Kerala High Court
Against The Judgment And Decree In Os ... vs Plaintiffs on 19 February, 2020
Author: P.Somarajan
Bench: P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
SA.No.670 OF 2001
AGAINST THE JUDGMENT AND DECREE IN AS 194/1992 DATED 17.06.2000 OF
ADDITIONAL DISTRICT COURT,KOTTAYAM
AGAINST THE JUDGMENT AND DECREE IN OS 289/1986 DATED 13.08.1992 OF
MUNSIFF COURT, CHANGANACHERRY
APPELLANTS/ APPELLANT NO.2, ADDITIONAL APPELLANTS 3 AND 5/
PLAINTIFFS:
1 GOVINDAN NAIR
KOLLAMALA HOUSE, AGED 64 YEARS, NEDUMKUNNAM MURI,
MADAPPALLY VILLAGE.
2 SAVITHRIAMMA,
AGED 61, W/O.BHASKARAN NAIR, KOLLAMALA HOUSE,
MADAPPALLY VILLAGE FROM KOLLAMALA HOUSE, NEDUMKUNNAM
MURI, MADAPPALLY VILLAGE.
3 GOPAKUMAR B.,
AGED 34, S/O.BHASKARAN NAIR, KOLLAMALA HOUSE,
MADAPPALLY VILLAGE FROM KOLLAMALA HOUSE, NEDUMKUNNAM
MURI, MADAPPALLY VILLAGE.
BY ADVS.
SRI.K.JAGADEESCHANDRAN NAIR
SRI.J.KRISHNAKUMAR
RESPONDENTS/RESPONDENTS/DEFENDANTS (AND LEGAL HEIRS OF 1ST
APPELLANT/1ST PLAINTIFF):
1 M.O. KURIAKOSE,
OLIKAL KAROTTU MAKAL HOUSE, MILADI BHAGOM,
NEDUMKUNNAM KARA, NEDUMKUNNAM VILLAGE.
2 SCARIA THOMAS,
OLIKAL KAROTTU MAKAL HOUSE, MILADI BHAGOM,
NEDUMKUNNAM KARA, NEDUMKUNNAM VILLAGE.
3 THOMAS THOMAS,
S/O.MANI THOMAS,OLIKAL KAROTTU MAKAL HOUSE, MILADI
BHAGOM, NEDUMKUNNAM KARA, NEDUMKUNNAM VILLAGE.
4 MARIAMMA THOMAS,
D/O.MANI THOMAS, OLIKAL KAROTTU MAKAL HOUSE, MILADI
SA.No.670 OF 2001
2
BHAGOM, NEDUMKUNNAM KARA, NEDUMKUNNAM VILLAGE.
5 ANNAMMA THOMAS(DIED)
W/O.MANI THOMAS, OLIKAL KAROTTU MAKAL HOUSE,
MILADI BHAGOM, NEDUMKUNNAM KARA, NEDUMKUNNAM
VILLAGE.
(THE RESPONDENTS 3 AND 4 ARE RECORDED AS LEGAL
REPRESENTATIVES OF DECEASED RESPONDENT NO.5 AS PER
ORDER DATED 22.01.2020 IN IA.2/2019)
6 RADHAKRISHNAN,
AGED 38, S/O.BHASKARAN NAIR, KOLLAMALA HOUSE,
MADAPPALLY VILLAGE FROM KOLLAMALA HOUSE,
NEDUMKUNNAM MURI, MADAPPALLY VILLAGE.
AND NOW RESIDING AT CONTROL SYSTEMS, NORTH
ATLANTIC REFINERIES LIMITED, P.O.BOX NO.40, COME
BY CHANCE, N.F.A.O.B.1 NO.CANADA.
7 AMBIKAKUMARI,
AGED 34, W/O.PADMAKUMAR, KOLLAMALA HOUSE,
MADAPPALLY VILLAGE, FROM KOLLAMALA HOUSE,
NEDUMKUNNAM MURI, MADAPPALLY VILLAGE.
NOW RESIDING AT NO..150, C.T.B. AND D, 4TH CROSS,
THYAGARAJA NAGAR, BANGLORE.
8 MAYAKUMARI,
AGED 28, W/O.HARI KUMAR, KOLLAMALA HOUSE,
MADAPPALLY VILLAGE, FROM KOLLAMALA HOUSE,
NEDUMKUNNAM MURI, MADAPPALLY VILLAGE.
NOW RESIDING AT L-2, DAE QUARTERS (BARC) NEAR
POSTAL COLONY, CHEMBUR, MUMBAI-71.
R1 BY ADV. SRI.ROSHIN IPE JOSEPH
R1 BY ADV. SRI.BECHU KURIAN THOMAS
R6-8 BY ADV. SRI.K.NANDAKUMAR
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON
19.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SA.No.670 OF 2001
3
JUDGMENT
Whether it is permissible to rewrite the survey boundary line earlier settled at the time of resurvey and to redraw any boundary line as against the earlier survey is the question came up for consideration.
2. A suit for declaration of title, recovery of encroached portion, prohibitory and mandatory injunction for removal of encroachment ended in dismissal in both the courts below. Item No.1 in the plaint was obtained under Ext.A1 sale deed of the year 1961 by the plaintiffs for which there is no dispute. Dispute is pertaining to the dividing line of the property of the plaintiffs from that of the defendants. The Commissioner prepared Ext.C1(a) plan based on resurvey which was challenged by the defendants on the reason that the resurvey has not become final and that the defendants filed a complaint against the resurvey.
SA.No.670 OF 2001 4
3. This court in Cheriyanad Grama Panchayath v. State of Kerala and others (2019 (4) KLT 916) settled the legal position regarding the power and authority of resurvey authority. It is not permissible to rewrite any survey line earlier settled by old survey records except under Section 5 of the Kerala Survey and Boundaries Act. The resurvey conducted based on possession is really outside the purview of provisions contained in the Act. If it was prepared based on possession, the same cannot be accepted. The mischief done by the resurvey authority altering the earlier survey boundary line based on possession has created so many issues resulting in various litigation. The issue is not so far addressed by the competent authority. It is not safe to rely on resurvey without ascertaining any deviation or alteration to the survey line earlier settled. In so far as the survey line earlier settled, the old survey will prevail over resurvey except for the purpose of Section 5 of the Act. As such, a remand of the matter to the Trial Court for locating the SA.No.670 OF 2001 5 property based on old survey cannot be avoided.
The decree and judgment of both the courts below are set aside. The matter is remanded back to the Trial Court for fresh disposal within a time schedule of six months from the date of appearance of parties. A Survey Commission may be issued to locate the property based on old survey. The parties shall appear before the trial court on 20.03.2020.
The appeal is allowed in part accordingly. No costs.
Sd/-
P.SOMARAJAN JUDGE SPV //TRUE COPY// PA TO JUDGE