Madras High Court
The State Of Tamil Nadu vs Vijayaraghavan ... Plaintiff / on 1 August, 2019
Equivalent citations: AIRONLINE 2019 MAD 714, 2020 AIR CC 70 (MDR)
Author: R.Pongiappan
Bench: R.Pongiappan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.08.2019
CORAM:
THE HONOURABLE Mr.JUSTICE R.PONGIAPPAN
S.A.No.1787 of 1999
and
CMP.No.19112 of 1999
[Judgment Reserved on 26.06.2019]
The State of Tamil Nadu, Rep.by
The District Collector,
Kanyakumari District. ... Defendant / Appellant /
Appellant
Vs.
Vijayaraghavan ... Plaintiff / Respondent /
Respondent
PRAYER: Appeal filed under Section 100 of Civil Procedure Code, against
the Judgment and Decree dated 14.07.1997 made in A.S.No.30 of 1996 by
the learned Additional Sub Judge, Nagercoil, confirming the Judgment and
Decree, dated 11.10.1995 made in O.S.No.995 of 1982 passed by the
Principal District Munsif, Nagercoil.
For Appellant : Mr.R.Sethuraman
Spl.Govt.Pleader
For Respondent : Mr.M.P.Senthil
JUDGMENT
Aggrieved over the concurrent findings made in O.S.No.995 of 1982, on the file of the learned Principal District Munsif, Nagercoil and in A.S.No. http://www.judis.nic.in 2 30 of 1996, on the file of the learned Additional Sub Judge, Nagercoil, the appellant, who is the defendant in the suit filed this Second Appeal.
2. Before the trial Court, the respondent herein filed a suit, as against the Government and seeking the relief of declaration, declaring that the red marked portion marked as, “I.J.K.L” shown in the plaint plan is the absolute property of the plaintiff and for recovery of possession, further, for the relief of permanent injunction restraining the State from taking further proceedings with the B.Memo Case Nos.62 and 63 of 1992 or in any other way interfering with the plaintiff's peaceful possession of the red marked portion marked as, “K,M,N,O,D. A,B,C,D.” shown in the plaint plan. He has also prayed for the decree for making alteration in the resurvey plan, by making provisions for the old settlement kal i.e., Sy.No.2203-B, having an extent of 9 cents east of Sy.No.2202-A and for the respective costs.
3. By Judgment and Decree, dated 11.10.1995, the learned Principal District Munsif, Nagercoil had allowed the suit with respective costs. Aggrieved over the same, the defendant filed an appeal in A.S.No.30 of 1996, in which, the learned Additional Subordinate Judge, Nagercoil, by Judgment and Decree, dated 14.07.1997, confirmed the findings made by the trial Court and dismissed the appeal. Aggrieved over the same, the defendant is before this Court with this present Second Appeal. http://www.judis.nic.in 3
4. For the sake of convenience, the parties are referred to as, as described by the trial Court.
5. The averments made in the plaint, in brief, are as follows:-
(i) Originally, Old Survey No.2202-A of Ananthapuram Village belongs to the plaintiff's family. As per Old Survey Plan and Revenue Records, the said property measuring an extent of 2 acres 92 cents on the east of old Survey No.2202-A lies 2203-B, a poramboke settlement kal, measuring an extent of 9 cents running from north to south. It is this Kal through which water flows in the tank in Survey No.2285/1 which lies on the south and west of Survey No.2202-A. On the north west of Old Survey No.2202-A lies, 2202-B a poramboke kal measuring 3 cents north to south.
(ii) For arrears of land revenue in the southern portion of 1 Acre 46 cents of old Survey No.2202-A had been sold by the Revenue Department and one Ayyamperumal Pillai of Kadukkarai bid it in auction and he was in possession and enjoyment of the same. The northern portion ie., 1 acre 46 cents of Old Survey No.2202-A belongs to the plaintiff as per release deed in his favour. In the recent resurvey operations, the resurvey department had prepared a plan by which they had included Kal poramboke 2203-B in Old Sy.No.2202-A and included about 20 cents on the western portion of old S.No.2202-A with the western property Survey No.2235/1 and two cents on http://www.judis.nic.in 4 the north western portion of Old Survey No.2202-A along with 2202-B kal and about 4 cents on the northernmost portion of Survey No.2202-A (old) with Survey No.1712 C/2.
