Anishkumar M.S. vs The Divisional Forest Officer

B. Kemal Pasha, J.—Aggrieved by the remand order passed by the District Court, Thodupuzha in A.S. No. 60/2008 through judgment dated 21.07.2010, the respondent has come up in appeal.

The appellant as plaintiff filed O.S. No. 4/2005 before the Munsiff''s Court, Idukki as a suit for perpetual injunction for restraining the respondents herein from trespassing into the plaint schedule property and from destroying the improvements thereon and for interfering with the enjoyment of the plaint schedule property by the plaintiff. The plaint schedule property was described as 1.21.40 hectares of land in survey No. 6 in Block No. 50 of Indukki village within the boundaries shown in the schedule. Originally, the plaint was filed by showing the boundaries as poramboke land at East, PWD road at South, property of Ezharakath Mary at West and the property of Sivaraman Manakkat at North. It was averred in the plaint that the said property devolved on the plaintiff through patta in L.A. 197/2001 from the Special Tahsildar (LA), Idukki and long prior to that, the father of the plaintiff was in possession of the plaint schedule property. It was alleged that on 27.12.2004, 18 forest guards under the leadership of the 3rd respondent herein trespassed into the plaint schedule property and started destroying the improvements in the property. It is also alleged that they had demolished the residential building situated in the plaint schedule property. As the plaintiff and the local people interfered, the miscreants went away from the property. According to the plaintiff, again there was an attempt from the part of the forest officials on 10.01.2005 to trespass into the plaint schedule property and hence, the suit.

The respondents contended that the plaint schedule property is a part of the reserved forest. As the plaintiff committed trespass into the portions of the reserved forest, he was evicted from the forest land in the first week of July, 2002. A shed put up by the plaintiff in the portion of the reserved forest was also removed. In connection with the same, O.R. No. 60/2000 was registered, which was culminated in C.C. 433/2003 before the Judicial First Class Magistrate''s Court, Thodupuzha. As again there was an attempt from the part of the plaintiff to trespass into the property on 24.12.2004, O.R. 87/2004 was registered. It is also contended that Ext. A1 patta is a fabricated one and the same does not relate to the plaint schedule property.

Immediately after the filing of the suit, a Commission was taken out. The Commissioner allegedly visited the plaint schedule property and prepared and furnished Ext. C1 Commissioner''s report appended with Ext. C1(a) sketch. Subsequently, another Commission was taken out for carrying out the measurements of the property for preparing its plan. The Commissioner submitted Ext. C2 report appended with Ext. C2(a) plan. According to the plaintiff, then the plaintiff could realise the mistake crept in Ext. A1 relating to the boundaries of the plaint schedule property and, therefore, the plaintiff approached the District Collector, Idukki with an application for rectification of the boundaries in Ext. A1 patta. According to the plaintiff, consequently, the Special Tahsildar (LA), Idukki inspected the plaint schedule property and ascertained that mistakes were crept in the boundaries shown in Ext. A1 patta. Consequently, through Ext. X1 proceedings, another patta was issued with corrected boundaries. On the basis of Ext. X1, the plaintiff applied for amendment of the boundaries of the property in the plaint. The amendment was allowed and the amendments were carried out. It seems that the court below has decreed the suit as prayed for through judgment and decree dated 21.08.2008.

Aggrieved by the judgment and decree in O.S. No. 4/2005, the present respondents filed A.S. No. 60/2008 before the District Court, Thodupuzha. The learned District Judge, after detailed discussion, has found that Ext. X1 cannot be relied on. It was also found that the property was not correctly identified by the Commissioner and, therefore, Ext. C2 and C2(a) are also liable to be set aside. The learned District Judge has set aside the judgment and decree impugned in the appeal, by setting aside Ext. C2 and C2(a) and by entering a finding that Ext. X1 proceedings cannot be relied on for any purpose at all. The suit was remitted to the trial court for fresh consideration and disposal in accordance with law, with a direction to the trial court to decide the genuineness of the patta issued as per L.A. 197/2001. The lower appellate court has specifically discarded the new patta issued on 19.12.2009, which is an outcome of Ext. X1 proceedings. It is aggrieved by the said remand, the respondent/plaintiff has come up in appeal.

Heard the learned counsel for the appellant Sri. Mathew John and the learned Special Government Pleader Sri. Madhavankutty for the respondents.

The learned counsel for the appellant has canvassed an argument that there is, in fact, no change of boundaries relating to the plaint schedule property, whereas, there was only change of directions relating to the boundaries. According to the learned counsel for the appellant, on tilting the property originally scheduled in the plaint anticlockwise, there will not be any change at all as the northern boundary will become the western boundary, the western boundary will become the southern boundary, the southern boundary will become the eastern boundary and the eastern boundary will become the northern boundary.

According to the learned counsel for the appellant, the side measurements of the property in the LA plan will also coincide the side measurements on tilting the property shown in the plan anticlockwise as aforesaid. In short, the argument is that the property in the unamended plaint, which was shown in Ext. A1 patta, and the property in the amended plaint based on Ext. X1 patta is one and the same.

Per contra, the learned Special Government Pleader has pointed out that the plaint itself was filed without disclosing the fact that the property is abutting the forest land at the eastern side as well as at the northern side. The argument is that the plaintiff had not approached the trial court with clean hands, and the presence of forest on two sides of the property has been deliberately suppressed. It has also been pointed out that Ext. X1 patta as well as the unamended plaint schedule does not show the presence of forest at any of the sides of the property. It is also argued that Ext. X1 patta cannot be relied on for any purpose at all, as the same relates altogether to a different property and the same does not relate to the property covered by Ext. A1 or the property which was meant by the plaintiff through the unamended plaint. It is also pointed out that Ext. X1 as such is an outcome of fraud. The learned Special Government Pleader has pointed out that there is no error, defect, illegality, irregularity or impropriety in the impugned judgment passed by the learned District Judge and, therefore, the same is not liable to be interfered with.

