IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 OP.No. 12281 of 2000(K) PETITIONERS: 1. ANNAMMA VARGHESE, W/O. VARGHESE, PATTANATHU PUTHEN PURAKKAL, THUKALASSERI MURI, THIRUVALLA VILLAGE, DO. TALUK. 2. LALITHA, D/O. VARGHESE, DO. DO. 3. BEENA MATHEW, D/O. VARGHESE, DO. DO. 4. JOHN MATHAI, S/O. VARGHESE, DO. DO. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS: 1. UNION OF INDIA, REP. BY GENERAL MANAGER, SOUTHERN RAILWAY, MADRAS. 2. THE DIVISIONAL RAILWAY MANAGER (WORKS), DIVISIONAL OFFICE, TRIVANDRUM-14. 3. ESTATE OFFICER, SOUTHERN RAILWAY, TRIVANDRUM. BY ADV. SRI.M.V.RAMACHANDRAN THAMPI,SC,RAILWAYS SRI.P.VIJAYARAGHAVAN FOR R1TO3 SRI.M.C.CHERIAN,SR.SC.,RAILWAYS THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/08/2008, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: O.P.NO. 12281/2000. --------------------------------------------------------------- EXT.P1 TRUE COPY OF ORDER DT. 24-2-1984. EXT.P2 ORDER DT. 16-3-94. EXT.P3 APPEAL MEMORANDUM. EXT.P4 PLAN PREPARED BY DY. DIRECTOR OF SURVEY AND LAND RECORDS. EXT.P4(a) TRUE COPY OF REPORT. EXT.P4(b) REPORT OF ADVOCATE COMMISSIONER. EXT.P5 ORDER IN C.M.A.19/94 DT. 13-3-2000. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R2(a) JUDGMENT IN O.P.NO. 2296/94. EXT.R2(b) PLAN PREPARED BY RAILWAY AUTHORITIES. EXT.R2(c) EVICTION ORDER DT. 24-2-84. EXT.R2(E) ORDER/JUDGMENT IN O.S.397/1986 DT. 27-3-1991. EXT.R2(F) JUDGMENT IN O.P.NO. 10037/1992. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 12281 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 20th August, 2008. J U D G M E N T This is a litigation between the Railways and four individuals spanning over a period of 26 years the same having been started in 1982. The railways allege that the petitioners are in unauthorised occupation of railway land. Originally, the petitioners challenged the action of the railways in trying to evict the petitioners, by filing a suit. In that suit, to ascertain whether the petitioners are in unauthorised occupation of railway land, the Munsiff's Court, Thiruvalla issued an advocate commission who prepared a plan as per which 166 sq. meters of land was found to be in the possession of the petitioners. But, that suit was ultimately dismissed holding that the Munsiff's Court did not have jurisdiction to deal with the matter. The matter was taken up before this Court by the petitioners by filing O.P.No. 10037/1992 in which this Court passed Ext. R2(F) judgment. In the course of hearing of that original petition, it appears that the petitioners offered to abide by the plan prepared by the Advocate Commissioner in O.S.No. 397/1986, which suit was ultimately dismissed. But, the standing counsel for the railways refused to concede that Ext. P3 plan was drawn up correctly. This Court held that as the suit was eventually dismissed, this Court cannot hold that the parties are bound by Ext. P3 plan. Therefore, this Court adopted a practical approach by directing the railways to cause a plan to be drawn up with the assistance of the competent survey officer of the State Government and fix up the extent of 166 sq. meters of land which is said to be in unauthorised possession of the petitioners. A copy of the plan was directed to be furnished to the 1st petitioner also. It was held that recovery of the land shall be in accordance with the said plan. O.P. No. 12281/2000. -: 2 :- 2. It appears that the railways subsequently prepared a plan which is produced as Ext. R2(b). The petitioners were not served with a copy of that plan. The petitioners approached this Court by filing O.P.No. 2296/1994 by which, by Ext. R2(a) judgment, the assurance of the counsel for the railways that eviction proceedings will be proceeded against the petitioners only in accordance with Ext. P1 judgment of this Court, was recorded and the original petition was disposed of in the light of the above assurance. Subsequently, a copy of the plan was issued to the petitioners. The petitioners challenged the proceedings pursuant to that plan, challenging that plan also on the ground that it was also not correctly drawn up. They filed a C.M.A before the District Court, Pathanamthitta, who is the appellate authority under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. In that, the petitioners requested the court to get a senior officer of the survey department to prepare a plan of the properties in question. Accordingly, the District Court appointed an Advocate Commissioner for the purpose. Pursuant thereto, the Advocate Commissioner engaged the services of the Deputy Director of Survey and Land Records, Pathanamthitta to prepare a plan of the disputed properties, who prepared Ext. P4 plan and submitted the same along with his remarks, Ext. P4(a). In Exts. P4 and P4(a), the Deputy Director of Survey came to the conclusion that actually the railway is in possession of more properties than what were due to them in accordance with the revenue records. It was also found that the petitioners were in possession of less properties than what were due to them as per the revenue records. The Advocate Commissioner, by Ext. P4(b) report submitted the plan and note prepared by the Deputy Director of Survey before the court. The railways did not file any objection to the plan or the note of the Deputy Director of Survey or the report of the Advocate O.P. No. 12281/2000. -: 3 :- Commissioner. From Ext. P5 judgment of the District Court in C.M.A. No. 