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:
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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
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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
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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
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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
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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,
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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
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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.
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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
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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
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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.
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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
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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
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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
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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
