Madras High Court
Rukkaiah Natchiar vs P.M.S.Mohamed Aamina Beevi on 29 September, 2020
Author: N.Seshasayee
Bench: N.Seshasayee
SA(MD).No.663 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.09.2020
CORAM: THE HONOURABLE MR. JUSTICE N.SESHASAYEE
SA(MD).No.663 of 2015
and M.P.(MD)No.1 of 2015
Rukkaiah Natchiar ... Appellant/Appellant/Plaintiff
Vs.
1.P.M.S.Mohamed Aamina Beevi
2.M.A.Hammath Misriya
3.Syed Johara Beevi
4.Hamsha Beevi
5.Seinambu Sulthan Beevi
6.Seeniammal ... Respondents/Respondents/
Defendants
PRAYER: This Second Appeal is filed under Section 100 of the C.P.C.,
against the Judgment and Decree made in A.S.No.1/2013 dated 01.09.2015
on the file of the Sub Judge, Ramanathapuram confirming the Judgment and
Decree made in O.S.No.14/2004 dated 30.08.2012 on the file of the District
Munsif Court, Ramanathapuram.
For Petitioners : Mr.V.B.Sundhareshwar
For Respondent : No appearance
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SA(MD).No.663 of 2015
JUDGMENT
1.1 The plaintiff, who has lost her suit for declaration of her title to the suit property successively both before the trial Court and the first Appellate Court, has come forward with this appeal. Parties would be referred to by their ranks before the trial Court.
1.2 The suit property is described as a plot measuring 4 ⅜ feet next adjacent to the plaintiff's house. While plaintiff has sought declaration for the entire property, the dispute however is limited to a strip of property on the west, measuring 3' 3” east-west x 24' east-west. The defendants are the owners of the western property. The crux of the issue is, of these two who battle for this piece of property, to whom does it belong? Claiming that it is her property, the plaintiff had laid the suit, not for this strip, but for the entire property of hers, of which this piece is alleged to be a part. 2.1 Plaintiff's case to the extent required may be briefly stated:
➢ The suit property is described as the eastern 4 ⅜ feet in a plot north-
south 19.37 x 26.5 feet with a total extent of 510 sq.ft., comprised in Natham Sy.No.467/2A1/A. 2/37 http://www.judis.nic.in SA(MD).No.663 of 2015 ➢ Plaintiff would state that this property originally belonged to one Mohamed Ayisha Ammal. While so, this was sold to one Mohamed Mariammal under Ext.A.4 sale deed dated 22.07.1947. Thereafter, under Ext.A.5 sale deed, dated 29.10.1956, Mohammed Mariammal sold it to Syed Abthahir. After the demise of Syed Abuthahir, under a settlement deed dated 17.01.1977 (marked Ext.A.6), his heirs settled it in favour of one Rahlath Nisha. She, in turn, settled the property in favour of a certain Mohamed Ayisha Ummal under Ext.A.7 dated 20.11.1987. Within about 10 days thereafter, the donee/settlee under Ext.A.7 executed another settlement deed under Ext.A.8 dated 30.11.1987 in favour of the plaintiff. The suit property as described in the plaint is the one that matches the description under Exts.A-7 and A-8.
➢ In the entire suit property, along its eastern boundary the plaintiff has her house and the disputed strip of land lies beyond the western wall of the plaintiff's house. When the plaintiff faced certain obstruction to her title from the defendants, who attempted to encroach into the suit property, the suit was laid.
3/37 http://www.judis.nic.in SA(MD).No.663 of 2015 2.2 The defendants plead:
➢ There is certain discrepancy in the derivation of plaintiff's title and in the boundary description of the suit property, but, they would still admit that the plaintiff's house is to the east of their property. Further, that the vacant site that lies beyond the western wall of the plaintiff's house forms part of their property.
➢ The defendants thereafter would make a pointed allegation that their property which lies to the west of plaintiff's property measures 16' east-west x 24' north-south in Natham Sy.No.467/2A1/A and according to them, this property was obtained by the defendants under a settlement deed dated 27.03.1978, marked Ext.B.2.
3.1 The dispute went to trial. It may be stated here, there was another suit in O.S.290 of 2004, which the power of attorney of the plaintiff had instituted against the same set of defendants seeking bare injunction. Both the suits came to be tried jointly. The trial Court appointed an Advocate- Commissioner, who has filed his report which came to be marked as 4/37 http://www.judis.nic.in SA(MD).No.663 of 2015 Ext.C-1 and C-2. These documents apart, the Commissioner had filed another set of report and a plan prepared by the surveyor, which are available on record but remain unmarked, and the trial court had made a reference to them in its judgement. This will be dealt with later in this judgement. The Power of Attorney of the plaintiff examined himself as P.W. 1, and produced the documents tracing the title of the plaintiff to which references have been made during facts-narration. For the defendants, one Karunai examined himself as D.W.1.
