IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 WP(C).No. 25100 of 2008(K) -------------------------- PETITIONER(S): --------------- SARAMMA GEORGE, W/O.JOHN.K.GEORGE, GEMS KANDATHIL, SOUTH FORT (KOTTAKAKAM), KOTTARKAVU MURI, MAVELIKKARA VILLAGE AND TALUK, ALAPPUZHA DISTRICT, FROM VAZHUVELIPLACKAL HOUSE, PANAYAMPALA, KARUKACHAL P.O., NEDUMKUNAM VILLAGE AND P.O., CHANGANASSERY TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.P.C.HARIDAS RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO THE DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, KOTTAYAM. 3. TAHSILDAR, CHANGANASSERRY, KOTTAYAM DIST 4. REVENUE INSPECTOR/TALUK SURVEYOR, TALUK OFFICE, CHANGANASSERRY. 5. K.C.VARKEY, S/O.CHACKO, THOPPIL VALIYAKAROTTU HOUSE, PANAYAMPALA, KARUKACHAL P.O., NEDUMKUNAM VILLAGE & P.O., CHANGANASSERY TALUK, KOTTAYAM DISTRICT. ADV. SRI.S.PRASANTH FOR R5 SRI.P.N.RAMAKRISHNAN NAIR FOR R5 SRI.P.VISWANATHAN FOR R5 SRI.S.PRASANTH FOR R5 GP SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE PLAINT IN O.S.436/08 ON THE FILES OF SUBORDINATE JUDGE'S COURT, KOTTAYAM EXT.P2- TRUE COPY OF THE I.A.3589/08 IN O.S.436/08 ON THE FILES OF SUB COURT, KOTTAYAM EXT.P3- TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER EXT.P4- TRUE COPY OF THE REPRESENTATION DATED 18.8.08 OF THE PETITIONER (TRUE COPY) P.A TO JUDGE V.GIRI, J ------------------- W.P.(C).25100/2008 -------------------- Dated this the 19th day of November, 2008 JUDGMENT Petitioner claims to be the owner in possession of 2.52 acres of property comprised in Block No.17 and Re.Sy No.253/1 of Nedumkunnam Village, she having obtained the same as per gift deed No.844/1971. She submits that there is a private road leading from the public road to the parental family house of the petitioner. Fifth respondent ownes the property on the southern side of the properties of the petitioner and the private road. It is contended that the properties owned by the petitioner and the fifth respondent are separated by a kayyala. Apprehending an attempt on the part of the fifth respondent to trespass into her property, petitioner instituted O.S.No.436/2008 for injunction restraining the fifth respondent and her son from trespassing into the road portion and from altering the property or committing any waste. An Advocate Commissioner was deputed by a learned Subordinate Judge and the Advocate Commissioner has W.P.(C).25100/2008 2 filed Ext.P5 report as well. Learned counsel for the petitioner submits that the Commissioner has noted the existence of survey stones along the boundary between the property of the fifth respondent and the private road stated to be leading to the parental house of the petitioner. The present writ petition challenges Ext.P3 notice by which Tahsildar has proposed a re- determination of the boundaries between the petitioner's properties and the fifth respondent’s property. 2. Counter affidavit has been filed by the fifth respondent wherein it is stated that under Rule 43 of the Surveys and Boundaries Rules, owners of the registered land are entitled to file an application for pointing out boundaries of land even though such properties are surveyed and demarcated and that is what was intended by the fifth respondent in an application filed by him. 3. Rule 43 of the Kerala Survey and Boundaries Rules, 1964, reads as follows:- W.P.(C).25100/2008 3 Application for pointing out boundaries of registered lands already surveyed and demarcated - Application for pointing out boundaries of registered land already surveyed and demarcated shall be made by the registered holder in Form No.10 to the Tahsildar of the Taluk in which the lands is situated. 4. Thus, the application under Rule 43 stated to have been filed by the fifth respondent need only be treated as one intended to point out the existing boundaries. If that be so, such application is maintainable. If there are already survey stones, then obviously same can be identified by the surveyor and the surveyor in turn, will note the existing survey stones and prepare a report of the measurement in that regard. Since the issue between the petitioner and the fifth respondent is pending before the Civil Court, any such report prepared shall be produced before the Civil Court by either of the parties or summoned by them in that regard. Any such report prepared by the surveyor shall be subject to any order that may be passed by the Civil W.P.(C).25100/2008 4 Court and it is further made clear that any application filed by the fifth respondent under Rule 43 of the Rules cannot be acted upon by the parties for re-determining the existing boundaries between the properties of the petitioner and the fifth respondent. Writ petition is disposed of as above. V.GIRI, Judge mrcs