IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 WP(C).No. 22200 of 2011(Y) -------------------------- PETITIONER: ------------------- GOPALA PILLAI, PAIKKATTU THEKKE PUTHEN VEEDU, THEVALAPURAM KIZHAKKEKKARA MURI, PUTHOOR VILLAGE, KOTTARAKKARA. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, SECRETARIAT,THIRUVANANTHAPURAM, PIN 695 001. 2. THE DISTRICT COLLECTOR, KOLLAM-691001. 3. THE DIRECTOR OF RESURVEY, RESURVEY DEPARTMENT, THIRUVANANTHAPURAM-695001. 4. THE SUPERINTENDENT OF SURVEY, KOLLAM-691001. 5. THE ADDITIONAL TAHSILDAR, KOTTARAKKARA, KOLLAM.690013. 6. CHACKO,S/O. KUNCHANDY, ONATTUVILA PUTHAN VEEDU, VENDAR P.O., PUTHOOR-691507. BY SENIOR GOVERNMENT PLEADER SMT.M.J.RAJASHREE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22200 of 2011(Y) ------------------------------------- APPENDIX ---------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. COPY OF THE SETTLEMENT DEED NO.3571/1981. EXT.P2. COPY OF THE JUDGMENT DATED 31.10.98 IN O.S.22/1995 BEFORE THE HON'BLE MUNSIFF COURT, KOTTARAKKARA. EXT.P3. COPY OF THE JUDGMENT DT. 19.11.08 IN R.S.A. 1087/08 BEFORE THE HIGH COURT OF KERALA AT ERAKULAM. EXT.P4. COPY OF THE JUDGMENT DATED 18.6.09 IN R.P.N.447/09 IN RSA. 1087/08 BEFORE THE HIGH COURT OF KERALA AT ERNAKULAM. EXT.P5. COPY OF THE JUDGMENT AND DECREE DATED 30.1.2010 IN O.S. 400/1998 BEFORE THE MUNSIFF'S COURT, KOTTARAKKARA. EXT.P6. COPY OF THE ORDER IA 1533/10 IN A.S. 59/10 BEFORE THE SUB COURT, KOTTARAKKARA, DATED 15.11.2010. EXT.P7. COPY OF THE REPRESENTATION DATED 25.6.2010 BEFORE THE ADDITIONAL TAHSILDAR, KOTTARAKKARA. EXT.P8. COPY OF THE ORDER DATED 7.2.2011 PASSED BY THE 2ND RESPONDENT. EXT.P9. COPY OF THE COMMUNICATION DATED 25.4.2011 ISSUED BY 5TH RESPONDENT. EXT.P10. COPY of the LAWYER NOTICE DATED 13.5.2011. RESPONDENT'S EXHIBITS : NIL ----------------------------------- / TRUE COPY / P.A. TO JUDGE VK ANTONY DOMINIC, J. ``````````````````````````````````````````````````````````` W.P.(C) No. 22200 of 2011 Y ``````````````````````````````````````````````````````````` Dated this the 17th day of August, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Petitioner submits that he is the owner of 44.5 cents of land in survey No.539/7B of Puthoor village of Kottarakkara Taluk. There was a dispute regarding a pathway on the eastern side of the petitioner’s property, which was the subject matter of O.S.No.22/1995 on the file of the Munsiff's Court, Kottarakkara. The suit filed by the petitioner was dismissed and the decree and judgment were confirmed by the appellate court. 2. In Ext.P3 judgment of this Court in RSA.No.1087/2008, this Court held that, subject to the right claimed by the defendants in the suit, since the petitioner's title and possession of the land in question was undisputed, the petitioner was entitled for declaration of his title. With this judgment, the civil litigation between the parties came to an end. W.P.(C) No.22200/2011 : 2 : 3. Petitioner states that, in the original survey, there was no pathway, as now claimed by the defendants and that the resurvey was manipulated at the instance of the sixth respondent and in the re-survey plan, pathway was inserted. He filed Ext.P7 to the District Collector objecting to the re- survey plan. Relying on Ext.P3 judgment in the RSA of the High Court, the District Collector rejected the application. Consequential communication has been issued by the Tahsildar by Ext.P9. It is at this stage, this writ petition has been filed. 4. Essentially, the dispute is regarding the existence of the pathway, which is recorded in the re-survey plan. The resolution of such a dispute cannot be undertaken in a proceedings under Article 226 of the Constitution of India. In my view, in such a situation, the remedy of the petitioner is to approach the civil court in terms of Section 14 of the Survey and Boundaries Act, 1961. 5. The learned counsel for the petitioner contended W.P.(C) No.22200/2011 : 3 : that the dispute in the nature of the one between the parties, may not come within Section 14. I am unable to accept this plea for the reason that necessarily the power exercised by the District Collector is under Section 13A of the said Act and if so, such an order can be the subject matter of the suit to be filed under Section 14. 6. In that view of the matter, without expressing anything on the merits of the case, petitioner is relegated to pursue his remedies, in accordance with law. Needless to say, all the contentions of the petitioner are left open. Writ petition is disposed of. Sd/- (ANTONY DOMINIC, JUDGE) aks/18/08 // True Copy // P.A. To Judge