1. Plaintiffs 1, 2 and 5 in O.S 507/1993 on the file of the Munsiff's Court, Thiruvalla are the appellants. During the course of proceedings appellant No.1 died. Her Legal Representatives were impleaded as additional appellants 4 to 6. Respondents are the defendants. The plaintiffs instituted the Original Suit for a declaration that Ext.A5 order of the Superintendent of Survey (Resurvey) Pathanamthitta, in respect of a strip of land comprised in Re-Survey No.38/4 of Thottappuzha village, is null and void and for a consequential relief of injunction against defendant No.5.

2. Plaintiffs are the owners in possession of plaint item Nos.1 and 2 properties. Defendant No.5 is the titleholder of plaint item No.5 property. The strip of land comprised in Re-Survey No.38/4 (item Nos.3 and 4 properties) forms a thodu (watercourse) and the adjacent land (used as a way) appertaining to it.

3. According to the plaintiffs, item No.3 property is a 4 feet wide pathway that starts from the Thiruvalla-Kozhencherry road and joins the plaint item No.1 property. This way further goes towards item No.2 property, a residential building, in which plaintiff No.2 is residing. A stream ('thodu') flows adjacent to the way. The said stream is item No.4 property. The 'thodu' has a width of 1 metre. Defendant No.5 acquired title to 1 Acre 51 cents of land (item No.5 property) by virtue of Ext.A4 sale deed. The northern boundary of item No.5 property, is 'thodu'. Item Nos.3 and 4 are part of puramboke land, the extent of which is 12.5 cents. Item No.3 property is a public way. Item No.4 'thodu' is a public stream. The plaintiffs and their predecessors have been using this way for the last 100 years. Subsequent to the purchase of this property, defendant No.5 made an attempt to reduce the width of the puramboku way and 'thodu'. As per Ext.A5 proceedings, defendant No.5 succeeded in getting item Nos.3 and 4 included in his 'registered holding'. No notice was served on the plaintiffs in the proceedings based on which Ext.A5 was passed. The decision of Re-survey authority is illegal and ab initio void.

4. Defendants 1 to 4, the official defendants, pleaded that Resurvey in respect of the properties, including the plaint properties, was completed in 1988, and notification as provided in the Kerala Survey and Boundaries Act, 1961 (for short ‘the Act’) was published on 09.05.1989. According to defendants 1 to 4, at the time of finalisation of Re-survey, the strip of land comprised in Re-survey No.38/4 was 4½ metres wide watercourse (thodu). Defendant No.5 filed a complaint to the Re-survey authorities stating that there is a reduction in the extent of land over which he has title in the Resurvey proceedings. While redressing that complaint, it was found that the strip of land that includes the thodu and way was not having the required width to be maintained as a separate subdivision. Accordingly, it was decided to cancel sub-division No.38/4, and the property therein was made part of the sub-division No.38/5 that belonged to defendant No.5. Defendant Nos.1 to 4 further contended that the suit is not maintainable as the same has been instituted after the lapse of 1 year as provided in Section 14 of the Act.

5. Defendant No.5 contended that no puramboku land exists as pleaded by the plaintiffs. He is entitled to item Nos.3 and 4 properties, which form part of his registered land. The plaintiffs have no right over any portion of item Nos.3 and 4 properties.

6. The Trial Court framed necessary issues and proceeded with the trial. During the trial, PWs 1 to 6 were examined and Exts.A1 to A10 were marked on the side of the plaintiffs. Exts.B1 to B8 were marked on the side of the defendants. The Commissioner, who prepared Exts.A7 and A8, was examined as CW1.

7. The Trial Court declared Ext.A5 order of the Superintendent of Survey (Re-Survey) Pathanamthitta, as null and void and granted a decree in favour of the plaintiffs restraining defendant No.5 from obstructing the user of item Nos.3 and 4 properties by the plaintiffs and others. The Trial Court also directed to consider the complaint filed by defendant No.5 afresh.

