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2024 Supreme(Online)(Ker) 101265
2024:KER:87261 CR IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM ND FRIDAY, THE 22 DAY OF NOVEMBER 2024 / 1ST AGRAHAYANA, 1946 RSA NO. 579 OF 2021 AGAINST THE JUDGMENT AND DECREE DATED 16.11.2020 IN AS NO.12 OF 2019 OF ADDITIONAL DISTRICT COURT- I, KALPETTA ARISING OUT OF THE JUDGMENT AND DECREE DATED 06.10.2018 IN OS NO.78 OF 2007 OF SUB COURT, SULTHANBATHERY APPELLANTS/APPELLANTS IN AS/DEFENDANTS 1 TO 8 IN OS:
1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM.
2 THE DISTRICT COLLECTOR, WAYANAD, CIVIL STATION, KALPETTA NORTH P.O., KALPETTA VILALGE, VYTHIRI TALUK, WAYANAD DISTRICT.
3 THE SUPERINTENDENT OF SURVEY AND LAND RECORDS, WAYANAD DISTRICT, CIVIL STATION, KALPETTA P.O., VYTHIRI TALUK.
4 THE SURVEYOR (SURVEY OFFICER), RESURVEY DEPARTMENT, REGARDING BLOCK NO.25, KUNNATHIDAVAKA VILLAGE, RE SURVEY OFFICE, SULTHANBATHERY P.O., SULTHANBATHERY TALUK.
5 THE SUPERINTENDENT OF SURVEY AND LAND RECORDS (RESURVEY), SULTHANBATHERY P.O., SULTHANBATHERY TALUK.
6 THE ASSISTANT DIRECTOR OF RE-SURVEY & LAND RECORDS, KARANI POST, KANIYAMBETTA VILLAGE, VYTHIRI TALUK.
7 THE TAHSILDAR, VYTHIRI TALUK, VYTHIRIR P.O., KUNNATHIDAVAKA AMSOM DESOM, VYTHIRI TALUK.
2024:KER:87261
8 THE VILLAGE OFFICER, VYTHIRI P.O., KUNNATHIDAVAKA VILALGE, VYTHIRI TALUK.
BY SPECIAL GOVERNMENT PLEADER (REVENUE) SRI M H HANIL KUMAR RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANT NO.9 IN OS:
1 M.J.SUNIL KUMAR, S/O.LATE JAMES T.MALANA, BUSINESSMAN, RESIDING AT IV/254(4), EMILY ESTATE, KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT.
2 VYTHIRI GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, VYTHIRI P.O., VYTHIRI TALUK, WAYANAD DISTRICT.
BY ADVS.
R1 BY SENIOR GOVERNMENT PLEADER SRI RENJITH THAMPANMANOJ R1 BY SRI V.M.KRISHNAKUMAR R2 BY SRI RAMASWAMY THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13.11.2024, ALONG WITH RSA.583/2021, 539/2023 AND CONNECTED CASES, THE COURT ON
22.11.2024 DELIVERED THE FOLLOWING:
2024:KER:87261 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM ND FRIDAY, THE 22 DAY OF NOVEMBER 2024 / 1ST AGRAHAYANA, 1946 RSA NO. 583 OF 2021 AGAINST THE JUDGMENT AND DECREE DATED 16.11.2020 IN AS NO.13 OF 2019 OF ADDITIONAL DISTRICT COURT- I, KALPETTA ARISING OUT OF THE JUDGMENT AND DECREE DATED 06.10.2018 IN OS NO.68 OF 2007 OF SUB COURT (KALPETTA), SULTHANBATHERY APPELLANTS/APPELLANTS IN AS/DEFENDANTS 1 TO 8 IN OS:
1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM.
2 THE DISTRICT COLLECTOR, WAYANAD, CIVIL STATION,KALPETTA NORTH.P.O, KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT.
3 THE SUPERINTENDENT OF SURVEY AND LAND RECORDS, WAYANAD DISTRICT, CIVIL STATION, KALPETTA.P.O, VYTHIRI TALUK.
4 THE SURVEYOR(SURVEY OFFICER), RESURVEY DEPARTMENT, REGARDING BLOCK NO.25, KUNNATHIDAVAKA VILLAGE, RE SURVEY OFFICE, SULTHANBATHERY.P.O, SULTHANBATHERY TALUK.