19/1994, the District Court appears to have accepted the survey plan. But, instead of closing the matter in terms of the survey plan finally, the District Court chose to remand the matter again to the estate officer under the Public Premises (Eviction of Unauthorised Occupants) Act for preparation of a fresh plan. Ext. P5 judgment is under challenge before me seeking the following reliefs: “i) To issue a writ of certiorari or any other writ order or direction quashing Ext. P2 order. ii) to declare that the petitioners are not in possession much less unauthorised occupation of any railway property and that they are not liable to be evicted from 20.750 cents of land in survey No. 168/2-6 of Thiruvalla Village. iii) to set aside Exhibit P5 order to the extent it remands the matter in issue in Exhibit P3 appeal for fresh consideration by the state officer.” 3. The contention of the petitioners is that in so far as Exts. P4, P4(a) and P4(b) are not disputed even by the railways, it was totally unnecessary for the District Court to remand the matter. According to counsel for the petitioners, the District Court ought to have accepted the same and closed the matter in terms of Exts.P 4 to P4(b). He would further submit that from Ext. P4(a), it is evident that the earlier plan prepared by the railways was defective in so far as the same was prepared not on the basis of the revenue records but merely on the basis of the land acquisition records and the reconciliation statement of the railways, which resulted in the discrepancy, which has been finally settled by Exts. P4 and P4(a) and therefore the matter has become conclusive with nobody objecting to Exts.P 4 and P4(a). As such, the matter should be given a quietus by accepting the same finally, is the contention of the petitioners. 4. In answer to this contention, the learned counsel for the railways points out that in the earlier proceedings the petitioners O.P. No. 12281/2000. -: 4 :- themselves had admitted that they were in unauthorised occupation of 166 sq. meters of land and therefore they cannot now be heard to contend that they are not in unauthorised occupation of any land at all. Counsel for the railways specifically refers to Ext. R2(E) judgment of the Munsiff's Court in the earlier suit as also Ext. R2(F) judgment of this Court in O.P.No. 10037/1992. She particularly reads out paragraph 2 of the judgment wherein it has been specifically held that the area which is under the unauthorised occupation of the petitioners is 166 sq. meters. She therefore submits that the petitioners cannot now be heard to contend that they are not in unauthorised occupation of any land. She vehemently contend for dismissing the original petition upholding Ext. P5 judgment of the District Court in the C.M.A. 5. I have considered the rival contentions in detail. I am of opinion that a litigation which has been continuing for 26 years should come to an end as early as possible. It is true that in Ext. R2(F), this Court had in fact referred to unauthorised occupation by the petitioners in respect of 166 sq. meters. In fact, before this Court in that original petition, the petitioners themselves offered to abide by the plan prepared by the Advocate Commissioner in the suit. But, it was the railways who took the stand that they cannot concede that Ext. P5 plan was drawn up correctly. This Court was also helpless to force them to agree to the same because since the suit has eventually dismissed, the plan prepared in that suit was not binding on the parties. That being so, I am of opinion that the railways cannot now go back to rely upon the earlier plan and the contentions raised in the suit before the Munsiff's Court and in the earlier original petition before this Court. In this connection, I must note the contention of the counsel for the petitioners that it was to give a quietus to the dispute finally that they had agreed to abide by Ext. P3 O.P. No. 12281/2000. -: 5 :- plan, before this Court as noted in Ext. R2(F) judgment. He would further submit that after refusing to accept that offer and putting the petitioners to further agonies by protracting the matter, the railways cannot now contend that the petitioners should be pinned down to Ext. R2(F) judgment and Ext. P3 plan which they themselves had refused to accept. 6. It is not disputed before me by the railways that they had at no time filed any objection to Exts. P4, P4(a) and P4(b). It is also not disputed before me that the District Judge had also accepted Exts.P. 4 to P4(b). Apart from that, on going through Exts.P4 to P4(b), I find that the same had been meticulously prepared, that too, by a Deputy Director of Survey and Land Records and he had given cogent reasons in his note in support of that plan. He has also specifically pointed out the defect in the earlier plan and the reasons for the defect in the same. Therefore, I have no doubt whatsoever in my mind that Exts.P. 4 and P4(a) are dependable for the purpose of finally deciding this case, especially since the litigation should end as early as possible in the interest of both parties. Accordingly, I set aside Ext. P5 judgment to the extent of remanding the matter to the estate officer for fresh consideration after preparing a fresh plan. I declare that the parties shall abide by Exts.P 4 and P4(a) and finally settle their dispute accordingly. The original petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/