IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 OP.No. 22356 of 1998(J) ----------------------- PETITIONER(S): --------------- 1. G.OOMMEN, S/O.GEEVARGHESE, VAROORMADATHIL AZHIKATH VEEDU, PUTHOOR, KOTTARAKKARA. 2. GEEVARGHESE VARGHESE, VAROORMADATHIL AZHIKATH VEEDU, PUTHUR, KOTTARAKKARA. BY ADV. SRI.T.P.KELU NAMBIAR (SR.) SRI.N.D.PREMACHANDRAN RESPONDENT(S): --------------- 1. DISTRICT COLLECTOR, COLLECTORATE, KOTTARAKKARA. 2. THE SUPDT. RE-SURVEY, KOTTARAKKARA. 3. DY. DIRECTOR OF SURVEY & LAND RECORDS, KOLLAM. 4. I.BABY, S/O.IDIKULA, PUTHIYAZHIKATH HOUSE, THEKKUMPURAM MURI, PUTHOOR VILLAGE, KOTTARAKKARA. 5. REV.P.J.JOHN, -DO- ADV. SRI.N.ASHOK KUMAR FOR R4 & R5 GOVERNMENT PLEADER SMT.K.R.DEEPA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.22356/98. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE THANDAPER NO.7863 OF R5. P2. COPY OF THE -DO- R4. P3. COPY OF THE GOVT. ORDER DTD.26.7.95. P4. COPY OF THE REPRESENTATION DTD.6.8.97. P5. COPY OF THE REPRESENTATION DTD.29.9.97 TO R2. P6. COPY OF THE LETTER DTD.7.8.97 OF R1. P7. COPY OF THE NOTICE DTD.16.5.98. P8. COPY OF THE NOTICE DTD. NIL OF R2. P9. COPY OF THE NOTICE DTD.8.10.98 OF R2. P10. COPY OF THE REPORT OF THE TAHSILDAR. P11. COPY OF THE DOCUMENT NO.4137/62 OF SRO, KOTTARAKKARA. P12. COPY OF THE JUDGMENT IN O.S.NO.20/97 DTD.25TH JULY 06. P13. COPY OF THE ORDER DTD.29.11.96. RESPONDENTS' EXHIBITS: R4A. COPY OF THE COMPROMISE PETITION DTD.7.3.1124 AND ORDER DTD.30.5.1124 B. COPY OF THE TAX RECEIPT. C. COPY OF THE POSSESSION CERTIFICATE DTD.19.11.98 ISSUED BY THE VILLAGE OFFICER, PUTHOOR. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No.22356 of 1998 ================== Dated this the 3rd day of November, 2008 J U D G M E N T The petitioners and, respondents 4 and 5 are owners of adjacent properties. The said properties were resurveyed in the year 1994-95. In the resurvey records, although, the petitioners originally owned 2.5 cents as per their title deeds, half of the property was lost to them as per the resurvey records. Taking note of the widespread complaints about the defects in the resurvey records, the Government, by Ext.P3, accorded sanction to organize survey adalaths in the villages for rectifying the errors and omissions in the resurvey records. Accordingly, the petitioners, by filing Ext.P4, approached the District Collector for consideration of the petitioners' complaint also before the resurvey adalath. In fact, as evidenced by Exts.P6, P7 and P8, the resurvey adalath initiated proceedings on the complaint of the petitioners also. However, by Ext.P9, the petitioners have been informed that the reduction in extent of the petitioners' property is on account of the fact that there are no boundaries to the property and O.S.No.20/97 is pending before the Munsiff's o.p.22356/98 2 Court, Kottarakkara, in respect of the boundary dispute between the petitioners and respondents 4 and 5. The petitioners are challenging Ext.P9 order and seeking following reliefs : “i) to issue a writ of certiorari or other appropriate writ, order or direction to quash Ext.P9. ii) to issue a writ of mandamus or such other appropriate writ order or direction directing the respondents 1 to 3 to proceed with the rectification of mistakes in the re-survey pursuant to Ext.P7 & P8 notices issued by the 2nd respondent. iii) to issue an interim direction directing the 2nd respondent to continue the proceedings initiated by him pursuant to Ext.P7 and P8 and complete the rectification of the defects in the re- survey within a specified period.” 2. The petitioners' contention is that, as is evident from Ext.P10 report of the Tahsildar concerned, as also Ext.P12 judgment in the suit filed by the petitioners, it is abundantly clear that there are mistakes in the resurvey records, which require to be rectified. That being so, according to the petitioners, there is no justification for refusing to take further steps on their complaint by passing Ext.P9 order. In any event, the petitioners would submit that now that the suit, which has been cited as the objection for conducting resurvey, has been finally decided, there cannot be any obstacle in considering the petitioners' complaint, especially since in Ext.P12 judgment the Civil Court itself o.p.22356/98 3 observed that there are very serious mistakes in the resurvey records, which require to be corrected and disposal of the suit will not stand in the way of resurvey authorities doing whatever is appropriate in the matter. 3. Respondents 4 and 5 oppose the prayers of the petitioners. According to them, both themselves and the petitioners have filed appeals against Ext.P12 judgment, which are pending and, therefore, unless and until those appeals are disposed of there is no point in considering the matter at the level of the resurvey authorities. 