Lilly, Jincy and Leena v. Varghese

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Judgment Date: 2016-06-23
Court Decision / Holding: This Original Petition (Civil) is dismissed. The court upheld the Munsiff’s rejection of the application, noting the finality of the re-survey under Section 13, lack of scheduling of the defendant’s property, and laches. The attempt to fix boundaries via the old survey plan cannot be allowed where the re-survey has attained finality; declaration of title independent of boundary demarcation is possible, but the petition fails on procedural grounds.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Lilly
Jincy
Leena

Respondents

Varghese

Legal Representation & Advocates

Counsels for Petitioners

• Sri K. Subash Chandra Bose

Counsels for Respondents

• Sri T. Madhu
• Sri B. K. Rajagopal

Case Synopsis & Summary

This Original Petition (Civil) challenges an interlocutory order (IA 2140/2015) in Original Suit No. 329/2014 (Harippad Munsiff Court) that permitted appointment of an Advocate Commissioner and Surveyor to measure the plaint-scheduled properties, allegedly to fix boundaries using an old survey plan (Partition Deed No.1135 of 1980). The petitioners contend for boundary determination and title protection based on the old plan, seeking a measurement to frame the boundary as per the plan drawn by the Commissioner. The respondent opposes, asserting that the village re-survey has become final and thus the old survey plan cannot govern boundaries. The learned Munsiff rejected the application on three grounds: (i) finality of the re-survey under Section 13 of the Survey and Boundaries Act, 1961, making measurement on the old plan futile; (ii) belated filing since the case was already listed for trial; and (iii) the respondent’s property was not scheduled in the plaint, rendering effective measurement impossible. The High Court notes that the re-survey is final and conclusive; there is no challenge to the re-survey under Section 14, and the old plan cannot override the final re-survey. While title can be proven notwithstanding survey demarcations, the petition fails for lack of proper scheduling and laches. The Original Petition is dismissed.

Provisions of Law Cited

Section 13 of the Survey and Boundaries Act, 1961Section 13ASection 14

Legal Doctrines & Maxims

Laches
Conclusive proof of boundaries as per final survey under Section 13

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners sought appointment of an Advocate Commissioner to measure the properties described in Partition Deed No. 1135 of 1980 on the basis of the old survey plan, so as to fix the boundary and support declaration of title and injunction. They argued that the old plan should govern boundaries to reflect their rights under the partition deed, and that the suit seeks title and boundary relief; measurement would advance the reliefs sought despite the old plan being superseded by the re-survey.

