S.A.NO.811/1980 & RSA 302/2005

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(CR)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM

WEDNESDAY, THE 31

ST

DAY OF JULY 2024 / 9TH SRAVANA, 1946

SA NO. 811 OF 1980

AGAINST THE ORDER/JUDGMENT IN AS NO.153 OF 1976 OF DISTRICT COURT,

KOZHIKODE

ARISING OUT OF THE ORDER/JUDGMENT IN OS NO.193 OF 1972 OF PRINCIPAL

MUNSIFF COURT, KOZHIKODE -II

APPELLANT/APPELLANT/DEFENDANT:

CALICUT CORPORATION,

REPRESENTED BY ITS COMMISSIONER, KOZHIKODE.

BY ADVS.

SANTHOSH KUMAR G

T.KRISHNANUNNI (SR.)(K/280/1973)

RESPONDENTS/RESPONDENT/PLAINTIFF:

1 MANALODY MOIDEEN KOYA HAJI, (DIED LRS IMPLEADED)

SON OF KUTTIYAN KOYA HAJI, T.S.NO.731, PANNIYANKARA,

CALICUT-3.

ADDL.R2 ABDUL JALEEL,

S/O.MANALODY MOIDEEN KOYA HAJI, MANALODI, P.O.POKKUNU,

THOTTUMMARAM, KOZHIKODE.

S.A.NO.811/1980 & RSA 302/2005

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ADDL.R3 ABDUL GAFOOR,

S/O.MANALODY MOIDEEN KOYA HAJI, MANALODI, P.O.POKKUNU,

THOTTUMMARAM, KOZHIKODE.

(ADDITIONAL RESPONDENTS 2 AND 3 ARE IMPLEADED AS THE LEGAL

REPRESENTATIVES OF THE DECEASED FIRST RESPONDENT AS PER

ORDER DATED 18.02.2020 IN IA.NO.768/2008.)

ADDL.R4 M/S. P.V.S. APARTMENTS

REPRESENTED BY ITS MANAGING PARTNER

P.V.GANGADHARAN,S/O.PV.SAMI, AGED 71 YEARS,Y.M.C.A.ROAD,

CALICUT,PIN-673 001.

(THE LEGAL REPRESENTATIVES OF THE DECEASED FIRST RESPONDENT

IS IMPLEADED AS SUPPLEMENTAL FOURT H RESPONDENT AS PER ORDER

DATE 19.01.2023 IN IA.NO.2/2020.)

BY ADVS.

BIJU ABRAHAM

LAKSHMI MOHAN

THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31.07.2024, ALONG

WITH RSA.302/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

S.A.NO.811/1980 & RSA 302/2005

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2024:KER:62769

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM

WEDNESDAY, THE 31

ST

DAY OF JULY 2024 / 9TH SRAVANA, 1946

RSA NO. 302 OF 2005

AGAINST THE JUDGMENT AND DECREE DATED 31.10.2003 IN AS NO.17 OF

2001 & CROSS OBJECTION IN A.S.17/2001 OF III ADDITIONAL SUB COURT,

KOZHIKODE

ARISING OUT OF THE ORDER DATED 21.01.2000 IN OS NO.605 OF 1995 OF

PRINCIPAL MUNSIFF COURT,KOZHIKODE

APPELLANT/DEFENDANT/APPELLANT:

CORPORATION OF CALICUT

REP. BY ITS SECRETARY, NAGARAM AMSOM DESOM OF KOZHIKODE

TALUK.

RESPONDENT/RESPONDENT/PLAINTIFF/RESPONDENT:

M/S.P.V.S.APARTMENTS

REP. BY ITS MANAGING PARTNER,P.V.GANGADHARAN, S/O.P.V.SAMI,

AGED 56 YEARS, Y.M.C.A ROAD, CALICUT.

BY ADVS.

