IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 WP(C).No. 30783 of 2008(M) -------------------------------------- PETITIONER: --------------------- C.K.NATESAN, 78 YEARS S/O.KUNJAYYAN CHEMMATTU VELY NADADKKAV PO., UDAYAMPEROOR. BY ADVOCATE MR. C.N.SAMEER RESPONDENT: --------------------- THE DISTRICT LAND SURVEY AND RECORD SUPERINTENDENT, CIVIL STATION, KAKKANAD. BY GOVERNMENT PLEADER MR. M.A.ASIF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30783 of 2008(M) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 20796 OF 2008 DATED 10.7.2008. EXT.P2 - TRUE COPY OF THE CERTIFICATE OF DEATH OF THE PETITIONER'S FATHER DATED 14.11.2005. EXT.P3 - LAND TAX RECEIPT DATED 16.9.2008. EXT.P4 - TRUE COPY OF THE ORDER IN APPEAL DATED 29.9.2008. EXT.P5 - TRUE COPY OF THE COUNTER AFFIDAVIT DATED 13.2.2008 FILED IN CCC 178/2008. EXT.P6 - TRUE COPY OF THE CHELAN DATED 13.2.2008. EXT.P7 - TRUE COPY OF THE NOTICE DATED 16/9/2008 ISSUED TO THE PETITIONER BY THE RESPONDENT. EXT.P8 - TRUE COPY OF THE TITLE DEED OF THE PROPERTY OF THE PETITIONER. // TRUE COPY // PA TO JUDGE rhs ANTONY DOMINIC, J. --------------------------- W.P.(C) No. 30783 of 2008 ------------------------------------ Dated this the 9th day of February, 2009 JUDGMENT Petitioner submits that he is the owner of 15.5 Ares of land in Re Sy No. 497/13 of Manakunnam Village, Kanayannur Taluk. Referring to Exhibit P2, he submits that his father expired in 1985 and it is his contention that he is the only legal heir of the deceased father. Petitioner made an application to the respondent, under Rule 43 of the Surveys and Boundaries Rules for surveying his property, pointing out the boundaries of the land, of which his father was the owner. On that application nothing was done, therefore he made an appeal to the respondent. That appeal was also pending and hence, he filed a writ petition before this Court as W.P(C) No. 20796/2008. By Exhibit P1, this Court directed the first respondent to consider the application made. Accordingly, the land was inspected and the petitioner submits that even the respondent was satisfied that the earlier survey conducted was erroneous. However by Exhibit P4, appeal was rejected for the reason that he did not produce W.P.(C) No. 29298 /2008 2 anything to prove that he was the registered holder of the land. It is challenging Exhibit P4, this writ petition has been filed. 2. Along with I.A No.826/2009, petitioner also produced Exhibit P8 document in favour of his father and contends that he being the only legal heir of his father, is entitled to have the application referred to above allowed. 3. Respondent has filed counter affidavit. According to the respondent, unless the person is a registered holder, he cannot maintain an application under Rule 43. They are referring also Section 2(iv) of the Kerala Survey and Boundaries Act, 1961, which defines the ‘registered holder of any land’ as a person in whose name the land in question is registered in the Government accounts of the village. 4. While the respondent relied on Sections 2(iv) and 2(v) of the Act, learned counsel for the petitioner referred to me explanation to Section 2(i) of the Act in terms of which, when any person other than the registered holder is in lawful management of a land, otherwise than as agent or servant of the registration holder or as mortgagee, such person shall be W.P.(C) No. 29298 /2008 3 deemed to be the registered holder in respect of such land. 5. The contention of the petitioner relying on the explanation referred as above is contradicted by the learned Government pleader contending that there is nothing to show that the petitioner is the only legal heir. In my view, it is immaterial. Reason being that is going on by explanation to Section 2(iv) any person other than the registered holder who is in lawful management of a land, otherwise than as agent, servant or as mortgagee, such person shall also be deemed to be the registered owner. This position will not be different, even if there are other legal heirs. So long as the petitioner is in lawful management of the property as a one of the legal heirs, he is also entitled to be deemed as a registered owner, for the limited purpose of Rule 43. Further even if the application made under Rule 43 is allowed, that does not cause any prejudice to the rights that are available to the other legal heirs, if there are any. 6. Therefore, the stand taken in Exhibit P4 does not appear to be correct. Exhibit P4 shall stand quashed and the respondent is directed to reconsider the matter and pass fresh W.P.(C) No. 29298 /2008 4 orders on the request of the petitioner under Rule 43 of the Surveys and Boundaries Rules and also to point out the western boundary of the property covered by Exhibit P5. Petitioner shall produce a copy of this judgment before the respondent for compliance and the respondent shall consider the same and pass orders thereon, within four weeks thereafter. ANTONY DOMINIC, JUDGE scm