Kerala High Court
State Of Kerala vs K Aravindakshan Pillai on 4 July, 2025
2025:KER:48447
RSA NO. 425 OF 2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 4TH DAY OF JULY 2025 / 13TH ASHADHA, 1947
RSA NO. 425 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 12.04.2024 IN AS
NO.101 OF 2021 OF ADDITIONAL DISTRICT COURT - V, PALAKKAD
ARISING OUT OF THE JUDGMENT AND DECREE DATED 21.12.2017 IN
OS NO.336 OF 2005 OF ADDITIONAL MUNSIFF COURT, PALAKKAD
APPELLANTS/APPELLANTS/DEFENDANTS:
1 STATE OF KERALA
REPRESENTED BY THE DISTRICT COLLECTOR, PALAKKAD,
PIN - 678013.
2 THE TAHSILDAR
TALUK OFFICE, PALAKKAD, PIN - 678001.
3 THE RE-SURVEY SUPERINTENDENT
OTTAPPALAM, PALAKKAD, PIN - 679521.
BY ADV.K.DENNY DEVASSY, SR.GOVERNMENT PLEADER
RESPONDENT/RESPONDENT/PLAINTIFF:
K ARAVINDAKSHAN PILLAI
AGED 61 YEARS, S/O KRISHNA PILLAI, THOTTAPURA,
MALAMPUZHA-1 VILLAGE, PALAKKAD, PIN - 678651.
RESPONDENT BY BY ADVS.
SRI.S.V.BALAKRISHNA IYER (SR.)
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SRI.MANU VYASAN PETER
SMT.MEERA P.
SMT.CHITRA JOHNSON
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 27.05.2025, THE COURT ON 04.07.2025 DELIVERED THE
FOLLOWING:
2025:KER:48447
RSA NO. 425 OF 2024
2
EASWARAN S., J.
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RSA No.425 of 2024
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Dated this the 4th day of July, 2025
JUDGMENT
The appeal is preferred by the State of Kerala aggrieved by the judgment and decree dated 21.12.2017 in OS No.336/2005 on the files of the Additional Munsiff's Court, Palakkad as confirmed by the Additional District Court-V, Palakkad in AS No.101/2021 by judgment and decree dated 12.4.2024.
2. The brief facts necessary for the disposal of the appeal are as follows:
OS No.336/2005 is a suit for a declaration, mandatory and perpetual injunction. Initially, the suit was decreed by judgment and decree dated 28.7.2007 and the State of Kerala preferred AS No.403/2008. By judgment dated 30.09.2014, the District Court, Palakkad set aside the judgment and decree of the trial court and the matter was remanded back for fresh consideration. Thereafter, by judgment and decree dated 21.12.2017, the suit was again decreed against which AS No.101/2021 was filed with an application to 2025:KER:48447 RSA NO. 425 OF 2024 3 condone the delay of 1427 days in filing the appeal, which was dismissed by order dated 10.01.2023. Aggrieved by the refusal of the appellate court to condone the delay and consequently dismissing the appeal, the State preferred RSA No.144/2023. The second appeal was allowed by this Court by judgment dated 14.02.2024 by imposing a cost of Rs.5,000/- on the appellants to condone the delay of 1427 days in preferring the appeal and directing the first appellate court to re- hear the appeal and pass appropriate orders. Pursuant to the said direction, the appeal was reheard and by judgment dated 12.4.2024, the same was dismissed.
