IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 WP(C).No. 9947 of 2008(H) --------------------------------------- PETITIONER(S): ------------------------ K.P.BALACHANDRAN, S/O.LATE R.KESAVA PILLAI, VALIYAZHIKATH PUTHEN VEEDU, MANAKKARA, SASTHAMCOTTA PO, KOLLAM. BY ADV. MR.M.V.THAMBAN RESPONDENT(S): --------------------------- 1. THE DEPUTY DIRECTOR, SURVEY AND LAND RECORDS, CIVIL STATION, KOLLAM. 2. THE SUPERINTENDENT OF SURVEY & LAND RECORDS (RE-SURVEY) KOLLAM. 3. THE HEAD SURVEYOR, RE-SURVEY OFFICE (RE-SURVEY ADALATH), KOTTARAKKARA. 4. SRI.MAMACHAN, PRESENTLY WORKING AS HEAD SURVEYOR IN THE RE-SURVEY OFFICE (ADALATH), KOTTARAKKARA. 5. THE TALUK SURVEYOR, TALUK OFFICE, SASTHAMCOTTA. 6. THE TAHSILDAR, SASTHAMCOTTA TALUK, SASTHAMCOTTA PO, KOLLAM DISTRICT. 7. DISTRICT COLLECTOR, KOLLAM. R1 TO R3 & R5 TO R7 BY GOVERNMENT PLEADER SMT.SUDHADEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.9947/2008H APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SALE DEED NO.2957 DTD. 3/07/1995. EXT.P2: COPY OF THE RECEIPT OF LAND TAX DTD. 24/05/2001. EXT.P3: COPY OF THE POSSESSION CERTIFICATE DTD. 13/06/2001. EXT.P4: COPY OF THE LOCATION CERTIFICATE DTD. 13/06/2001. EXT.P5: COPY OF THE THANDAPER REGISTER DTD. 13/06/2001. EXT.P6: COPY OF THE LOCATION SKETCH DTD. 13/06/2001 ISSUED BY THE VILLAGE OFFICER. EXT.P7: COPY OF THE NON ENCUMBRANCE CERTIFICATE DTD. 7/06/2001. EXT.P8: COPY OF THE APPLICATION DTD. 15/09/2007. EXT.P9: COPY OF THE JUDGMENT DTD. 23/10/2007 IN WPC.NO.31480/2007. EXT.P10: COPY OF THE LETTER NO. SY 55780/2007 DTD. 28/11/2007 BY THE 1ST RESPONDENT. EXT.P11: COPY OF THE JUDGEMENT DTD. 30/09/2008 IN O.S.NO.273/03. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss V.GIRI, J. ------------------------- W.P.(C).No.9947 of 2008 ------------------------- Dated this the 19th day of March, 2009. JUDGMENT The petitioner was allotted 5.75 cents of property in a partition entered into by the petitioner and six other persons. Another 5.75 cents of land was purchased by the petitioner from one of his brothers Sri.K.P.Janardanan Nair, who was also one of the sharers. He then moved for effecting mutation of 5.75 cents. The Revenue Officials did not take action thereon and hence the petitioner approached this court with W.P.(C)No.31480/07. This court vide Ext.P9 directed the 1st respondent to look into the petitioner's grievance and take a decision. Pursuant thereto, the Deputy Director of Survey and Land Records passed Ext.P10 order, rejecting the petitioner's application for effecting mutation of the entire 11.50 cents on two grounds essentially (1) that there is no separate boundary demarcating the petitioner's holding to the extent of the value. (2) K.P.Rajan has filed a W.P.(C).No.9947 of 2008 :: 2 :: suit against the petitioner involving the same property. It is Ext.P10 order, which has been challenged by the petitioner. 2. A counter affidavit has been filed by the respondents supporting Ext.P10 and reiterating the same grounds. It is also contended that during the re-survey in Sasthamcottah Village, the petitioner purchased 5.75 cents of land from his brother and it is included in Old Survey No.572/1 and that the above property was co-related against Block No.13, Survey No.60/6 of Sasthamcotta Village and the same was included in the total extent which is held by 7 persons. The petitioner did not produce any document before the Re-survey Authority for including the aforementioned survey number. He later filed a petition before the Superintendent of Survey, District Adalath for rectification of the res-survey number and later before the 1st respondent. 3. I heard learned counsel for the petitioner and learned Government Pleader. W.P.(C).No.9947 of 2008 :: 3 :: 4. The fact that the petitioner has obtained 5.75 cents of land on partition and another 5.75 cents on assignment from another sharer together aggregating to 11.50 cents is not seriously disputed at this stage. Two grounds have been put forth by the respondents in Exts.P10 order. Firstly, there is no separate boundary demarcating the 11.50 cents in favour of the petitioner. Secondly, the suit filed by another brother of the petitioner is pending. 5. I note from Ext.P11 that O.S.No273/2003 filed by the petitioner's brother is seen to have been dismissed. But, I further note from Ext.P11 that the dismissal is one for non-prosecution. It is not known whether Ext.P11 has become final. Secondly, if there has been a partition of a large extent of land, but the parties have not physically demarcated the boundaries of their respective extents, it may not be possible to determine a physical boundary, separating each extent of land allotted separately to each of the sharers. But the right to get mutation of the property W.P.(C).No.9947 of 2008 :: 4 :: allotted to the separate sharers and the assignees from them, is not dependent on whether the sharers had separate physical boundaries demarcating their individual shares. Mutation is essentially for fiscal purposes and if partition had taken place, the revenue authorities shall, with notice to the sharers, proceed to effect mutation. The existence of a separate physical boundary by itself shall not be determinative of the issue. But notice will have to be issued in this regard to the other sharers. If there is no dispute regarding the physical boundaries of the property and there is no dispute regarding the title to the property amongst the sharers, then the revenue authorities shall take further steps in respect of 11.50 cents claimed by the petitioner. The property has not been included in the re-survey number. If there is any subsisting dispute regarding the acquisition of title by the petitioner, to any portion of the land, then it will have to be decided after notice to the objectors. W.P.(C).No.9947 of 2008 :: 5 :: 6. If therefore, the petitioner approaches the 1st respondent again with an application for including the property claimed by him in the re-survey with proof that the dispute if any raised by any other sharers no longer subsists and that the same has become final, the 1st respondent shall reconsider the issue with notice to the other sharers and objectors as well. First respondent shall, in the circumstance, issue a notice to Sri.K.P.Rajan, the plaintiff in Ext.P11 judgment and take a decision, as expeditiously as possible. While taking a decision, the 1st respondent shall do so untrammelled by any of the observations contained in this judgment or Ext.P10. Writ petition is disposed of as above. Sd/- (V.GIRI) JUDGE sk/ //true copy//