IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 WP(C).No. 34845 of 2008(W) -------------------------- PETITIONER: --------------- VITHAN, CHIRAKKAL PADIKKAL HOUSE, KAKKANADU VILLAGE, THRIKKAKARA PANCHAYATH, ERNAKULAM DISTICT. BY ADV. SRI.B.PREMOD RESPONDENTS: --------------- 1. C.K. PADMANABHAN, CHEMMIKKADU VEEDU, KOLLAMKUDIMUGHAL KAKKANADU. 2. C.K. PAVITHRAN, CHEMMIKKADU VEEDU, KOLLAMKUDIMUGHAL, KAKKANADU. 3. C.K.PARAMU,CHEMMIKKADU VEEDU, KOLLAMKUDIMUGHAL, KAKKANADU. 4. THE SECRETARY, THRIKKAKARA GRAMA PANCHAYATH, THRIKKAKARA. 5. THE SURVEY SUPERINTENDENT KANAYANNUR TALUK, KAKKANADU VILLAGE, ERNAKULAM DISTRICT. 6. THE TAHSILDAR, KANAYANNUR TALUK, KAKKANDU VILLAGE, ERNAKULAM DIST. BY GOVT. PLEADER SHRI.P.N.SANTHOSH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No.34845 of 2008 -------------------------- Dated this the 28th November, 2008 J U D G M E N T Petitioner claims to be an owner in possession and enjoyment of 9.30 ares of property in Sy. No.598/10 of Kakkanadu village. According to him, he purchased the property under Exhibit P1 sale deed. After he purchased the property under Ext.P1 sale deed, an extent of .20 cents of land was set apart for pathway on the western side of the property. Respondents 1 to 3 owned properties adjacent to the property belonging to the petitioner, on the northern side. Petitioner submits that there was resurvey and boundaries of the petitioner's property were clearly demarcated and survey stones were laid. It seems that respondents 1 to 3 removed the boundary stones and made an attempt to trespass into the petitioner’s property. Petitioner then made an application before the 4th respondent Secretary of the Panchayat and 5th respondent, the Survey Superintendent, for 2 measurement of the property and fixation of boundaries. Exhibit P2 is the application. It is contended that 5th respondent had issued notice Exhibit P3 intimating the proposal to effect survey on 4.5.2007. Petitioner contends that the Surveyor measured the property with reference to the documents of title and demarcated the same using wooden stumps. According to the petitioner, permanent demarcation should have been undertaken then and there and survey stones should have been planted. A survey sketch should also have been supplied to the petitioner This was not done. In the meanwhile, going by the petitioner’s complaint, Panchayat proceeded to issue a stop memo to the 1st respondent. Though the 2nd respondent, according to the petitioner, suspended the construction works for few days he later resumed the same. This writ petition has been filed praying for the following reliefs: “1. To issue a writ of mandamus or any other appropriate writ, order or direction directing respondent No.5 and 6 to implement Ext.P4 survey sketch and permanently demarcate the property of the petitioner using survey stones. 3 2. To issue a writ of mandamus or any other appropriate writ, order or direction, directing respondent No.4 to take appropriate action against respondent No.2 on account of Exhibit-P6 and direct respondent No.4 to take necessary action to remove the illegal construction done by the 2nd respondent in the petitioner's property.” 2. I heard learned counsel for the petitioner and learned Government Pleader. 3. The grievance of the petitioner essentially relates to an action taken by respondents 1 to 3 in what he calls as illegal removal of survey stones which were originally planted along the boundaries of the petitioner’s properties where it lies adjacent to the property belonging to respondents 1 to 3. This is therefore a typical case of a trespass by an adjacent property owner. In the circumstances, the ideal remedy of the petitioner will be to move the Civil Court. It is difficult to understand why he has not undertaken to do so. Petitioner then contends that though acting upon his application under Rule 43 of the Survey and Boundary Rules, the Surveyor measured the property and even demarcated the boundaries, survey stones have not been planted along the boundaries so 4 identified. Mere inaction on the part of the survey authorities in not planting the survey stones along the disputed boundary between the property belonging to two different persons, is really not the petitioner’s grievance. In my view, it was always open to the petitioner to move the Civil Court as aforementioned and seek measurement of the property with an aid of Advocate Commissioner who in turn could be assisted by a Surveyor. This is obviously a much more efficacious remedy available to the petitioner. In the result, the writ petition is disposed of directing the 5th respondent to complete whatever steps have to be taken under the Survey and Boundaries Act and the Rules framed thereunder, after measurement of the property which seems to have been undertaken pursuant to Exhibit P3 and supply a survey sketch to the petitioner in accordance with rules, within a period of six weeks from the date of receipt of a copy of this judgment. Petitioner shall produce a copy of this judgment along with representation before the 5th respondent. If the petitioner has moved the Panchayat Authorities, alleging 5 illegal construction by respondents 1 to 3 then it is up to the competent authority to conduct an enquiry and take appropriate action against respondents 1 to 3, if they have embarked upon the construction otherwise in accordance with the law. Subject to the above, the writ petition is disposed of. (V.GIRI,JUDGE) ma 6 7