Ponnu @ Koudappa Naicker and another vs Marammal and another

A. Ramamurthi, J.—The unsuccessful defendants in both the courts below are the appellants. The case in brief is as follows:-The plaintiffs filed a suit for declaration and consequential permanent injunction in respect of the suit property. The suit property belongs to the plaintiffs, which was allotted to the 2nd plaintiffs grandfather Nallusamy in the family partition. Nallusamy Naicker had 3 brothers namely, Ramasamy Naicker, Ventkata Naicker and Chinnu Naicker. All the 4 brothers have divided among themselves the joint family properties into 4 shares nearly 40 years ago and each were in separate possession and enjoyment of the respective shares. The plaintiff are the heirs of Nallusamy Naicker. The 2nd plaintiff is the son of the 1st plaintiff. The 2nd defendant is the son of the 1st defendant and they are the heirs of Ramasamy Naicker. Venkata Naicker had alienated his share long ago. Chinnu Naicker has got a son by name Vellappa Naicker who is alive. The total extent of S.F. No. 383/1 in Vaiyampatti village is 28.56 acres. In this, one Subba Naicker is having ancestral rights with regard to an extent of 5.42 acres of the eastern portion. The remaining extent of 23.14 acres belonged to the joint family of Nallusamy and his 3 brothers. Further, the joint family owned an extent of 5.14 acres in S.F. No. 371/2 which is on the west of S.F. No. 383/1. In the family partition, 23.14 acres in S.F. No. 383/1 and 5.14 acres in S.F. No. 371/2 were taken as one lot and was allotted by metes and bounds to the share of Nallusamy Naicker and his brother Ramasamy Naicker. The other two sharers were allotted some property. Nallusamy Naicker was allotted an extent of 13.75 acres in S.F. No. 383/1 which is on the west of Subba Naicker''s portion, whereas Ramasamy Naicker was allotted 9.39 acres in S.F. No. 383/1 which is on the west of Nallusamy Naicker''s portion as well as the entire extent of 5.14 acres in S.F. No. 371/2. Thus, the 2nd plaintiffs grandfather was allotted 13.75 acres and the first defendant''s father was allotted 14.49 acres in both the survey numbers. The property allotted to the plaintiffs branch is marked as A B C D E F in the plaint plan. There is a ridge marked as A F dividing the property of the plaintiffs on the defendants.

The plaintiffs are the legal heirs of Nallusamy Naicker enjoying the suit property. The defendants are enjoying the land west of A F dividing ridge as the legal heirs of Ramsamy Naciker and the defendants have alienated the land is S.F. 371/2 measuring 5.14 acres. The defendants have no manner of rights in the suit property. The plaintiffs and their predecessors-in-interest are in possession and enjoyment and they have also prescribed title. The defendants attempted to trespass into the property and hence the suit. They claimed that they have got 2.25 acres on the west of the plaintiffs in the plaint plan in the family partition.

Defendants 1 and 2 filed separate written statements admitting the total extent for 28.56 acres in S.F. No. 383/1. It is not correct to state that Subba Naicker had a right over 5.42 acres, but the extent was only 4.98 acres. The remaining extent alone was divided between Nallusamy and his brothers some 40 years back. However, the husband of the 1st plaintiff has got only 11.58 acres in the partition and not 13.75 acres as claimed by them. On the east of 11.58 acres, there is an extent of 2.25 acres belonging to the defendants. There is a dividing ridge between the property of the plaintiffs and the defendants. Even in the settlement enquiry, the plaintiffs were granted patta only for an extent of 11.58 acres, but subsequently they managed to get patta for 13.75 acres. The defendants raised objection and after reconsideration, orders were passed on 01.12.1980 granting patta to the plaintiff for 11.58 acres only. The plaintiffs have not preferred any appeal against the proceedings under Survey and Boundaries Act and, as such, the present suit is not maintainable under law. Now, the defendants are in possession and enjoyment of 2.25 acres for the last 40 years and they have also prescribed the title.

The defendants also filed additional written statement that the sub-divisions 383/1-A-l and 383/1-A-3 have been effected even before the filing of the suit. The plaintiffs are well aware of the same.

The trial Court framed number of issues and on behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A-1 to A-5 were marked and on the side of the defendants, D.Ws.1 and 2 were examined and Exs.B-1 to B-11 were marked. The reports and plans filed by the Commissioner were marked as Exs. C-1 to C-4. The trial Court decreed the suit and aggrieved against this, the defendants preferred A.S. No. 168 of 1987 on the file of 1st Additional District Court, Trichy and the learned Judge after hearing the parties, dismissed the appeal and aggrieved against this, the defendants have come forward with the present Second Appeal.

At the time of admission of the Second Appeal, this court framed the following substantial questions of law for consideration:

(1) Whether in law the Courts below have not erred in overlooking that the suit is barred under the provision of Survey and Boundaries Act?

(2) Whether in law the Courts below are right in omitting to note that the order of the Special Tahsildar in Ex.B-11 has become final, that the plaintiff having been a party to the proceedings is bound by it and is estopped from disputing it?

Heard the learned counsel of both sides.

The plaintiffs filed the suit for declaration and consequential permanent injunction relating to the suit property in S.F. No. 383/1 measuring 13.75 acres marked as A B C D E F in the plaint plan, under Ex.C-2 which is marked as A B C D E F G H. During re-survey, it was sub divided as 383/1A2 and 383/1A3. The property of one Subba Naidu is situated on the west of the suit property whereas this property of the defendants is situated on the east of A H under Ex.C-2 in S.F. 383/1A1, the plaintiffs are representing the branch of Nallusamy Naicker and the defendants representing the branch of Ramasamy Naicker is not disputed. Similarly, there was already oral partition into the family 40 years back, is also admitted. The plaintiffs claim right to the entire extent of 13.75 acres, whereas according to the defendants, the plaintiffs have got right only in respect of 11.58 acres and the portion marked as C D E F under Ex-C-2 measuring 2.17 acres in S.F. No. 383/1A3 belong to the defendants, According to the defendants, there is a ridge dividing the property of the plaintiffs and the defendants shown as C & F under Ex.C-2. According to the appellants, the plaintiffs were enjoying the property west of C and the defendants are enjoying the property east of C.F. The plaintiffs claimed relief in respect of entire extent of 13.75 acres.

Learned counsel for the appellants/defendants contended that the courts below ought to have held that the plaintiffs have no right in S.F. No. 383/1A3 property and the order of the Special Tahsildar passed in the proceedings under Survey and Boundaries Act has become final and the same was not challenged by the plaintiffs and no statutory suit as provided u/s 14of the Survey and Boundaries Act has been filed. The courts below also wrongly held that no notice was received by the plaintiffs in the proceedings before the Special Tahsildar, whereas P.W.1 himself admitted in the course of cross-examination that notice was received from the Special Tahsildar and he had appeared for enquiry and thereafter only, orders were passed subdividing S.F.383 as 1A2 and 1A3.

Learned counsel for the appellants contended that the disputed property is only 2.17 acres shown as C D E F under Ex. C-2 and this property is in their possessions and enjoyment more than the statutory period and they have also prescribed the title. They further stated that by mistake the plaintiffs originally got patta for 13.75 acres and on coming to know of the same, the defendants gave objections and after proper enquiry only, it was modified and granted patta to 11.58 acres only. When the re-survey has become final and the same was not challenged by the respondents/plaintiffs in accordance with law, it is binding upon them and they are not entitled to claim the entire extent of 13.75 acres. There are lot of corrections in Ex. A-5 and hence, this cannot be relied upon to give the relief in favour of the respondents. On the other hand, under Ex.B-11, there are no corrections and the same has to be necessarily accepted and acted upon. Admittedly, the respondents have not filed any suit for recovery of possession, but the suit was filed only for declaration and injunction.

The first defendants had purchased the property under Ex-B-1 dated 24.6.1972. The boundary description under this document clearly indicates the lands of the first plaintiffs are on the eastern side. The plaintiffs and the defendants do not agree with the actual extent owned by Subba Naidu. According to the plaintiffs, Subba Naidu was owning about 5.1 acres, whereas the defendants would contend that he was owning only 4.98 acres. It is well settled principle of law that when no measurements are given or the extent mentioned in the deed is either vague or is only a rough and ready approximation, one has to look to other indications in the deed in order to fix the identity of the property, which is in dispute. If the settled principle is applied, it can be concluded that what has been sold in court auction and what was partitioned among the family members of the Court auction purchaser and what was conveyed in favour of the 1st defendant is only the piece of land lying west of the plaintiffs'' property and not any other property lying east of the same. It is only under such circumstances, the courts below came to the conclusion that the property of the defendants is situated only on the west of the plaintiffs property and not on the eastern side. This is amply supported by the reports and plans filed by the Commissioner.

Ex.A-2 is the rough patta given to P.W.1 for 13.75 acres, D.W.1 objected to the same and he filed a petition to the updating Registry Authorities and after giving notice to the plaintiffs and enquiry and they said to have rectified the mistake and subdivided the survey number 383/1A3 and allotted this portion to the appellants. Although P.W.1 stated that she has not received any notice from the Special Tahsildar, from the updating Register, her evidence is quite contra. Even assuming for the argument''s sake, that notice was given to P.W.1 and only thereafter re-survey was done, it does not mean that the plaintiffs are disentitled to claim title to the property before the Civil Court. Learned counsel for the appellants contended that when the Survey and Boundaries Act provided a statutory suit u/s 14of the said Act and the same has not been availed by them, the present suit is not maintainable under law. But the authorities cited on the side of the respondents would only indicate that the Civil Court alone is competent to consider the rival claim of the dispute between the parties about the title. Even though the respondents have not filed any suit u/s 14of the Survey and Boundaries Act, yet by invoking Section 9of CPC they can file the suit and they cannot be non-suited on technical grounds.