8. Defendant No.5 challenged the decree and judgment passed by the Trial Court in A.S.No.32/2000. The First Appellate Court set aside the decree and judgment of the Trial Court holding that the suit is hit by Section 14 of the Act, and the plaintiffs failed to establish their right over item Nos.3 and 4 properties.

9. The plaintiffs are now in appeal under Section 100 of the CPC.

10. After hearing both sides, this Court reformulated the substantial questions of law as follows:

(i) Is not the finding of the Court below that the suit is barred by limitation under Section 14 of the Kerala Survey and Boundaries Act 1961 wrong in law

(ii) Is not the decision of the Survey authorities to include a thodu and pathway in existence into the registered holding of the fifth defendant on the ground that there is no sufficient width for the thodu in re.sy.38/4 and it could not be sub divided, bad in law and vitiated by malafides

(iii) Is not the finding of the First Appellate Court, that the plaint item Nos. 3 and 4 properties are part of the registered land of defendant No.5 when the pleadings and evidence established that the properties were vested in the local authority or in the Government, perverse

11. Heard Sri.G.Unnikrishnon, the learned counsel appearing for the appellants/plaintiffs 1, 2 and 5, Sri.K.B.Pradeep, the learned counsel appearing for respondent No.5/defendant No.5 and Sri.P.G.Manu, the learned Senior Government Pleader appearing for respondents 1 to 4/defendants 1 to 4, the Board of Revenue and other officials of the State.

12. The dispute in this case centres around a strip of land having an extent of 12 cents comprised in Re-Survey No.38/4 of Block No.23 of Thottappuzhassery village of Thiruvalla Taluk in Pathanamthitta District. This strip of land (item Nos.3 and 4 properties) includes a thodu (watercourse) and the adjacent land (used as a way) appertaining to it.

13. The properties owned by the plaintiffs lie on the east of item Nos.3 and 4 properties. Defendant No.5 has land on the immediate south of the strip of land described as item Nos.3 and 4 properties. The property comprised in Re-survey No.38/3 of Thottappuzhassery village is on the immediate north of this strip of land. The 'thodu' flows from east to west and runs beneath Thiruvalla–Kozhancherry road through a culvert and enters the western Puncha (wetland).

14. The case of the plaintiffs is that the strip of land is a puramboke land and themselves and their predecessors have been using the way lying adjacent to the 'thodu' for the last 100 years. The challenge of defendant No.5 is that the plaintiffs have no right over the strip of land and the same is part of his registered holding.

15. Defendants 1 to 4 contended that though at the time of finalisation of Re-survey the width of the watercourse was 4½ metres, when defendant No.5 preferred a complaint raising the grievance that the extent of his registered land was reduced, it had only a width of less than 2 metres.

16. According to defendants 1 to 4, based on the compliant preferred by defendant No.5, item Nos.3 and 4 properties, included in a separate sub-division at the time of re-survey, were made part of the registered holding of defendant No.5 as per Ext.A5 proceedings.

17. The First Appellate Court set aside the judgment and decree of the Trial Court mainly on the ground that the suit is hit by Section 14 of the Act.

18. The impugned order (Ext.A5) was passed on 10.08.1988 and notification under Section 13 of the Act was published in the gazette on 08.05.1989. The First Appellate Court found that as the proceedings under challenge were initiated under Section 10 of the Act, as per Section 14 of the Act a suit challenging the proceedings should have been instituted within one year from the date of gazette notification.

19. It is useful to extract Sections 10 and 14 of the Kerala Survey and Boundaries Act, 1961:

"10. Power of Survey Officer to determine and record a disputed boundary with reasons.- (1) Where a boundary is disputed, the Survey Officer shall, after making such inquiries as he considers necessary, determine the boundary and record it in accordance with his decision with reasons in writing for arriving at that decision.

(2) Notice of every decision of the Survey Officer under subsection (1) shall be given in the prescribed manner to the parties to the dispute and other registered holders of the lands, the boundaries of which may be affected by the decision.

