Disposed

T.N.Babu v. Kumaran & Others

Kerala HC10 Nov 2016WP(C)/15791/2010

Case brief

AI extract

What is this about?

Writ petition by petitioner complaining of inaction by Survey authorities after disputes over land boundaries preceding civil court decrees. Court held petitioner cannot challenge decrees to stall survey and directed respondent to consider petitioner's complaint.

What did the court decide?

Directing 3rd respondent to consider petitioner's petition within one month with due regard to prior civil court findings.

T.N.Babu Vs Kumaran & Others — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 10TH DAY OF NOVEMBER 2016/19TH KARTHIKA, 1938

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WP(C).No. 15791 of 2010 (Y)

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PETITIONER(S) :

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T.N.BABU, AGED 48 YEARS, S/O. NARAYANAN, THEEKKATTU PURAYIDOM, CHUNGAM WARD, ALAPPUZHA.

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BY ADVS. SMT.C.G.BINDU

SMT.C.G.AJITHA

SMT.D.SARITHA

RESPONDENT(S) :

1. KUMARAN, S/O. MADHAVAN, RESIDING AT MADHAVAS, CHUNGAM, ALAPPUZHA.

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2. TALUK SURVEYOR, AMBALAPUZHA TALUK, ALAPPUZHA.

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3. DISTRICT SUPERINTENDENT OF SURVEY, ALAPPUZHA DISTRICT.

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4. TAHASILDAR, AMBALAPUZHA TALUK, ALAPPUZHA.

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R1 BY ADV. SMT.VILASINI NAYAK R2 TO R4 BY SR. GOVERNMENT PLEADER SRI. SANTHOSH PETER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 15791 of 2010 (Y)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 31.07.2007 IN S.A.NO. 753/93 AND S.A.NO. 766/93.

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EXHIBIT P2: TRUE COPY OF THE NOTICE DATED 03.04.2010 SERVED BY 2ND RESPONDENT.

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EXHIBIT P3: TRUE COPY OF THE COMPLAINT DATED 12.04.2010 FILED BEFORE THE 3RD RESPONDENT SUPERINTENDENT OF SURVEY.

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EXHIBIT P4: TRUE COPY OF THE COMPLAINT DATED 13.04.2010 FILED BEFORE THE 4TH RESPONDENT- TAHSILDAR, AMBALAPPUZHA.

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EXHIBIT P5: TRUE COPY OF THE NOTICE DATED 17.05.2010 RECEIVED ON 19.05.2010 BY THE 2ND RESPONDENT SURVEYOR.

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RESPONDENT(S)' EXHIBITS :

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EXHIBIT R1(A): TRUE COPY OF THE COMPLAINT DATED 09.08.2016 LODGED BY THE PETITIONER BEFORE THE C.I. OF POLICE, ALAPPUZHA SOUTH POLICE STATION TOGETHER WITH ITS RECEIPT.

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EXHIBIT R1(B): TRUE COPY OF THE COMMON JUDGMENT IN O.S.NO. 356/85 AND O.S.NO. 684/87 DATED 20.02.1989.

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EXHIBIT R1(C): TRUE COPY OF THE AMATEUR PHOTOGRAPHS OF THE PETITIONER'S INUNDATED COURTYARD AND PATHWAY.

//TRUE COPY//

P.A.TO JUDGE.

Msd.

P.V.ASHA J.

-------------------------------------------W.P.(C).No.15791 of 2010

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---------------------------------------------

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Dated this the 10^th day of November, 2016

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J U D G M E N T

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Petitioner's grievance is over the inaction of the 3^rd respondent-Superintendent of Survey as well as Tahsildar on his complaints Exts.P3 and P4.

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Petitioner and the 1^st respondent are neighbours having adjoining lands and both of their predecessors were kudikidappukars in the land in survey No.659/14 of Mullackal Village. While the petitioner claimed right over the entire 30 cents of land except 3 cents for the 1^st respondent, the 1^st respondent claims right over 7 cents of land in the same property as against the 3 cents approved by petitioner. There had been disputes over the boundaries of the properties of petitioner and the the 1^st respondent ever since the time of their predecessors. Petitioner's father had filed O.S. No.356/1985 before the Munsiff Court Alapuzha for demarcation of boundary of the 30 cents of land in Sy. No.659 of 2014 in Alappuzha Village setting apart the kudikidappu right over 3 cents out of it for the 1^st respondent, his mother and his siblings and for a prohibitory injunction against them from trespassing into the remaining portion of property. The 1^st respondent, along with his mother and siblings filed

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W.P.(C).No.15791 of 2010

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O.S.No.684/1987 for declaration of their title and possession over 7 cents of property in the very same 30 cents of land and for injunction against the petitioner's father from trespassing into their property. The suit filed by petitioner's father was dismissed and the suit filed by the 1^st respondent, his mother and siblings were decreed by common judgment Ext.R1(a) dated 20^th February, 1989, The judgment and decrees were affirmed in the judgments in appeals and finally as per Ext.P1 common judgment in S.A.No.753 & 766 of 1993, upholding the finding that the first respondent along with his mother and siblings are having title and possession over 7 cents of property, which included portion of the property over which the petitioner's father raised claim.

