Point of Law : Resources meant for public use cannot be converted into private ownership.

JUDGMENT :

Plaintiffs 1, 2 and 5 in O.S 507/1993 on the file of the Munsiff's Court, Thiruvalla are the appellants. During the course of proceedings appellant No.1 died. Her Legal Representatives were impleaded as additional appellants 4 to 6. Respondents are the defendants. The plaintiffs instituted the Original Suit for a declaration that Ext.A5 order of the Superintendent of Survey (Re-survey) Pathanamthitta, in respect of a strip of land comprised in Re-Survey No.38/4 of Thottappuzha village, is null and void and for a consequential relief of injunction against defendant No.5.

2. Plaintiffs are the owners in possession of plaint item Nos.1 and 2 properties. Defendant No.5 is the titleholder of plaint item No.5 property. The strip of land comprised in Re-Survey No.38/4 (item Nos.3 and 4 properties) forms a thodu (watercourse) and the adjacent land (used as a way) appertaining to it.

3. According to the plaintiffs, item No.3 property is a 4 feet wide pathway that starts from the Thiruvalla-Kozhencherry road and joins the plaint item No.1 property. This way further goes towards item No.2 property, a residential building, in which plaintiff No.2 is residing. A stream ('thodu') flows adjacent to the way. The said stream is item No.4 property. The 'thodu' has a width of 1 metre. Defendant No.5 acquired title to 1 Acre 51 cents of land (item No.5 property) by virtue of Ext.A4 sale deed. The northern boundary of item No.5 property, is 'thodu'. Item Nos.3 and 4 are part of puramboke land, the extent of which is 12.5 cents. Item No.3 property is a public way. Item No.4 'thodu' is a public stream. The plaintiffs and their predecessors have been using this way for the last 100 years. Subsequent to the purchase of this property, defendant No.5 made an attempt to reduce the width of the puramboku way and 'thodu'. As per Ext.A5 proceedings, defendant No.5 succeeded in getting item Nos.3 and 4 included in his 'registered holding'. No notice was served on the plaintiffs in the proceedings based on which Ext.A5 was passed. The decision of Re-survey authority is illegal and ab initio void.

4. Defendants 1 to 4, the official defendants, pleaded that Re-survey in respect of the properties, including the plaint properties, was completed in 1988, and notification as provided in the Kerala Survey and Boundaries Act, 1961 (for short ‘the Act’) was published on 09.05.1989. According to defendants 1 to 4, at the time of finalisation of Re-survey, the strip of land comprised in Re-survey No.38/4 was 4 1/2 metres wide watercourse (thodu). Defendant No.5 filed a complaint to the Re-survey authorities stating that there is a reduction in the extent of land over which he has title in the Re-survey proceedings. While redressing that complaint, it was found that the strip of land that includes the thodu and way was not having the required width to be maintained as a separate sub-division. Accordingly, it was decided to cancel sub-division No.38/4, and the property therein was made part of the sub-division No.38/5 that belonged to defendant No.5. Defendant Nos.1 to 4 further contended that the suit is not maintainable as the same has been instituted after the lapse of 1 year as provided in Section 14 of the Act.

5. Defendant No.5 contended that no puramboku land exists as pleaded by the plaintiffs. He is entitled to item Nos.3 and 4 properties, which form part of his registered land. The plaintiffs have no right over any portion of item Nos.3 and 4 properties.

6. The Trial Court framed necessary issues and proceeded with the trial. During the trial, PWs 1 to 6 were examined and Exts.A1 to A10 were marked on the side of the plaintiffs. Exts.B1 to B8 were marked on the side of the defendants. The Commissioner, who prepared Exts.A7 and A8, was examined as CW1.

7. The Trial Court declared Ext.A5 order of the Superintendent of Survey (Re-Survey) Pathanamthitta, as null and void and granted a decree in favour of the plaintiffs restraining defendant No.5 from obstructing