4. I have considered the rival contentions in detail. 5. In Ext.P10 communication from the Tahsildar to the Sub Collector, Kollam, he has stated thus: “The resurvey records regarding the disputed property now used completely wrong. The resurvey property purposefully made it wrongly. It is clear from the sketch appended herewith, the old sketch of the road portion in front of the petitioners' property may be seen. There is no bent in the adjacent lines of the road puramboke. But in the resurvey sketch a portion of the building was in poramboke land was also shown as registered land. Sketch enclosed. Moreover, the petitioners have right for 2.5 cents of land as per the documents they produced. But in the resurvey records only 49 sq. meters were recorded in the petitioners' bames. The claim of the petitioners that they have the right for the vadavuvasi ie. the excess land in Sy.No.600/19 and 600/11 is also requires consideration, because there is no clear boundary which separate the possession of the petitioners and counter petitioners and that the petitioners were residing in the building which is situated in the property. Only the residents could claim possession right over Vadavuvasi. o.p.22356/98 4 To know the correct position of both the parties and to settle the issue the only way is to rectify the resurvey records by surveying and demarcating the land of both parties.” Again in Ext.P12 judgment between the petitioners and respondents 4 and 5, the Munsiff's Court, Kottarakkara, while dismissing the suit filed by the petitioners, held thus: “17. Additional Issue Nos.1 and 2: The recovery of possession sought by the plaintiffs is to recover the possession of yellow shaded and red shaded portion in Ext.C9 plan. As I already discussed this property is comprised in re-survey 93/3 and is having an extent of 51 sq. metre. According to the re-survey this property is comprised in old survey 600/19. The parties did not produce the correlation statement to show that this property is coming within the old survey 600/19. If it is coming in old survey 600/19 the defendants cannot claim any title and possession over this portion of the property. As I already discussed the resurvey is conducted without examining Ext.B1 and B2 are not relying upon the old survey plan. Before including the western portion of re-survey 93/2 in 93/3 the resurvey authorities should have remembered that the defendants' property is coming only in 600/11 and the same is situated on the northern side of 600/19. Similarly it should be noted that the property sold by Alia as per Ext.B2 is now included in re-survey 93/1. It is also to be noted that the remaining property is included in 93/2. So there is absolutely no chance of intervene 93/9 in between 93/1 and 93/2. But that does not preclude the re-survey authorities in remeasuring the property after taking into consideration of Exts.B1 and B2 and the old survey plan. None of the findings in this case will preclude the re-survey authorities to identify the property and locate it after examining all the prior deeds and documents. There is a positive finding to the effect that the re-survey conducted by the authorities and the inclusion of 49 sq.metre of land alone in re-survey 93/2 and the inclusion of the property comprised in old survey 600/19 in re-survey 93/3 is totally erroneous and without considering the documents and the prior survey records..........” 6. Respondents 4 and 5 have no case that in the appeals stated to have been filed, the appellate court has granted any stay of further proceedings that may be initiated by the o.p.22356/98 5 petitioners based on the observations made in Ext.P12. 7. Evidently, the records would show that there are serious mistakes in the resurvey records, which require to be corrected. The entire dispute between the petitioners on the one hand and respondents 4 and 5 on the other hand, can easily be settled once the resurvey authorities consider the matter pursuant to the complaint filed by the petitioners, which has been rejected by Ext.P9. In fact the appeals can also be finally disposed of if the resurvey is completed accordingly. Therefore, I quash Ext.P9 and direct respondents 1 to 3 to see that the property is measured to ascertain whether there are any errors in the resurvey conducted in 1994-95 and if there are any errors, to rectify the same by correcting the resurvey records accordingly. The proceedings in this regard shall be completed by the competent among respondents 1 to 3, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.22356/98 6 S.SIRI JAGAN, J. ================ O.P.No.22356 of 1998-J ================ J U D G M E N T 3rd November, 2008 o.p.22356/98 7