SRI.M.KRISHNAKUMAR

SMT.PRABHA R.MENON

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31.07.2024,

ALONG WITH SA.811/1980, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

S.A.NO.811/1980 & RSA 302/2005

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JUDGMENT (CR)

[SA Nos.811/1980, RSA 302/2005]

1. S.A.No.811/1980 arises from O.S.No.193/1972 filed by Manalody

Moideen Koya Hajee before the Principal Munsiff's Court II,

Kozhikode.

2. R.S.A.No.302/2005 arises from O.S.No.605/1995 filed by

M/s. P.V.S. Apartments before the Principal Munsiff's Court II,

Kozhikode.

3. The Plaint schedule property in O.S.No.193/1972 is 49 cents of

land. The Plaint schedule property in O.S.No.605/1995 is 32 cents

of land which is part of the plaint schedule property in

O.S.No.193/1972.

4. According to the plaintiff in O.S.No.605/1995, it obtained title and

possession of the plaint scheduled property therein as per Sale

Deeds Nos.2271/1994 & 2276/1994 of SRO Chalappuram,

executed by the two sons of the plaintiff in O.S.No.193/1972,

namely, Abdul Jalil and Abdul Gafoor who derived the same as

per Partition Deed No.2068/1989 after the death of the plaintiff

S.A.NO.811/1980 & RSA 302/2005

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in O.S.No.193/1972 on 2/5/1983.

5. In short, the fate of O.S.No.605/1995 is dependent upon the fate

of O.S.No.193/1972 since the plaintiff in O.S.No.605/1995 claims

title and possession through the plaintiff in O.S.No.193/1972.

Hence, both these appeals are heard and disposed of together,

treating S.A.No.811/1980 as the leading case.

6. This Court had earlier allowed S.A.No.811/1980 as per the

judgment dated 14.02.1986. But later, it was noticed that the sole

respondent in the appeal died before the date of judgment, and

hence the judgment dated 14.02.1986 was recalled and by order

dated 18.02.2020. The legal heirs of the deceased respondent

were impleaded as additional respondents 2 and 3.

7. O.S.No.193/1972 was for a permanent prohibitory injunction to

restrain the defendant/Calicut Corporation from dispossessing

him from the plaint schedule property in pursuance of the Land

Acquisition Award No.9/1970.

8. O.S.No.605/1995, as amended, was for a permanent prohibitory

injunction restraining the defendant/Calicut Corporation and its

officials from entering into the plaint schedule property or

S.A.NO.811/1980 & RSA 302/2005

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dispossessing the plaintiff from the property in any manner and

for direction to the defendant Corporation to grant necessary

license and to approve the plan for the construction of the

building in the plaint schedule property applied for by the

plaintiff.

9. At the requisition of the Calicut Corporation, the State

Government initiated acquisition proceedings to acquire 49 cents

of land for providing necessary playground to an educational

institution. The acquisition proceedings were commenced in the

year 1967 and an Award was passed in the year 1970. The present

suit was filed in the year 1972 to restrain the Corporation from

taking possession of the land pursuant to the Award passed in the

land acquisition proceedings. Sri. Moideen Koya Haji had filed

another suit as O.S.No.109/1972 against the State Government

represented by the District Collector, Kozhikode, from

dispossessing him from the plaint schedule property in pursuance

of the Award No.9/1970. The present suit was filed when

Sri.Moideen Koya Haji came to know that the Calicut Corporation

is the requisitioning authority and hence seeking the very same

S.A.NO.811/1980 & RSA 302/2005

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relief in O.S.No.109/1972, O.S.No.193/1972 was filed against the

Calicut Corporation. The Trial Court considered both suits

together and decreed both the suits as prayed for with costs. The

finding of the Trial Court is that as on the date of filing of the suit,

the plaintiff is in possession of the plaint schedule property and

that the procedure for acquisition of the land as per the Land

Acquisition Act has not been complied with. The defendant -

Calicut Corporation, filed A.S.No.153/1976 and the State

Government filed A.S.No.140/1976 before the First Appellate

Court and both the appeals were dismissed with cost as per

judgment dated 24.01.1980. Since after handing over the title

and possession of the property by the Government to the Calicut

Corporation which was the requisitioning authority, the property

is vested with Calicut Corporation, the Calicut Corporation alone

filed S.A.No.811/1980 challenging the judgment and decree

passed by the Trial Court in O.S.No.193/1972 which is confirmed

by the First Appellate Court in A.S.No.153/1976.

