JUDGMENT
K. Sampath, J.
1. Plaintiff is the appellant in both the second appeals. He filed two suits, one O.S. No. 536 of 1973 before the Additional District Munsif Court, Kuzhithurai against the State of Tamil Nadu represented by the Collector of Kanyakumari District for declaration of his title and recovery of possession. He filed O.S. No. 562 of 1978 against the Panchayat Union, Melpuram as the first defendant and the District Collector, Kanyakumari District as the second defendant. There was a joint trial, common evidence was taken and a common judgment was pronounced. He filed appeals A.S. No. 139 of 1980 against the decision in O.S. No. 576 of 1973 and A.S. No. 138 of 1980 against the decision in O.S. No. 562 of 1978. Both the appeals were dismissed and the respective second appeals have been filed here.
2. The facts as set out in O.S. No. 536 of 1973 are as follows:
Suit item No. 1 is S.No. 2676-B of Vilavancode village having an extent of 1,100 cents of land situate west of S.No. 2676-A an Edavashi Poramboke. Item No. 1 belonged to the appellant as part of S.No. 2676-B measuring 1 acre 91 cents. He was in possession upto 15.11.1972 in S.No. 2676/B as absolute owner. In respect of item No. 1, a Land Encroachment Case was taken by the Tahsildar, Vilavancode in L.E. Case No. 346 of 1980 against him alleging unauthorised occupation of Edavazhi poramboke. An order of eviction was passed by the Tahsildar. The appellant filed an appeal before the District Collector and it was also dismissed as not maintainable. Item No. 1 was recovered by the Tahsildar on 15.11.1972. It belonged to the plaintiff as part of his registered holding. His title and possession over item 1 had to be declared and it had to be ordered to be recovered from the State Government. Suit item 2 a strip of land measuring 3.900 cents lying to the west of item No. 1. It also belonged to the appellant and he was in possession of the same as part of his registered holding. It formed part of S.No. 2676-B. In June, 1956 Vilavancode Panchayat wrongfully and forcibly cut a trace of road through S.No. 2676-B. The appellant filed O.S. No. 526 of 1956 before the District Munsif Court for permanent injunction against the Panchayat. The suit was dismissed by the trial Court. The appeal by the appellant in A.S. No. 188 of 1959 before the Padmanabhapuram Sub Court, was allowed and the suit was decreed as prayed for.
The appellant had been in possession of item 2. When item 1 was recovered from the plaintiff on 15.11.1972, the Government trespassed on item 2 also. The possession of item 2 by the Government was wrongful. In the resurvey plan, some portion of the suit property had been wrongly included in the poramboke. The resurvey was liable to be set aside. The suit had therefore been filed.
3. In the written statement filed on behalf of the Government, it was contended as follows: Suit items 1 and 2 formed part of S.No. 2676-A which was Edavazhi poramboke. An Oodukoor case was taken in which, a plan was prepared for A letter and B letter. It had become final. The appellant was also a party to the Oodukoor case. He was bound by the Oodukoor plan. The subject matter of L.E. 346 of 1980 was for 1.500 cents in Edavazhi poramboke comprised in old S.No. 2676-A. On appeal to the R.D.O. by the appellant, the Divisional Head Surveyor was directed to measure the site and fix up alignment stones for the poramboke. He found that the area encroached by the appellant was 1,100 cents in S.No. 2676-A. As such it was recovered by the Tahsildar. There was no trespass by the Government into item No. 2 or any portion in S.No. 2676-B. There was no cause of action for the suit.
4. There was an additional written statement filed on behalf of the Government stating as follows: The resurvey authorities have not included any portion of patta land in the poramboke. The resurvey had been done as per Revenue records and lie of the property and the same had become final. The suit was also barred by limitation.
5. There was a replication filed by the appellant contending as follows:
The location of S.No. 2676-A was stated correctly in the plaint. S.No. 2676-A was not correctly located in the Oodukoor award. Plot No. 5 in S.No. 2676-B was allotted to the present plaintiff. As per the decree in O.S. No. 205 of 1966, plot No. 5 was demarcated as per the measurements given in the survey plan and not with the measurements given in Oodukoor plan. The Government could not rely on the plan attached to the Oodukoor award. It was bound by the survey plan. The Head Surveyor did not locate letter A with reference to survey plan. Plaint items 1 and 2 did not belong to the State.
