sale delivered to them identified. 18. On going through the records, there is nothing to show that the property comprised in Sy. No.2466/23A, corresponding to R.Sy. No.131, was subject matter of revenue sale. Even the first defendant had no case that the property claimed by the plaintiffs and the first defendant are one and the same. R.F.A.462/2009. 13 19. The evidence of D.W.1 may be referred to at this juncture. He was the then Secretary of the first defendant Panchayat. He would depose that the Panchayat decided to establish a stadium and a burial ground. They decided to acquire land for the said purpose. It is then they came across the notification regarding the revenue sale of property comprised in Sy.No.2466/2 and 2466/4. He then speaks about the participation of the Panchayat in the auction and they being successful in the auction. He would say that on 20.4.1991 in the presence of the RDO and the Tahsildar the Taluk Surveyor identified the property sold in the revenue sale and by removing the persons in possession thereof, delivery was effected to the Panchayat along with a sketch of the property so delivered. He would say that on 20.4.1991, when the property was taken possession of the survey sub division number was 2466/27A, 27B1, 28A1, A2 and B1. He says that the property is still in the possession of the Panchayat. He is R.F.A.462/2009. 14 definite that the property purchased by them in the revenue sale does not take in the property comprised in Sy. No.2466/23A and that the property purchased by them in the revenue sale continues to be used for the purpose of burial ground and stadium. In cross examination, he would depose that the plaint schedule property is not taken in by the property delivered to them in pursuance to the revenue sale. He would assert that Ext.B3 is a plan properly prepared and it does not suffer from any infirmities. 20. D.W.2 was the Secretary of the Panchyat from 1988 till 1991. In cross-examination, he would depose that the Panchayat is not in possession of the property comprised in Sy. No.2466/23A and the Panchayat has no right over any extent of property in that survey number. The Panchayat had bid in the auction and obtained delivery of the property comprised in Sy. No.2466/2 and 4. He would depose that the Panchayat obtained 2.2 acres in Sy. No. 2466/2 and 98 cents in Sy.No.2466/4. He too would depose that the survey R.F.A.462/2009. 15 sub division of the property so delivered to the Panchayat is comprised in sub division Nos. 27A, 27B1, 28A1, 28A2 and 28B1. 21. P.W.5 is the Resurvey Assistant Director. He produced a Co-relation register as directed by the court. He speaks about the various entries in Ext.X1 document produced by him. He would depose that the resurvey number of old Sy. No.2466/4 is 130. Exts.A2 to A34 were marked through him. 22. The co-relation register produced by P.W.5 shows that the resurvey number of the properties obtained by the plaintiffs as per Exts.A2 to A4 is 131/5, whereas the resurvey number of the property obtained by the defendant is comprised in Sy. No.130/1. As already noticed, a perusal of Exts.A32, A33, A34, A35 and the commission report and plan so also Exts.B3 and B4 would clearly indicate that the property sold in the revenue sale and the property obtained by the plaintiffs are entirely different properties. R.F.A.462/2009. 16 23. If that be the position, one fails to understand as to how the lower court found that the title of the property vests with the plaintiffs in respect of the property comprised in Sy. No.2466/2 and 4. The plaintiffs had no case that they ever acquired property in the said survey number. The plaintiffs confined their claim to property comprised in Sy. No.2466/23A, the corresponding resurvey number is 131/5. It was quite unnecessary and uncalled for on the part of the lower court to enter a finding that the revenue sale is null and void and is not binding on the plaintiffs especially when the property, namely the property claimed by the plaintiff and the property claimed by the defendants by virtue of the revenue sale are entirely different and lodged in two different survey numbers. 24. In view of the above finding, it becomes necessary to interfere with the judgment and decree passed by the court below. R.F.A.462/2009. 17 While upholding the title and possession of the plaintiffs over the plaint schedule property as shown in Ext.C1 plan, the other portion of the decree declaring that the revenue recovery proceedings initiated for the alleged dues of one Sri. Antory L. D'cruz against the plaint schedule property is set aside and it is held that the revenue sale in respect of the property comprised in Sy. No.2466/2 and 4 is valid and binding. The other portion of the decree granting a permanent injunction restraining the defendants from interfering with the title and possession of the plaintiffs in respect of the plaint schedule property is retained. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.