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On 8.4.2010, when the 2^nd respondent and his men

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came to measure the properties of the 1^st respondent, after notice to petitioner as per Ext P2 notice, petitioner objected the request of 1^st respondent to take measurement in terms of Ext.P1 decree in his favour. The measurement could not be made. He thereupon filed Exts.P3 and P4 objections/petitions before the Tahsildar and Superintendent of Survey. The writ petition was filed at that stage complaining that the 3^rd respondent as well as the 4^th respondent were not taking any

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W.P.(C).No.15791 of 2010

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action on his statutory complaints, which were to be considered under Rule 37 of Kerala Survey and Boundaries Rules, 1964, according to which the Tahsildar is bound to inquire into and dispose of any complaint which he receives during the course of the survey and demarcation.

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At the same time, the learned counsel for the second respondent seriously disputes the claim of the petitioner, pointing out that the petitioner has been raising illegal claims over the property, and standing in the way of their peaceful enjoyment of his property, initially by filing suits which entered in Ext.R1(b) judgment as well as Ext.P1 judgment rejecting the claims of the petitioner over their land with respect to the boundary as well as the possession. Petitioner alleges that the first respondent got the decree fraudulently suppressing material facts.

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Producing the judgment Ext.R1(b) and pointing out Ext.P1 judgment, the learned Counsel for 1^st respondent contends that petitioner has no matter of right to object or to cause any obstruction to the survey and measurements in tune with the decree in favour of the 1^st respondent, once he failed in his attempt to demarcate the boundary or to establish any right as against the 1^st respondent. When the civil court has

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W.P.(C).No.15791 of 2010

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already found title and possession over the 7 cents of property on the first respondent, petitioner filed this writ petition alleging that 1^st respondent is not in possession of the property. The 1^st respondent contends that petitioner is liable to be nonsuited as he has not approached this Court with clean hands in so far as the petitioner suppressed material facts, while alleging that the first respondent is not in possession of the properties and obtained the decree fraudulently.

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I heard the learned counsel for the petitioner, learned counsel for the 1^st respondent and the learned Government Pleader.

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The contention of the petitioner is that there are well demarcated boundaries as far as the property of the first respondent is concerned and the survey is to be conducted in accordance with revenue records and not with reference to the decree as claimed by the 1^st respondent. In Ext.P4 petitioner stated that the judgments of the civil court were obtained by fraudulent means.

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The contention of the first respondent is that she has submitted an application before the survey authorities who have to undertake the survey in terms of the decree in his favour, in the light of the Rule 22(8) of the Rules. It is her

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W.P.(C).No.15791 of 2010

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further case that if at all the petitioner is aggrieved by the survey conducted, the petitioner has got appropriate remedy under Rule 39, which provides for an appeal against the orders of the Tahsildar.

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On careful consideration of the rival claims it is seen that the petitioner/his predecessor has already lost in his attempts to get the boundary demarcated or to get a decree against the 1^st respondent, and the civil court has repelled his claims and contentions over the entire 30 cents of land except 3 cents while the right of 1^st respondent and siblings over 7 cents of the property is declared in Ext.R1(b) and Ext.P1 judgment. After failing to establish any right before the civil court, petitioner cannot be heard to contend before any forum that Ext.P1 judgment is rendered on fraudulent means and thereby to stall the proceedings for survey.

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When the civil court has already declared the title and possession of the first respondent over the 7 cents of property, the respondents 2 or 4 or any authorities under the Survey and boundaries Act cannot ignore the decree of the civil court, while conducting the survey and measurements.

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In the said circumstances, the writ petition is disposed of directing the 3^rd respondent to consider Ext P4 petition

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W.P.(C).No.15791 of 2010

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submitted by the petitioner within a period of 1 month from the date of receipt of a copy of the judgment with due regard to the findings in judgments of the civil court in Ext.R1(b) and Ext.P1.

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Sd/- P.V.ASHA, JUDGE.

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T.N.Babu v. Kumaran & Others

Case brief

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T.N.Babu v. Kumaran & Others

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