3.2 It may have to be stated that while documents under which the rival parties claim their title, describe their respective properties in terms of their old Survey Number, it has come to light during evidence that the property has since been re-surveyed and that the plaintiff's property falls under Sy.No.521/15. To the west of Sy.No.521/15 lies Sy.No.521/14. Here the second Commissioner's report and plan become relevant. It shows that the disputed property (3'3” x 24') is shown to be part of Sy.No:521/14. 4.1 The trial Court has held that, inasmuch as the property of the plaintiff falls within Sy.No.521/15 which has a lesser extent than what the plaintiff 5/37 http://www.judis.nic.in SA(MD).No.663 of 2015 had obtained under Ext.A.8, and the property to the east of Sy.No.521/15 falls under Sy.No.521/14, necessarily, the plaintiff cannot claim title to any property that falls within Re.Sy.No:521/14. In short, the trial Court relied on the resurvey number and the boundary separating it from the survey field in Re.Sy No: 521/15.
4.2 On this point, the first appellate court agreed with the finding of the trial Court. In addition, it also referred to a discrepancy in describing the western boundary of the property that the plaintiff has obtained under Ext.A-8. And, it dismissed the appeal. Challenging the same, the plaintiff is before this Court.
5. This Second Appeal was admitted on the following substantial questions of law:
1.Were not the Courts below egregiously erred in relying on the survey plan and ignoring the description of the property which the defendant had obtained under Ex.B2, and that of plaintiff in Ex.A8?
2. Whether the plaintiff is prescribed title by adverse possession or not?6/37
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6. The learned counsel for the appellant informed this Court that there are two sets of Commissioner's reports and plans, and of the two, the first one was supported by a rough sketch drawn by the commissioner himself, and the second report was prepared with the assistance of the official surveyor, which though finds a reference in the judgement of the trial court, has not been marked, nor any objection made to it by any of the parties, nor has it been impeached. He requested that considering this Commissioner's report and the plan is essential for appreciating the case of the plaintiff/appellant.
7. Notices have been sent to the respondents/defendants, but none appeared.
8.1 The learned counsel for the appellant pivoted his arguments on the second set of Commissioner's report and plan. As indicated earlier, they were not marked by the trial court, even though in paragraph 15 of its judgement, it has referred to them. And, despite its conscious reference to them, it appears to have escaped its attention to mark them. And, the first appellate court did not even refer to these documents. 7/37 http://www.judis.nic.in SA(MD).No.663 of 2015 8.2 A Commissioner's report and plan are essentially Court documents, and it forms part of the record under Order XXVI Rule 10 CPC, and necessarily dispense with the need to bring it on record formally by marking it. In Vemusetti Appayyamma v. Lakshman Sahu, [AIR 1973 AP 168], it is held that a Commissioner's report cannot be excluded from consideration merely because it was not marked. This Court subscribes to that view. However, the trial court should also need to realise that Rule 79 of the Civil Rules of Practice provides for the manner of marking, inter alia, the Court documents, and it needs to be respected. The fact that not marking a Commission Report per se may not denude it of its evidentiary value, should not however, be construed as enabling the trial Court to dispense with its duty to mark it.
8.3 Turning to the unmarked Commission report and plan under reference, this Court noticed that none have filed their objections to them. Hence, they are now marked as Exts.C-3 and C-4, more for the sake of convenience rather than due to any procedural compulsions to do it. The trial court and the first appellate court ought to be aware about scrutiny of their forensic 8/37 http://www.judis.nic.in SA(MD).No.663 of 2015 activity by the uninformed and the ignorant intelligentsia in the social media, who miss no opportunity to denigrate the integrity of the Court. Hence, the judiciary has to be ultra vigilant to avoid any such lapses, even if they are innocuous or inconsequential.
9. It is now time to move from what appears to be an avoidable act of inadvertence in not marking the commissioners reports formally, to the more serious issue of plaintiff's title. On this aspect, the counsel for the plaintiff/appellant argued:
➢ Ext.C-4 plan was prepared by a surveyor, and this plan is elaborate in its details as it literally brings before the Court the entire street where the respective properties of the parties herein are located. The defendants' property covered under Ext.B-2 abuts a street on the west, and this is not disputed. Defendants' property now falls in Re.Sy.No:
521/14. The surveyor has plotted the defendants' property covered under Ext.B-2 as per the boundary measurements given therein. Then he has plotted a small strip of land measuring 3'3” x 24' (which is the real extent in dispute) as falling in the same Re.Sy.No:521/14. Thereafter, he proceeded to measure R.Sy.No:521/15 wherein lies the 9/37 http://www.judis.nic.in SA(MD).No.663 of 2015 plaintiff's house. When the observations of the surveyor as denoted in Ext.C-4 plan is superimposed on the boundary measurements given in Ext.A-8, the east-west boundaries of the plaintiff's property measure less, substantially to the same extent which the surveyor has found in excess of the property covered under Ext.B-2 in Sy.No: 521/14. If this excess area is added to the extent available in Sy.No: 521/15, then it will reconcile with the boundary measurements of plaintiff's property as covered under Ext.A-8. The Courts below have opted for the re-survey numbers of the respective properties but ignored the title to which the parties are entitled to in terms of their respective title deeds.