(iii) The plan prepared by the Resurvey Department is illegal. The red marked portion, shown in the plaint plan are the portion of Old S.No.2202-
A, which is excluded from Old S.No.2202-A. The portion marked as red south of “J.K.M” line is within the southern portion of Old Survey No.2202- A. Old Survey No.2202-A is resurveyed as R.S.Nos.579/2 and 579/3. Further, “M.K.J” line shown in the plan is the dividing line between southern portion and northern portion of Old Survey No.2202-A. When a large area was marked out and excluded from the area of old Survey No.2202-A, naturally, there is a deficiency in the total available area. On the complaint, Ayyan Perumal Pillai, the Resurvey Department, without notice and hearing, had prepared a plan by which they shifted the dividing line into “I.L” by which, the plaintiff is put to a loss of about 12 cents in his property.
(iv) The act of Resurvey Department is illegal, high handed and arbitrary and against natural justice. Now, the lands south of “I.L.” had been acquired by the Government for colonisation and the State itself is in possession and enjoyment. The State had right only to acquire 1 acre 46 cents south of “M.J” line. Now, the State had taken B Memo cases against the plaintiff as he had encroached upon the tank portion ie., “K.M.N.O.D” in http://www.judis.nic.in 5 the plaint plan in B.Memo Case No.63/92 and portion ie., “A.B.C.D” in the plaint plan in B.M.62/92 that he had encroached upon the kal. The plaintiff had not encroached upon any lands of the State. Because of the mistake committed by the Resurvey Department, the Revenue Department had issued notices to the plaintiff. The plaintiff is in possession of his patta land alone. The plaintiff issued a suit notice on 17.08.1981 for which, the State sent a reply notice, dated 01.09.1981 stating that the matter is under consideration and that a final reply will be sent after enquiry. Without conducting any enquiry, the State is proceeding against the plaintiff in B Memo case Nos. 62 and 63 of 1992. Hence the Suit.
6. The averments made in the written statement filed by the defendant, in brief, are as follows:-
(i) An extent of 1.46 Acres of land comprised in Old Survey No.2202-A of Ananthapuram Village stood registered in the name of plaintiff, as per old settlement records. The thandaper No is 423. Total extent of 0.0.2302A is 2.92 Acres and O.S.2202-B is a poramboke land and it lies on the western side of the patta land in O.S.2202-A. O.S.2202-A has been divided into O.S. 2202-A and 2202-A2 with an equal extent of 1.46 acres each. O.S.2202 is plaintiff's patta land and O.S.2202-A2 stood registered in the name of Ayyamperumal Pillai, as per old settlement records. During the resurvey and resettlement, O.S.2202-A having an extent of 1.42 acres is correlated to R.S.No.579/2 with an extent of 62.5 ares (1.54 acres). O.S.No.2202-B Kal http://www.judis.nic.in 6 poramboke is an extent of 3 cents has been correlated to R.S.No.579/1.
O.S.No.2285 tank poramboke has been correlated to R.S.No.578.
(ii) The plaintiff has an excess area of 8 cents as per resettlement and he has no cause for complaint. The allegation that a portion of plaintiff's patta land has been included in poramboke is not true. No portion of O.S. 2203-B is included in O.S.2202-A during resurvey and resettlement. The rough plan appended to the plaint do not represent the facts correctly. As per the pre-settlement records, the plaintiff's patta land was only 1.46 acres and after resurvey, the present area as per resettlement is 1.54 acres. Resurvey has been correctly done. O.S.2202A is correlated to R.S.No.579/2 and Rs.No.579/3. As of now, R.S.No.579/3 has been acquired by the Adi Dravidar Welfare Department and it is classified as Harijan Colony Poramboke. The lines “I.L” and “M.J” in plaintiff's plan are drawn according to plaintiff''s convenience and are not correctly demarcated.
