IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :24.08.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.1040 OF 1997 and C.M.P.No.10155 of 1997 1.Gopal Mudaliar (Deceased) 2.Alamelu Ammal 3.G.Subramaniam 4.G.Ganapathy 5.G.Krishna 6.G.Shankar 7.G.Natarajan 8.G.Harikrishnan 9.Valliammal ... Appellants/ Plaintiff (Appellants 2 to 9 are brought on record as legal representatives of the deceased sole appellant vide order dated 11.2.2006 in C.M.P.No.15922 of 2005) Vs. 1.State of Tamil Nadu rep. By District Collector, District Collector Office Thiruvannamalai. 2.The Tahsildar, Tahsildar Office, Polur, Thiruvannamalai District. 3.The Village Administrative Officer, Hasthampadi Village, Polur Taluk, Thiruvannamalai District. ... Respondents Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 02.01.1997 in A.S.No.33 of 1996 on the file of the Principal District Judge, Thiruvannamalai, confirming the Judgment and Decree dated 25.04.1996 in O.S.No.605 of 1991 on the file of the District Munsif, Polur. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.D.Rajendran For Respondents : Mrs.R.Revathy, Government Advocate (C.S.) J U D G M E N T The First Appellant/Plaintiff, during his life time, has preferred this present Second Appeal as against the Judgment and Decree dated 02.01.1997 made in A.S.No.33 of 1996 on the file of the Learned Principal District Judge, Thiruvannamalai. 2.During the pendency of the Second Appeal, the First Appellant/Plaintiff died and hence, his Legal Representatives have been added and brought on record as Appellants. 3.The First Appellate Court viz., Principle District Judge, Thiruvannamalai, in the Judgment in A.S.No.33 of 1996, has, among others things, observed that 'As per Chapter 4 Section 22, 23 of The Tamil Nadu Survey and Boundaries Act, 1923 the District Collector and his Officers have got powers to measure the land and hence, the Revenue Department has objected to the enjoyment of the poramboke land by the Appellant/Plaintiff (since deceased) and they have issued Ex.B.5-Memo and that has not been received by him and the same has been refused, as evident from Ex.B.5 and inasmuch as the total extent in Survey No.662/1 is 3 acres and 55 cents as proved by the Respondents, the enjoyment of Appellant/Plaintiff in respect of 0.81 cents of land in Survey No.684/1 is of Government poramboke land and in the said land, the Appellant/Plaintiff (since deceased) has not acquired the right of adverse possession and the conclusion arrived at by the trial Court is a correct one and need not be interfered with and resultantly, dismissed the Appeal with costs.' 4.Before the trial Court, three issues and two additional issues have been framed for determination during the trial of the case. On the side of the Appellant/ Plaintiff (deceased), witnesses P.W.1 to P.W.3 have been examined and Exs.A.1 to A.9 have been marked. On the side of the Respondents/Defendants, witnesses D.W.1 to D.W.5 have been examined and Exs.B.1 to B.10 have been marked. 5.The trial Court, on an appreciation of oral and documentary evidence available on record, has come to the conclusion that in Survey No.662 mentioned in the Plaint out of 4 acres and 36 cents, leaving the poramboke land in Survey No.684/1, the Appellant/Plaintiff (deceased) is entitled to claim the reliefs in https://hcservices.ecourts.gov.in/hcservices/ respect of 3 acres and 55 cents of land as prayed for by him and consequently, decreed the Suit with costs. 6.Dissatisfied with the Judgment and Decree passed by the Learned Appellate Authority viz., Principal District Judge, Thiruvannamalai District in A.S.No.33 of 1996 dated 02.01.1997, the Appellant/Plaintiff (deceased) has preferred this Second Appeal before this Court and subsequent to his death, during the pendency of the Second Appeal, his Legal Representatives have been brought on record and they have been added as Appellants. 7.At the time of admission of the Second Appeal, this Court has framed the following Substantial Questions of Law: "1.Whether the Courts below are justified in invoking the Section 10 of the Survey and Boundaries Act, 1923 without following the mandatory procedure under Section 10(2) of the Act before passing any Order? 