5 THE SUPERINTENDENT OF SURVEY AND LAND RECORDS(RESURVEY), SULTHANBATHERY.P.O, SULTHANBATHERY TALUK.
6 THE ASSISTANT DIRECTOR OF RE-SURVEY AND LAND RECORDS, KARANI POST, KANIYAMBETTA VILLAGE, VYTHIRI TALUK.
2024:KER:87261
7 THE THAHISLDAR VYTHIRI TALUK, VYTHIRI.P.O, KUNNATHIDAVAKA AMSOM DESOM, VYTHIRI TALUK.
8 THE VILLAGE OFFICER VYTHIRI.P.O, KUNNATHIDAVKA VILLAGE, VYTHIRI TALUK.
BY SPECIAL GOVERNMENT PLEADER(REVENUE) SRI. M H HANIL KUMAR RESPONDENTS/RESPONDENTS/PLAINTIFFS:
1 VIVEK JOSEPH S/O.KURIAN, AGED 29 YEARS, EXECUTIVE ,KANATHUR TEMPLE ROAD, PALLIKKUNNU AMSOM DESOM, PALLIKKUNNU POST, KANNUR TALUK, KANNUR DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER RITA JOSEPH, W/O.K.J.JOSEPH, KARIMUNDAKKAL HOUSE, KANATHUR TEMPLE ROAD, PALLIKKUNNU AMSOM DESOM,PALLIKKUNNU POST, KANNUR TALUK, KANNUR DISTRICT. 2 VYTHIRI GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, VYTHIRI.P.O, VYTHIRI TALUK, WAYANAD DISTRICT.
BY ADVS.
R1 BY V.M.KRISHNAKUMAR R2 BY MANOJ RAMASWAMY R2 BY P.R.REENA(K/000510/1998)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13.11.2024, ALONG WITH RSA.579/2021 AND CONNECTED CASES, THE COURT ON 22.11.2024 DELIVERED THE FOLLOWING:
2024:KER:87261 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM ND FRIDAY, THE 22 DAY OF NOVEMBER 2024 / 1ST AGRAHAYANA, 1946 RSA NO. 539 OF 2023 AGAINST THE JUDGMENT AND DECREE DATED 15.11.2021 IN AS NO.2 OF 2019 OF ADDITIONAL DISTRICT COURT- I, KALPETTA ARISING OUT OF THE JUDGMENT AND DECREE DATED 06.10.2018 IN OS NO.78 OF 2007 OF SUB COURT SULTHANBATHERY APPELLANTS/RESPONDENTS 2 TO 9 / DEFENDANTS 1 TO 8:
1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001
2 THE DISTRICT COLLECTOR, WAYANAD CIVIL STATION, KALPETTA NORTH POST, KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT., PIN - 673020
3 THE SUPERINTENDENT OF SURVEY AND LAND RECORDS WAYANAD DISTRICT, CIVIL STATION, KALPETTA NORTH, VYTHIRI TALUK, WAYANAD DISTRICT., PIN - 673122
4 THE SURVEYOR (SURVEY OFFICER)
RESURVEY DEPARTMENT, REGARDING BLOCK NO.25, KUNNATHIDAVAKA VILLAGE, RE.SURVEY OFFICE, SULTHANBATHERY POST, SULTHANBATHERY TALUK, WAYANAD DISTRICT., PIN - 673592
5 THE SUPERINTENDENT OF SURVEY AND LAND RECORDS (RESURVEY)
SULTHANBATHERY POST, SULTHANBATHERY TALUK., PIN - 673592 6 THE ASSISTANT DIRECTOR OF RESURVEY & LAND RECORDS KARANI POST, KANIYAMBETTA VILLAGE, VYTHIRI TALUK., PIN -
673591
7 THE TAHASILDAR, VYTHIRI TALUK VYTHIRI POST, KUNNATHIDAVAKA AMSOM, DESOM, VYTHIRI TALUK., 2024:KER:87261 PIN - 673576
8 THE VILLAGE OFFICER, VYTHIRI POST, KUNNATHIDAVAKA VILLAGE, VYTHIRI TALUK., PIN - 673576 BY SPECIAL GOVERNMENT PLEADER (REVENUE) SRI M.H.HANIL KUMAR RESPONDENTS/APPELLANT & 1ST RESPONDENT/9TH DEFENDANT AND PLAINTIFF:
1 VYTHIRI GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY VYTHIRI POST, KUNNATHIDAVAKA VILLAGE, VYTHIRI TALUK, WAYANAD., PIN - 673576 2 M.J. SUNIL KUMAR AGED 48 YEARS S/O.LATE JAMES T. MALANA, BUSINESSMAN, RESIDING AT IV/254(4), EMILY ESTATE, PLAINTIFF KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT., PIN - 673122 BY ADVS.
