Kerala High Court
Paulose vs Kerala State on 2 May, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 2ND DAY OF MAY 2023 / 12TH VAISAKHA, 1945
RSA NO.1169 OF 2005
AGAINST THE JUDGMENT AND DECREE DATED 25.06.2005 IN
A.S.NO.259/2005 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM
O.S.NO.438/1995 OF MUNSIFF COURT, MUVATTUPUZHA
APPELLANT/RESPONDENT/PLAINTIFF:
1 JOSEPH(DIED), AGED 79 YEARS,S/O.PAILEE,
KOCHUKUDIYIL HOUSE, NORTH MARADY KARA,
MARADY VILLAGE, MUVATTUPPUZHA.
ADDL.R2 DR.JOBY PAULOSE, AGED 41 YEARS, S/O.DR.K.J.PAULOSE,
KOCHUKUDIYIL HOUSE, RESIDING AT HOUSE NO.30/503,
SOPHIYA COLLEGE ROAD, KOTHAMANGALAM, ERNAKULAM
DISTRICT, PIN-686 691.
(LEGAL HEIR OF DECEASED SOLE APPELLANT IS IMPLEADED
AS ADDITIONAL APPELLANT AS PER ORDER DATED 25.04.2023
IN IA.1/2023, SUBJECT TO DECISION REGARDING
COMPETENCY OF THE IMPLEADED PARTY TO MAINTAIN THE
APPEAL, IN RSA.1169/2005).
BY ADVS.
MOHAN JACOB GEORGE
P.V.PARVATHY (P-41)
REENA THOMAS
NIGI GEORGE
DILEEP KUMAR P.T.
K.N.PRAMOD KUMAR MENON
RESPONDENTS/APPELLANTS/DEFENDANTS:
1 KERALA STATE, REPRESENTED BY THE DISTRICT
COLLECTOR, ERNAKULAM, KAKKANAD P.O., COCHIN.
2 THE TAHSILDAR, TALUK OFFICE,
MUVATTUPPUZHA.
3 THE EXECUTIVE ENGINEER, ROADS DIVISION,
P.W.D. OFFICE, MUVATTUPPUZHA.
4 THE ASSISTANT EXECUTIVE ENGINEER,
(ROADS) P.W.D. OFFICE, MUVATTUPPUZHA.
BY SENIOR GOVERNMENT PLEADER, SRI.T.K.VIPINDAS
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
02.05.2023, ALONG WITH R.S.A.NO.1164/2005, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
RSA Nos.1169 & 1164/2005 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 2ND DAY OF MAY 2023 / 12TH VAISAKHA, 1945
RSA NO.1164 OF 2005
AGAINST THE JUDGMENT AND DECREE DATED 25.06.2005 IN
A.S.NO.258/2005 OF DISTRICT COURT & SESSIONS COURT,
ERNAKULAM
O.S.NO.439/1995 OF MUNSIFF COURT, MUVATTUPUZHA
APPELLANT/RESPONDENT/PLAINTIFF:
PAULOSE, AGED 66 YEARS, S/O.PAILEE,
KOCHUKUDIYIL HOUSE, NORTH MARADY KARA,
MARADY VILLAGE, MUVATTUPUZHA.
BY ADVS.
SRI.MOHAN JACOB GEORGE
SMT.P.V.PARVATHI
SRI.K.N.PRAMOD KUMAR MENON
SMT.REENA THOMAS
RESPONDENTS/APPELLANTS/DEFENDANTS:
1 KERALA STATE, REPRESENTED BY THE
DISTRICT COLLECTOR, ERNAKULAM,
KAKKANAD P.O., COCHIN.
2 THE TAHSILDAR TALUK OFFICE,
MUVATTUPUZHA.
3 THE EXECUTIVE ENGINEER, ROADS DIVISION,
P.W.D.OFFICE, MUVATTUPUZHA.
4 THE ASSISTANT EXECUTIVE ENGINEER
(ROADS), P.W.D. OFFICE, MUVATTUPUZHA.
BY SENIOR GOVERNMENT PLEADER, SRI.T.K.VIPINDAS
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
RSA Nos.1169 & 1164/2005 3
02.05.2023, ALONG WITH R.S.A.NO.1169/2005, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
RSA Nos.1169 & 1164/2005 4
JUDGMENT
[RSA Nos.1169/2005, 1164/2005]
These appeals have been preferred by the
plaintiffs in the suits for declaration and
injunction. They claimed title to the plaint
schedule properties which were later found out to
be a Government land based on the survey records.
A finding has been rendered by the court below
stating that it is a Government land. Noting the
long possession, the Munsiff Court granted a
decree in favour of the plaintiffs holding that
the title, if any, belonging to the Government is
lost by adverse possession. That finding has been
interfered by the Appellate Court in the appeal
holding that the possession will become adverse to
the Government only after the survey authorities
conducted the measurement in the year 1995 and
taking note of the fact that the suit was filed
only in the year 1995, it was reckoned as no
period is lost for the Government to claim their
title over the land.
2. The plaintiffs claimed that the properties
are well demarcated by boundaries it is in their
possession for a long period. It is submitted
that subsequently certain portion of the land has
been surrendered for widening the land and a
boundary wall has been constructed. It is further
submitted that the present dilemma arose
consequent upon the anomalies in the survey
measurement conducted in the year 1995. The
learned counsel for the appellants submitted that
the appellants may be permitted to move the
revenue authority to rectify the survey anomalies
if there is any threat to their possession and
they may be permitted to file a fresh suit in the
event the survey authorities fail to rectify the
anomalies in the survey. If it is found that the
land is belonging to the Government, they may be
permitted to raise the plea of adverse possession
in that event. It is further submitted that the
survey was conducted without issuing notice to
them.
3. The learned Government Pleader opposed the
prayers and submitted that the land belonged to
the Government and the survey was conducted in
accordance with the Kerala Survey and Boundaries
Act, 1961.
4. The question is whether the appellants can
be permitted to withdraw the suits.
5. There is no doubt to the fact that the
appellants are in possession of the land as there
is a clear finding in this regard by the court
below. The present dilemma appears to have been
arisen consequent upon the survey conducted in the
year 1995. The appellants pleaded that they have
not received any notice. It is submitted that
the anomalies exist in the survey conducted, they
have statutory remedies under the Kerala Survey
and Boundaries Act to rectify such anomalies.
6. Having adverted to the submissions as
above, I am of the view that the appellants can be
permitted to withdraw the suits with liberty to
approach the authorities to rectify the anomalies,
if any, if the appellants feel further action will
be initiated based on the survey conducted in the
year 1995. Accordingly, I allow this request and
both the suits are permitted to be withdrawn with
liberty to file fresh suit, if so warranted.
Accordingly, all the findings in these matters are
set aside. With liberty as above, these appeals
are disposed of.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
ln
APPENDIX OF RSA 1169/2005
RESPONDENT'S ANNEXURES:
ANNEXURE A1 COPY OF WILL DEED NO.297/III/12 DATED
09.11.2012.
ANNEXURE A2 COPY OF THE TAX RECEIPT NO.5866915 DATED
08.06.2017 ISSUED BY THE VILLAGE OFFICER,
MARADY VILLAGE.