6. The trial court framed the following issues namely,
(1) Whether plaint item 1 forms part of S.No. 2676-B?
(2) What is the correct location of S.No. 2676-A?
(3) Whether S.No. 2676-A was correctly located in the Oodukoor plan?
(4) Whether the order of the District Collector in respect of item 1 is liable to be set aside?
(5) Whether the plaintiff is entitled to get recovery of plaint properties from the defendant?
(6) Reliefs and costs?
7. The facts relating to the other suit also may be usefully set out:
The case of the appellant was as follows:
A schedule property was plot No. 5 as per Oodukoor award measuring 1 acre 76 cents in S.No. 2676-B. It belonged to the appellant. S.No. 2676-A was Edavazhi poramboke which lay east of S.No. 2676-B. In 1956 Vilavancode Panchayat formed a road through the Edavazhi poramboke. In the process, the panchayat forcibly trespassed into a portion of A schedule property. The appellant filed O.S. No. 526 of 1956 against the panchayat. Though the suit was dismissed by the trial court, appeal filed by the appellant in A.S. No. 188 of 1959 was allowed by the lower appellate court. The panchayat widened the road by encroaching 12 cents in A schedule property in January, 1976. On 23.9.1978 the defendant trespassed into 8 cents over and above 12 cents already trespassed. The trespassed area was given in B schedule. Plaint A schedule was paddy field which lay 4 feet lower than the poramboke. In some portion it was in the same level. By converting 20 cents of paddy field in A schedule, the panchayat had caused damages to the extent of Rs. 500 to the appellant. The appellant had not surrendered any portion to the panchayat. The panchayat had not acquired any portion. The suit had therefore been filed for declaring that a scheduled property belonged to the appellant with consequential injunction restraining the panchayat from trespassing or entering into the plaint A schedule property, for recovery of B schedule property and for realisation of Rs. 500 by way of damages from the panchayat.
8. The panchayat resisted the suit contending inter alia as follows
S. No. 2676-A was a poramboke. It lay east of the appellant’s property. It was Panamkala Maruthancode Road. There was no trespass in the appellant’s land for the formation of the road. The Panchayat Union was maintaining the road. It had not widened the road. There was no need to trespass on the appellant’s land which lay in the lower level. The description of the B schedule was not correct.
No damage had been caused to the appellant. There was no cause of action. The suit was not maintainable. Resurvey authorities had measured the patta land and road and plans were also prepared. The resurvey had become final. There was no suit for cancellation of resurvey. Even if it was found that any portion of the patta land came within the road, the appellant was not entitled to claim that portion as he had lost that right by the long continuous adverse possession of the public. The District Collector, Kanyakumari District was impleaded as the second defendant in O.S. No. 562 of 1978 as per order in I.A. No. 197 of 1979 dated 18.10.1979. The defence of the Collector was as follows:
S.No. 2676-A was classified as poramboke. The Collector was not aware of the suit O.S. No. 526 of 1956. The Panamakala Maruthancode Road was under the control of the Panchayat Union. The road was formed more than 15 years back. S.No. 2676 was correlated to R.S. No. 299/1 and 299/3 had 69.5 acres and 4.5 acres and stood registered in the name of the appellant as per patta No. 4904. The appellant was therefore in possession of 9 cents in excess of 1.76 acres to which he was entitled. The allegation of trespass of 12 cents in the patta land of the appellant was false. The appellant’s property was lower in level from the road. The Panchayat Union had also constructed a retaining wall. No damage was caused to the appellant. There was no cause of action for the suit. The resurvey had been done as per old record and as per possession and enjoyment. The appellant’s patta land was not at all affected by the resurvey. The appellant could not have any grievance. Even if it was found that any portion of the patta land came within the road, the appellant, was not competent to recover the same in view of the long continuous and-adverse possession of the local public. There was no cause of action.