It seems that the present attempt on the part of the learned counsel for the appellant is to get an open remand by removing the strictures passed by the lower appellate court as against PW 3, who was instrumental in issuing the new patta based on Ext. X1. According to the learned counsel for the appellant, if Ext. X1 is discarded, it will be as good as denying the title of the appellant over the property on which patta was originally granted in his favour. On a perusal of Ext. X1 patta and the boundaries noted by PW 3 in Ext. X1 proceedings, it can be seen that there is vast difference and variations in the boundaries. It seems that PW 3 has presently noted in Ext. X1 that the eastern boundary of the property is Thodupuzha-Kattappana road and forest land. Likewise, the northern boundary is shown as rock and forest land. It seems that it was for the first time through Ext. X1 proceedings, the said two boundaries were shown as forest land. In all other proceedings, it seems that the presence of forest land abutting the property at any of its sides has been deliberately suppressed.

In this context, Ext. C1 and C1(a) have to be perused. Ext. C1 Commissioner''s report does not show the presence of forest anywhere near the plaint schedule property. It does not show that the forest land is abutting any of the sides of the property. There is no meaning in saying that there were mistakes in the boundary descriptions of the property covered by Ext. X1. It seems that the Commissioner, who had allegedly inspected the property and prepared Ext. C1 and C1(a) sketch, had allegedly identified the property and prepared Ext. C1 and C1(a). If he could ascertain the property by taking note of the boundaries, there is no meaning in saying that mistakes were there with regard to the boundaries. It seems that in Ext. C1(a) sketch, the boundaries are shown in such a way that through the entire southern side of the property, PWD road is there, and at the eastern side of the property, para poramboke only is there. The plaintiff has no case that the earlier commissioner, who had prepared Exts. C1 and C1(a) had not identified the property or that he had committed any error in noting down the boundaries. Even if the boundaries shown by the commissioner in Ext. C1(a) sketch is tilted anticlockwise, it cannot be said that the boundaries can be corrected as forest land is not shown anywhere at the sides of the property or anywhere near the property in Ext. C1 and C1(a), as well as Ext. A1 and also in the unamended plaint. If in fact the said property was actually visited by the earlier Commissioner, who prepared Ext. C1 and C1(a), he should have noted the presence of forest land at the two sides of the properties. When he has not noted any forest land on any of the sides of the property, it has to be considered that he had visited altogether a different property and not the property allegedly visited by the Commissioner who prepared Ext. C2 and C2(a). The property allegedly visited by the Commissioner, who prepared Ext. C1 and C1(a), is altogether a different property than the property for which PW 3 has prepared Ext. X1. Therefore, there is no meaning in arguing that on a tilting of the boundaries in the schedule anticlockwise, the mistake could be rectified.

Regarding the measurements of the property conducted by the Commissioner, who prepared Ext. C2 and C2(a), it seems that the property was not correctly identified with the aid of the LA plan. It seems that mere measurements were carried out by considering the present lie of the property. In Ext. C2, the Commissioner has simply stated that the measurements have been made on the basis of the present lie of the property and the measurement started from the point shown as ''A'' in C2(a) plan. It does not show that the said point ''A'' was correctly located for commencing the measurements in respect of the schedule property. Unless and until at least one of the points is correctly identified and located by carrying out measurements from any original stone or theodolite station, it cannot be said that the point ''A'' from where the measurement started was correctly located. Therefore, it seems that the lower appellate court has rightly discarded Ext. C2 and C2(a).

The main grievance expressed by the learned counsel for the appellant is that the lower appellate court has totally discarded Ext. X1 and has, in fact, thrown away the title of the plaintiff over the property, to the dust bin. It seems that PW 3 has not conducted a proper verification of the matter involved. It is the admitted case that earlier a joint verification was conducted in the year 1985 and consequently, Ext. A1 was issued. At the same time, for conducting a verification with regard to the correctness of the boundaries of the properties covered by Ext. A1, it seems that any joint verification was not conducted by the Revenue officials and the forest officials in Ext. X1 proceedings. When the two sides of the property are abutting forest land, a joint verification ought to have been conducted for noting down the boundaries separating the forest and private property, if any, in existence. Locating a property abutting the forest land and identifying its boundaries without the junction of forest officials also in the process can only an idle exercise and the same will not yield a fruitful result. Matters being so, the court below cannot be found fault with in discarding Ext. X1 proceedings.

At the same time, this Court is of the view that the plaintiff should be given an opportunity to prove that his father was in possession of the property even long back prior to 1977 and it was consequently, Ext. A1 patta was issued and the further fact that the property covered by Ext. A1 patta is the very same property shown in the amended plaint schedule. Even though Ext. X1 has been discarded, the plaintiff has to be given such an opportunity to prove the identity of the property and to show that the property in the amended schedule appended with the plaint is the very same property covered by Ext. A1. The plaintiff is at liberty to have recourse to necessary proceedings, if so advised, to get the boundaries corrected, if any correction is required, through legal process. Matters being so, with the aforesaid liberty granted to the plaintiff, this FAO is liable to be disposed of.

In the result, this FAO is disposed of. The trial court shall give an opportunity to the plaintiff to prove that the property noted in the amended plaint is the very same property contained in Ext. A1 patta. The court below shall dispose of the suit in the light of the observations made above and also in the light of the observations made by the lower appellate court in the impugned judgment, except the modifications made by this Court as aforesaid. The parties shall appear before the court below on 24.11.2014.