Learned counsel for the appellants/defendants relied on number of decisions under the Survey and Boundaries Act. They relied upon the decision reported in Sri Sri Sri Krishna Chandra Gajapathi Narayana Deo Vs. Pragada Ramamurthy Pantulu and Others, , a Division Bench decision, wherein it is observed as follows:

The survey officer was not concerned with the fixing of boundary between the Villages of K and M. There was only a limited survey of un-surveyed plots and there was no notifications u/s 5of the Act, in the circumstances it cannot be held that any order of the survey officer can affect the rights of the inmadars and the plaintiffs cannot rely upon the provisions of Sections 13and 14of the Act in support of his claim to the properties.

It has also been held in Ponnuswami v. Mariappa Servai 1943 MWN 106 that a dispute, to be a boundary dispute or the order of a survey officer in case of an undisputed boundary, need not necessarily be confined to a portion of the land belonging to or claimed by the ad joining owner and can be in respect of the whole of his land.

It has also been held in Poomangalalorakath Mariyam Karamavathi and Others Vs. Palakkotanantakath Ummer Kutti and Others, that the Survey Officer after demarcating the boundary of a plot of a land bearing a survey number gave notice to the registered holders of that Survey No. and when the registered holders found that within their survey number had been included more land than what they were legitimately entitled to they naturally did not complain but the aggrieved party whose land had been included wrongly in that Survey No was not given any notice. It was held that the survey officer''s decision will not be binding upon the real owners of the excess land included in the survey number.

It has been held in Ram Saran and Another Vs. Smt. Ganga Devi, that where the defendants is in possession of some of the suit properties and the plaintiffs in his suit does not seek, possession of those properties but merely claims a declaration that he is the owner of the suit properties, the suit is not maintainable.

Reliance is also placed upon Firm Seth Radha Kishan (Deceased) Represented by Hari Kishan and Others Vs. The Administrator, Municipal Committee, Ludhiana, as follows:

Under Section 9of the Code of Civil Procedure, the court shall have jurisdiction to try all suits of Civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of Civil Courts in respect of a particular matter... A suit in a Civil Court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions.

It has also been held in Nagarathinam Pillai and another v. Guruswami Pillai 1943 (I) MLJ Reports 311 that Section 13of Madras Survey and Boundaries Act, 1923 has laid down in clear and unambiguous language that in the absence of any modification by a decree in a suit u/s 14, the survey is to be conclusive proof of the correctness of the boundaries. The bar imposed by Section 14of the Act applies only to the correctness of the boundaries and not to questions of title. There is no dispute about the principles enunciated in these decisions but the applicability of the same depends upon the facts and circumstances in each case.

Learned counsel for the respondents relied on the decision reported in Jayaradha v. A.N. Mahalingam 1994 2 LW 640 that medical certificate issued by doctor without examining patient and filed without examining the doctor in court, held, ought not to be accepted. This decision has no application to the case on hand for the simple reason that P.W.1, was already given notice and he had also appeared for the enquiry.

Learned counsel for the respondents also relied on the decision reported in Palaniswamy Gounder and Others Vs. Varadaraja Perumal Temple and Another, a Division Bench of the court wherein it was held that it is by now settled by the decisions of the Apex Court and after an elaborate review of the case law on the subject that notwithstanding the adjudication by the authorities under the Act, it was always open to the aggrieved person to approach the competent Civil Court to establish their claim of title and their entitlement to patta by getting appropriate declaration of their title. The same view has also been reiterated in Sri-La-Sri Sivaprakasa Pandara Sannadhi Avargal Vs. Smt. T. Parvathi Ammal and Ors, and R. Manicka Naicker Ors. Vs. E. Elumalai Naicker, of the Apex Court.

It is, therefore, clear from the aforesaid decisions and discussion that although after notice, under Survey and Boundaries Act, the property has been subdivided, it will not bar the aggrieved party from moving the Civil Court to establish his title to the property. Even assuming that there was sub division of 383/1A3 relating to an extent of 2.17 acres and patta was issued in the name of the appellants, it will not confer any title on them unless they are able to establish that they have legal title to the property either by purchase or adverse possession. The documents filed on the side of the appellants themselves indicate that in the boundary, the land of the respondents has been shown on the eastern side thereby establishing that the appellants own land only on the west of the land of the respondents. When the total extent claimed by the plaintiffs is about 13.75 acres, simply because in the patta a lesser extent was given, the right, title and interest of the plaintiffs cannot be deprived on that ground. Under the circumstances, both the courts below based upon the evidence and the documents came to the conclusion that the respondents alone are in possession and enjoyment of the entire suit property, namely 13.75 acres and this being so, the appellants cannot claim a bit of land measuring 2.17 acres only, which is situated on the west of Subba Naidu''s land. The finding of the lower appellate court is based on legal evidence and there was proper appreciation of law and hence, no interference is called for. For the reasons stated above, the Second Appeal fails and is dismissed. However, there will be no order as to costs.