2.Whether the Courts below are justified in rejecting the injunction in the absence of any contra evidence to disprove the appellant's possession?" THE CONTENTIONS, DISCUSSIONS AND FINDINGS ON SUBSTANTIAL QUESTIONS OF LAW ON POINT NOs.1 AND 2: 8.The Learned Counsel for the Appellants urges before this Court that the trial Court as well as the Appellate Court have rejected the claim of the Appellant/Plaintiff (since deceased) to an extent of 0.81 cents contrary to law, weight of evidence and probabilities of the case and as a matter of fact, the Appellant/Plaintiff (since deceased) has been in possession and enjoyment of the entire suit property without any interruption by the Respondents and this material fact has not been taken note of by both the Courts below, which has resulted in erroneous Judgments being passed against the Appellant/Plaintiff (since deceased). 9.It is the contention of the Learned Counsel for the Appellants that the Appellant/Plaintiff (since deceased) has been in lawful possession and enjoyment of the suit property to the knowledge of the Respondents and therefore, both the Courts ought to have decreed the suit in entirety. 10.According to the Learned Counsel for the Appellants, the Respondents/Defendants have permitted the Appellant/ Plaintiff (since deceased) and his vendors to enjoy the property for more https://hcservices.ecourts.gov.in/hcservices/ than 30 years and therefore, is not entitled to reject his claim without following the procedure known to law and indeed, patta has been granted in favour of the Appellant/Plaintiff (since deceased) including the land purportedly belonging to the Government and in the absence of any proceedings by the Respondents/Defendants to cancel the patta insofar as the lands which have been in occupation of the Appellant/Plaintiff (since deceased), both the Courts below erred in dismissing the suit partly. 11.A plea is put forward by the Learned Counsel for the Appellants that the ingredients of Section 10 of the Tamil Nadu Survey and Boundaries Act, 1923 has not been appreciated by the Courts below and they have come to the incorrect conclusion that the Respondents/Defendants are entitled to determine the boundary without knowing the fact that any order passed under the Act will be only after providing reasonable opportunity to the Appellant/Plaintiff (since deceased) and this needs to be rectified by this Court. 12.Lastly, it is the contention of the Learned Counsel for the Appellants that the Appellant/Plaintiff (since deceased) has dug a well to the knowledge of the Respondents /Defendants and this particular aspect of the matter has not been taken into consideration by the trial Court as well as the Appellate Court and in short, prays for allowing the Second Appeal in the interest of justice. 13.Contending contra, the Learned Government Advocate submits that the trial Court as well as the Appellate Court have taken into consideration all the relevant facts and circumstances of the case in an integral fashion and have arrived at a right conclusion to the effect that the Appellant/Plaintiff (since deceased) is entitled to get reliefs in respect of 3 acres and 55 cents in Survey No.662 out of 4 acres and 36 cents leaving the 0.81 cents of poramboke land in Survey No.684/1 and the same need not be interfered with by this Court. 14.The Learned Counsel for the Appellants submits that as per Section 10 of the Tamil Nadu Survey and Boundaries Act, 1923 notice is to be given to the occupier before conducting a survey and in the instant case on hand, the Appellant/Plaintiff (since deceased) has not received the notice and when the Respondents/Defendants say that the Appellant/Plaintiff (since deceased) has refused to receive the notice, they have not examined any person who effected service and the Respondents/Defendants have not followed the procedure enjoined under the Tamil Nadu Survey and Boundaries Act, 1923 and till date the Appellants are in possession of the suit https://hcservices.ecourts.gov.in/hcservices/ property and they have not been evicted by the Respondents/Defendants. 15.A perusal of the Plaint indicates that the Appellant/Plaintiff (since deceased) has averred that the old patta in respect of Patta No.963 stands in the name of his vendor Munirajilu Naidu and the new patta to the plaint schedule property, issued under Up-Dating Registry Scheme vide Patta No.395 stands in the name of the Appellant/ Plaintiff (since deceased) and that the Appellant/Plaintiff (later deceased) and his predecessors-in-title have been in peaceful, open, continuous and uninterrupted possession and enjoyment of the suit property for more than a period of 35 years by paying kist due to the Government from time to time and that he and his predecessors-in-title have perfected their title by means of Adverse possession in respect of suit property. 