3. The respondent/plaintiff is in possession of 29 cents comprised in RS No.175/13 by virtue of assignment deed No.2223/2001 of SRO, Olavakkode. The property was assigned in favour of the plaintiff by one Smt.Sindhu, who had derived the title from a partition deed of the year 1975. Originally, the property belonged to the Palakkad Raja family. After purchase, when the plaintiff approached the Village Officer to effect mutation, he was informed that an error has crept in the re-survey records and only 9.5 cents is reflected and the rest is shown as purambokku land. Since the property had definite boundaries and that there was no 2025:KER:48447 RSA NO. 425 OF 2024 4 purambokku land, the plaintiff approached the Resurvey Superintendent to get the resurvey records corrected. Since there was no response, the plaintiff issued a notice under Section 80 of the Code of Civil Procedure, 1908 and, thereafter, approached the Additional Munsiff's Court for a decree of declaration, mandatory and perpetual injunction against the State. The mandatory injunction was sought to rectify the error that had crept in the re-survey records. The appellants herein/defendants entered appearance and contested the suit and contended that as per the Village resurvey records, only 9.14 cents in resurvey No.175/13 belongs to the plaintiff and the remaining is recorded as Government purambokku (Panchayat Office and PWD quarters etc). Though the title deed of the plaintiff contains an extent of 29 cents, the plaintiff cannot claim any property, which is not in possession. On behalf of the plaintiff, Exts.A1 to A15 documents were marked and PW1 was examined. Exts.X1 to X6 were also marked as third-party exhibits. After the remand by the first appellate court, the advocate commissioner was examined as PW2 and the report and plan submitted by him were marked as Exts.C2 and C3, whereas Ext.C1 is the interim report filed by the commissioner. On behalf of 2025:KER:48447 RSA NO. 425 OF 2024 5 the defendants DW1 was examined. Based on the pleadings and documentary evidence, the trial court framed the following issues:
"1) Whether the plaintiff has got possession over the entire plaint schedule property? If so, is it the possession obtained pursuant to the assignment in his favour ?
2) Whether the assignor of the plaintiff had valid title over the extent of property scheduled in the plaint ?
3) Whether the valuation and the court fee paid are correct?
4) Whether the plaintiff is entitled to get declaration as prayed for ?
5) Is the prayer for mandatory injunction is allowable ?
6) Is the prayer for prohibitory injunction is allowable ?
7) Reliefs and costs ?"
4. The trial court on appreciation of the oral and documentary evidence, came to the conclusion that the Commissioner had identified the property of the Panchayat office, and marked the same in Ext.C3 plan and the said property has no connection with the disputed land and that the only difference the commissioner could notice is that in the resurvey records, a survey line measurement while taken in an angle was omitted to be recorded and hence, the difference was occurred in the re-survey sketch. The trial court accepted the conclusion of the commissioner and came to 2025:KER:48447 RSA NO. 425 OF 2024 6 a definite conclusion that the defect occurred when the re-survey was conducted, and that despite representation, the State was not prepared to correct the mistake. Accordingly, the trial court found that the plaintiff was successful in establishing the title and, therefore, declared the title and consequently issued the mandatory injunction. Aggrieved by the judgment and decree, the appellants preferred the appeal. As stated above, the appeal was preferred with a delay of 1427 days, which was condoned by this Court when the judgment in RSA No.144/2023 was rendered on 14.2.2024. The appellate court on remand considered the appeal on merits and found that Exts.C2 and C3 have relevance and that the angular difference was tallied and marked separately in the sketch by the advocate commissioner and, therefore, dismissed the appeal. Aggrieved by the same, the present appeal is preferred.
5. Heard Sri.Denny Devassy K., the learned Senior Government Pleader appearing for the appellants and Sri.S.V.Balakrishna Iyer, the learned Senior Counsel assisted by Ms.Anusree, learned counsel appearing for the respondent/plaintiff.
6. The learned Senior Government Pleader contends that the approach by the first appellate court is absolutely erroneous, 2025:KER:48447 RSA NO. 425 OF 2024 7 inasmuch as the plaint schedule property was abutting the Government property and there existing a Panchayat office and PWD quarters and that the commissioner had not identified the plaint schedule property properly and, therefore, the findings of the first appellate court cannot be sustained. It is further pointed out that survey number, thandaper account number etc. were corrected, as could be seen from the additional documents produced before this Court as Annexure-A2. Therefore, the courts below overlooked the revenue records maintained in the Revenue Department and decided the case purely based on the report of a private surveyor.