11. x x x

12. x x x

13. x x x

14. Right to institute a suit in respect of boundary of the property surveyed - (1) Any person deeming himself aggrieved by the determination of any boundary under section 9, section 10 or section 11 [or aggrieved by an order passed by the Collector under subsection (1) of Section 13A may, subject to the provisions of the law of limitation in force for the time being, institute a suit within one year from the date of the notification under section 13 or sub-section (2) of Section 13A, as the case may be, to set aside or modify the said determination and the survey shall, if necessary, be altered in accordance with the final decree in the suit and the alteration, if any, shall be noted in the records.

(2) In any suit under sub-section (1) the plaintiff shall join as parties to the suit all persons whom he has reason to believe to be interested in the boundary which is subject to the suit.”

20. As per Section 14 of the Act, any person deeming himself aggrieved by the determination of any boundary under Sections 9, 10 or 11 may institute a suit within one year from the date of notification under Section 13 to set aside or modify the said determination, etc,.

21. The learned counsel for the appellants/plaintiffs submitted that though the proceedings which led to Ext.A5 order were initiated invoking Section 10 of the Act, the Survey authorities were not competent to pass Ext.A5 order under that Section.

22. Per contra, the learned counsel for defendant No.5 contended that the proceedings initiated by the Survey authorities would come under the ambit of Section 10 of the Act, and so the suit is hit by Section 14 of the Act.

23. The question whether the proceedings initiated by the Survey Authorities would come within the power of Section 10 is to be ascertained on the facts and circumstances of each case. Section 10 of the Act as extracted above, fundamentally deals with boundary disputes.

24. A reading of Sec.10 of the Act makes it candidly clear that the survey authority is only empowered to determine the disputes regarding the fixation of boundary between owners of land comprised in a particular survey division. The act of determination envisaged in Sec.10 of the Act essentially draws a dividing line based on ownership within a particular survey or, in other words, Sec.10 of the Act does not authorise the Survey Authority to redefine the boundary line of a particular survey already settled by old survey records. Section 10 of the Act does not empower the survey authority to change the ownership of a particular subdivision and make it part of another survey sub-division.

25. While construing the scope of Sections 10 and 14 of the Act, 1961, this Court in Cheriyanad Grama Panchayat v. State of Kerala [2019 (4) KLT 916 [LQ/KerHC/2019/1569] ] held thus:

“7. Necessarily, we should understand why the legislature has incorporated one year period for instituting a suit for rectification of survey by saving the provisions of limitation for the time being in force - the provisions contained in the Indian Limitation Act, 1908 and the new Act, the Limitation Act, 1963. In fact, by saving the provisions of limitation for the time being in force, the legislature has intended to maintain the period of limitation available to the suits governed by the provisions of limitation for the time being in force (the Indian Limitation Act, 1908 and the new Act, the Limitation Act, 1963) and to restrict the period of limitation to one year for a suit which would squarely come under the purview of Section 14 of the Act. A conjoint reading of Sections 10 and 14 of the Act would abundantly make it clear that the power vested with the survey officer to determine and record a disputed boundary with reasons confined only to the determination of the disputes regarding fixation of boundary between the owners/sharers out of a large extent comprised in a particular survey so as to effect divisions based on ownership within that survey (any particular survey number or sub-division number). It really amounts to drawing a dividing line based on ownership within a particular survey. Necessarily, the survey officer empowered under Section 10 of the Act will not have any authority to re-define the boundary lines of a particular survey already settled by old survey records. A right of appeal provided under Section 11 of the Act should be understood in reference to the matters which would come under the purview of Sections 9 and 10 of the Act so as to have an understanding of the real impact and the power vested under Sections 9 and 10 of the Act with the survey officer. The decisions under Sections 6 and 7 also brought under the purview of Section 11 of the Act for the purpose of appeal, but neither in Section 6 nor in Section 7 of the Act any power was vested with the survey officer to re-define any boundary line of a particular survey which was already settled and finalised in an earlier survey, except for the purpose of Section 5 of the Act. Section 5 of the Act deals with the situation wherein certain area was taken away by sea erosion or action of river and the registered holder of the property can apply for a survey of his land which is available after the sea erosion or action of river. Section 4 of the Act also permits a survey of the land, but its purpose should be understood in relation to the necessity to have a resurvey, certainly, not for altering the earlier survey records, but for recording the further divisions of property out of a large extent within a particular survey, besides the purpose to be served under Section 5 of the Act. The one year period enumerated under Section 14 of the Act can only be applied in a suit challenging the determination which would come under the purview of either Section 9 or Section 10 of the Act, besides Sections 6 and 7 of the Act and in so far as Sections 9 and 10 are concerned, the determination should be only with respect to the internal arrangement of a particular survey based on ownership and there is no scope for re-defining the boundary line of a particular survey except for the purpose of Section 5 of the Act. If it is with respect to any re-defining of boundary line of a particular survey other than the one under Section 5 of the Act, it is without any authority and a suit for rectification of mistake crept in the resurvey re-defining the boundary already settled earlier would stand outside the purview of Section 14 of the Act and hence, governed by the provisions of Indian Limitation Act, 1908 and the new Act, Limitation Act, 1963 as well, wherein there will not be any application of one year period provided under Section 14 of the Act.”