16.Also, in the Plaint in paragraph 5, the Appellant/ Plaintiff (since deceased) has averred that 'all of a sudden, during the 1st week of December, 1991, the 3rd Respondent/3rd Defendant has called on the Appellant/ Plaintiff (since deceased) and threatened to surrender the plaint schedule property, as if the same is a poramboke land belonging to the Government at the instance of Surveyor and Kelur Firka Revenue Inspector and Villagers.' Added further, it is stated that the 3rd Respondent/3rd Defendant has not issued any notice to the Appellant/Plaintiff (since deceased) to the effect that the schedule mentioned property is poramboke previously and the Respondents/Defendants endeavoured to measure the suit property and to evict him from the suit property. Hence, the suit has been laid for declaring the Appellant/Plaintiff's (since deceased) title, right and interest in respect of the schedule mentioned property and for consequential permanent injunction, restraining the Respondents/Defendants, their men, agents, subordinates etc. from in any manner interfering with his peaceful possession and enjoyment of the suit property by him. 17.In the written statement filed by the Respondents/ Defendants, it is stated that as per old Patta No.963 the Appellant/Plaintiff (since deceased) is owning 3.55 acres of dry land in Survey No.662 and as per U.D.R. Scheme, patta has been issued in his favour bearing Patta No.395 to an extent of 2.65.0 hectares and in the U.D.R. Scheme, the patta has been issued by mistake to an extent of 2.65.0 hectares which is an error and the same shall be liable to be corrected as per the Survey and Boundaries Act, 1923 and the Appellant/Plaintiff (later deceased) is entitled only to 3.55 acres. https://hcservices.ecourts.gov.in/hcservices/ 18.Continuing further, it is averred in the written statement that the Appellant/Plaintiff (later deceased) is enjoying the Government poramboke land in S.F.No.684/1 to an extent of 3.21 acres of land which is adjacent to S.No.662 of his land and the same has been found by the Tahsildar and Taluk Surveyor who inspected for alleging a suitable place to form a "Cattle farm" for goats and the Appellant/ Plaintiff (since deceased) has averred in his Plaint that he is owning 4.63 acres in Survey No.662 of Kasthambadi Village. 19.The stand of the Respondents/Defendants is that the 2nd Respondent/2nd Defendant has issued a B memo to the Appellant/Plaintiff (since deceased) to surrender the unauthorised encroachment poramboke land in Survey No.684/1, 2 by proceedings B.MP.No.9195 – 9196 and not the patta land in Survey No.662/1 and in the said poramboke land, he has also dug a well and moreover, the 3rd Defendant has issued B memo to him to surrender the unauthorised encroachments to an extent of 3.21 acres in Survey No.684/1 and 684/2 at Kasthambadi village, which is adjacent to the schedule mentioned item of property. 20.Ex.A.1 is the Sale Deed dated 26.08.1977 is in the Appellant/Plaintiff's name (later deceased) executed by Munirajilu Naidu, in respect of punja land for a sale consideration of Rs.8,600/- pertaining to the Survey No.662 measuring an extent of 4.36 acres out of total extent of 6 acres 55 cents. In the said Sale Deed, there is no tracing of antecedent title in respect of the schedule mentioned property and it is also not mentioned as to how earlier Munirajilu Naidu has got the property mentioned in the said Sale Deed and these details are conspicuously absent. A perusal of the recitals and the Sale Deed clearly points out that Munirajilu Naidu, for his urgent necessity of purchasing the house, has sold the schedule mentioned property in the said document. A scrutiny of Ex.A.1 to A.5 documents clearly go to show that in Survey No.662 the total extent is mentioned as 6 acres 55 cents. In Ex.B.11 it is clearly mentioned that in Survey No.662 it is wrongly mentioned as 6 acres 55 cents instead of the correct extent of 3 acres and 55 cents. In Ex.B.12-Sketch in respect of Survey No.662 the extent is mentioned as 2 hectares and 65 ares, the correct extent ought to have been mentioned in the Sketch should be 1.43.5 equivalent to 3 acres and 55 cents. Hence, obviously a mistake has crept in Ex.B.12 when it has been mentioned in Survey No.662 that the extent is 2 hectares and 65 ares. In Exs.A.2 and A.3-Sale Deeds out of 6 acres and 55 cents in Survey No.662, 4.36 acres of land have been mentioned as land about which sale has been effected. In Survey No.662 the total extent is only 3 acres and 55 cents and as such, the Appellant/Plaintiff (since deceased) should not have obtained a sale in respect of 4 acres and 36 cents. https://hcservices.ecourts.gov.in/hcservices/ 