Gopal Mudaliar (Deceased) and Others vs State of Tamil Nadu

M. Venugopal, J.—The First Appellant/Plaintiff, during his life time, has preferred this present Second Appeal as against the Judgment and

Decree dated 02.01.1997 made in A.S. No. 33 of 1996 on the file of the Learned Principal District Judge, Thiruvannamalai.

During the pendency of the Second Appeal, the First Appellant/Plaintiff died and hence, his Legal Representatives have been added and

brought on record as Appellants.

The First Appellate Court viz., Principle District Judge, Thiruvannamalai, in the Judgment in A.S. No. 33 of 1996, has, among others things,

observed that ''As per Chapter 4 Section 22, 23 of The Tamil Nadu Survey and Boundaries Act, 1923 the District Collector and his Officers have

got powers to measure the land and hence, the Revenue Department has objected to the enjoyment of the poramboke land by the

Appellant/Plaintiff (since deceased) and they have issued Ex.B.5-Memo and that has not been received by him and the same has been refused, as

evident from Ex.B.5 and inasmuch as the total extent in Survey No. 662/1 is 3 acres and 55 cents as proved by the Respondents, the enjoyment of

Appellant/Plaintiff in respect of 0.81 cents of land in Survey No. 684/1 is of Government poramboke land and in the said land, the

Appellant/Plaintiff (since deceased) has not acquired the right of adverse possession and the conclusion arrived at by the trial Court is a correct

one and need not be interfered with and resultantly, dismissed the Appeal with costs.''

Before the trial Court, three issues and two additional issues have been framed for determination during the trial of the case. On the side of the

Appellant/Plaintiff (deceased), witnesses P.W.1 to P.W.3 have been examined and Exs.A.1 to A.9 have been marked. On the side of the

Respondents/Defendants, witnesses D.W.1 to D.W.5 have been examined and Exs.B.1 to B.10 have been marked.

The trial Court, on an appreciation of oral and documentary evidence available on record, has come to the conclusion that in Survey No. 662

mentioned in the Plaint out of 4 acres and 36 cents, leaving the poramboke land in Survey No. 684/1, the Appellant/Plaintiff (deceased) is entitled

to claim the reliefs in respect of 3 acres and 55 cents of land as prayed for by him and consequently, decreed the Suit with costs.

Dissatisfied with the Judgment and Decree passed by the Learned Appellate Authority viz., Principal District Judge, Thiruvannamalai District in

A.S. No. 33 of 1996 dated 02.01.1997, the Appellant/Plaintiff (deceased) has preferred this Second Appeal before this Court and subsequent to

his death, during the pendency of the Second Appeal, his Legal Representatives have been brought on record and they have been added as

Appellants.

At the time of admission of the Second Appeal, this Court has framed the following Substantial Questions of Law:

Whether the Courts below are justified in invoking the Section 10 of the Survey and Boundaries Act, 1923 without following the mandatory

procedure u/s 10(2) of the Act before passing any Order?

Whether the Courts below are justified in rejecting the injunction in the absence of any contra evidence to disprove the appellant''s possession?

THE CONTENTIONS, DISCUSSIONS AND FINDINGS ON SUBSTANTIAL QUESTIONS OF LAW ON POINT Nos. 1 AND 2:

The Learned Counsel for the Appellants urges before this Court that the trial Court as well as the Appellate Court have rejected the claim of the

Appellant/Plaintiff (since deceased) to an extent of 0.81 cents contrary to law, weight of evidence and probabilities of the case and as a matter of

fact, the Appellant/Plaintiff (since deceased) has been in possession and enjoyment of the entire suit property without any interruption by the

Respondents and this material fact has not been taken note of by both the Courts below, which has resulted in erroneous Judgments being passed

against the Appellant/Plaintiff (since deceased).

It is the contention of the Learned Counsel for the Appellants that the Appellant/Plaintiff (since deceased) has been in lawful possession and

enjoyment of the suit property to the knowledge of the Respondents and therefore, both the Courts ought to have decreed the suit in entirety.

According to the Learned Counsel for the Appellants, the Respondents/Defendants have permitted the Appellant/Plaintiff (since deceased) and

his vendors to enjoy the property for more than 30 years and therefore, is not entitled to reject his claim without following the procedure known to

law and indeed, patta has been granted in favour of the Appellant/Plaintiff (since deceased) including the land purportedly belonging to the

Government and in the absence of any proceedings by the Respondents/Defendants to cancel the patta insofar as the lands which have been in

occupation of the Appellant/Plaintiff (since deceased), both the Courts below erred in dismissing the suit partly.