R1 BY MANOJ RAMASWAMY R2 BY ADVS. V.M.KRISHNAKUMAR P.R.REENA(K/000510/1998)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13.11.2024, ALONG WITH RSA.579/2021 AND CONNECTED CASES, THE COURT ON 22.11.2024 DELIVERED THE FOLLOWING:
2024:KER:87261 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM ND FRIDAY, THE 22 DAY OF NOVEMBER 2024 / 1ST AGRAHAYANA, 1946 RSA NO. 541 OF 2023 AGAINST THE JUDGMENT& DECREE DATED 15.11.2021 IN AS NO.1 OF 2019 OF ADDITIONAL DISTRICT COURT - I, KALPETTA ARISING OUT OF THE JUDGMENT AND DECREE DATED 06.10.2018 IN OS NO.68 OF 2007 OF SUB COURT , SULTHANBATHERY APPELLANTS/RESPONDENTS 2 TO 9 IN A.S/DEFENDANTS 1TO 8 IN O.S: 1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001
2 THE DISTRICT COLLECTOR, WAYANAD CIVIL STATION, KALPETTA NORTH POST, KALPETTA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT., PIN - 673020
3 THE SUPERINTENDENT OF SURVEY AND LAND RECORDS, WAYANAD DISTRICT CIVIL STATION, KALPETTA NORTH, VYTHIRI TALUK, WAYANAD DISTRICT., PIN - 673122
4 THE SURVEYOR (SURVEY OFFICER), RESURVEY DEPARTMENT, REGARDING BLOCK NO.25, KUNNATHIDAVAKA VILLAGE, RE.SURVEY OFFICE,SULTHANBATHERY POST, SULTHANBATHERY TALUK, WAYANAD DISTRICT., PIN - 673592
5 THE SUPERINTENDENT OF SURVEY AND LAND RECORDS (RESURVEY)
SULTHANBATHERY POST, SULTHANBATHERY TALUK., PIN - 673592 6 THE ASSISTANT DIRECTOR OF RESURVEY & LAND RECORDS KARANI POST, KANIYAMBETTA VILLAGE, VYTHIRI TALUK., PIN -
673591
2024:KER:87261
7 THE TAHASILDAR, VYTHIRI TALUK VYTHIRI POST, KUNNATHIDAVAKA AMSOM, DESOM, VYTHIRI TALUK., PIN - 673576
8 THE VILLAGE OFFICER, KUNNATHIDAVAKA VILLAGE VYTHIRI POST, KUNNATHIDAVAKA VILLAGE, VYTHIRI TALUK., PIN -
673576 BY SPECIAL GOVERNMENT PLEADER(REVENUE)SRI M.H.HANIL KUMAR RESPONDENTS/APPELLANT&1ST RESPONDENT IN A.S/9TH DEFENDANT&PLAINTIFF IN OS:
1 VYTHIRI GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY VYTHIRI, VYTHIRI POST, KUNNATHIDAVAKA VILLAGE, VYTHIRI TALUK, WAYANAD., PIN - 673576
2 VIVEK JOSEPH AGED 29 YEARS S/O KURIAN, EXECUTIVE, KANATHUR TEMPLEROAD, PALLIKUNNU AMSOM DESOM, PALLIKUNNU POST, KANNUR TALUK, KANNUR DISTRICT,REPRESENTED BY POWER OF ATTORNEY HOLDER : RITA JOSEPH, W/O K.J.JOSEPH, AGED 53YEARS, KARIMUNDAKKAL HOUSE, KANATHUR TEMPLE ROAD, PALLIKUNNU AMSOM DESOM,PALLIKUNNU POST, KANNUR TALUK, KANNUR DISTRICT., PIN - 670004 R1 BY ADV MANOJ RAMASWAMY R2 BY V.M. KRISHNAKUMAR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13.11.2024, ALONG WITH RSA.579/2021 AND CONNECTED CASES, THE COURT ON 25.11.2024 DELIVERED THE FOLLOWING:
2024:KER:87261 CR
JUDGMENT
[RSA Nos.579/2021, 583/2021, 539/2023, 541/2023]
1. These four appeals at the instance of State Government and its Revenue Officers arise from two suits filed by two individuals as O.S.Nos.68/2007 and 78/2007 under S.14 of the Kerala Surveys and Boundaries Act, challenging the Re survey of the plaint schedule properties mentioned therein.