10. This Court admitted the Second Appeal on 21.10.1980 on the

substantial questions of law framed in the Memorandum of

S.A.NO.811/1980 & RSA 302/2005

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Appeal, which is as follows:

A. The whole purpose of the publication contemplated

in Section 3 of the Kerala Land Acquisition Act being

one to acquaint persons interested in the land

proposed to be acquired about the acquisition

proposed so as to give them opportunity to raise

objections if any, and the evidence adduced in the

case indicate that the plaintiff had in fact full

knowledge about the acquisition proposal, can the

plaintiff be permitted to take shelter under a minor

defect in the compliance of procedural formality to

contend that the land acquisition proceedings

culminating in Exhibit A17 award is not binding on

him.

B. Where the evidence adduced in the case clearly

prove that the plaintiff had in fact received notice of

the land acquisition proceedings, is it still necessary

that he should become aware of the proceedings

from the publication of the substance of the

notification in the locality so as to make the land

acquisition proceedings binding on him.

C. Where the evidence adduced in the case

S.A.NO.811/1980 & RSA 302/2005

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conclusively show that all the persons interested in

the land were aware of the proposed acquisition, is

it not sufficient that the procedural requirements

are substantially complied with and whether it will

not be incorrect to say that any defect in the

compliance with the procedural requirements of

Section 3 of the Act is fatal to the validity of the

proceedings.

D. Whether it is necessary that the publication in the

locality should be done in such a way so as to give

30 days time to the persons interested in the land

for filing objections.

11. I heard the learned Senior Counsel for the appellant

Sri. T. Krishnanunni, instructed by Standing Counsel for the

appellant Sri. K.D. Babu and the learned counsel for the 4

th

respondent, who claimed to be the present owner of the plaint

schedule property.

12. Here is a case where the plaintiff in the suit did not have any

dispute that the land acquisition proceedings were initiated and

concluded with respect to the plaint schedule property. The prayer

S.A.NO.811/1980 & RSA 302/2005

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in the suit itself is with reference to Award No.9/1970 in the land

acquisition proceedings. It is seen from the Trial Court records that

Section 3(1) Notification under the Kerala Land Acquisition

Act,1961 was published in the Gazette on 07.11.1967. It wa s

published in the locality on 05.12.1967. Notice under Rule 3 was

sent to the plaintiff's wife, who was shown as a party in the

proceedings and the same was received by the plaintiff on

03.12.1967. So the plaintiff was well aware of the land acquisition

proceedings. Though objections were called, the plaintiff has no

case that he raised any objection against the land acquisition

proceedings. The Declaration under Section 6 was published on

04.06.1968. Thereafter the Award enquiry was conducted and the

Award was passed on 15.07.1970. The defendant claimed that the

plaintiff was disposed of on 14.10.1970. The plaintiff has not

disputed the public purpose of the acquisition. He has not alleged

any malafide against the proceedings. The plaintiff filed the suit

about two years after taking possession of the land.