➢ So far as the reference to the wrong description regarding the western boundary of the plaintiff's property in terms of her title deed is concerned, in Ext.A8, the western boundary is stated to be a north- south running lane, but this is an evident and a patent defect, since the property on the west admittedly belongs to the defendants, and the lane in question is beyond the defendants' property on the west. Here, the Courts below had failed to notice that in Ext.B-2 under which the 10/37 http://www.judis.nic.in SA(MD).No.663 of 2015 defendants claim right to their property, the eastern boundary is stated to be the property of plaintiff's predecessor-in-title. This fact even the defendants admit in their written statement.
10. The last of the two points argued is addressed first. Firstly, though a reference is made to the wrong description of the plaintiff's western boundary in Ext.A-8 the judgement of the first appellate court, yet it does not appear to have operated as a reason for the ultimate findings of the court. Secondly, notwithstanding how the western boundary is described in Ext.A-8, the western owner of the plaintiff's property, who the defendants are, admit that the plaintiff is their eastern owner. And the plaintiff does not claim any right over the defendants' property, nor any right over the entire property up to the lane on the far west, but only over a strip land on the eastern extremity of her property covered under Ext.A-8. In Ext.C-4, this strip of land lies on the eastern extremity of Re.Sy.No:521/14 in which the defendants have their property. This is a defect that can be easily fixed in terms of Sec.95 of the Evidence Act. This would imply that notwithstanding the wrong boundary description in Ext.A-8, the plaintiff's property can still be identified on site.
11/37 http://www.judis.nic.in SA(MD).No.663 of 2015 11.1 This now takes this Court to consider the primary issue: The effect of the boundaries as determined during re-survey, which according to the counsel for the plaintiff had been considered by the Courts below as having the effect of divesting the plaintiff of a small portion of her property. And, it is an admitted fact that no suit is seemed to have been filed challenging the correctness of the boundary so determined. The defendants also have not pleaded anything on the finality of the said boundary either. 11.2 This now raises a pertinent issue, not uncommon or unfamiliar to the Courts: Is then the boundary as determined by a surveyor under a general survey operation, or while resolving a disputed boundary between two individuals under the Survey and Boundaries Act, 1923, determinative of the title to the property? This may require an understanding of the scheme of the Act and the scope of its purport.
12.1 A time-travel through the historical reasons behind the evolution of survey informs that surveying the lands appears to be rooted either in the need for the State to secure its lands, or its revenue obtained through lands. 12/37 http://www.judis.nic.in SA(MD).No.663 of 2015 An individual's temptations to expand his holdings has often tested the extent of land that the State held, (a temptation that has survived to this day as it it were a basic feature of human characteristics) and the boundaries separating Government lands and private lands have always been contentious. This had been so even in ancient Roman Empire. In Livy’s History of Rome, Chapter 42, it is recorded that Lucius Postumius Albinus, a consul in 173 BC was mandated by the Senate to go over to Campania to fix the boundaries between State land and the land in private occupation. Indeed, early Romans even had created a God, known by the name as Terminus, to guard and protect the boundary markers. His statue was merely a stone or post stuck in the ground to distinguish different properties. (On the 22nd of February every year, the Romans used to celebrate the festival of Terminalia which they used to confirm that the boundaries remained intact). Even in the Bible, there are reference to fixing the boundaries of Israel. [Ref: Genesis 15, Exodus 23; Numbers 34; and Ezekiel 47] 12.2 Following the biblical example, the English started the custom of “beating the bounds”, by which prominent citizens of the community undertook a triennial exercise of perambulating along the bounds, or they 13/37 http://www.judis.nic.in SA(MD).No.663 of 2015 beat the bound to know and ascertain the precise boundary of every parish. The boundary of a parish was important because the right to attend a particular parish, the right to contribute to a particular parish and the right to be buried in a parish were considered very essential. Obviously, the phrase 'metes and bounds' had originated from this practice. 13.1 In the Indian context, prior to the arrival of the East India Company, the Mughals had deviced its own method of dividing the land, chiefly for collecting the tax. Even before the advent of the Mughals, the Cholas had developed their own method of dividing the land for collection of tax. Be that as it may, when the East India Company expanded its commercial ambition to have control over land, it found that the boundaries of land were uncertain and the Company could not recover the dues from the landowners. An instance of this can be found in the firmaund given by King Shah Aalum granting Dewanny of Bengal, Behar and Orissa to the East India Company, the boundaries of the areas so granted was not shown, and this had posed some difficulties to the East India Company in identifying the territories it received. [See:C.U.Aitchison, Collection of treaties, engagements and sanads: relating to India and neighbouring 14/37 http://www.judis.nic.in SA(MD).No.663 of 2015 countries, 4th Edition, Volume I, Page 225, Superintendent Governing Printing, Culcutta, (1909) Page 225]. In a communication by the Military Secretary [See: the letter of Lt. Col James Salmond to Chairman, Court of Director, dated 7th April, 1818, available in Political and Secret Department Records (Miscellaneous) British Library, Asia, Pacific Africa Collection, India Office records, letter no: 8] to the Court of Directors in London, he wrote:
“The Court of directors have formerly had the occasion to point out that the Governements in India the expediency of aseertaining with preceision the true boundaries of our dominions.. Next in importance, I conceive, is the obligation of gaining the best possible information respecting the frontiers of those states whose dominions we are bound by treaty to protect against foreign aggression. I am aware, that from the lax habits of the native governments, the frequent intermixture of their respective territories, and indeed, the intentional indefiniteness which prevails among them in respect to boundaries, this is a branch of Indian Geography which cannot be acquired without considerable difficulty.” (emphasis supplied) 13.2 Thus began the Great Trigonometrical survey as part of the survey of India’s project, which was built on a system called the cadastral system.15/37
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14. Turing to the legislative history of survey, the first legislation in Madras Presidency was Act XVIII of 1860. This act came into force on 29 th of June, 1860. The purpose of this Act was for the establishment and maintenance of Boundary marks and for facilitating the settlement of Boundary disputes in the Presidency. The preamble of this Act read as follows:
“Whereas it is desirable, with a view to the better definition and security of landed property, the prevention of encroachments and disputes, and the identification of lands assessed to, or exempted from, the public revenue in the Presidency of Fort St. George, that provision should be made for the establishment and maintenance of permanent villages, and for facilitating the settlement of boundary disputes and claims;” The Act of 1860 was replaced by the Act of 1897 and subsequently by the Madras Survey and Boundaries Act, 1923, since re-christened as Tamil Nadu Survey and Boundaries Act. The preamble to the Act reads:
“Whereas, it is expedient to consolidate and amend the law relating to survey of lands and settlement of boundary disputes..”
15.1 The scheme of the Act provides for the survey of two categories of lands: the Government lands and Estate lands. Chapter II, comprising 16/37 http://www.judis.nic.in SA(MD).No.663 of 2015 Sections 5 to 16, deals with survey of Government Lands, whereas Chapter III, comprising Secs.17 to 21 concerns with the survey of Estates. There is no statutory space for accommodating a third category of lands. This is adequately amplified on a combined reading of Sec.5, Sec.3(i) and 3(ii). These provisions are reproduced:
Section 3 (i) (a) “Estate” means any permanently-settled estate whether a Zamind-ari, jaghir, mitta or palaiyam;
(b) any portion of such permanently settled estate which has been separately registered in the office of the Collector;
(c)any unsettled palaiyam or jaghir;
(d) any inam village of which the grant was made or has been confirmed by the British Government
(e) any portion, consisting of one or more villages of any of the estates specified above in clauses (a), (b) and (c ), which is held on a permanent under-
tenure:
Section 3(ii) “Government land” means any land not forming an estate or any portion thereof;
Section 5 State Government may direct the survey of Government land or of any boundary of such land:
The State Government or, subject to the control of the State Government, any officer or authority to whom this power may be delegated by it may, by notification, order a survey of any Government land or of any boundary of such land or of the boundary forming the common limit of Government land and land that is not Government land.
15.2 If Sec.5 is analysed, it has two parts: the first part enables the Government to order survey of Government lands, or of any boundary of such land, meaning thereby the Government land; the second part provides 17/37 http://www.judis.nic.in SA(MD).No.663 of 2015 for an Order to survey for determining the boundary forming the common limit of Government land and the land that is not Government land. The provision reflects little ambiguity warranting a judicial interpretation when it states that a survey under Sec.5 is concerned only with surveying the Government land and determining the boundaries of Government land, for even determining a common boundary between a Government land and land that is not Government land, ultimately implies that this provision, (which was legislated in an era that genuinely believed that Government lands are public lands as contra distinguished from the contemporary belief which many seem to entertain. The vanishing water-bodies in our times is a point for reference) is intended to protect the boundary of Government lands for securing them.
15.3 Sec.3(ii) defines the Government land narrowly when the legislature opted to use the word 'means', still articulates its intent negatively, when it defines Government lands as any land not forming an estate or any portion thereof. Estates, as seen above is defined in Sec.3 (i), and surveying the estate is covered under Chapter III. Here Sec.18 has enabled the telescoping of the provisions that prescribe the procedure for survey and 18/37 http://www.judis.nic.in SA(MD).No.663 of 2015 other related provisions in Chapter II into Chapter III for survey of the Estate lands.
16.1 In the context of the present case and the approach of the courts below, the next set of provisions that becomes relevant for consideration are Sections 9,10,13 and 14. They are:
Section 9 Power of Survey Officer to determine and record an undisputed boundary :
(1)The Survey Officer shall have power to determine and record as undisputed any boundary in respect of which no dispute is brought to his notice.
(2)Notice to registered holders of lands affected :-
Notice of every decision of the Survey Officer under section 9(1) shall be given in the prescribed manner to the registered holders of the lands the boundaries of which may be affected by the decision.
Section 10 Power of Survey Officer to determine and record a disputed boundary:
(1)Where a boundary is disputed, the Survey Officer, after making such inquiry as he considers necessary, shall determine the boundary and record it in accordance with his decision. The Survey Officer shall record in writing the reasons for his decision. (2)Notice to parties to the dispute and to registered holders of land affected:-Notice of every decision of the Survey Officer under section 10(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. 19/37
http://www.judis.nic.in SA(MD).No.663 of 2015 Section 13 Completion of demarcation to be notified:
When the survey of any land or boundary which has been notified under section 5 has been completed in accordance with the orders passed under [section 9,10, 11, 12-A or 12-B], the Survey Officers shall notify the fact in the district gazette and a copy of such notification shall be posted in the village chavadi, if any, of the village to which the survey relates; unless the survey so notified is modified by a decree of a civil Court under the provisions of section 14, the record of the survey shall be conclusive proof that the boundaries determined and recorded therein have been correctly determined and recorded.
Section 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 section [9,10,11,12-A or 12-B] may, subject to the provisions of Parts II and II of the [Indian 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 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 suit.
16.2 Sec.9(1) empowers the Survey Officer inter alia to record any boundary that he determines in the course of his survey as undisputed, it is not because no dispute pertaining to it was brought to his notice, but because he was unaware of a simmering dispute. Here, Sec.10 operates at a 20/37 http://www.judis.nic.in SA(MD).No.663 of 2015 slightly different sphere. Here, a survey is done to resolve a boundary dispute that was brought before him. If an understanding based on the scheme of the Act is enabled, it may indicate, consistent with the second part of Sec.5, that the dispute contemplated can be chiefly for deciding the common boundaries between a Government land, and a land which is not a Government land, which is to mean an estate land, as has been pointed out earlier. Even, if it is understood to mean that Sec.10 takes within its folds the power to determine the issue of disputed boundaries of the properties of individuals, which may be done on payment of a fee as provided in Sec.8, it is merely an alternative attempt to avoid a litigation, since they still will have their right to institute a suit for demarcation of their boundaries in a civil court available to them as their primary choice of remedy (See: L. Achuthan Nair Vs P. Narayanan Nair & another, AIR 1987 SC 2137). Turning to survey of Estate lands, Sec.17(1) in the Chapter III, states, that a survey may be ordered on an application in writing by the proprietor of the estate, or in case of boundary of any person interested therein. This implies first, there must be a written application, and second, it may be for fixing a disputed boundary of any person interested in the estate land, which is the only possible understanding which the expression 'therein' can 21/37 http://www.judis.nic.in SA(MD).No.663 of 2015 connote. And, thanks to the Estate Abolition Acts, this chapter has become largely redundant these days.
17. Now, comes to play Sec.13 of the Act. This provides for conclusiveness of a survey done under Sec.9 and Sec.10 of the Act (which can be challenged internally under Sections.11,12-A and12-B), but subjected it to the outcome of a suit that might be instituted by the party aggrieved. And, under Sec.14 of the Survey and Boundaries Act, a person aggrieved by any of the act of the surveyor in fixing the boundaries, can institute a suit, but within three years from the final notification of the survey under Sec.13.
18. The kind of disputes that visits the court often is, is there a need for filing a suit where no notice of a proposed survey is issued to the party aggrieved. The leading authority on this is V.M.S.Kandasamy Nadar Vs The Province of Madras, through the District Collector of Ramnad [(1952) 1 MLJ 804], which has been subsequently followed in several later judgements, where the Court has held that where no notice of survey was issued, there is no need to institute a suit under Sec.13 within the period of 22/37 http://www.judis.nic.in SA(MD).No.663 of 2015 limitation provided under Sec.14 of the Act.