26. Coming to the facts of the case, defendant No.5 preferred a complaint before the Survey Authority stating that the extent of the property acquired by him has been reduced in the Re-survey and prayed for restoring the extent he originally acquired. It is relevant to note that defendant No.5 acquired title to the property on the south of 'the strip of land' comprised in Re-survey No.38/4 by virtue of Ext.A4. The description of the property contained in Ext.A4 makes it evident that defendant No.5 had acquired 1 Acre 51 cents of land. Admittedly, the extent of the property held by defendant No.5 coming within the Re-survey No.38/5 is 1 Acre 51 cents. The northern boundary of the property of defendant No.5 as per Ext.A4 is 'thodu'.

27. Defendants 1 to 4, for and on behalf of the State, in the written statement specifically pleaded that the disputed property, comprised in Re-survey No.38/4, was recorded as 4½ metres wide water course (thodu) at the time of re-survey, which was finalised in 1989. This pleading of the defendant, State is to be read along with Sec.82 of the Kerala Panchayats Act, 1960 (The provision corresponding to Sec.218 of the Kerala Panchayat Raj Act, 1994: similar provisions are there in the Municipality Act also), which reads thus:

“82. Vesting of water course, springs, reservoirs, etc., in Panchayats .-(1) [All public water courses (other than rivers passing through more areas, than the panchayat area which the Government may, by notification in the gazatte, specify), springs, reservoirs, tanks, cisterns, fountains, wells, kappus, chals, standpipes] and other water-works (including those used by the public to such an extent as to give a prescriptive right to their use) whether existing at the commencement of this Act or afterwards made, laid or erected and whether made, laid or erected at the cost of the Panchayat or otherwise, and also any adjacent land (not being private property) appertaining thereto shall [stand transferred to, and vest in, the Panchayat;]

Provided that nothing contained in this subsection shall apply to any work which is, or is connected with, a work of irrigation or to any adjacent land appertaining to any such work

[(1A) Subject to the provisions of this Act, all rights and liabilities of the Government in relation to the watercourses, springs, reservoirs, tanks, cisterns, fountains wells [kappus, chals], standpipes and other water works vested in the Panchayat under sub-section (1) shall, from the date of such vesting, be the rights and liabilities of the Panchayat;]

(2) [Notwithstanding anything contained in subsection (1) or sub-section (1A), the Government may, by notification in the Gazette, assume the administration of any public source of water supply and public land adjacent and appertaining thereto after consulting the Panchayat and giving due regard to its objection, if any.]”

28. Nobody has a case that the disputed property originally belonged to defendant No.5 or any private parties. Defendants 1 to 4, the Board of Revenue, and the officials of the State pleaded that it was a 4½ meter wide watercourse (thodu) which would necessarily be a public stream in 1989. There is nothing to show that the Government assumed administration of this stream as provided in Sec.82 (2) of the Panchayats Act, 1960. The necessary inference is that the disputed property comprised in Re-survey No.38/4 was vested in the local authority by virtue of Sec.82 of the Panchayats Act.