13. The defendant examined DWs 1 and 2 to prove the land

acquisition proceedings and to prove that possession of the plaint

S.A.NO.811/1980 & RSA 302/2005

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schedule property was taken over by the State Government and the same

was handed over to Calicut Corporation. DWs 1 & 2 are the official

witnesses. They deposed the facts as revealed from the official

documents. The finding of the Trial Court is that the DWs 1 and 2 do not

have any direct knowledge about taking over possession of the plaint

schedule property. Accordingly, the Trial Court found that the plaintiff

is in possession of the plaint schedule property on the date of filing of the

suit, relying on Exts.C1 Commission Report and C2 Schedule. When

official witnesses are examined to prove facts revealed from official

records, it is quite natural that they would not have any direct knowledge

in the matter. The official records are presumed to be correct and proper

in the absence of any evidence to the contrary. This principle is embodied

in Section 119 of Bharatiya Sakshya Adhiniyam, 2023 corresponding to

Section 114 of the Indian Evidence Act, 1872. In the case of official records

and action, regularity and propriety is a matter of presumption and are to

be presumed to be correct, valid and legal unless the contrary is proved by the

person who challenges the same. It is always open to the challenger to dislodge

the presumption through any of the modes available to him legally. In the

case on hand, the plaintiff has not adduced any evidence to show

S.A.NO.811/1980 & RSA 302/2005

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that the official records are not correct and proper.

14. The Trial Court ought not to have rejected the evidence of DW1

and DW2 who deposed from official records. The Commissioner

found possession in favour of the plaintiff on the ground that there

were some logs of timber that belonged to the plaintiff in t he

property. Admittedly, the plaint schedule property is barren land

which was fit to be used as a playground for educational institution.

Mere keeping of some logs of wood should not have been treated as

a sign of possession in favour of the plaintiff when there are clear

official records that the possession of the plaint schedule property

was taken over by the authorities pursuant to the land acquisition

proceedings. The Trial Court as well as the Appellate Court should

not have entertained the claim of the plaintiff over the acquired

property alleging illegality in the land acquisition proceedings long

after the conclusion of the land acquisition proceedings when no

objection with respect to the same was raised by the plaintiffs before

the authorities. If the plaintiff had any complaint with respect to the

land acquisition proceedings, he ought to have challenged the same

when he got knowledge of the same. He waited till the culmination

S.A.NO.811/1980 & RSA 302/2005

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of the land acquisition proceedings by passing the Award and filed

the suit after two years. The Trial Court ought not to have

entertained the claim of the plaintiff that he is the owner in

possession of the plaint schedule property when Ext.A17 Award

dated 15.07.1970 was passed in the land acquisition proceedings.

The suit for injunction was filed only on 29.02.1972. If at all there is

any infirmity or irregularity in the land acquisition proceedings,

there is no prejudice caused to the plaintiff as he had enough notice

of the land acquisition proceedings and he had enough opportunity

to challenge the same. He need not have waited till the culmination

of the proceedings. At any rate, it is clear that the procedural

requirements are substantially complied wi th by the State

Government while acquiring the plaint schedule property. It is

specifically provided in Section 12 of the Kerala Land Acquisition

Act that the Award passed by the Collector shall be final and

conclusive evidence, as between the Collector an d the persons

interested, whether they have respectively appeared before the

Collector or not, or of the true area and value of the land, and the

apportionment of the compensation among the persons interested.

S.A.NO.811/1980 & RSA 302/2005

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15. On passing of the Award and taking possession of the land, the

land is absolutely vested with the Government, free from all

encumbrances. Section 11 of the Kerala Land Acquisition Act makes

it abundantly clear. Any person who does not accept the Award has

a right to seek reference to the court under Section 20 of the Kerala

Land Acquisition Act.

16. In Municipal Council, Ahmednagar and Another vs. Shah

Hyder Beig and Others, 2000 (2) SCC 48, in the context of a

belated challenge to the land acquisition proceedings, applying the

principle that delay defeats equity, the Hon’ble Supreme Court held

that a belated challenge is not to be entertained and the plea of delay

can be raised at the stage of arguments. In the case on hand the

plaintiff filed the suit alleging illegality in the land acquisition

proceedings two years after the culmination of proceedings, which

could not be permitted.