19. Given the factual context of the present case and the dispute it raises, it is now necessary to ascertain if within the scheme of the Act, there exists a power in the Survey Officer, an arm of the Executive, to decide the title, or the extent of the title of a citizen over a piece of immovable property, and has he the authority to enlarge or diminish the extent of title by the procedure he adopts to fix the boundary between two survey fields?
20. Any vested right over an immovable property can be extinguished either by a transfer inter vivos as provided by the Transfer of Property Act, or by adverse possession, both of which are between individuals, or, when the right of ownership over the immovable property is expropriated by an Executive action as per the statutes on land acquisitions or requisitions, or land reforms and other similar enactments.
21. Prior to the Constitution of India, when the right to property was neither a fundamental right nor a Constitutional right, this court in G.Nagarathnam Pillai and another vs. Guruswami Pillai, [(1943) 2 MLJ 23/37 http://www.judis.nic.in SA(MD).No.663 of 2015 311] took a view that the proceedings under the Survey and Boundaries Act, deal with the survey and boundary merely, and any question of title cannot be decided by the Survey officer under the provisions of that Act. Byers J. held:
“3. Unlike Section 13 of the latter Act, there was no attempt to define the extent to which the decisions of the Survey Officer were to be conclusive. This has been dealt with in Section 13 of the new Act where it is laid down in clear and unambiguous language that in the absence of any modification by a decree in a suit under Section 14 the survey is to be conclusive proof of the correctness of the boundaries. The meaning of these words is self-evident and in order to ascertain their effect it is unnecessary to refer to decisions involving the construction of different sections of the earlier Act. The contention of the learned Advocate-General that the bar imposed by Section 14 of the new Act applies only to the correctness of the boundaries and not to questions of title must be upheld..” (emphassis supplied) This judgement was followed by Ponnuswami v. Mariappa Servai [AIR 1943 Madras 420] where Abdur Rahman J took the view:
“It may be that if the dispute merely related to the title of the plot in dispute as distinguished from a dispute as to its boundary, the order passed by the survey officer would not have become final.” 24/37 http://www.judis.nic.in SA(MD).No.663 of 2015 Subsequently, the First Bench of this Court (Rajamannar CJ & Somasundaram J) was required to decide if there was a conflict in the ratio of the above views in Sri Sri Krishna Chandra v. Pragada Ramamurthy Pantulu and Others, [(1951) II MLJ 325 : AIR 1952 Madras 68]. The Court found that there was no conflict between them, and proceeded to approve the view taken by a Division Bench of the Orissa High Court in Krishnachandra v. Rokkam Venkatappa Rao Dora, [I.L.R (1949) l cut. 165], wherein the Court held:
"The question as to whether the determination of the boundary of a village (whether a boundary dispute exists or not) under Section 13 of the Madras Survey and Boundaries Act of 1933 will affect title to a piece of land lying within the said boundary would depend very much on the nature of the claim to that land and the questions that fell for decision before the survey officer. For Instance, it the claim to a particular piece of land is itself based on the ground that it lies in a particular village belonging to one of the parties and the survey officer while determining the boundary holds that the plot lies in the adjacent village, such determination of the boundary unless set aside by a suit under Section 14 of that Act, would undoubtedly conclude title In respect of that plot. But where the rival claim regarding title to a plot has nothing to do with the question as to whether the plot lies within the boundary of one village or of the adjacent village, how can it be said that the 25/37 http://www.judis.nic.in SA(MD).No.663 of 2015 determination of the boundary under Section 13 would affect title?"
Following this our First Bench held:
“In our opinion, a correct construction of these two sections was placed by the learned Judges of Orissa High Court in Krishnachandra v. Rokkam Venkatappa Rao Dora, I.L.R (1949) l Cut. 165.” It may have to be emphasised that the ratio primarily purports to deal with the village boundaries.
22. Is it now legally and logically possible to conceive that a Survey Officer, constituted under Sec.4 of the Survey and Boundaries Act, 1923, (an obvious pre-constitutional enactment) and empowered to fix a boundary, or to draw a boundary line (mostly imaginary on site but generally capable of determination), has the power to interfere with the pre- existing right or the title of a person, and confine the owner's title to that part of the land where he draws the boundary?