21.In fact, D.W.1 has deposed in his evidence that adjacent to Survey No.662, in Survey No.684/1, 1.30 hectare of land has been in possession of the Appellant/Plaintiff (since deceased) and he has also dug a well as seen from Ex.B.5 copy of B memo in respect of Survey No.684/1 and 684/2. In Ex.B.5-B memo there is an endorsement in Tamil that 'Survey Nos.684/1, 2 has been inspected and the well has been dug but no water has been drained from the well and that Manavari Maize etc. have been raised.' Ex.B.10 is the affixure of notice signed by the Tahsildar and that in Survey No.1 the name of the Appellant/Plaintiff (since deceased) has been found and in Survey No.2 the name of Kannu Gounder has been seen. From Ex.B.10 it is evident that both the Appellant/Plaintiff (since deceased) and Kannu Gounder have refused to receive the notice and to sign and therefore, they have been affixed. 22.At this stage, the Learned Counsel for the Appellants submits that the Respondents have not examined any person who effected the affixure service of notice and when the Appellant/Plaintiff (since deceased) has taken a stand that he has not received the notice, then, the burden is on the side of the Respondents/Defendants to establish the contra. Countering the submission of the Learned Counsel for the Appellants in this regard, the Learned Government Advocate for the Respondents/Defendants submits that the Appellant/Plaintiff (since deceased) and another Kannu Gounder have refused to receive the notice as per endorsement made in Ex.B.10 and in fact, in Ex.B.10 document Tahsildar, Polur has signed and when the Appellant/Plaintiff (since deceased) has refused to receive the notice issued by the authorities concerned, then, the authorities have no other option but to affix the notice and that such affixure of notice in law is deemed to be a valid and proper service in the eye of law. 23.It is not out of place for this Court to make a significant mention that where a Survey Officer exercises such jurisdiction, his decision shall be final unless the same is set aside by a suit filed under Section 25 of the Act as per decision 13 L.W. at page 172: 62 IC 87. 24.At this stage, this Court pertinently points out the decision of this Court in V.M.S. Kandaswamy Nadar V. The Province of Madras, through the District Collector of Ramnad at Madura and another (1952) 1 MLJ 804 it is held as follows: "A party concerned by an adverse survey to whom no notice was given of the survey is not bound to file a suit within three years to set aside https://hcservices.ecourts.gov.in/hcservices/ the order of the Survey Officer because he had no notice of the survey and the orders on it cannot be said to be correctly passed under section 13 of the Madras Survey and Boundaries Act and binding on that party. If a defendant requests the Court to dismiss a suit and grant permission to the plaintiff to file a fresh suit when such a fresh suit is filed he cannot turn round and say that the Court which granted the permission should not have done so." 25.Also, in Lingappa Gounder V. Palanisamy Gounder and Others AIR 2006 Madras 192 at page 195 wherein it is inter alia observed and held as follows: "10.In an another Division Bench decision of this Court reported in 1974 TLNJ 145 (State of Madras V. Kasthuri Ammal and others), it is held that though in an earlier survey one portion of the suit site might have been labelled as a road poramboke, such action by the survey authorities cannot affect the plaintiff in any manner unless the defendants establish that due notice of the result of the survey was given and the latter acquiesced in the correctness of the operations. The law is that a party concerned by an adverse survey to whom no notice of the survey was given is not bound to file a suit within three years to set aside the order of the survey officer because he had no notice of the survey, and the orders on it cannot be said to be correctly passed under Section 13 of the Act and binding on the party. 