Kerala High Court

The Executive Engineer vs P.M.Basheer on 29 May, 2025

Author: Sathish Ninan

Bench: Sathish Ninan

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               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

               THE HONOURABLE MR. JUSTICE SATHISH NINAN

                                     &

              THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR

        THURSDAY, THE 29TH DAY OF MAY 2025 / 8TH JYAISHTA, 1947

                          RFA NO. 57 OF 2018

        AGAINST THE JUDGMENT AND DECREE DATED 28.02.2017 IN OS NO.324

            OF 2013 OF III ADDITIONAL SUB COURT, ERNAKULAM

                                   -----

APPELLANTS/DEFENDANTS 2 TO 4 IN OS:

    1       THE EXECUTIVE ENGINEER
            NATIONAL HIGHWAYS (B) DIVISION, KODUNGALLOOR, THRISSUR,
            PIN-680664.

    2       THE STATE OF KERALA

    3       THE SPECIAL TAHSILDAR (LA),
            EXERCISING THE POWERS OF THE DISTRICT COLLECTOR UNDER
            THE LAND ACQUISITION ACT, OFFICE AT THE SPECIAL
            TAHSILDAR (LA) NH NO.1, KAKKANAD, ERNAKULAM,
            COCHIN-682030.

            BY ADVS.
            SRI.C.P.PRADEEP, SR. GOVERNMENT PLEADER
            SHRI.K.P.JAYACHANDRAN, ADDL. ADVOCATE GENERAL


RESPONDENTS/PLAINTIFFS & 1ST DEFENDANT IN OS:

    1       P.M.BASHEER,
            S/O.DECEASED C.A.MOHAMMED, PUNCHAKKALAPARAMBIL THEKKE
            OLLAPPILLY, AIMS-PONEKKARA P.O., EDAPPALLY, KOCHI-41,
            EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK, BY HIS POWER
            OF ATTORNEY HOLDER P.M.MOHAMMED ASHARAF, S/O.DECEASED
            C.A.MOHAMMED, PUNCHAKKALAPARAMBIL THEKKE OLLAPPILLY,
            AIMS-PONEKKARA P.O., EDAPPALLY, KOCHI-41, EDAPPALLY
            NORTH VILLAGE, KANAYANNUR TALUK.
                                                                    2025:KER:36827
RFA NO. 57 OF 2018                     -2-


    2       P.M.MOHAMMED ASHARAF,
            S/O.DECEASED C.A.MOHAMMED, PUNCHAKKALAPARAMBIL THEKKE
            OLLAPPILLY, AIMS-PONEKKARA P.O., EDAPPALLY, KOCHI-41,
            EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK.

    3       THE UNION OF INDIA.



            BY ADVS.
            SATHISAN P.
            DONA AUGUSTINE
            JAVED HAIDER
            ABHIRAM SUNISH
            SHIBU B.S
            BIJU P.PAUL
            C.DINESH



     THIS   REGULAR   FIRST   APPEAL   HAVING   COME   UP   FOR   HEARING    ON
29.05.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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                            SATHISH NINAN &
                        P. KRISHNA KUMAR, JJ.
                 = = = = = = = = = = = = = = = = = =
                         R.F.A. No.57 of 2018
                 = = = = = = = = = = = = = = = = = =
                 Dated this the 29th day of May, 2025

                             J U D G M E N T

Sathish Ninan, J.

The suit for declaration of title and recovery of

possession, with an alternate relief for recovery of

market value of the property and mesne profits, was

decreed by the trial court granting the alternate

relief. The defendants 2 to 4 are in appeal.

2. The plaint schedule property has an extent of

25.203 cents. It is situated in Old Survey 26/7B of

Edappally North village. It is a portion of a larger

extent of 57 cents. The plaintiffs are brothers.

According to the plaintiffs, a larger extent of property

including the plaint schedule property belonged to their

great grandfather, Meethiyan. From out of the larger

extent of property some extent was surrendered by him

for the formation of Shornur-Ernakulam Railway. The

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entire extent surrendered was not utilized by the

Railway. The excess land (57 cents) was categorised as

"Railway 'B' class property" and was assigned back in

favour of Meethiyan. He and his successors were paying

tax for the property. In the year 2002, for the purpose

of widening National Highway-17, defendants 2 to 4 took

over the plaint schedule property without payment of any

compensation. Though the plaintiffs approached this

Court in writ petition, they were relegated to the civil

court. It was accordingly that the present suit was

filed.

3. The first defendant Union of India remained ex

parte. Defendants 2 to 4, the State, denied the title of

the plaintiffs and their predecessors. It was contended

that the plaint schedule property is a Railway

'puramboke', and that neither the plaintiffs nor their

predecessors have any title over the same.

4. The trial court upheld the plaintiffs title.

However, finding that the property has already been

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utilised for a public purpose, the relief of recovery of

possession was declined and the alternate reliefs for

recovery of market value and mesne profits were granted.

5. We have heard Sri.C.P.Pradeep, the learned

Senior Government Pleader on behalf of the appellants-

defendants 2 to 4 and Sri.P.Sathisan on behalf of the

respondents-plaintiffs.

6. The points that arise for determination are:-

(i) Is the finding of the trial court that the plaintiffs have proved their title over the property sustainable on the evidence?

(ii) Does the decree and judgment of the trial court warrant any interference ?

7. The plaint schedule property having an extent of

25.203 cents is part of a larger extent of 57 cents. The

title and possession of the remaining extent excluding

the plaint schedule, is not in dispute. It is the

plaintiff's case that, even prior to the year 1900,

their great grandfather Meethiyan had surrendered a

larger extent of property for the formation of Shornur-

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Ernakulam Railway line and that since the entire extent

of property surrendered was not utilised, the remaining

extent of 57 cents was reassigned in his favour and

'patta' issued. It is claimed that the 'patta' is lost.

The surrender and the re-conveyance was more than 100

years back. Thus, the document of title under which the

plaintiffs claim the property is not before the court.

The issue would be whether, even on the failure of the

plaintiffs to produce their title deed it could be held

that they have title over the plaint schedule property.

8. Ext.A2 is a Partition Deed dated 12.08.1089 ME

(corresponding to the year 1914) executed between the

legal heirs of Meethiyan, the great grandfather of

plaintiffs. Therein the 57 cents of property in Sy.

26/7B, of which the plaint schedule property is a part,

is included in the 'B' schedule and was allotted to

Abdul Khader, the son of Meethiyan. The surrender in

favour of the Railway and the re-assignment is claimed

to have been prior to the year 1902. The formation of

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the relevant railway line was prior to that period is

not in dispute. Therefore, Ext.A2 partition is after the

re-conveyance as claimed by the plaintiffs. Though

Ext.A2 does not recite the manner in which title over

the plaint schedule property was obtained by Meethiyan

it has been affirmed therein that he is the title holder

of the property.

9. Exts.A3 series, A6, A7, A8, A10 series, are all

tax receipts for the period from 25.09.1115 ME onwards.

Ext.A3 series evidence payment of tax with regard to the

property by Abdul Khader. As noticed above, under Ext.A2

partition, title over the property vested with Abdul

Khader, the son of Meethiyan. It is not in dispute that

mutation of the property was effected in the name of

Meethiyan Abdul Khader in the revenue records. In

Ext.X1, the basic tax register, the name of the owner of

the property is shown as Meethiyan Abdul Khader. The

Transfer of Registry Rules require production of title

deed to effect mutation. Necessarily the authorities

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must have verified the title of the plaintiffs'

predecessor before effecting mutation in his name.

10. Ext.A4 is a Gift Deed of the year 1955 executed

by Abdul Khader and his wife in favour of their children

wherein also this property is included. Based on the

said Gift Deed, the children of Abdul Khader entered

into Ext.A5 Partition Deed in the year 1994. Even taking

it to be that Ext.A5 is a document of comparatively

recent origin and need not be relied upon, as was

noticed, Ext.A2 partition is of the year 1098 ME and

Ext.A4 gift is of the year 1955.

11. Ext.A16 is a communication from the Village

Office to the 2nd plaintiff wherein the surrender of the

property for railway and its reassignment as excess land

by including it in 'B' class category, are acknowledged.