23.1 It never can be, given the scheme of the Act. Not a provision is there in the Survey and Boundaries Act that provides for it, nor has it anywhere 26/37 http://www.judis.nic.in SA(MD).No.663 of 2015 empowered or authorised a survey official to settle a dispute on title over a piece of immoveable property, or to deprive an owner of the property of his vested title. The scheme of the Act, and the nature of acts that are required be performed (for clarity see Tamil Nadu Survey and Boundaries Rules, 1925) by a survey officer, fundamentally empowers him to settle boundaries of survey-fields to the extent his expertise in the field may enable him, and not to settle disputes on title, or rather create a fresh dispute on title. 23.2 Post Constitution, right to property, though has since lost its status as a fundamental right under Constitution 44th amendment, yet it continues to be a Constitutional right under Art.300A of the Constitution, where a citizen's right over the property can be deprived only by the authority of law. Where the law has not authorised the Surveyor to decide on title, it will be a travesty to Constitutional right to property to hold that fixation of boundary by a survey officer under the present Act would affect title. Necessarily, the conclusiveness that Sec.13 provides for is attachable only to the boundaries of a survey-field as determined in a survey, and it cannot be taken beyond it.
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24. To explain it, under Sec.9, an entry by a survey officer that a certain boundary that he has determined is undisputed, is solely based on his knowledge, or want of it, essentially because no boundary-differences were brought to his notice. Hence, it would be nigh dangerous to decide that the boundary that he has fixed has the ability to limit the title of a person when his own knowledge about the existence of a boundary-dispute itself is either inconclusive or unreliable. Shifting to a Sec.10 scenario, where the survey officer attempts to resolve a disputed boundary, in the process of this exercise, he may incidentally refer to the title of the parties to fix the boundaries, still his is not the last word on the extent of title, nor can it be, for it is beyond the scope of his statutory authority. When a party goes to the survey officer to resolve his boundary dispute, he only requires him to demarcate the boundary and not to settle his dispute on title. And, a party cannot vest a statutory functionary with the authority to do that which the statute has not authorised the official to do. It will therefore, be a frustrating experience in civil law to witness the anguish of a person who has approached the survey officer to say, “I went to him to fix the boundaries of my property, but left losing part of that over which I legitimately had a right earlier”. Is this then the objective of the Act?
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25. An issue came before the Andhra Pradesh High Court in G. Satyanarayana vs. Government of Andhra Pradesh, [2014 (3) A.L.T. 473] as to whether the lands which were found recorded as “Government land”, during re-survey operation made under the Act is conclusive. An issue was also raised that if a suit had not been filed under Section 14 of the Act, should it conclusively conclude that the lands are Government Lands. The Court held:
“The above noted definitions would reveal that an estate included all permanently settled lands of whatever name i.e., Zamindari, Jagir, Mitta, Palaiyam and all Inam villages of which grant was made or was confirmed by the British Government. All the other lands are treated as Government land under Section 3(ii). The estate holders are recognised as proprietors while persons who are in occupation of Government lands and registered as such in the Government accounts of the village are called registered holders.
What is discernible from these provisions is that all lands other than estate lands are treated as Government lands irrespective of whether they were in occupation of ryots and whether pattas were granted to them or not. In other words, Jirayati land as mentioned in Column No.2 of A-Register/Diglot/Sethwar is termed as Government land in the RSR. It would therefore be a travesty of reality if the Government assumes that by mere description of the 29/37 http://www.judis.nic.in SA(MD).No.663 of 2015 land as Government or Sarkari in column Nos.4 or 5, as the case may be, in the RSR, the land belongs to and vested in it. If the literal meaning of the phrase Government land is to be ascribed to the said column, then, the column pertaining to Name of pattadar or inamdar would be rendered nugatory. The correct way of understanding the term Government land in the RSR is that it takes into its sweep all lands including patta lands and those in possession of private persons other than the inam lands. If the pattadar column shows the names of pattadars they are private lands belonging to the persons named therein or their successors in interest.”(emphasis supplied)
26. It now follows that where a boundary as fixed by the survey officer has become conclusive under sec.13, but where the said boundary so fixed comes into conflict with the title of the party, only the civil court has the sanction in law to decide it. As has been indicated earlier, it is least in the contemplation of the legislative exercise to leave the issue of a disputed title to a non-judicial, technical personnel, who the surveyor is. If however, the conclusiveness as contemplated under Sec.13 were to be interpretatively elongated by the Court to limit a vested title at the points where the boundary of the survey-field as determined by the survey officer ends, then there is a potential risk of it self-negating its own authority and judicially 30/37 http://www.judis.nic.in SA(MD).No.663 of 2015 outsourcing it to an office which is not statutorily constituted for the purpose. To use the Hamiltonian expression [Ref: The Federalist on the New Constitution by Publius written in 1788, Volume I, The Law Exchange Limited, Clark, New Jersey, 2008 page 210]:
“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them..”.
It can now be derived that the suit which cannot be filed beyond the period of three years within the meaning of Sec.14 necessarily is the one that disputes the correctness of the boundary fixed by the survey official for a survey field, and it cannot be stretched to include a dispute on title.