11.From the decisions referred to above, which are also relied on by the trial Court, this Court is of the considered view that non- mentioning of existence of the common cart- track in the re-survey will not in any way affect the rights of the plaintiff as it is not proved that notice was issued by the Survey Authorities as required under Section 9(2) of the Tamil Nadu Survey and Boundaries Act, 1923, to the predecessors-in-title of the plaintiff." https://hcservices.ecourts.gov.in/hcservices/ 26.Moreover, in Vaikundam Agro Tech Limited, Trivandrum rep. By General Manager V. State of Tamil Nadu rep. By District Collector, Kanyakumari District (2008) 1 MLJ 200 wherein it is held as follows: "Section 9(2) of the said Act mandates that after every decision taken by the Survey Officer to determine and record any boundary as undisputed boundary, notice of such decision should be given, in the prescribed manner to the registered holders of the lands, the boundaries of which may be fixed, there is no evidence to show that notice under Section 9(2) after fixing the boundary was given to the plaintiff company. Section 13 of the said Act also requires notification of the completion of demarcation of boundary in the District Gazette, apart from pasting a copy of such notification in the village chavadi. Though Section 14 of the said Act is to the effect that a suit to set aside or modify the determination published in the notification should be filed within three years from the date of notification, the said restriction is interpreted to apply only in case of proof of notice having been served on the affected land holder. This Court has categorically stated that a party concerned by an adverse survey, to whom no notice was given of the survey, is not bound to file a suit within three years to set aside the order of the Survey Officer because he had no notice of the survey and the orders on it cannot be said to be correctly passed." 27.In the decision E.K.M.K.NAWABJAN V. KRISHNAN CHETTIAR AND OTHERS, AIR 1978 NOC 185 (Mad), it is held that 'Affixture of notice on residential premises is a proper service or service by registered post is not necessary.' 28.It is to be noted that notice for survey ought to be given to the holder of a land whose boundary may be affected by the decision of the Revenue Authorities. In the present case on hand, the provisions of the Tamil Nadu Survey and Boundaries Act, 1923 are quite applicable for fixing the boundaries of undisputed lands also. Moreover, as seen from Ex.B.10 document the Appellant/Plaintiff (since deceased) has refused to receive the https://hcservices.ecourts.gov.in/hcservices/ notice and therefore, the said notice has been affixed and even in the absence of any person being examined to that effect, yet, the said endorsement made by the concerned can be taken into account in favour of the Respondents/Defendants. 29.Inasmuch as the Appellant/Plaintiff (since deceased) has refused to receive the notice and sign as seen from Ex.B.10 written endorsements in Tamil thereto, then, such refusal amounts to a deemed and sufficient service in the eye of law and therefore, it is not open to the Appellants to plead that without following the mandatory procedure under Section 10(2) of the Tamil Nadu Survey and Boundaries Act, 1923 before passing any order the Courts have invoked the Section 10 of the said Act and in fact, Section 10(1) of the said Act empowers the Survey Officer after making such enquiry to determine and record a disputed boundary and in this regard, he shall record in writing the reasons for arriving at his decision thereto and in fact, both the Courts, on consideration of all relevant facts and circumstances of the case in an integral fashion, have come to the fair and just conclusion that in respect of Survey No.662 out of 4 acres and 36 cents leaving the extent of poramboke land in Survey No.684/1, the Appellant/Plaintiff (since deceased) is entitled to claim the reliefs and as such, the rejection of injunction relief to the extent of 0.81 cents in respect of poramboke land is justified one and the same do not suffer from any material irregularity or patent illegality and the two substantial questions of law are answered against the Appellants and consequently, the Second Appeal fails. 30.In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Resultantly, the Judgment and Decree of the First Appellate Court viz., Principal District Judge, Thiruvannamalai in A.S.No.33 of 1996 dated 02.01.1997 and the Judgment and Decree of the trial Court viz., District Munsif Court, Polur in O.S.No.605 of 1991 are confirmed by this Court for the reasons mentioned in this Appeal. Consequently, connected miscellaneous petition is also dismissed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. sgl https://hcservices.ecourts.gov.in/hcservices/ To 1.The Principal District Judge, Thiruvannamalai. 2.The District Munsif, Polur. 3. The Section Officer VR Section, High Court, Madras 1 cc to Government Pleader, Sr. 62518 1 cc to Mr.M. Sriram, Advocate, Sr. 62256 S.A.No.1040 of 1997 RL (CO) kk 26/10 https://hcservices.ecourts.gov.in/hcservices/