7. Per contra, the learned Senior Counsel S.V.Balakrishna Iyer, appearing on behalf of the respondent/plaintiff, pointed out that in the present appeal, no substantial question of law arises for consideration. According to him, the report of the advocate commissioner would dispel any doubt as regards the entitlement of the plaintiff to seek the reliefs. It is pointed out that in the report, the advocate commissioner has clearly found that an angular difference was found in the survey sketch and the same was detailed and marked separately. Since the judgments of the courts below are based on an 2025:KER:48447 RSA NO. 425 OF 2024 8 appreciation of evidence, no substantial question of law arises for consideration in the present appeal.
8. I have considered the rival submissions raised across the bar and have perused the judgments of the courts below.
9. Since the learned Senior Government Pleader seriously disputed the correctness of Exts.C2 and C3 plan and asserted before this Court that objections were filed by the State against the said reports and inasmuch as the reports were based on an assistance given by a private surveyor, this Court decided to call for the records of the courts below and perused the same in order to ascertain whether the statements made across the bar were correct or not.
10. On perusal of the 'A' diary proceedings, it is seen that the case was listed on 15.12.2016, when adjourned to 17.02.2017 and thereafter to 30.06.2017 for objections to the commissioner's report. On 01.07.2017, when the case was taken up, it was found that the State has not filed objections to the commissioner's report and hence, the plaintiff's evidence was completed and the case was listed to 4.7.2017 for defendants' evidence. Thus, the State, despite granting opportunity, did not choose to file objections to the report.
2025:KER:48447 RSA NO. 425 OF 2024 9
11. On a close reading of the judgments of the trial court as well as the first appellate court, it becomes inevitable for this Court to conclude that the findings of the trial court as well as the first appellate court are purely based on appreciation of evidence. The defendants/respondents herein failed to produce any documentary evidence. To cover up the lacuna, the appellants filed an application under Order-XLI Rule 27 CPC before this Court by producing copies of certain revenue records. On a perusal of the same, it is seen that what is produced before this Court is only photostat copies of the entries contained in the Basic Tax Register (BTR). Prima facie, this Court finds that though it is permissible for the appellants to produce documents at the appellate stage, no reasons are stated as to why the appellants, with due diligence, could not produce these documents before the trial court at the first instance. In the absence of any satisfactory explanation, this Court is not able to accept the request made by the appellants. Accordingly, the application, I.A.No.1/2025 in RSA No.425/2024, preferred by the appellants for receipt of additional evidence is rejected by this Court.
12. At any rate, going by the principles governing the production of additional documents under Order-XLI Rule-27 of the 2025:KER:48447 RSA NO. 425 OF 2024 10 Code of Civil Procedure, it cannot be said that the said right could be exercised at any stage. In an appeal under Section 100 of the Code of Civil Procedure, the High Court can entertain the same only if substantial question of law arises for consideration. The High Court's power to decide the question of fact is confined to cases falling under Section 103. That be so, it is difficult to hold that the right under Order-XLI Rule 27 of the Code of Civil Procedure would extend to an appeal under Section 100 CPC as well. If this Court entertains the said appeal and enters a roving enquiry, then, it will amount to reappreciation of evidence, which was not produced before the trial court. This is precisely the reason why this Court declined to accept the additional evidence produced in this appeal.
13. Pertinently, this Court cannot lose sight of the fact that the first appeal itself was preferred with a delay of 1427 days and it was because of the benevolence shown by this Court in RSA No.144/2023 that the appeal was restored to the file. Even at that appellate stage, with sufficient reasons, the State could have produced the additional documents, which they did not choose to do so. Had the documents been made available, perhaps the first appellate court would have been in a better position to appreciate the facts and evidence. Having 2025:KER:48447 RSA NO. 425 OF 2024 11 not done so, this Court holds that the present attempt made by the appellants is only to fill up the lacuna on their side in conducting the case.