9. The appellant filed a replication raising the following contentions:
There was no excess area in the possession of the appellant as alleged. The parties were bound by the Oodukoor award and plan. If the property was located on the basis of original survey plan and also on the basis of the Oodukoor plan, it would be seen that there was trespass.
10. The trial court framed the following issues:
(1) Whether plaint A schedule property belongs to the plaintiff?
(2) Whether the trespass alleged is true?
(3) What is the exact location of plaint A schedule property?
(4) Is the resurvey plan relating to suit S.No. properties liable to be set aside?
(5) Whether 2nd defendant has perfected title to any portion of A schedule property by adverse possession?
(6) Is the suit barred by limitation?
(7) Whether the plaintiff has any cause of action?
(8) Reliefs and costs?
11. As already stated, the parties in both the proceedings were the same and as the nature of the dispute and also the properties involved in both the suits were more or less identical, there was a joint trial of the suits and a common judgment was rendered.
12. The trial Court found that S.No. 2676-A had been located only in Oodukoor plan Ex.A-4 and that was correct. It rejected the Commissioner’s plan and the report on the ground that they had been prepared on the basis of the final decree in O.S. No. 285 of 1970 to which, neither the Government nor the Panchayat was a party. The trial court found that in the resurvey, the extent of R.S. No. 299/1 and the extent in R.S. No. 299/3 which respectively corresponded to S.No. 2676-B came to 74 acre i.e., 1 acre 85 cents which was more than what was claimed by the appellant. The trial court also found that the defendants had admitted that plot No. 5 in Ex.A-4 for S.No. 2676-B belonged to the appellant, and that location as given in Ex.A-4 Oodukoor plan had to be accepted. He found that there was nothing to show that the order of the Collector in the appeal filed against the order in L.E. Case No. 346/80 was only with reference to suit Item 1. The trial court found that item 1 formed part of S.No. 2676-B only. The order of the Collector in Land Encroachment case which was in respect of encroachment of Edavazhi poramboke was not liable to be set aside. As against the resurvey records, the Commissioner’s report and plan could not be accepted. According to the trial Court, there was no evidence to show that the suit property came within the road poramboke and therefore, the appellant was not entitled to get recovery of the suit properties from the Government. The alleged trespass had not been established with reference to resurvey. The trial court also found that the appellant had been given more extent in Survey Number, than what was due to him as per old survey and he could have no grievance. The suit was therefore dismissed.
13. On appeal, the learned Subordinate Judge Kuzhithurai framed the following point for consideration namely, whether the appellant has title over the extent of properties scheduled in the plaint in O.S. No. 526 of 1973 and B schedule property in O.S. No. 562 of 1978. In the appellate court, two more Advocate Commissioners were appointed and one plan was also submitted. They were all marked respectively as Exs.C-4, C-5 and C-6. Another document Ex.A-8 dated 28.2.1964 a letter sent to Thiru A. Pakiyanathan, Vakil, Kuzhithurai by the Collector, Kanyakumari District was also marked. The learned Appellate Judge found that the Commissioners appointed by the appellate court had noticed a difference of 30 cents on the eastern side and that the measurements in Oodukoor plan and resurvey plan tallied in all respects excepting on the eastern side. The difference of 30 cents noticed by the Commissioner in the appellate court was in the submission of the appellant the encroached portion. But as per the resurvey, the appellant was found to be in possession of 1 acre 76 cents plus 9 cents and this would in the opinion of the lower appellate court clearly establish that the appellant had got an excess extent. The lower appellate court also found that the road had been in existence from 1956. It had been used by the public for several years past and the appellant’s title if any, over the portion of the road was lost by the adverse possession of the general public. In the result, he confirmed the decision of the trial court and dismissed both the appeals. Aggrieved, the present second appeals have been filed.
14. At the time of admission, the following questions of law have been framed for decision in the Second Appeal No. 758 of 1984:
(1) When a permanent injunction is in favour of the appellant can the Court below come to a conclusion that the claim is barred by adverse possession?
(2) Is it open to the trial court and appellate court to say that the suit is barred by limitation when the suit is filed well within a period of three years from the resurvey?
15. The substantial questions of law framed in S.A. No. 613 of 1988 are as follows:
(1) Whether the suit is barred by limitation?
