Thomas Mathew vs The Additional

Tahasildar
Citation : 2021 Latest Caselaw 17094 Ker

Date : 13 August, 2021

Kerala High Court

Thomas Mathew vs The Additional Tahasildar on 13 August, 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.

JUSTICE GOPINATH P. FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
WP(C) NO. 3301 OF 2015 PETITIONER: THOMAS MATHEW AGED 57 YEARS
S/O.V.J.MATHEW, VAZHAPPARAMIL, MALIKAYIL, BOAT JETTY, CHANGANASSERY,
KOTTAYAM DISTRICT BY ADVS. SRI.M.R.GOPALAKRISHNAN NAIR SRI.S.S.SRINATH
RESPONDENTS: 1 THE ADDITIONAL TAHASILDAR TALUK OFFICE, CHANGANASSERY,
KOTTAYAM DISTRICT 686101 2 THE VILLAGE OFFICER VAZHAPPALLY WEST VILLAGE
OFFICE, CHANGANASSERY, KOTTAYAM DISTRICT-686103 BY ADV GOVERNMENT
PLEADER OTHER PRESENT: SRI. JUSTIN (SR. GP) THIS WRIT PETITION (CIVIL) HAVING
COME UP FOR ADMISSION ON 13.08.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING: W.P (C) No.3301/2015 -2- JUDGMENT

The petitioner states that he is the owner in possession of certain lands which were
obtained by him through registered sale deeds executed in the year 1975. It is
submitted that 1.25 Acres was purchased by the petitioner by registered Sale Deed
No.3776/1975 of SRO, Changanassery and another extent of 1.75 Acres in Sy. No.316/1
was purchased by his mother by virtue of registered Sale Deed No.777/1975 also of
SRO, Changanassery. It is the case of the petitioner though he has been remitting basic
land tax in the name of the earlier owners of the property he has been unable to obtain
mutation in his name owing to an alleged mistake in the survey number.

2. Exhibit P.2 report of the 2nd respondent shows that the petitioner and his mother
have been in possession of the aforesaid lands and that they have been unable to
mutate the property in their names owing to some mistake during the re-survey. Exhibit
P.2 report made by the 2 nd respondent to the 1st respondent also states that the
matter must be referred to Taluk Surveyor for proper identification of the property
belonging to the petitioner and his mother. The Taluk Surveyor submitted Ext.P.4 report
which states that there was some mistake in the survey numbers mentioned in the
documents of title as the property in possession of the petitioner. The relevant portion

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of the report of the Taluk Surveyor is extracted hereunder.

W.P (C) No.3301/2015 -3-

"ക വശ സല പര ശശ ധ ചത ൽ വ ഴപ ള പട ഞശ വ ശലജ ൽ ശ ക നമർ 5 സർശ" നമർ 175/3 ൽ ആണ അശപക പപ ര വര(നത യശശസല എന അശപ
ധ ചത ൽ മ(ൻ സർശ" 316/1, 317/2, 318/20 ആയത ന ൽ മ(ൻ സർശ" നമ ൽ വ-ത- സ ഉളത യ ണ(ന(. 7ട പത ട യ നപ ക വശ- ഇര

175/3 ൽ 1.0820 പഹകടർ വ സത ർണശത ട( 7ട യ(ള ന ല 1618þmw നമർ തണശപര കയ ൽ ന ന വ ലജ T.R. പപ

യ ര T.P. 33
ൽ ല ല(വ ലയ ൽ ഹന ഫ ബവ മകൾ കലല, ലNല എന വര(പട ശപര ൽ ശപ ക(വരവ( പ3യത ട;ളത( 175/3 ൽ വര(ന 1618þmw നമർ ത

Since no action was taken even after the report of the Taluk Surveyor the petitioner
filed Ext.P5 before the 1st respondent and approached this court by filing W.P (C)
No.20220/2014 which was disposed of on 18-08-2014 directing the 1st respondent to
conclude the proceedings if necessary with the assistance of the Taluk Surveyor and
after hearing any affected parties. Pursuant to the directions contained in Ext.P6
judgment the Taluk Surveyor prepared yet another report (Ext.P.7) which concluded as
follows.-