(iii) The plaintiff has unauthorizedly encroached into an extent of 06.5 and 03.5 ares of Kal and tank poramboke in R.S.No.579/1 and R.S.No.578 respectively. Hence, B Memo Nos.62/92 and 63/92 were booked against the plaintiff for unauthorized occupation of Government land. Except the notice issued on 17.08.1981 no mistake has been committed during resurvey and no rectification has been made. According to the defendant, the suit is liable for dismissal.
http://www.judis.nic.in 7
7. Based on the above said pleadings, the learned Principal District Munsif, Nagercoil, had framed necessary issues and tried the suit.
8. Before the trial Court, on the side of the plaintiff, the plaintiff examined himself as P.W.1 and he marked 13 documents as Exs.A1 to A13. On the side of the defendant, one Vignesan was examined as D.W.1 and he marked 9 documents as Exs.B1 to B9. Apart from that, the Advocate Commissioner appointed by the trial Court was examined as C.W.1 and the report and plan filed by him was marked as Exs.C1 and C2.
9. Having considered all the materials placed before him, the learned Principal District Munsif, Nagercoil had allowed the suit as prayed for. Aggrieved over the same, the appellant / defendant filed an appeal before the learned Additional Subordinate Judge, Nagercoil, in which, the learned Additional Subordinate Judge, Nagercoil, confirmed the findings arrived at at by the trial Court and dismissed the appeal. Aggrieved over the same, the defendant is before this Court with this Second Appeal.
10. At the time of admitting the Second Appeal, this Court has formulated the following Substantial Question of Law, for consideration:-
“(i). Is the claim in the suit barred by limitation” http://www.judis.nic.in 8
11. It is an admitted case of the plaintiff and defendant that in earlier the suit schedule property is comprising the S.No.2202-A2. The entire extent of the said Survey Number is 2.92 Acres. From the above, the Revenue Authorities auctioned the southern portion alone, measuring an extent of 1 Acre 42 Cents, for which one Ayyamperumal Pillai is the auction purchaser. After the auction, the plaintiff remains in possession in a property, measuring an extent of 1.46 Acres, situated on the northern side of S.F.No.2202-A.
12. It is the case of the plaintiff that during the time of resurvey, Old Survey No.2202-A was classified as New S.F.Nos.579/2 and 579/3. It is the allegation made by the plaintiff that during the time of resurvey, the Revenue Authorities, without taking any care, removed 12 cents, in the land comprised in S.No.2202-A, and an extent of 2 cents was included in S.No. 2202-B. Further, on the northern side of Old S.No.2202-A, the property measuring an extent of 4 cents was taken away and included in S.No.1712- C/2, which is Government Poramboke. After the resurvey, the property measuring an extent of 12 cents were included in the property owned by the Ayyamperumal Pillai and subsequently, the same was acquired by the Government. Further, after excluding a portion of the property owned by the defendant, the Government Authorities issued B-Memos and started enquiry in B.Nos.62 & 63/93 by saying that a portion of the property was encroached by the plaintiff. Only after the said incident, the plaintiff has http://www.judis.nic.in 9 filed the suit for the relief of declaration, declaring that the red marked portion marked as, “I.J.K.L” shown in the plaint plan is the patta land of the plaintiff and further restraining the defendant from further proceedings with B.Memo cases.
13. In the said circumstances, it is the specific case of the defendant that as of now, instead of 1 Acres 46 Cents, the plaintiff is having the property measuring an extent of 1 Acre 54 cents in New S.F.No.579/2. Therefore, according to the case of the defendant, the plaintiff is having excess land of 8 cents. In this regard, even though the Advocate Commissioner was appointed for measuring the suit property and other properties found in and around the suit property, it is clear from the Judgment rendered by the trial Court that Advocate Commissioner measured the property not according to the old survey plan. Further D.W.1 at the time of giving evidence has stated that the property measuring an extent of 1 Acre 54 cents alleged to be in the hands of plaintiff has not been specifically measured. In fact, if the property owned by the plaintiff alone was measured with the help of surveyor, every allegation raised in this case will be solved. But, the Courts below have not taken any steps to measure the property owned by the plaintiff, even after the contention raised by the defendant that the plaintiff is in possession of the land measuring an extent of 1 Acre 54 Cents. However, those allegations are in respect to the factual aspects.
http://www.judis.nic.in 10
14. As already stated, at the time of admitting this appeal, this Court has formulated only one issue as to whether the suit filed by the plaintiff is barred by limitation or not. In this aspect, the learned counsel appearing for the appellant would contend that resurvey process are completed in the year of 1974 and thereafter, the plaintiff has filed the suit only in the year of 1982, after the lapse of three years. Accordingly, the suit will be barred by limitation.
15. On the other hand, the learned counsel appearing for the appellant would contend that immediately after the completion of resurvey process in 1974 itself, the plaintiff submitted an application before the Revenue Authorities, after making allegation against the resurvey and prayed to correct the settlement records.
16. It is true, before the trial Court, the copy of the complaint given by the plaintiff was marked as Ex.A1. According to the notice, in the year of 1975 itself, the plaintiff submitted an application before the Revenue Authorities to rectify the defect after pointing out the mistake committed by the land surveyor. However, for calculating the period of limitation, it is necessary to see Section 3 of Limitation Act, 1963, which reads as follows:-
3. Bar of limitation:- Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal http://www.judis.nic.in 11 preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
(2) For the purposes of this Act— (2) For the purposes of this Act—"
(a) A suit is instituted,--
(i) in an ordinary case, when the plaint is presented to the proper officer ;"
17. Now applying the said principle with the case in our hand, it is necessary to borne in mind that the date on which the suit was instituted in the Court alone has taken into account for computing the period of limitation. But, the plaintiff in this case filed the suit for the relief of modification of survey boundaries after 7 years from the date of completing the resurvey process. In this respect, it is necessary to see Section 14 of Tamil Nadu Survey and Boundaries Act, 1923, which reads as follows:-
“14. Institution of a suit in Civil Court within three years to establish rights claimed in respect of the boundary of the property surveyed:-
Any person deeming himself aggrieved by the determination of any boundary under Sections 9, 10, 11, 12-A or 12-B may, subject to the provisions of Parts II and III of the Limitation Act, 1963 (Central Act 36 of 1963) institute a suit within three years from the date of the notification under Section 13 to set aside or modify the said determination and the survey shall, if necessary, be http://www.judis.nic.in 12 altered in accordance with the final decree in the suit and the alteration, if any, shall be noted in the record.
The plaintiff in such suit shall join as parties to it all persons whom he has reason to believe to be interested in the boundary which is the subject of the suit.” So, the said circumstances will clear that the plaintiff has filed the suit after the expiry of limitation.
18. In this regard, this Court, in the Judgment in G.Nagarathinam Pillai Vs. Guruswami Pillai reported in (AIR (30) 1943 Madras 727), has held as follows:-
“ ..that in the absence of modification by a decree in a suit under Section 14, the survey is conclusive of the correction of the boundaries. Therefore, the bar to a suit imposed by Section 14 of the Act applies only to correction of boundaries and not to questions of title.”
19. In the said circumstances, the period of limitation prescribed for instituting the suit for correcting the boundaries is only 3 years. But, in this case, Ex.A1 reveals the fact that in the year of 1975 itself, the plaintiff agitated the boundaries fixed during the time of resurvey and submitted an http://www.judis.nic.in 13 application before the Revenue Authorities, after pointing out the mistake. Thereafter, he has filed the suit only in the year of 1982. Therefore, the suit filed by the plaintiff is barred by limitation. The Substantial Question of Law is answered as above.
20. For the forgoing reasons, the Second Appeal is allowed by setting aside the Judgment and Decree, dated 14.07.1997 passed in A.S.No.30 of 1996, by the learned Additional Sub Judge, Nagercoil, confirming the Judgment and Decree, dated 11.10.1995 made in O.S.No.995 of 1982, on the file of the learned Principal District Munsif, Nagercoil. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
01.08.2019
Index : Yes / No
Internet : Yes / No
MPK
To
1.The Additional Sub Judge,
Nagercoil,
2.The Principal District Munsif,
Nagercoil.
3.The Record Clerk
Vernacular Section
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
14
R.PONGIAPPAN, J.
MPK
Pre-Delivery Judgment made in
S.A.No.1787 of 1999
01.08.2019
http://www.judis.nic.in