29. In Ext.A5 order, the reasoning applied by the competent authority in cancelling the sub-division 38/4 and including the same in the holding of defendant No.5 (38/5) is that the disputed strip of land at the time of consideration had only a width less than 2 metres. Based on these facts, can it be said that the action taken by the competent authority cancelling the survey sub-division 38/4 and including the property comprised therein to the registered land of defendant No.5 would come under Section 10 of the Act The Trial Court, after perusing Ext.B6 file relating to the impugned proceedings, in Paragraph 10 of the judgment recorded the following findings:

“10............Page No.21 of the said file is the copy of the original sketch prepared by the Re-survey authorities in respect of field No.38 in block No.23 of Thottappuzhassery Village. In the said sketch Resurvey No.38/4 is shown as a thodu and way and it is south of the property comprised in the Survey No.38/5. As per Exts.A5 and B1 decision in ALC No.44/88, the Re-survey Superintendent has cancelled the survey boundary line separating Re-survey Nos.38/4 and 38/5, so as to include the area covered by Re-survey No.38/4 in Re-survey No.38/5. On the western extremity, Re-survey No.38/4 is having a width of 4.5 metres and on the eastern extremity the same is having a width of 3.7 metres as evidenced by the sketch in the Ext.B6 file (page 21). Ext.B2 is the revised sketch in respect of field No.38 in block No.23 of Thottappuzhassery village prepared as per proceedings of the Assistant Director of Survey and Land Records (Range) Kottayam dated 18.10.1995. As per Ext.B2 revised sketch, sub-division No.4 is deleted and the same is included in the former sub-division No.38/5. Consequently sub-division No.38/5 is renumbered in Ext.B2 as 38/4 and former 38/6 is renumbered as 38/5. The reason for cancelling the survey boundary line demarcating Re-survey No.38/4 and 38/5 as stated in Ext.A5 is that the thodu in Re-survey No.38/4 is not having sufficient width as per Re-survey Rules, so as to assign a separate survey sub-division number to it.”

30. The survey authority was virtually 'assigning' the land vested in the Panchayath/Government to defendant No.5 under the guise of the proceedings under Sec.10 of the Act. This Court is of the view that the proceedings initiated by the Survey Authorities, which relate to the passing of Ext.A5 order would not come under the ambit of Section 10 of the Act and the Survey Authority is not empowered to redefine the boundaries of a particular survey subdivision by including a piece of land from another sub-division. Admittedly, Ext.A5 would not also come under Secs.9 and 11 of the Act.

31. The resultant conclusion is that Section 14 of the Act has no application in the facts of the case, and the First Appellate Court was wrong in holding that the suit is barred by limitation under Section 14 of the Act.

32. The First Appellate Court has further found that item Nos.3 and 4, the thodu and way are also part and parcel of the 'registered holding' of defendant No.5 and there is no Government land in that locality. Plaintiffs have a case that item Nos.3 and 4 are puramboke land. The challenge of defendant No.5 is that there is no puramboke land.

33. Defendants 1 to 4 also contended that there is no puramboke land.

34. The plaintiffs have no case that they are the registered holders of the disputed land. Defendant No.5 has not succeeded in establishing that the disputed land is part of his registered land. None of the defendants have a case that until passing of the impugned order, the disputed land was the registered holding of any of the parties of the litigation or any of the neighbouring property owners. 'Registered holder of any land' and 'Registered land' are defined in the Survey and Boundaries Act, 1961 as follows:

“2. Definitions. - In this Act, unless the context otherwise requires, -

(i) xx xx xx

(ii) xx xx xx

(iii) xx xx xx

(iv) "Registered holder of any land" means the person in whose name the land in question is registered in the Government accounts of the Village.

Explanation (1)- When any person other than the registered holder is in lawful management of a land, otherwise than as agent or servant of the registered holder or as mortgagee, such person shall be deemed to be the registered holder in respect of such land.