In many of the tax receipts produced by the plaintiffs

and in Ext.X1 Basic Tax Register, an endorsement is seen

made to the effect that the property is railway 'B'

class category land. Admittedly, the 'B' class category

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lands which formed the excess lands after the laying of

the railway line were assigned and 'pattas' issued.

Ext.A24 is a communication from the District Collector

to the plaintiffs' counsel, wherein also the assignment

of railway 'B' class category of lands is acknowledged.

It is further acknowledged that the 57 cents, of which

the plaint schedule is a part is a railway 'B' class

category land and that it stands mutated in the name of

Meethiyan Abdul Khader. On the same lines is Ext.A25

communication by the Special Tahsildar (Land

Acquisition).

12. From the above it is evident that the plaint

schedule property is a railway 'B' class category

property. Such category of lands were admittedly

assigned to various persons. The plaint schedule

property has been mutated in the name of the plaintiffs'

predecessors. Coupled with the same is that the fact

that this property is included in Ext.A2 Partition Deed

executed as early as in the year 1089 ME, and in the

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subsequent documents. Incidentally, we also acknowledge

that Ext.A2 Partition Deed being more than thirty years

old carries with it the presumption under Section 90 of

the Evidence Act (Section 92 of the Bharatiya Sakshya

Adhiniyam, 2023). These materials are sufficient enough

to find that the plaintiffs and their predecessors have

title over the plaint schedule property. The sole ground

that the basic title deed viz. 'patta' which was issued

100 years back is not traceable, cannot be a ground to

hold that the plaintiffs does not have title over the

property. The evidence on record are overwhelming to

uphold the plaintiffs title. The trial court has

appreciated the evidence on record in the right

perspective and has upheld the title of the plaintiffs.

13. The learned Senior Government Pleader would

rely on a host of decisions including Guru Amaijt Singh v.

Rattan Chand (1993 (4) SCC 349), State of Himachal Pradesh v. Keshav Ram

(1996 (11) SCC 257), to contend that mere entries in the

revenue records cannot confer title. While the said

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proposition of law is beyond dispute, as noticed above,

the entire evidence on record sufficiently establish the

title of the plaintiffs and their predecessors over the

property. The finding of the trial court in the said

regard warrants no interference.

14. With regard to the quantum of compensation

fixed as land value, there is no challenge. It is not in

dispute that the property is situated in an important

locality. The trial court relied on Ext.A26 Sale Deed to

fix the value. The said property is situated less than

600 metres away from the plaint schedule property. The

executant of the document was examined as PW2. It is

having due consideration of the same that the trial

court fixed the value of the property. The same warrants

no interference.

15. On the claim for mesne profits, the trial court

has granted mesne profits at the rate of ₹ 1 lakh per

year from 04.02.2012 til date of decree. The plaintiffs

claimed ₹ 15,30,000/- per year. They relied on the oral

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evidence of PWs. 3 and 4 who deposed that the property

if leased out would fetch that much rent. The trial

court found their evidence to be unacceptable. The court

however held that even though there is no evidence

available, an amount of ₹ 1 lakh per year would be

reasonable. We are of the view that the court was not

justified in awarding mesne profits. "Mesne Profits" is

the profits which the person in wrongful possession of

the property actually received or might with ordinary

diligence have received therefrom. In Fateh Chand v. Balkrishna

Dass (AIR 1963 SC 1405), the Apex Court observed,

"The normal measure of mesne profits is therefore the value of the user of land to the person in wrongful possession". In P.L.Kapur v. Jia Rani (AIR 1973 Del 186) it was held,

"Though mesne profits are awarded because the rightful claimant is excluded from possession of immovable property by a trespasser, it is not what the original claimant loses by such exclusion but what the person in wrongful possession gets or ought to have got out of the property which is the measure of calculation of the mesne profits".

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Therefore, the criteria for calculation of mesne profits

is not what the owner loses by reason of deprivation

from possession but, what the trespasser received or

might have received with ordinary diligence. Admittedly,

even at the time when the property was taken over by the

State for widening the road, it was lying as a barren

land. There is no claim that even the remaining extent

of land was put by the plaintiff to any use from which

any income is derived. The property was taken over for

widening the road. It cannot be said that any income

could have been raised therefrom. Hence we are of the