2. The appellants are the defendants 1 to 8. Vythiri Grama Panchayat is the 9th defendant. Both the suits were decreed in favour of the plaintiffs. The 9th defendant Panchayat filed A.S.Nos. 1/2019 and 2/2019 before the First Appellate Court challenging the judgments and decrees passed in both the suits. The said appeals were dismissed by the First Appellate Court by judgments and decrees dt. 15.11.2021. The defendants 1 to 8 have filed RSA No.539/2023 and RSA No.541/2023 challenging the judgments and decrees in AS No.2/2019 and AS No. 1/2019 respectively. The defendants 1 to 8 had filed AS No.12/2019 and 13/2019 challenging the judgment and decree in both the suits with Applications to condone delay of 279 days in filing the appeals. The First Appellate Court dismissed the Applications to condone delay and consequently dismissed the appeals also as per judgment and decree dt. 16.11.2020. RSA Nos. 579/2021 and 583/2021 are filed by the defendants 1 to 8 challenging the judgments and decrees in AS No. 12/2019 and 13/2019 respectively.
3. RSA Nos.579/2021 and 583/2021 are admitted formulating the following substantial question of law:
1.Whether it is proper to dismiss a delay petition without considering the valid contentions of the State which resulted in the dismissal of the appeal without hearing it on merit?
2.Is it proper to dismiss an appeal having merit merely on the basis of delay in a manner adversely affecting the right to appeal of the aggrieved party?
4. RSA Nos.539/2021 and 541/2023 are admitted formulating the following substantial questions of law:
1. Is the finding of the Trial Court, as well as the First Appellate Court, that the suit is not barred for want of notice under S.80 CPC justified?
5. The First Appellate Court considered the matter on merits in AS Nos.1/2019 and 2/2019, in which the Panchayat, as well as the State Government and its revenue officers, advanced arguments. Even though AS Nos.12/2019 and 13/2019 filed by the State and its officers were dismissed on the ground of delay without considering the matter on merits since their contentions are considered by the First Appellate Court in AS Nos. 1/2019 and 2/2019, the State and its officers could not be said to be aggrieved by the dismissal of AS No.12/2019 and 13/2019 on the ground of delay. Hence the substantial questions of law raised in RSA Nos.579/2021 and 583/2021 do not arise for consideration. Hence, I confine the consideration of substantial question of law formulated in RSA Nos.539/2023 and 541/2023 in these appeals.
6. I heard the learned Special Government Pleader(Revenue) Sri. M.H.Hanil Kumar for the appellants in these appeals and the learned Senior Counsel Sri.Ranjith Thampan instructed by Adv. Smt. P.R.Reena for the party respondents and the learned Counsel Sri. Manoj Ramaswamy for the Panchayat.
7. The only point argued by the learned Special Government Pleader in these appeals is that the suits are not maintainable for want of Notice under S.80 CPC. The learned Special Government Pleader argued that the Trial Court, as well as the First Appellate Court, acted illegally, holding that for the suits filed under S.14 of the Kerala Surveys and Boundaries Act, Notice under S.80 CPC is not required. The learned Special Government Pleader contended that the precedents relied on by the First Appellate Court namely, Raghunath Das v. Union of India [AIR 1969 SC 674], Salem Advocate Bar Association T.N v. Union of India [AIR 2005 SC 3353] and Azhakodi Devi Charitable Trust v. Commissioner HR & CE(Administration Department) [2007(1) KHC 110] are clearly distinguishable. The learned Special Government Pleader tr