17. In Indore Development Authority vs. Manoharlal, 2020 (8)

SCC 129, a Constitution Bench of the Honorable Supreme Court

held that once the title of the land vests in the State, consequent to

acquisition and taking of possession, even if the landholder has

S.A.NO.811/1980 & RSA 302/2005

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retained possession or otherwise trespassed upon it after possession

has been taken by the State, he remains a trespasser and his

possession would be deemed to be on behalf of the State. In view

this settled proposition of law, even if the plaintiff had continued

with possession after land acquisition proceedings, the same could

only be termed as for and on behalf of the Government and he could

not maintain an action for injunction on the strength of such

possession.

18. The Trial Court as well as the Appellate Court failed to consider

the above vital aspects of the matter while decreeing the suit. In the

aforesaid circumstances, the judgment and decree passed by the

Trial Court, which is confirmed by the First Appella te Court

challenged in S.A.No.811/1980 are unsustainable. The substantial

questions of law Nos.A, B, C and D formulated in S.A.No.811/1980

are answered in the negative and in favour of the appellant.

19. R.S.A.No.302/2005 filed by the Defendant Calicut Corporation in

O.S.No.605/1995 was admitted on 13.12.2007, formulating the

following substantial questions of law:

1. When the respondent in S.A.811/1980 was represented

S.A.NO.811/1980 & RSA 302/2005

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by a counsel and said counsel was heard and judgment

was pronounced, whether the judgment is a nullity for the

reason that the said respondent died prior to the disposal

of second appeal, even though factum of death of

respondent was not known to the appellant and was not

reported by the counsel appearing for respondent to the

court as provided under Rule 10 A of Order 22 of Code of

Civil Procedure.

2. Whether the finding of courts below that judgment in

S.A.811/1980 is a nullity and therefore the appellant is not

entitled to claim that the State obtained possession of the

property pursuant to the award passed under Land

Acquisition Act as found in S.A.811 of 1980 cannot be

accepted and as found under the reversed judgments

respondent in that second appeal was in possession of the

property is sustainable.

20. Since the above Substantial Questions of Law are with reference

to the nullity of the judgment dated 14.02.1986 in S.A.No.811/1980,

which was recalled by Order dated 18.02.2020 when it was noticed

S.A.NO.811/1980 & RSA 302/2005

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that the sole respondent in the appeal died before the date of

judgment, the above Substantial Questions of Law do not subsist in

the matter. In the light of the changed circumstances, I re-frame the

Substantial Question of Law in R.S.A.No.302/2005 as hereunder.

1. Whether the claim of the plaintiff over the plaint schedule property

on the strength of the Title Deeds Exts.A2 and A3 executed by the

legal heirs of late Moideen Koya Haji is sustainable in view of the

conclusion of the land acquisition proceedings by pas sing the

Award without any objection from the part of Moideen Koya Haji.

21. The Trial Court found that the plaintiff in in O.S.No.605/1995 is

in possession of the property relying on the judgment and decree in

O.S.No.193/1972. In the light of the findings in R.S.A.No.811/1980

rejecting the claim of the plaintiff in O.S.No.193/1972, the claim of

the plaintiff in O.S.No.605/1995 has no legs to stand. The

Substantial Question of Law in R.S.A.No.302/2005 is answered in

negative and in favour of the appellant. In the aforesaid

circumstances, the judgment and decree passed by the Tr ial Court,

which is confirmed by the First Appellate Court challenged in

R.S.A.No.302/2005 are unsustainable.

S.A.NO.811/1980 & RSA 302/2005

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22. Accordingly, these Second appeals are allowed without costs

setting aside the judgments and decrees in O.S.No.193/1972 and

O.S.No.605/1995 of the Munsiff Court II, Kozhikode, which is

confirmed by First Appellate Court and dismissing both the suits.

Ordered accordingly.

Sd/-

M.A.ABDUL HAKHIM

JUDGE

Shg/xx