A plea is put forward by the Learned Counsel for the Appellants that the ingredients of Section 10 of the Tamil Nadu Survey and Boundaries

Act, 1923 has not been appreciated by the Courts below and they have come to the incorrect conclusion that the Respondents/Defendants are

entitled to determine the boundary without knowing the fact that any order passed under the Act will be only after providing reasonable

opportunity to the Appellant/Plaintiff (since deceased) and this needs to be rectified by this Court.

Lastly, it is the contention of the Learned Counsel for the Appellants that the Appellant/Plaintiff (since deceased) has dug a well to the

knowledge of the Respondents/Defendants and this particular aspect of the matter has not been taken into consideration by the trial Court as well

as the Appellate Court and in short, prays for allowing the Second Appeal in the interest of justice.

Contending contra, the Learned Government Advocate submits that the trial Court as well as the Appellate Court have taken into

consideration all the relevant facts and circumstances of the case in an integral fashion and have arrived at a right conclusion to the effect that the

Appellant/Plaintiff (since deceased) is entitled to get reliefs in respect of 3 acres and 55 cents in Survey No. 662 out of 4 acres and 36 cents

leaving the 0.81 cents of poramboke land in Survey No. 684/1 and the same need not be interfered with by this Court.

The Learned Counsel for the Appellants submits that as per Section 10 of the Tamil Nadu Survey and Boundaries Act, 1923 notice is to be

given to the occupier before conducting a survey and in the instant case on hand, the Appellant/Plaintiff (since deceased) has not received the

notice and when the Respondents/Defendants say that the Appellant/Plaintiff (since deceased) has refused to receive the notice, they have not

examined any person who effected service and the Respondents/Defendants have not followed the procedure enjoined under the Tamil Nadu

Survey and Boundaries Act, 1923 and till date the Appellants are in possession of the suit property and they have not been evicted by the

Respondents/Defendants.

A perusal of the Plaint indicates that the Appellant/Plaintiff (since deceased) has averred that the old patta in respect of Patta No. 963 stands in

the name of his vendor Munirajilu Naidu and the new patta to the plaint schedule property, issued under Up-Dating Registry Scheme vide Patta

No. 395 stands in the name of the Appellant/Plaintiff (since deceased) and that the Appellant/Plaintiff (later deceased) and his predecessors-in-title

have been in peaceful, open, continuous and uninterrupted possession and enjoyment of the suit property for more than a period of 35 years by

paying kist due to the Government from time to time and that he and his predecessors-in-title have perfected their title by means of Adverse

possession in respect of suit property.

Also, in the Plaint in paragraph 5, the Appellant/Plaintiff (since deceased) has averred that ''all of a sudden, during the 1st week of December,

1991, the 3rd Respondent/3rd Defendant has called on the Appellant/Plaintiff (since deceased) and threatened to surrender the plaint schedule

property, as if the same is a poramboke land belonging to the Government at the instance of Surveyor and Kelur Firka Revenue Inspector and

Villagers.'' Added further, it is stated that the 3rd Respondent/3rd Defendant has not issued any notice to the Appellant/Plaintiff (since deceased)

to the effect that the schedule mentioned property is poramboke previously and the Respondents/Defendants endeavoured to measure the suit

property and to evict him from the suit property. Hence, the suit has been laid for declaring the Appellant/Plaintiff''s (since deceased) title, right and

interest in respect of the schedule mentioned property and for consequential permanent injunction, restraining the Respondents/Defendants, their

men, agents, subordinates etc. from in any manner interfering with his peaceful possession and enjoyment of the suit property by him.

In the written statement filed by the Respondents/Defendants, it is stated that as per old Patta No. 963 the Appellant/Plaintiff (since deceased)

is owning 3.55 acres of dry land in Survey No. 662 and as per U.D.R. Scheme, patta has been issued in his favour bearing Patta No. 395 to an

extent of 2.65.0 hectares and in the U.D.R. Scheme, the patta has been issued by mistake to an extent of 2.65.0 hectares which is an error and the

same shall be liable to be corrected as per the Survey and Boundaries Act, 1923 and the Appellant/Plaintiff (later deceased) is entitled only to

3.55 acres.

Continuing further, it is averred in the written statement that the Appellant/Plaintiff (later deceased) is enjoying the Government poramboke land

in S.F. No. 684/1 to an extent of 3.21 acres of land which is adjacent to S. No. 662 of his land and the same has been found by the Tahsildar and

Taluk Surveyor who inspected for alleging a suitable place to form a ""Cattle farm"" for goats and the Appellant/Plaintiff (since deceased) has

averred in his Plaint that he is owning 4.63 acres in Survey No. 662 of Kasthambadi Village.