27. To sum up, under Sec.13 of the Act, only the boundary of a survey field as determined in a survey operation becomes conclusive, and will be final in all cases where no suits are filed challenging its correctness, but it does not include a dispute on title over the property. Title to the property, and its extent, depend on multi-various facts, of which the boundary of the survey field as determined by the survey officer is one. A survey number, for all it 31/37 http://www.judis.nic.in SA(MD).No.663 of 2015 matters, is one of the aspects that enables the identification of an immovable property, like the boundaries or peripheral measurements, or the extent. It may have a bearing in resolving a title-dispute, but it does not enjoy any superior evidentiary value than the rest, nor can it be treated as a conclusive proof on the issue of title, nor can it be perceived or misconceived as statutorily holy. Where a boundary fixed by a survey officer interferes with the title or its extent, it has to be decided on a holistic reading of the pleadings and the entire evidence in every case. Reference may be made to the ratio of the Kerala High Court in Kannan v.Kannan, [1964 KLT 228], where the Court held:
“In my judgement where the title to property has to be determined not with reference to the survey demarcation, but on other and perhaps more cogent materials, the demarcation can be regarded as but one circumstance affecting the decision on title”.
This is demonstrated even in this case in resolving the error in the western boundary description of plaintiff's property in terms of Ext.A-8. It may also be required to be stated that a survey is done, and boundaries of survey fields are fixed, to a large extent for associating a survey field with an owner for recording an entry in the record of rights such as the patta, and it is fundamentally a fiscal exercise to secure the revenue of the State. See 32/37 http://www.judis.nic.in SA(MD).No.663 of 2015 (among many on the subject) Suraj Bushan Vs Financial Commissioner, (2007) 6 SCC 186 and the authority in G. Satyanarayana vs. Government of Andhra Pradesh, [2014(3) A.L.T.473] referred to in paragraph 25 above.
28. What emanates from this discussion would be the plane on which the present dispute will be now resolved. Here are the defendants who had obtained title to their property under Ext.B-2 settlement deed, dated in 1978. This property abuts the street on the west, which form its natural western boundary. Its side measurements are given and it has been plotted by the surveyor as could be seen in Ext.C-4 plan. Necessarily the defendants would not be entitled to anything more than what they are entitled to under Ext.B-2, and whatever that lies to the east of the property so plotted cannot be their property. But the surveyor has drawn a boundary line to the survey field (R.Sy.No:521/14) wherein defendants' property ends not at the points where his property ends in terms of the boundary measurements of his property, but some 3'3” inches to its further east. This has reduced the plaintiff's property substantially by the same extent. And if this extent is added to the extent in S.No:521/15 wherein the plaintiff has her house, then the plaintiff would have the entire property covered under her Ext.A-8 33/37 http://www.judis.nic.in SA(MD).No.663 of 2015 settlement deed. If however, this boundary line fiasco that demonstrably impacts the title of the plaintiff is considered as conclusive, then the plaintiff has to lose her property to an extent of 3'3” and for the entire length of the property, it will then be a case of the survey operation divesting title of the plaintiff and vesting it in the defendant. This is not the job of the surveyor. More so, since the defendants have not founded their defence on the finality of the resurvey boundary.
29. It has to be now held that the plaintiff has part of her property that she had obtained under Ext.A-8 in S.No:521/15 and a small portion measuring 3'3” x 24 feet in the adjacent survey field in S.F.No:521/14. If the boundary, which may have now become final, or assumed to have attained finality, is kept a constant, what then becomes conclusive is the boundary line that separates S.No:521/14 and 521/15, and not the extent of title to which the plaintiff is entitled to. It may have to be stated here that what is demonstrated in this case is not a scientific formula to have a universal application, and that each case may have to be decided on its own peculiarities, but the principle remains the same.
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30. Both the trial court and the first appellate court appear to have been consumed by their temptation to believe that the boundary separating survey fields 521/14 and 521/15 is conclusive and would affect the title of the plaintiff, and this necessarily calls for interference. For the reasons hereinabove discussed and deduced, the first of the substantial questions of law is decided in favour of the plaintiff/appellant, which necessarily makes the second question redundant.
31. In conclusion, this appeal is allowed, and judgement of the first appellate court dated 01.09.2015 in A.S.No.1/2013 is hereby set aside. No costs. Consequently, connected miscellaneous petition is closed.
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Index : Yes/No
Internet : Yes/No
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To:
1.The Sub Court,
Ramanathapuram.
2.The District Munsif Court,
Ramanathapuram.
3.The Section Officer
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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N.SESHASAYEE,J
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and
M.P.(MD)No.1 of 2015
29.09.2020
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