Decided on February 06,1952



Ramaswami, J. - (1.) One of the points raised in this case is as regards the finality of the decision of a Survey Officer when that decision is not challenged within the prescribed time by means of a suit. There are two conflicting decisions on this point, namely, -- 'Ponnusami Servai v. Mariappa Servai', 1943 Mad W N 106 and -- 'Nagarathnam v. Guruswami', 1943-2 Mad L J 311. The learned District Munsif who decided this case in the first instance has pointed out in his judgment as follows: "This conflict of decisions is a matter which could be set at rest only by the High Court and I have no option but to follow the latest decision on the point which according to the usual rule of following precedents should prevail." The first judgment in point of time was pronounced on 24-11-1942 and the second judgment at point of time was dated 27-7-1942. Both sides request that this matter may be placed before a Bench so that an authoritative decision can be got and it seems to me right and proper that it should be so referred to. The papers will be placed before my Lord the Chief Justice for appropriate orders. (Pursuant to the above order of reference this appeal coming on for hearing the Court delivered the following judgment:) Govinda Menon, J.
(2.) This second appeal has been referred to a Bench by our learned brother Ramaswami J. on account of the apparent conflict between two single Judge's decisions of this court, viz., -- 'Ponnuswami Servai v. Mariappa Servai', 1943 Mad W N 106 and -- 'Nagaratnam v. Guruswami', 1943-2 Mad L J 311. At the time our learned brother referred the case to a Bench, i.e., on 7-9-1951 the decision of the Bench of this court in -- 'Krishna Chandra v. Ramamurthi Pantulu', 1951-2 Mad L J 325 had not been reported though the Judges had pronounced their judgment nearly five months earlier. The learned Chief Justice and Somasundaram J. after considering the conflict between the two cases have laid down following the decision in -- 'Krishnachandra v. Venkatappa Rao', that the question as to whether the determination of the boundary of a village under Section 13 of the Madras Survey and Boundaries Act of 1923 will affect title to a piece of land lying within the said boundary would depend very much upon the nature of the claim to that land and the questions that arose for decision before the survey Poomangalalorakath Mariyam Karamavathi and Ors. vs. Palakkotanantakath Ummer ... Page 2 of 3 officer. The learned Judges further went on to hold that there may be a case in which the result of a boundary fixed by the survey officer becoming conclusive under Section 13 of the Act may have an indirect effect on the title to an area covered by the boundary; but strictly speaking this is not because the survey officer has any jurisdiction to determine the question of title and that it is the indirect result of the fixing of the boundary.
(3.) The point here is whether the re-survey plot marked B in yellow colour in the commissioner's plan belongs to the Puthukudi illom under whom the plaintiffs claimed or is part of the defendants' land which is registered as R. S. No. 173/1. On the question of title and possession, both the lower courts have found that the yellow marked portion belongs to the plaintiffs' jenmi. But it is argued that since this land according to the survey is included within R. S. 173/1 it should be held that in the absence of a suit under Section 14 of the Madras Survey and Boundaries Act, the plaintiffs are debarred from claiming title or possession to that site. One thing has to be mentioned here and that is that the Jenmi of this disputed property viz., the Puthukudi Illom has not been made a party to the suit. Ex. D. 6 series are notices issued by the Survey Officer under Section 9 (2) of the Madras Survey and Boundaries Act VIII of 1923 intimating to the defendants the result of the survey and informing them that if they have any dispute regarding thereto they have to file an application regarding that dispute under Section 10 (1) of the said Act. There is no evidence that there was any dispute at all; but even if there is no dispute as held by the Bench in -- 'Krishnachandra v. Ramamurthi Pantulu', 1951-2 Mad L J 325 the decision of the Survey Officer might be final. But, in this case, it is not shown that any notice of the decision of the Survey Officer was given to the Puthukudi Illom. It is contended by Mr. Kuttikrishna Menon for the appellants that under Section 114 of the Evidence Act all official acts should be deemed to have been properly done arid therefore in the absence of anything to show that no notice was given to the Puthukudi Illom it must be assumed that all the proper and necessary formalities had been complied with by the survey officer. But the question is whether any notice at all had been given to the Puthukudi Illom. What has happened is that the survey officer after demarcating the boundary of R. S. No. 173/1 gave notice to the registered holders of R. S. No. 173/1 intimating to them his decision and when the registered holders found that within their survey number has been included more land than what they are legitimately entitled to they naturally did not complain but the aggrieved party whose land has been included wrongly in R. S. No. 173/1 has not been given any notice. Such being the case, we feel that there has been no proper application of Section 13 of the Madras Survey and Boundaries Act. In such circumstances we feel that the Survey Officer's decision will not be binding upon the Puthukudi Illom under whom the plaintiffs claim, The second appeal fails and is dismissed with costs.;

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