Contentions of Respondents

The respondent contended that the village re-survey has attained finality and that relying on the old survey plan would be futile and contrary to Section 13. It was also pointed out that the relief sought—measuring boundaries—requires scheduling of the defendant’s property in the plaint; since not scheduled, and with belatedness of the application, the prayer cannot be granted.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kannan v. Kannan	1964 KHC 67	Positive	Cited to support that title can be established notwithstanding issues with boundary demarcation in the survey plan; aligns with the court’s reasoning that title can be proven even if boundary demarcations exist.
Ibrahim and Others v. Saythumuhammed and Others	2013(4) KHC 241	Positive	Cited to bolster the viewpoint that declaration of title can be grounded notwithstanding the demarcation in the survey plan; used to reinforce the principle discussed by the court.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **THURSDAY, THE 23RD DAY OF JUNE 2016/2ND ASHADHA, 1938** ## **OP(C).No. 710 of 2016 (O)** **-------------------------OS.NO. 329/2014 OF MUNSIFF COURT, HARIPPAD ---------** **PETITIONER(S) : --------------------------** **1. LILLY AGED 58 YEARS W/O.PHILIP, KULATHIKOMBIL, PULLAMBADA MURI, PALLIPPAD VILLAGE.** **2. JINCY AGED 38 YEARS, S/O.PHILIP, -DO- -DO-** **3. LEENA AGED 36 YEARS, D/O.LILLY OF -DO- -DO-** ## **BY ADV. SRI.K.SUBASH CHANDRA BOSE** **RESPONDENT : ------------------------** **VARGHESE AGED 60 YEARS, S/O.GEORGE, J.J.VILLA, KULATHIKOMBIL, PULLAMBADA MURI, PALLIPPAD VILLAGE.** **BY ADVS. SRI.T.MADHU SRI.B.K.RAJAGOPAL** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **OP(C).No. 710 of 2016 (O)** ## **-------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS : -----------------------------------------** - **EXT.P-1: TRUE COPY OF THE PLAINT IN O.S.NO.329 OF 2014 BEFORE THE MUNSIFF COURT, HARIPPAD** - **EXT.P-2: TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS IN O.S NO.329 OF 2014 BEFORE THE MUNSIFF COURT, HARIPPAD** - **EXT.P-3: TRUE COPY OF THE COMMISSION APPLICATION IN I.A.NO.2140 OF 2015 IN O.S.NO.329 OF 2014 BEFORE THE MUNSIFF COURT, HARIPPAD** - **EXT.P-4: TRUE COPY OF THE OBJECTION TO THE COMMISSION APPLICATION FILED BY THE RESPONDENT IN O.S.NO.329 OF 2014 BEFORE THE MUNSIFF COURT, HARIPPAD** - **EXT.P-5: TRUE COPY OF THE APPLICATION FOR REMOVING THE CASE FROM LIST.** - **EXT.P-6: TRUE COPY OF THE RESPONDENT FILED OBJECTION TO THE APPLICATION SEEKING TO REMOVE THE CASE FROM LIST.** - **EXT.P-7: TRUE COPY OF THE ORDER IN IA NO.2140/2015 IN O.S.NO.329 OF 2014 BEFORE THE MUNSIFF COURT, HARIPPAD DATED 16.12.2015.** **EXT.P-8: TRUE COPY OF THE ORDER IN IA NO.2141/2015 IN O.S.NO.329 OF 2014 BEFORE THE MUNSIFF COURT, HARIPPAD DATED 16.12.2015** **RESPONDENT(S)' EXHIBITS : NIL** **-----------------------------------------------------** **//TRUE COPY//** **P.A. TO JUDGE** ## **Mn** ## **K. HARILAL, J.** ## **= = = = = = = = = = = = = = = = =** ## **O.P.(C) No. 710 of 2016** **- - - - - - -- - - - - - - - - - - - - -** Dated this the 23rd day of June, 2016 ## **J U D G M E N T** The petitioners are plaintiffs in Original Suit No.329 of 2014, on the files of the Munsiff's Court, Harippad and the respondent is the defendant therein. This Original Petition (Civil) is filed, challenging Ext.P7 order passed in Interlocutory Application No.2140 of 2015 filed in the above Original Suit, seeking appointment of an Advocate Commissioner and Surveyor to measure the plaint scheduled properties, which are described in Partition Deed No.1135 of 1980, on the basis of the old survey plan and to fix the boundary, in accordance with the plan to be prepared by the Advocate Commissioner. 2. The respondent filed objection, contending that in the village in which the properties are **O.P.(C) No. 710 of 2016** ## **-: 2 :-** situated the re-survey has become final and no purpose will be served by measuring the properties, on the basis of the old survey plan. After considering the objection raised by the respondent, the court below rejected the application on three grounds. Firstly, it is found that the re-survey has become final in that village and no purpose will be served by measuring the properties, on the basis of the old survey plan, in view of conclusiveness of the re-survey plan, under Section 13 of the Survey and Boundaries Act, 1961 _(hereinafter referred to as 'the Act')_ . Secondly, the application was filed belatedly, when the case was included in the list for trial. Thirdly, the property of the respondent is not scheduled in the plaint. The legality and propriety of the aforesaid reasonings, by which the **O.P.(C) No. 710 of 2016** ## **-: 3 :-** court below rejected the application, are under challenge in this Original Petition (Civil). 3. It stands undisputed that the re-survey has become final in the village in which the properties are situated. Going by Ext.P1 copy of the plaint, it could be seen that as rightly noted by the court below, old survey numbers alone are mentioned in the schedule and the suit is one for declaration of title, fixation of boundary and prohibitory injunction. The present application is filed seeking to appoint an Advocate Commissioner to measure the properties, as described in the Partition Deed, on the basis of the old survey plan, which is not in force, to determine the boundaries of the properties, at present. 4. It is pertinent to note that the ## **O.P.(C) No. 710 of 2016** ## **-: 4 :-** petitioners have not yet disputed the correctness of re-survey plan and they have not filed suit, challenging re-survey plan, with respect to their properties under Section 14 of the Act. Going by Section 13 of the Act, it could be seen that according to the above provision, unless the survey so notified in Original Gazette, by an order of the Collector under Section 13A or is modified by a decree of a Civil Court under the provisions of Section 14, the record of the survey shall be conclusive proof that the boundaries determined and recorded therein have been correctly determined and recorded. So long as the re-survey plan stands as conclusive proof of the boundaries determined and recorded therein, the boundaries of the properties can never be allowed to be fixed in accordance with **O.P.(C) No. 710 of 2016** ## **-: 5 :-** the old survey plan, which is not in force. 5. It is pertinent to note that in the suit, there is no prayer for recovery of possession, on the basis of allotment of share in the Partition Deed. Therefore, the measurement is intended to fix the boundary in accordance with the old survey plan only. As regards the declaration of title of the property is concerned, the plaintiffs can establish the title of the property, notwithstanding the demarcation of boundaries in the survey plan. This view is supported by the decisions in _**Kannan v. Kannan**_ [1964 KHC 67] and _**Ibrahim and Others v. Saythumuhammed and Others**_ [2013(4) KHC 241] also. Therefore, unambiguously it can be said that the real intention behind the measurement is to fix boundaries in accordance with the old survey plan, **O.P.(C) No. 710 of 2016** ## **-: 6 :-** which cannot be allowed as the re-survey plan has already attained a finality, under Section 13 of the Act and thereby became conclusive proof of boundaries. In the above analysis, the court below is justified in finding that no purpose will be served by measuring the properties in accordance with the old survey plan, where the re-survey plan is in force, under Section 13 of the Act. 6. Secondly, as rightly noted by the court below, it is seen that even though, the petitioners are seeking declaration of title and fixation of boundary on the basis of the old survey plan, the property of the defendant is not scheduled in the plaint. Unless the property of the plaintiff and defendant are scheduled in the plaint, no effective measurement can be done even according to the old **O.P.(C) No. 710 of 2016** ## **-: 7 :-** survey plan. Being a suit for fixation of boundary, it is incumbent on the part of the plaintiffs to schedule the property of the defendant also and laches from the part of the plaintiffs in this respect is fatal to the relief sought for in the plaint. In this analysis, I do not find any kind of illegality or impropriety in the impugned order under challenge. This Original Petition (Civil) is dismissed accordingly. DST Sd/- **K. HARILAL,** //True copy// P.A. To Judge **JUDGE**