"ആധ രതപല സർശ" നമ ( ൾ പതറ യ ണ(നത ന ൽ ത ര(ത ധ ര എഴ(ത ശപ ക(വരവ പ3യ വ(നത ണ. അല തപക പ വന-7 പടയ വ ങ ന ല ശപര ൽ 7ട എ

·ÕYæÎa¡ ശന ട ഫ ശകഷൻ RD No.7449/52/RD ത യത 17-09-1953 നമർ ഉതരവ പപ ര 12 വർഷതൽ 7ട(തല( അത ലയളവപൽ ന ര

ർപ ഹ ജര കയ ട;ളത ണ ഇപപ ര ട ന യമ അന(ശ സ ക(ന(ശണ പയന( അ യ(നത ന ·ÕYæÎa¡ പള ഡ (പട ന യശമ പശRശ പലഭ ക(നത ന( അത പ
315/5 ൽ 1.1240 പഹകടർ ന ലതന( അവ ശ വ W.P
ഴപള ഴക(
(C) ഭNo.3301/2015
ഗ വ ലജ പവര7ർ മ( -4-
യ ൽ മ(ഹമദ
പ(ത(പ ബഷ
മ ൽæa ഭ ര- ല ല ബഷർ, ല ല(വ ലയ ൽ ഹന
പപ യ ശനര ൽ ശ ൾക( യ( ശക ർഡ( ൾ പര ശശ ധ ച ക ള;പട ക വശതല(ള ന ല പര ശശ ധ ചത ൽ വ ഴപള പട ഞ ശ വ ശലജ ൽ ശ ക നമർ 5 ൽ സർശ"

നമർ 180, 174 എന വയ ൽ ക വശ ണ(നത ട സർശ" നമ æa പഴയ സർശ" നമർ 316/1, 316/2 എന വയ ൽ ഉൾപപട; വര(നത ട ആധ രപപ ര

പതറയക ണ(നത ന ല( T.P. 1618 ന ന( ശപ യ ട;ള T.P. 3896 നമർ ശപ ക(വരവ പ3യത ട;ള തണശപർ ദ പ3യ വ(നത ണ. ആധ ര ക ൾ ആധ
·ÕYæÎaßÈ¡ നഷങൾ വര വ(നത ണ. ആയത ന ൽ പര ത കയ(പടയ( ആധ ര കയ(പടയ( ആധ രങള ൽ പ ഞര ക(ന പഴയ സർശ" നമർ ല ശത പ ൻ അളവ Á
പശRശ ശതട(നത ന ശമൽ നടപട സZ ര ക(നത ന( ശവണ ഫയൽ സമർപ ക(ന(."

3. It is clear from the reading of Ext.P7 report of the Taluk Surveyor that while admitting
the fact that the petitioner is in possession of the lands in question, the old survey
numbers in respect of the property were mistakenly shown as 316/1 & 316/2 and there
was some mistake in the documents of title of the petitioner. The Additional Tahsildar,
Changanassery through Ext.P.8 order found that though the boundaries of the lands in
question tally with earlier description in the prior documents of title, the present
position is seen completely different. Moreover, according to the Additional Tahsildar
the land presently in occupation of the petitioner falls within re-Sy. No.175/3 in Block-V.
The previous survey number pertaining to 175/3 is Sy. No.315/5, according to the
Additional Tahsildar. It is thus challenging Ext.P.8 that the petitioner has approached
this court.

W.P (C) No.3301/2015 -5-

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4. A counter affidavit has been filed by the 1 st respondent where the findings in Ext.P.8
are reiterated. It is submitted that the land possessed by the petitioner/his mother is in
re-Sy No.175/3 in Block-V and these lands can be correlated with old Sy. Nos.315/4 &
315/5 and not to old Sy. Nos. 317/2A and 316/1 as mentioned in the documents of title.
However, according to the Additional Tahsildar mutation cannot be affected as the
documents of title relied on by the petitioner shows different survey numbers other than
the old Sy. Nos.315/4 & 315/5. It is also stated that the lands presented included in old
Sy. No.315/5 was wrongly mutated in favour of one Laly Basheer and proceedings have
been taken to cancel the same.