(2) Whether the finding of the courts below regarding the extent of the property to be given to the plaintiff is correct?
(3) Whether the courts below have properly given effect to the Oodukoor plan and the resurvey plan which are in conflict with each other?
16. Mr. K. Sreekumaran Nair, learned Counsel for the appellant contended as follows:
When the trial court had concluded that item 1 formed part of S.No. 2676-B, there could not have been a different view with regard to the Land Encroachment Case. In the Commissioner’s report and plan, Exhibits C-1 to C-3 S.No. 2676-B had been correctly located and it was clearly demonstrated that the panchayat and the Government had encroached the appellant’s property. There was absolutely no material to support the finding of the lower appellate court that the resurvey was correct. Having found that the parties were governed by Oodukoor plan, the courts below ought to have accepted the Oodukoor plan and the plans of the Commissioners and found in favour of the appellant and decree the suits as prayed for.
17. Per contra, Mr. P.M. Baskaran, learned Counsel appearing for the panchayat and Mr. A. Arumugham, learned Government Advocate appearing for the Collector of Kanyakumari District contended that the parties were governed by the resurvey proceedings and in the resurvey it had been found that the appellant was in possession of an excess extent of 9 cents and once it was found that he had excess extent, his case stood disproved and he was not entitled to any relief. Even otherwise, as per the findings of the courts below, the road had been in existence from 1956 and by virtue of continuous use by the general public from 1956, even assuming without admitting that there was any encroachment, the general public had prescribed for title by adverse possession with regard to the portion alleged to have been encroached.
18. It was admitted on all hands, that the parties are governed by the Oodukoor award. In Devasahayam Nadar Savarimuthu Nadar (deceased) by L.Rs. v. Poothathan Nadar Samuel and Ors. . Kailasam, J. as he then was had occasion to consider Travancore Oodukoor Settlement Proclamation (1122). Section 24 and 29, Oodukoor Settlement Rules 27 and 35 as to the implications of an Oodukoor award. It was held by the learned Judge as follows:
It is binding on the parties interested in the holdings even if their names do not appear in the register and who had also not been served with notice of the proceedings. Their remedy is to file suit to set aside the award within one year of the institution.
If it is binding on the plaintiff, equally, it is binding on the defendants. In fact, it is only the Government through the settlement officer conducts enquiry under the proclamation 1122.
19. In the written statement filed on behalf of the Government, specific averment has been made pinning the appellant td the award. If it will estop the plaintiff, with equal force it will estop the defendants. After the Oodukur award Ex.A-4 complaining of encroachment, the appellant filed suit O.S. No. 526 of 1956 against the Panchayat for injunction. Though the trial court did not grant injunction, on appeal in A.S. No. 188 of 1959 injunction was granted in favour of the appellant. This would be evident from Ex.A-6. The injunction was in force from 1959. There was a complaint lodged by the appellant against the Panchayat President for disobeying the injunction order and the Panchayat President was convicted and fine imposed in Summary Case No. 160 of 1971. This is seen from Ex. A-7 dated 23.10.1971. Thereafter, resurvey took place. There was variation in the holdings and a land encroachment case was filed against the appellant in L.E. Case No. 346 of 1980 alleging unauthorised occupation of Edavazhi poramboke and the Tahsildar ordered the appellant to be evicted from suit item 1 which was of an extent of 1,100 cents in S.No. 2676-B which according to the appellant was part of his property of an extent of 1 acre 91 cents in S.No. 2676-B. The appeal filed by the appellant to the Collector was dismissed as not maintainable and item 1 was recovered by the Tahsildar from the appellant on 15.11.1972. Item 2 of an extent of 3.900 cents in the same Survey Number namely, S.No. 2676-B was to the west of item No. 1. This was the subject matter of the suit and appeal in A.S. No. 188 of 1959. When item 1 was recovered from the plaintiff, according to the appellant, the Panchayat trespassed on item 2. Alleging that the possession by the Panchayat was wrongful, and also alleging that in resurvey some portion of the suit property had been wrongly included in the poramboke, the first suit came to be filed.