14. Coming back to the contentions raised by the appellants, this Court finds that the judgment of the first appellate court in AS No.403/2008 and Cross Objection dated 30.09.2014 governs the parties. The first appellate court on an earlier occasion found that when the plaint schedule property as a larger extent originally held by the predecessor of the plaintiff and to make sure that it is not moved towards or slided towards the Government land, a plan with necessary reference to the field measurement book is required to decide the dispute. Therefore, the appellate court held that when the defendants got a specific case that there is a government purambokku in the property, a fresh plan is required to be prepared by the commissioner with reference to the field measurement book. It is in this context that the final report of the advocate commissioner must be construed. The advocate commissioner in his report found that on measurement of the property, he could notice that the re-survey records and the survey line measurement were taken in an angle, which was omitted to be recorded, and hence the difference occurred in the re-survey sketch.
2025:KER:48447 RSA NO. 425 OF 2024 12 He further opined that having gone through the certified copy of the measurements taken in the location sketch, the transverse line drawn from the south-western corner to the north-eastern corner measuring 191.4 metres was to be touched on the southern corner of the line belonging to the Panchayat. On a further verification, the commissioner noticed that the panchayat property had a clear boundary with a compound wall on all four sides and the said property was seen lying further southern side after the road. He further recorded that if the measurement of the Panchayat land was taken, the boundary shown in the western corner will not tally with the survey records, but the total area was the same. Accordingly, the commissioner prepared the report and submitted a plan. The objection of the State as regards the report as well as the plan is that the Commissioner did not seek the assistance of the surveyor. However, a reading of the report shows that the Commissioner was permitted by the court to conduct a digital survey and a surveyor was assisted with a team of digital survey from vision survey. On a perusal of the records, it is seen that the State did not file any objection to the report of the advocate commissioner. Moreover, the failure of the appellants to produce any register showing inclusion of the plaint 2025:KER:48447 RSA NO. 425 OF 2024 13 schedule property as purambokku land and also in view of the fact that the official files produced through DW1 taluk surveyor showed several representation by the plaintiff to correct the error that has crept into the re-survey records proved categorically that the claim projected by the plaintiff was genuine. It is in this context, the trial court decreed the suit. Therefore, this Court finds that the trial court as well as the first appellate court have correctly appreciated the evidence and, therefore, the same cannot be reappreciated by this Court, thus, no substantial question of law arises for consideration.
15. The learned Senior Government Pleader, however, made a valiant attempt to seek for a remand on terms to enable the appellants to substantiate their claim. This Court is not impressed by the aforesaid request inasmuch as the plaintiff waited for 17 years to correct the mistake that has crept in the survey records. Even though this Court had shown benevolence once and remanded the matter to the first appellate court, still the appellants were not able to substantiate their cause. At this point of time, if this Court orders remand, it will amount to a travesty of justice, inasmuch as this Court would be opening the entire case for a fresh consideration. With the available evidence on record, the plaintiff was successful in proving 2025:KER:48447 RSA NO. 425 OF 2024 14 his case, and the appellants cannot be permitted to seek a remand for a fresh consideration, since no ground as required for a remand under Order-XLI Rule- 23 of the Code of Civil Procedure is made out in the present case. Accordingly, the said prayer is rejected.
Resultantly, the discussion leads to an irresistible conclusion that no substantial question of law arises for consideration in the second appeal. Accordingly, the second appeal fails and the same is dismissed. No costs.
Sd/-
EASWARAN S. JUDGE jg 2025:KER:48447 RSA NO. 425 OF 2024 15 APPENDIX OF RSA 425/2024 PETITIONER ANNEXURES Annexure A1 BASIC TAX REGISTER IN OLD SY.NO.745/5 745 A/6 AND 745 A/7 Annexure A2 PURAMBOKE REGISTER MAINTAINED BY THE VILLAGE OFFICER MALAMPUZHA-I Annexure A3 BASIC TAX REGISTER IN RE SY.NO 175 Annexure A4 ASSET REGISTER ISSUED BY THE MALAMPUZHA GRAMA PANCHAYATH Annexure A5 BASIC TAX REGISTER IN RE SY.NO 175/13 Annexure A6 CORRELATION SKETCH IN OLD SY.NO.745/A3 AND 745 A/5 Annexure A7 OLD SY. SKETCH OF FIELD NO.745/A Annexure A8 RE- SURVEY SKETCH OF RE-SY NO 175