5. On a consideration of the matter I am of the opinion that mere non- mention or

incorrect mention of a survey number in the document of title is not a ground to deny
mutation. The petitioner has admittedly been in possession and enjoyment of the lands
in question since, 1975. This is not disputed either in Ext.P.2 or in Ext.P.7 reports of the
Taluk Surveyor. Since the documents of title relate to the year 1975 it would be virtually
impossible for the petitioner to get executed a correction deed in respect of the
properties in question. Still further as rightly pointed out by the learned counsel for the
petitioner even where a person has been in possession of land for a considerable long
period of time especially in such manner as to perfect title through adverse possession,
W.P (C) No.3301/2015 -6- mutation can be effected in respect of property in question.
Rule 28 of the Transfer of Registry Rules, 1966 reads as follows:-

"28. Transfer in favour of person proving title by adverse possession for 12

years or more.- Where parties who have no documents of title are shown in
summary enquiry to have been in actual, continuous and uninterrupted
possession as reputed owners for 12 years or more transfer of registry may be
made after notice, etc. as provided in Note (ii) to Rule 10. The action
contemplated in this paragraph may be taken by the revenue officers either
on their own motion or on the applications presented by the parties
concerned.

Payment of revenue as evidenced by the production of kist receipts or by the

testimony of the Village Officers may be taken as proof of possession, but the
absence of such proof shall not be considered entirely to invalidate the claim
and oral evidence of possession may be accepted."

Especially when there is no allegation that the petitioner / his mother is in possession of
any Government land, and considering long possession from 1975 which, again is not
disputed, refusing mutation on the sole premise that there is a mistake in the Old Sy.No
mentioned in the document of title, cannot be sustained. I also note that for the purpose
of the Kerala Land Conservancy Act, 1957, 'property of Government' is defined in

Citation : 2021 Latest Caselaw 17094

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Section 3 of that Act. The said Section 3, to the extent it is relevant, reads as follows.-

"3. Property of Government defined.- (1) All public roads, streets, lanes, and
paths, the bridges, ditches, dykes and fences on or beside the same, the bed
of the sea and of harbours and creeks below high water mark, the beds and
banks of rivers, streams, irrigation and drainage channels, W.P (C)
No.3301/2015 -7- canals, tanks, lakes, backwaters and water courses, and all
standing and flowing water, and all lands wheresoever situated, save in so far
as the same are the property of-

(a) ...........; or

(b) persons registered in the revenue records as holders of lands in any way subject to
the payment of land revenue to the Government, or It is thus clear that a land which is
assessed to tax is not 'Government land'. In the facts of the present case the lands are
assessed to tax. No doubt there may be some discrepancy with reference to the old
Sy.No mentioned in the document executed in the year 1975. But the fact that the very
same old sy.No was mentioned in the prior title deeds (the dates are not mentioned) is
not disputed in the Counter Affidavit filed by the first respondent.

In that view of the matter, I set aside Ext.P8 and remand the matter for fresh
consideration by the 1st respondent after notice to the petitioner and any affected
parties. The 1st respondent shall take a fresh decision in the matter in the light of the
observations in this judgment and also taking note of the provisions of Rule 28 of the
Transfer of Registry Rules. The first respondent shall take a fresh decision, as directed,
within a period of 3 months from the date of receipt of a certified copy of this judgment.

Sd/-

GOPINATH P.

JUDGE AMG W.P (C) No.3301/2015 -8- APPENDIX OF WP(C) 3301/2015 PETITIONER
EXHIBITS EXT.P1:THE TRUE COPY OF THE PETITION DATED 12.12.2012 EXT.P2:THE
TRUE TYPED COPY OF THE REPORT DATED 21.01.2013 EXT.P3:THE TRUE COPY OF THE
CHALLAN DATED 13.02.2013 EXT.P4:THE TRUE TYPED COPY OF THE REPORT DATED
29.05.2013 EXT.P5:THE TRUE COPY OF THE PETITION DATED 15.06.2013 EXT.P6:THE
TRUE COPY OF JUDGMENT DATED 18.08.2014 EXT.P7:THE TRUE COPY OF REPORT
DATED 02.12.2014 EXT.P8:THE TRUE COPY OF ORDER NO.B7-1188/13 DATED
16.12.2014

Citation : 2021 Latest Caselaw 17094

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