20. It has already been noticed that the Government took a stand that parties were governed by the Oodukoor settlement. Though originally in the plaint in the first suit the appellant stated that he was not bound by the Oodukoor plan, he beat a hasty retreat and in the subsequent suit, he said that the parties were bound by the Oodukur settlement proceedings. Though the trial court found that the Commissioner’s plan showed that road poramboke came within the patta land of the appellant, still it chose to reject it on the ground that it was not prepared with reference to revenue records and survey plan, but with reference to the plan in the final decree in O.S: No. 285 of 1970 in which neither the Government nor the panchayat was a party. The trial court also relied on the description given in Exs.A-3 and A-5 tax receipts which were issued subsequent to the impugned resurvey to non-suit the appellant. No doubt, the trial court is correct in its observation that the appellant should not be concerned if the area of road poramboke got increased in the resurvey unless such an increase affected his area adversely. But then, in going about it, the trial court accepted the resurvey as gospel because according to the trial court, the Commissioner’s plan and report could not be relied upon and in the opinion of the trial court as already observed trespass had not been established with reference to resurvey. This in my view, amounted to putting the cart before the horse. By a strange reasoning the learned District Munsif found that the road was there from 1956 and that the Government had prescribed title by adverse possession. The lower appellate court also followed the same pattern. But new Commissioners were appointed by the lower appellate court. One of them prepared a fresh plan with reference to oodukur plan Exhibit A-4 and fixed the encroached portion in S.No. 2676-B as 30 cents. When the Commissioner had found with reference to Oodukoor Plan that there was the encroachment by the Panchayat and the Government of an extent of 30 cents, then the lower appellate Court-ought to have given effect to Oodukoor plan and ignored and set aside the resurvey records. When as already observed the parties are governed by the Oodukoor award and Oodukoor plan, departure from the established legal position by the lower appellate court in particular, is totally unwarranted. The further reasoning of the lower appellate court was that the road was there from 1956, the road continued and the appellant had lost title by adverse possession. This finding has been reached on a fundamental misconception. To start with, in 1956, it was only a narrow pathway. The Oodukoor award was in 1955 which declared the rights of the appellant to 2676-B. The road started as Edavazhi poramboke in 1956 and by systematic and illegal encroachment, it got enlarged into pucca trunk road. It is a clear case where the respondents had abused their position of strength and encroached on private property. It is a shame on the part of the Government to claim by adverse possession when the head of the Panchayat Union a wing of its local administration had been indicted and made to pay for illegal trespass. That was in 1971. Two wrongs cannot make on right. May be in mathematics, minus x minus is plus. But in law, minus x minus is a bigger minus. The specific case of the Government is that it had nothing to do with the road and that it was the province of the panchayat, and the panchayat President flouts an order of injunction attempts to commit trespass and gets punished, may be a token fine. But the implication of the proceedings should not be lost sight of. The Panchayat and the Government joined hands and set up adverse possession. What an irony?
21. As already stated, the parties are governed by Oodukoor plan. The Commissioner appointed by the lower appellate court had prepared a plan on the basis of the Oodukoor plan. He had clearly fixed the encroachment as 30 cents. When as per the resurvey, the poramboke land in 2676-A got enlarged and a larger extent was found to be in the corresponding resurvey relating to Edavazhi poramboke, the courts below ought to have seen through the game and found that there was clear encroachment by the Government and the Panchayat. Admittedly, there was a permanent injunction in favour of the appellant. How could there by an adverse possession, in such a context. The plea of adverse possession by the respondents ought to have been rejected by the courts below. The suits were not barred by limitation. The courts below have not properly given effect to the Oodukoor plan which ought to have been accepted in toto to the exclusion of the resurvey plan.
22. In view of what is discussed above, it is not necessary to refer to the other decision which relates to non-framing of proper points for consideration.
23. The substantial questions of law raised in the two second appeals have therefore to be answered in favour of the appellant. The second appeals will consequently stand allowed. The judgments and the decree of both the courts below will stand set aside, and the suits O.S. No. 536 of 1973 and O.S. No. 562 of 1978 will stand decreed and the rights of the parties will be governed as per the plaint plan ABCD and DEFG in the Commissioner’s plan. Ex.C-3 No costs.