Explanation (2)- When a land is so registered in the names of two or more persons jointly, the registered holder shall, for the purposes of this Act, be the person who is recognised by the other joint holder or joint holders as the manager of the land or who, in the case of dispute, is recognised by the Collector as the principal joint holder ;

(v) "Registered land" means any land the proprietary right of which does not vest in the Government ;”

35. Admittedly, the disputed property was not in the ownership of any of the private parties in the litigation or in the ownership of any other private persons. However, this Court has already held that the disputed property, a watercourse and the appertaining land, was vested with the local authority. It is profitable to refer to the decision of the Apex Court in R.Hanumaiah and others v. Secretary to Government of Karnataka, Revenue Department and others [(2010) 5 SCC 203] [LQ/SC/2010/228] =(MANU/SC/0296/2010), wherein the Apex Court held that all lands which are not the property of any person or which are not vested in a local authority, belong to the Government. Therefore, the necessary inference is that the disputed land belongs to the local authority. If it is not vested with the local authority, it can only belong to the Government.

36. The Survey authority as per Ext.A5 order cancelled the survey sub-division (38/4) on the ground that the disputed property (watercourse) lacked the required width to maintain it as a separate sub-division and it was made part of the survey subdivision No.38/5 in which the property of defendant No.5 is included. The end result was that a public stream and the adjacent land appertaining thereto were made subject to private ownership . It is pertinent to note that the survey authorities had not given notice of the proceedings in ALC No.44/88 either to the local authority or the affected parties.

37. The State and its officers lost sight of the public trust doctrine, which declared that the State is the trustee of all natural resources which are by nature meant for public use. In M.C.Mehta v. Kamal Nath [(1997) 1 SCC 388] [LQ/SC/1996/2186] the Apex Court observed that the Public Trust Doctrine primarily rests on the principle that resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private or commercial purposes.

38. In the celebrated 'Mono Lake case' [National Audubon Society v. The Superior Court of Alpine County (33 Cal. 3d 419)=(21 ERC 1490)], which was followed by the Apex Court in M.C.Mehta's case (supra) the Supreme Court of California summed up the powers of the State as trustee in the following words:

“441 [10] Thus, the public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.”

39. The State is the trustee of all natural resources, which are by nature meant for public use and enjoyment. The State as a trustee, is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership. Similarly, Article 51-A enjoins a duty upon every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for all living creatures. The public trust doctrine has become the law of the land. Therefore, the official defendants in this case, failed to discharge their constitutional responsibility.

40. The finding of the First Appellate Court that the disputed land is the registered land of defendant No.5 is perverse, and the same is liable to be set aside.

41. The First Appellate Court has further recorded that the plaintiffs are not entitled to a prohibitory injunction as prayed for. The Trial Court and the First Appellate Court specifically held that item No.3 property is the only way to the residence of the plaintiffs. The First Appellate Court recorded the following finding:

“However it is established that item No.3 pathway and item No.4 thodu are in existence at present and item No.3 is used as pathway by the plaintiffs and no other way is available to them.”

42. The Trial Court granted the prohibitory injunction restraining defendant No.5 from preventing the user of the property by the plaintiffs and others. This Court has already come to a conclusion in the above discussion that the disputed property was vested with the local authority/Government. Defendant No.5 has no right to prevent the plaintiffs from using the disputed strip of land as a way. Hence, the plaintiffs are entitled to the prohibitory injunction as prayed for.

43. Resultantly, the judgment and decree of the First Appellate Court are set aside. The decree and judgment of the Trial Court to the extent it declared Ext.A5 as null and void and granted prohibitory injunction in favour of the plaintiffs, are restored. As this Court has held that the proceedings that led to Ext.A5 would not come under Sec.10 of the Act the directions in the judgment of the Trial Court to the survey authorities to dispose of ALC No.44/88, a proceeding initiated based on the complaint preferred by defendant No.5, after giving opportunity to the plaintiffs and others, cannot be sustained.

44. The learned counsel for defendant No.5/respondent No.5 submitted that defendant No.5 may be given the liberty to redress his grievance if the extent of the land in his possession is found to be less than the extent shown in Ext.A4 title deed. Needless to say, defendant No.5 is at liberty to redress his grievances in accordance with law if a cause of action arises.

45. The Regular Second Appeal is allowed as above. The parties are directed to bear their respective costs.