IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 OP(C).No. 2725 of 2011(O) ------------------------ OS.755/2002 of MUNSIFF COURT, CHAVAKKAD ................ PETITIONERS : --------------------- 1. THE ADDITIONAL TAHSILDAR, THALAPPILLY TALUK, WADAKKANCHERRY PO, THRISSUR DISTRICT. 2. THE TALUK SURVEYOR, TALUK OFFICE THALAPPILLY, WADAKKANCHERRY PO, THRISSUR DISTRICT. 3. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. B. JAYASURYA RESPONDENT : ----------------------- LASU @ PETER, S/O.CHEERAN UTTOOP, PADIJARA ANGADI, KUNNAMKULAM VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- OP(C).No. 2725 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE ORDER DTD 18/12/2010 OF THE LEARNED MUNSIFF. EXT.P2 : COPY OF THE ORDER DTD 23/12/2010 OF THE LEARNED MUNSIFF. EXT.P3 : COPY OF INTERLOCUTORY APPLICATION NO. 3466/2011 IN O.S. 755/02. EXT.P4 : COPY OF THE ORDER DATED 18/10/2001 IN CMP NO. 3857/01 IN CRP NO. 1921/99. EXT.P5 : COPY OF THE JUDGMENT DATED 13.12.10 IN THE WRIT PETITION NO. 12600/07 OF THIS HON'BLE COURT. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.S. TO JUDGE Mn THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2725 of 2011 -------------------------------------- Dated this the 18th day of August, 2011. JUDGMENT Respondent filed O.S.No.755 of 2002 in the court of learned Munsiff, Chavakkad for a decree for fixation of boundary between the suit property and the property in the possession of defendants and for other reliefs. Based on the contention raised by the defendants, the court appointed an Advocate Commissioner to fix boundary between the properties with the assistance of the Taluk Surveyor. The Advocate Commissioner is stated to have approached the 2nd petitioner, the Taluk Surveyor with a request to handover the survey sketch relating to the property. It appears that relying on Rule 45 of the Survey and Boundaries Rules, 1964 (for short, “the Rules”), there was an initial reluctance on the part of 2nd petitioner to handover a copy of the survey sketch for the reason that required fee was not remitted. Learned Government Pleader submits that pursuant to that, the 1st petitioner was summoned to the court as per order dated 18.12.2010 and he appeared through Government Pleader in court on 23.12.2010. Thereafter a copy of survey sketch was made available to the Advocate Commissioner for executing the commission warrant. The 2nd petitioner issued a notice to the Advocate Commissioner stating that necessary fee for handing over the survey sketch is to be remitted. Advocate OP(C) No.2725/2011 2 Commissioner reported that matter to the learned Munsiff who passed Ext.P2, order directing that the Advocate Commissioner is not bound to remit fee to the 1st petitioner as directed in the notice. Ext.P2, order is under challenge. 2. Learned Government Pleader submits that under Rule 45 of the Rules any party applying for pointing out boundary is required to remit the fee as provided under Rule 94 of the Rules. It is further contended that the mere fact that the court had directed the Advocate Commissioner to fix the boundary will not absolve the applicant from remitting the required fee under Rule 94 in view of Rule 45 of the Rules. It is argued that the court has directed the Advocate Commissioner to fix the boundary on behalf of respondent/plaintiff. Reliance is placed on the two orders of this Court marked Exts.P4 and P5. 3. Question raised is whether, when the court directs the survey authorities to assist the Advocate Commissioner by either handing over a copy of the survey sketch or in any other manner to identify boundary of the disputed properties it is necessary that the fee required under Rule 94 of the Rules is to be paid. To decide that question reference has been made to certain other relevant provisions in the Rules. Rule 43 of the Rules deals with application for pointing out boundaries or registered lands already surveyed and demarcated and states that 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 land is situated. Rule 44 deals with the fee for pointing out surveyed boundaries and states that for pointing out OP(C) No.2725/2011 3 boundaries fee shall be levied at the rate specified in Rule 94. Rule 45 deals with notice to remit fees and states that the Tahsildar shall issue a notice to the applicant, in Form No.11 directing him to remit the required fee. After the prescribed fee is remitted the Tahsildar shall forward the application to the survey officer who shall attend to the work. 4. Rule 94 of the Rules cannot be read isolated from Rules 43 to 45. Rules are framed as per provisions of the Survey and Boundaries Act (for short, “the Act”). As per the said Act a person may even without recourse to the court procedure request the authorities under the Act to measure the properties and fix boundaries to avoid any possible dispute. Rules 43 to 45 and 94 refers to that procedure and not to the procedure through court where issue regarding title may become relevant. The Advocate Commissioner is appointed by the court to assist it to decide the disputed question of title and boundary. Assistance of the Surveyor is required since he is an expert in the matter, to help the Advocate Commissioner. The Surveyor so appointed shall assist the Advocate Commissioner with the aid of relevant survey records including the survey sketch. That is part of the official duty of the survey authorities. The Advocate Commissioner while executing a commission warrant is discharging an official duty. That is different from a party approaching the authorities under the Act and Rules to point out boundaries as referred to under Rules 42 and 43 of the Rules. OP(C) No.2725/2011 4 5. Exts.P4 and P5, orders relied on by learned Government Pleader cannot help to come to a different conclusion. For, neither of those cases involved the process of court appointing an Advocate Commissioner to identify the property to fix the boundary. A reading of Exts.P4 and P5, orders show that this Court in the said cases was only concerned with identifying the property with reference to the Act and Rules. 6. In that view, 1st petitioner was not legally and factually correct in directing the Advocate Commissioner to remit fee as provided under Rule 44 of the Rules for the reason that 2nd petitioner assisted the Advocate Commissioner in measuring the properties with reference to the survey sketch, a copy of which is said to have been given to the Advocate Commissioner. The notice issued by the 1st petitioner is illegal and unwarranted to say the least and he should not have ventured to issue such a notice to the Advocate Commissioner. Learned Munsiff is right in concluding that no fee as directed by 1st petitioner is payable by the Advocate Commissioner. Original Petition is dismissed. THOMAS P.JOSEPH, Judge. cks