The stand of the Respondents/Defendants is that the 2nd Respondent/2nd Defendant has issued a B memo to the Appellant/Plaintiff (since

deceased) to surrender the unauthorised encroachment poramboke land in Survey No. 684/1, 2 by proceedings B.MP. No. 9195 � 9196 and

not the patta land in Survey No. 662/1 and in the said poramboke land, he has also dug a well and moreover, the 3rd Defendant has issued B

memo to him to surrender the unauthorised encroachments to an extent of 3.21 acres in Survey No. 684/1 and 684/2 at Kasthambadi village,

which is adjacent to the schedule mentioned item of property.

Ex.A.1 is the Sale Deed dated 26.08.1977 is in the Appellant/Plaintiff''s name (later deceased) executed by Munirajilu Naidu, in respect of

punja land for a sale consideration of Rs. 8,600/- pertaining to the Survey No. 662 measuring an extent of 4.36 acres out of total extent of 6 acres

55 cents. In the said Sale Deed, there is no tracing of antecedent title in respect of the schedule mentioned property and it is also not mentioned as

to how earlier Munirajilu Naidu has got the property mentioned in the said Sale Deed and these details are conspicuously absent. A perusal of the

recitals and the Sale Deed clearly points out that Munirajilu Naidu, for his urgent necessity of purchasing the house, has sold the schedule

mentioned property in the said document. A scrutiny of Ex.A.1 to A.5 documents clearly go to show that in Survey No. 662 the total extent is

mentioned as 6 acres 55 cents. In Ex.B.11 it is clearly mentioned that in Survey No. 662 it is wrongly mentioned as 6 acres 55 cents instead of the

correct extent of 3 acres and 55 cents. In Ex.B.12-Sketch in respect of Survey No. 662 the extent is mentioned as 2 hectares and 65 ares, the

correct extent ought to have been mentioned in the Sketch should be 1.43.5 equivalent to 3 acres and 55 cents. Hence, obviously a mistake has

crept in Ex.B.12 when it has been mentioned in Survey No. 662 that the extent is 2 hectares and 65 ares. In Exs.A.2 and A.3-Sale Deeds out of 6

acres and 55 cents in Survey No. 662, 4.36 acres of land have been mentioned as land about which sale has been effected. In Survey No. 662 the

total extent is only 3 acres and 55 cents and as such, the Appellant/Plaintiff (since deceased) should not have obtained a sale in respect of 4 acres

and 36 cents.

In fact, D.W.1 has deposed in his evidence that adjacent to Survey No. 662, in Survey No. 684/1, 1.30 hectare of land has been in

possession of the Appellant/Plaintiff (since deceased) and he has also dug a well as seen from Ex.B.5 copy of B memo in respect of Survey No.

684/1 and 684/2. In Ex.B.5-B memo there is an endorsement in Tamil that ''Survey Nos. 684/1, 2 has been inspected and the well has been dug

but no water has been drained from the well and that Manavari Maize etc. have been raised.'' Ex.B.10 is the affixure of notice signed by the

Tahsildar and that in Survey No. 1 the name of the Appellant/Plaintiff (since deceased) has been found and in Survey No. 2 the name of Kannu

Gounder has been seen. From Ex.B.10 it is evident that both the Appellant/Plaintiff (since deceased) and Kannu Gounder have refused to receive

the notice and to sign and therefore, they have been affixed.

At this stage, the Learned Counsel for the Appellants submits that the Respondents have not examined any person who effected the affixure

service of notice and when the Appellant/Plaintiff (since deceased) has taken a stand that he has not received the notice, then, the burden is on the

side of the Respondents/Defendants to establish the contra. Countering the submission of the Learned Counsel for the Appellants in this regard, the

Learned Government Advocate for the Respondents/Defendants submits that the Appellant/Plaintiff (since deceased) and another Kannu Gounder

have refused to receive the notice as per endorsement made in Ex.B.10 and in fact, in Ex.B.10 document Tahsildar, Polur has signed and when the

Appellant/Plaintiff (since deceased) has refused to receive the notice issued by the authorities concerned, then, the authorities have no other option

but to affix the notice and that such affixure of notice in law is deemed to be a valid and proper service in the eye of law.

It is not out of place for this Court to make a significant mention that where a Survey Officer exercises such jurisdiction, his decision shall be

final unless the same is set aside by a suit filed u/s 25 of the Act as per decision 13 L.W.172: 62 IC 87.

At this stage, this Court pertinently points out the decision of this Court in V.M.S. Kandasamy Nadar Vs. The Province of Madras and

Another, it is held as follows:

A party concerned by an adverse survey to whom no notice was given of the survey is not bound to file a suit within three years to set aside the

order of the Survey Officer because he had no notice of the survey and the orders on it cannot be said to be correctly passed u/s 13 of the Madras

Survey and Boundaries Act and binding on that party.

If a defendant requests the Court to dismiss a suit and grant permission to the plaintiff to file a fresh suit when such a fresh suit is filed he cannot turn

round and say that the Court which granted the permission should not have done so.

Also, in Lingappa Gounder Vs. Palanisamy Gounder and Others, wherein it is inter alia observed and held as follows:

In an another Division Bench decision of this Court reported in 1974 TLNJ 145 (State of Madras v. Kasthuri Ammal and Ors.), it is held that

though in an earlier survey one portion of the suit site might have been labelled as a road poramboke, such action by the survey authorities cannot

affect the plaintiff in any manner unless the defendants establish that due notice of the result of the survey was given and the latter acquiesced in the

correctness of the operations. The law is that a party concerned by an adverse survey to whom no notice of the survey was given is not bound to

file a suit within three years to set aside the order of the survey officer because he had no notice of the survey, and the orders on it cannot be said

to be correctly passed u/s 13 of the Act and binding on the party.

From the decisions referred to above, which are also relied on by the trial Court, this Court is of the considered view that non-mentioning of

existence of the common cart-track in the re-survey will not in any way affect the rights of the plaintiff as it is not proved that notice was issued by

the Survey Authorities as required u/s 9(2) of the Tamil Nadu Survey and Boundaries Act, 1923, to the predecessors-in-title of the plaintiff.

Moreover, in Vaikundam Agro Tech Limited, Trivandrum rep. By General Manager v. State of Tamil Nadu rep. By District Collector,

Kanyakumari District (2008) 1 MLJ 200 wherein it is held as follows:

Section 9(2) of the said Act mandates that after every decision taken by the Survey Officer to determine and record any boundary as undisputed

boundary, notice of such decision should be given, in the prescribed manner to the registered holders of the lands, the boundaries of which may be

fixed, there is no evidence to show that notice u/s 9(2) after fixing the boundary was given to the plaintiff company. Section 13 of the said Act also

requires notification of the completion of demarcation of boundary in the District Gazette, apart from pasting a copy of such notification in the

village chavadi. Though Section 14 of the said Act is to the effect that a suit to set aside or modify the determination published in the notification

should be filed within three years from the date of notification, the said restriction is interpreted to apply only in case of proof of notice having been

served on the affected land holder.

This Court has categorically stated that a party concerned by an adverse survey, to whom no notice was given of the survey, is not bound to file a

suit within three years to set aside the order of the Survey Officer because he had no notice of the survey and the orders on it cannot be said to be

correctly passed.

In the decision E.K.M.K. Nawabjan v. Krishnan Chettiar and Ors. AIR 1978 NOC 185 (Mad), it is held that ''Affixture of notice on

residential premises is a proper service or service by registered post is not necessary.''

It is to be noted that notice for survey ought to be given to the holder of a land whose boundary may be affected by the decision of the

Revenue Authorities. In the present case on hand, the provisions of the Tamil Nadu Survey and Boundaries Act, 1923 are quite applicable for

fixing the boundaries of undisputed lands also. Moreover, as seen from Ex.B.10 document the Appellant/Plaintiff (since deceased) has refused to

receive the notice and therefore, the said notice has been affixed and even in the absence of any person being examined to that effect, yet, the said

endorsement made by the concerned can be taken into account in favour of the Respondents/Defendants.

Inasmuch as the Appellant/Plaintiff (since deceased) has refused to receive the notice and sign as seen from Ex.B.10 written endorsements in

Tamil thereto, then, such refusal amounts to a deemed and sufficient service in the eye of law and therefore, it is not open to the Appellants to

plead that without following the mandatory procedure u/s 10(2) of the Tamil Nadu Survey and Boundaries Act, 1923 before passing any order the

Courts have invoked the Section 10 of the said Act and in fact, Section 10(1) of the said Act empowers the Survey Officer after making such

enquiry to determine and record a disputed boundary and in this regard, he shall record in writing the reasons for arriving at his decision thereto

and in fact, both the Courts, on consideration of all relevant facts and circumstances of the case in an integral fashion, have come to the fair and just

conclusion that in respect of Survey No. 662 out of 4 acres and 36 cents leaving the extent of poramboke land in Survey No. 684/1, the

Appellant/Plaintiff (since deceased) is entitled to claim the reliefs and as such, the rejection of injunction relief to the extent of 0.81 cents in respect

of poramboke land is justified one and the same do not suffer from any material irregularity or patent illegality and the two substantial questions of

law are answered against the Appellants and consequently, the Second Appeal fails.

In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Resultantly, the Judgment and Decree of the First

Appellate Court viz., Principal District Judge, Thiruvannamalai in A.S. No. 33 of 1996 dated 02.01.1997 and the Judgment and Decree of the trial

Court viz., District Munsif Court, Polur in O.S. No. 605 of 1991 are confirmed by this Court for the reasons mentioned in this Appeal.

Consequently, connected miscellaneous petition is also dismissed.