IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 WP(C).No. 15545 of 2004(A) -------------------------- PETITIONER(S): --------------- SMT.K.V. MRINALINI, KADAYIL VEEDU, VALIYAKADA, CHIRAYINKIL, THIRUVANANTHAPRAM. BY ADV. SRI.E.SUBRAMANI SRI.S.EASWARAN RESPONDENT(S): --------------- 1. THE TAHSILDAR, CHIRAYINKIL, THIRUVANANTHAPURAM. 2. THE TALUK SURVEYOR, CHIRAYINKIL, THIRUVANANTHAPURAM. ADDITIONAL RESPONDENT: 3. PRABHA, D/O.RAGHAVAN, KADAYIL VEEDU, VALIYAKADA, CHIRAYINKIL, THIRUVANANTHAPURAM. (ADDL.R3 IMPLEADED AS PER ORDER IN I.A.NO.9851/04 DTD.3.8.04) GOVERNMENT PLEADER FOR R1 &2 SMT.K.KUSUMAM FOR ADDL.R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 15545/04. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE DOCUMENT NO.3515/81 OF SUB REGISTRY OFFICE, CHIRAYINKIL. P2. COPY OF THE DECREE DTD.12.8.96. P3. COPY OF THE TAX RECEIPT DTD.1.8.00.. P4. -DO- 8.12.03. P5. COPY OF THE PETITION DTD.2.1.04 TO DIST. COLLECTOR. P6. COPY OF THE NOTICE BY R2 DTD.26.2.04. P7. -DO- DTD.5.3.2004. P8. COPY OF THE PLAINT IN O.S.NO.41/95 BEFORE MUNSIFF'S COURT, ATTINGAL. P9. COPY OF THE PLAINT IN O.S.NO.334/96 -D0- P10. COPY OF THE JUDGMENT IN O.S.NO.334/96. P11. COPY OF THE COMPROMISE PETITION DTD.17.6.04 BEFORE SUB COURT. P12. COPY OF THE POSSESSION CERTIFICATE. RESPONDENT(S)' EXHIBITS: R1. COPY OF THE COPY OF THE JUDGMENT IN O.S.NO.42/80. R2. COPY OF THE DELIVERY KAICHIT IN O.S.NO.42/80. R3. COPY OF THE SALE DEED. R4. COPY OF THE PARTITION DEED DTD.20.6.80. R5. COPY OF THE APPLICATION DTD.15.6.2004 BY R3 TO R2. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.15545 of 2004 ================== Dated this the 4th day of February, 2009 J U D G M E N T The petitioner is the owner of 13.5 cents of land which was obtained by her as per Ext.P1 gift deed in 1981. As per the schedule to that deed, the petitioner became absolute owner of 11 cents in Sy.No.43/3/1 and 2.5 cents in Sy.No.43/3/2 in Chirayinkil Village. The additional 3rd respondent herein raised a dispute regarding part of 2.5. cents. She filed O.S.No.41/1995 before the Munsiff's Court, Attingal, which was dismissed by Ext.P2. Again the 3rd respondent filed O.S.No.344/1996 which was also dismissed on 7.6.2001. Exts.P3 and P4 are the tax receipts evidencing payment of land tax in respect of said property by the petitioner. The petitioner thereafter filed Ext.P5 request before the District Collector for measuring the property in question and fixing boundary thereof. In Ext.P5 petition itself the District Collector, by endorsement, directed the concerned Tahsildar to take action on the request. Pursuant thereto, Exts.P6 and P7 notices were issued by the Taluk Surveyor on 26.2.2004 and 5.3.2004 fixing 4.3.2004 and later 12.3.2004 for surveying the property. However, the property was not measured and no further proceedings were taken pursuant thereto. It is under the above circumstances the petitioner has filed this writ petition seeking the following reliefs: 2 “a) issue a writ of mandamus or other appropriate writs, directions or orders compelling the 2nd Respondent to conduct the survey and measurement of the property of the Petitioner having an extent of 13.5 Cents in Sy.No.43/3/1-2 of the Chirayinkil Village forthwith in compliance with the order dated 2.1.2004 on Exhibit P5: b) to award the costs of the Petitioner of these proceedings; and c) to grant such other reliefs as this Hon'ble Court may deem just and proper in the circumstances of the case.” 2. According to the petitioner, as per Sections 4 and 10 of the Kerala Survey and Boundaries Act, 1961, the survey officer can determine the boundary of a property and if anybody is aggrieved by the original or appellate order, he/she has a right to institute a suit in respect of the boundary of the property so surveyed. Therefore, according to the petitioner nothing stands in the way of respondents 1 and 2 from completing the survey proceedings initiated as per Exts.P6 and P7 notices. 3. The 3rd respondent has filed a counter affidavit in which the contention raised is that against the dismissal of O.S.No.344/1996 for default, a restoration petition is pending. This is denied by the petitioner in the reply affidavit. According to her, she has not received any notice of any restoration petition. The learned Government Pleader submits that the survey could not be completed only because of the non-co-operation of the additional 3rd respondent. 4. I have considered the rival contentions in detail. 5. I am of opinion that the objections raised by the 3rd 3 respondent are not sufficient to prevent respondents 1 and 2 from completing the proceedings initiated by Exts.P6 and P7. If the 3rd respondent or the petitioner is aggrieved by any decision made thereon, it would be open to them to either file an appeal or to file a suit. In the above circumstances, I am satisfied that the petitioner has made out a case for granting the reliefs prayed for in this writ petition. Accordingly, this writ petition is disposed of with a direction to respondents 1 and 2 to continue the proceedings for survey of the properties as initiated by Exts.P6 and P7 and complete the same as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment after complying with the procedure prescribed under law. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge