Regular Second Appeals before the High Court of Kerala (RSA Nos. 1122/2006, 1172/2006, 35/2007, 40/2007, 262/2007) arising from O.S. Nos. 654/1989 and 361/1992 of Neyyattinkara Sub Court, and related A.S. etc.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 13[TH] DAY OF APRIL 2023 / 23RD CHAITHRA, 1945 RSA NO. 1122 OF 2006** **AGAINST THE JUDGMENT AND DECREE DATED 24.3.2006 IN A.S. NO.140/2001 OF SUB COURT, NEYYATTINKARA AGAINST THE JUDGMENT AND DECREE DATED 24.3.2006 IN O.S. NO.654/1989 OF IST ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA** ## **APPELLANT/APPELLANT/2ND DEFENDANT:** BHAGYANATHAN NADAR, S/O KOCHUKUNJAN NADAR K.A.P. VANAJA BHAVAN, UCHAKKADA, KARODU DESAM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV G.S.REGHUNATH ## **RESPONDENTS/RESPONDENTS/PLAINTIFF AND 1ST DEFENDANT:** 1 VISWANATHAN NADAR, S/O KOCHUKUNJAN NADAR (DIED) KANAKAVILASAM BUNGLOW, MUDAVANMUGHAL,, POOJAPPURA, THIRUVANANTHAPURAM. 2 MICHAEL RAJ, S/O.KOCHUKUNJAN NADAR KANAKULAM PURAYIDAM, SOUTH OF ROAD, KULATHOOR DESOM, KULATHOOR VILLAGE, NEYYATTINKARA, WORKING AS JUNIOR ASSISTANT, PUBLIC SERVICE COMMISSION, PATTOM, TRIVANDRUM 3 ADDL.R3. S.KANAKA BAI, W/O VISWANATHAN NADAR T.C. NO.19/781, KANAKA NIVAS, MUDARANMUGHAL, POOJAPPURA P.O, THIRUVANANTHAPURAM 4 ADDL.R4. V.K.ALEX BERNARD, S/O VISWANATHAN NADAR -DO- -DO- -DO- -DO- -DO5 ADDL.R5. V.K.BENZY, D/O VISWANATHAN NADAR R.S.A.Nos.1122/2006 and conn.cases 2 -DO- -DO- -DO- -DO- -DO(ADDITIONAL RESPONDENTS 3 TO 5 ARE IMPLEADED AS THE LHrs OF DECEASED R1 AS PER THE ORDER DATED 12/06/2008 IN I.A. NO.1162/2007) L.MOHANAN FOR R2 (BY ORDER) **THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 30.03.2023, ALONG WITH RSA.262/2007 AND CONNECTED CASES, THE COURT ON 13.04.2023 DELIVERED THE FOLLOWING:** R.S.A.Nos.1122/2006 and conn.cases 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 13[TH] DAY OF APRIL 2023 / 23RD CHAITHRA, 1945 RSA NO. 1172 OF 2006** **AGAINST THE JUDGMENT AND DECREE DATED 24.03.2006 IN AS 147/2001 OF SUB COURT,NEYYATTINKARA IN OS 361/1992 OF 1ST MUNSIFF'S COURT, NEYYATTINKARA** ## **APPELLANT/APPELLANT/5TH DEFENDANT:** MICHAEL RAJ, S/O KOCHUKUNJAN NADAR, AGED 53, RESIDING AT KANAKULAM PUTHEN VEEDU, NEAR UCHAKKADA, KARODE DESOM. BY ADVS. KUM.S.KRISHNA SMT.P.M.MAZNA MANSOOR ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS 1 TO 4 & 6:** 1 VISWANATHAN NADAR S/O. KOCHUKUNJAN NADAR, AGED 61, RESIDING AT, KANAKA NIVAS, MUDAVANMUGHAL, POOJAPPURA P.O.,, THIRUVANANTHAPURAM. - 2 AUGUSTIN, S/O. KOCHUKUNJAN NADAR AGED 47, RESIDING AT THIRUHRIDAYA NILAYAM,, KANAKULAM OF -DO- -DO-. - 3 GOVERNMENT OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR,, THIRUVANANTHAPURAM. - 4 THE SURVEY DIRECTOR DIRECTOR OFFICE, BOARD OF REVENUE (SURVEY). - 5 RE-SURVEY ASSISTANT DIRECTOR SURVEY AND LAND RECORDS, RE-SURVEY, NEYYATTINKARA. R.S.A.Nos.1122/2006 4 and conn.cases 6 PAKYANATHAN NADAR S/O.KOCHUKUNJAN NADAR, AGED 50, RESIDING AT, K.A.P. VANAJA BHAVAN, KANIYAMKONAM, NEAR UCHAKADA,, KARODU DESOM, -DO- VILLAGE, NEYYATTINKARA. 7 GANGADHARAN NADAR RESIDING AT KALLAMPOTTA VEEDU, KARODU DESOM,, INCLUDED POZHIYOOR P.O., KARODU VILLAGE. BY ADVS. G.S.REGHUNATH SRI.R.S.KALKURA SRI.R.T.PRADEEP SRI.V.VINAY MENON THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 30.03.2023, ALONG WITH RSA.262/2007 AND CONNECTED CASES, THE COURT ON 13.04.2023 DELIVERED THE FOLLOWING: R.S.A.Nos.1122/2006 and conn.cases 5 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA THURSDAY, THE 13[TH] DAY OF APRIL 2023 / 23RD CHAITHRA, 1945 RSA NO. 35 OF 2007** **AGAINST THE JUDGMENT DATED 24.03.2006 IN A.S.139/01 OF SUBORDINATE JUDGE'S COURT, NEYYATTINKARA FROM THE JUDGMENT AND DECREE DATED 31.03.2001 IN O.S.NO.361/1992 OF I ADDITIONAL MUNSIFF'S COURT NEYYATTINKARA** ## **APPELLANTS/2ND APPELLANT/6TH DEFENDANT:** 1 R.GANGADHARAN NADAR (died) KALLAMPOTTA VEEDU, KARODU DESOM,, INCLUDED POZHIYOOR P.O., KARODU VILLAGE. ADDL.A2 PRATHEESH, AGED 29 YEARS, S/O PAKIANATHAN NADAR, KAP VANAJA BHAVAN, UCHAKKADA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM-695 506 (The legal representative of deceased sole appellant is impleaded as additional appellant No.2 as per order dated 21.07.2022 in I.A.No.01/2022) BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL)(G-125) A.R.DILEEP, P.J.JOE PAUL MANU SRINATH RAJAN G. GEORGE, NIMESH THOMAS ## **RESPONDENTS/RESPONDENTS AND 1ST APPELLANT/PLAINTIFFS &** ## **DEFENDANTS 1 TO 3 AND 5:** 1 KOCHUKUNJAN NADAR PAKYANATHAN NADAR KAP, VANAJA BHAVAN, KANIYAMKONAM PURAYIDOM,, R.S.A.Nos.1122/2006 6 and conn.cases NEAR UCHAKKADA, KARODU DESOM -DO- VILLAGE, NEYYATTINKARA TALUK. 2 VISWANATHAN NADAR(DIED) S/O.KOCHUKUNJAN NADAR, KANAKAVILASOM BUNGLOW, MUDAVANMUGHAL, POOJAPPURA, THIRUVANANTHAPURAM. 3 AUGUSTINE, S/O.KOCHUKUNJAN NADAR THIRUHRIDAYA NILAYAM, KANAKULAM OF -DO-. 4 GOVERNMENT OF KERALA REPRESENTED BY DISTRICT COLLECTOR,, THIRUVANANTHAPURAM. 5 THE SURVEY DIRECTOR DIRECTOR'S OFFICE, BOARD OF REVENUE (SURVEY), THIRUVANANTHAPURAM. 6 RESURVEY ASSISTANT DIRECTOR SURVEY & LAND RECORDS (RESURVEY), NEYYATTINKARA. 7 KOCHUKUNJAN NADAR MICHAEL RAJ KANAKULAM PUTHEN VEEDU OF UCHAKKADA, KARODU DESOM, KARODU VILLAGE, WORKING AS JUNIOR ASSISTANT, PUBLIC SERVICE COMMISSION, PATTOM TRIVANDRUM. 8 S. KANAKA BAI W/O VISWANATHANAN NADAR, T.C. 19/781, KANAKA NIVAS, MUDAVANMUGHAL, POOJAPPURA P.O. THIRUVANATHAPURAM 9 V.K.ALEX BERNAD S/O VISWANATHANAN NADAR, T.C. 19/781, KANAKA NIVAS, MUDAVANMUGHAL, POOJAPPURA P.O. THIRUVANATHAPURAM 10 V.K. BENZY D/O VISWANATHANAN NADAR, T.C. 19/781, KANAKA NIVAS, MUDAVANMUGHAL, POOJAPPURA P.O. THIRUVANATHAPURAM (THE LEGAL HEIRS OF DECEASED SECOND RESPONDENT ARE IMPLEADED AS ADDL. R8 TO 10 AS PER ORDER DATED 12/6/2008 IN IA 1158/2007) R.S.A.Nos.1122/2006 7 and conn.cases BY ADVS. R.S.KALKURA FOR R3 R.T.PRADEEP AND KULATHOOR S.V.PREMAKUMARAN NAIR FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 30.03.2023, ALONG WITH RSA.262/2007 AND CONNECTED CASES, THE COURT ON 13.04.2023 DELIVERED THE FOLLOWING: R.S.A.Nos.1122/2006 8 and conn.cases **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA THURSDAY, THE 13[TH] DAY OF APRIL 2023 / 23RD CHAITHRA, 1945 RSA NO. 40 OF 2007 AGAINST THE JUDGMENT AND DECREE DATED 24.03.2006 IN AS 146/2001 OF SUB COURT,NEYYATTINKARA AGAINST THE JUDGMENT AND DECREE IN OS 654/1989 OF I ADDL. MUNSIFF'S COURT,** ## **NEYYATTINKARA** ## **APPELLANT/APPELLANT/1ST DEFENDANT :** MICHAEL RAJ AGED 53 YEARS S/O.KOCHUKUNJAN NADAR, AGED 53, RESIDING AT, KANAKULAM PUTHEN VEEDU, NEAR UCHAKKADA,, KARODE DESOM. BY ADVS. KUM.S.KRISHNA SMT.P.M.MAZNA MANSOOR ## **RESPONDENTS/RESPONDENTS/PLAINTIFF & 2ND DEFENDANT:** 1 VISWANATHAN NADAR (DIED LRGAL HEIRS IMPLEADED)) S/O.KOCHUKUNJAN NADAR, AGED 61, RESIDING AT KANAKA NIVAS, MUDAVANMUGHAL, POOJAPPURA P.O., THIRUVANANTHAPURAM. 2 BHAGYANATHAN NADAR S/O.KOCHUKUNJAN NADAR, AGED 58,, RESIDING AT K.A.P. VANAJA BHAVAN,, UCHAKKADA, KARODE VILLAGE, NEYYATTINKARA. ADDL.3 S.KANAKA BAI, W/O.VISWANATHAN NADAR, T.C.19/781,KANAKA NIVAS, MUDAVANMUGHAL,, POOJAPPURA P.O., THIRUVANANTHAPURAM. 9 R.S.A.Nos.1122/2006 and conn.cases ADDL.4 V.K.ALEX BERNAD, S/O.VISWANATHAN NADAR, AGED 29, .DO. .DO. ADDL.5 V.K.BENZY, D/O.VISWANATHAN NADAR, AGED 27, .DO. .DO. (THE LEGAL HEIRS OF DECEASED FIRST RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 3 TO 5 AS PER THE ORDER DATED 12.06.2008 IN IA.538/2007.) THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 30.03.2023, ALONG WITH RSA.262/2007 AND CONNECTED CASES, THE COURT ON 13.04.2023 DELIVERED THE FOLLOWING: # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 13[TH] DAY OF APRIL 2023 / 23RD CHAITHRA, 1945 RSA NO. 262 OF 2007** **AGAINST THE JUDGMENT AND DECREE IN DATED 24.03.2006 IN A.S. NO.139/2001 OF SUB COURT, NEYYATTINKARA AGAINST THE JUDGMENT AND DECREE IN DATED 31.03.2001 IN O.S. NO.361/1992 OF IST ADDITIONAL MUNSIFF'S COURT,** ## **NEYYATTINKARA** ## **APPELLANTS/APPELLANTS/4TH DEFENDANT:** KOCHUKUNJAN NADAR - PAKYANATHAN NADAR K.A.P.VANAJA BHAVAN, KANIYAMKONAM PURAYIDOM, NEAR UCHAKKADA, KARODU DESAM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV G.S.REGHUNATH ## **RESPONDENTS/RESPONDENTS/2ND APPELLANT/PLAINTIFFS &** ## **DEFENDANTS 1 TO 3, 5 AND 6:** - 1 VISWANATHAN NADAR (DIED) S/O. KOCHUKUNJAN NADAR, VISWABHARATHI, KARODU DESAM, KARODU VILLAGE, NEYYATTINKARA. - 2 AUGUSTINE, S/O.KOCHUKUNJAN NADAR THIRUHRIDAYA NILAYAM, KANAKULAM,, KARODU DESAM, KARODU VILLAGE, NEYYATTINKARA. - 3 R.GANGADHARAN NADAR KALLAMPOTTA VEEDU KARODU DESAM, POZHIYOOR P.O., KARODU VILLAGE,, NEYYATTINKARA TALUK. - 4 KOCHUKUNJAN NADAR MICHAEL RAJ KANAKULAM PUTHEN VEEDU, UCHAKKADA KARODU DESOM, KARODU VILLAGE, WORKING AS JUNIOR ASSISTANT, PUBLIC SERVICE COMMISSION, PATTOM, TRIVANDRUM. - 5 GOVERNMENT OF KERALA REPRESENTED BY DISTRICT COLLECTOR, THIRUVANANTHAPURAM. R.S.A.Nos.1122/2006 and conn.cases 11 - 6 THE SURVEY DIRECTOR DIRECTOR'S OFFICE, BOARD OF REVENUE, (SURVEY), THIRUVANANTHAPURAM. - 7 RESURVEY ASSISTANT DIRECTOR SURVEY & LAND RECORDS (RESURVEY), NEYYATTINKARA. - 8 ADDL. R8 S. KANAKA BAI W/O. VISWANATHAN NADAR, TC NO. 19/781, KANAKA NIVAS, MUDAVANMUGHAL, POOJAPPURA P.O., THIRUVANANTHAPURAM. - 9 ADDL. R9 V.K. ALEX BERNAD S/O. VISWANATHAN NADAR, T.C.NO. 19/781, -DO-DO-., -DO- -DO-. - 10 ADDL R10 V.K.BENZY D/O. VISWANATHAN NADAR, -DO-DO(ADDL. R8 TO 10 ARE IMPLEADED AS LR'S OF DECEASED FIRST RESPONDENT AS PER ORDER DATED 18.6.08 IN IA 1148/07) - 11 ADDL.R11 PRATHEESH P.V. S/O.PAKYANATHAN NADAR, AGED 29 YEARS, RESIDING AT KAP VANAJA BHAVAN, UCHAKKADA P.O., NEYYATTINKARA. (ADDL.R11 IS IMPLEADED AS PER ORDER DATED 09.01.2020 IN IA.1/2020) BY ADVS. SRI.R.T.PRADEEP - RESPONDENT GEORGE VARGHESE(PERUMPALLIKUTTIYIL) - R11 SRI.S.V.PREMAKUMARAN NAIR FOR R2 A.R.DILEEP - R11 P.J.JOE PAUL - R11 MANU SRINATH – R11 GOVERNMENT PLEADER FOR R5 TO R7 THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 13.04.2023, ALONG WITH RSA.1122/2006, 1172/2006 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A.Nos.1122/2006 and conn.cases 12 ## **M.R.ANITHA, J** ************** R.S.A.Nos.1122 of 2006, 1172 of 2006, 35 of 2007, 40 of 2007 and 262 of 2007 -----------------------------------------------Dated this the 13[th] day of April, 2023 ## **JUDGMENT** R.S.A.Nos.40 of 2007 and 1122 of 2006 have been filed against the judgment and decree in O.S.No.654 of 1989 on the file of Munsiff's Court, Neyyattinkara. R.S.A.No.262 of 2007, 1172 of 2006 and 35 of 2007 arose out of the judgment and decree in O.S.No.361 of 1992 on the file of Munsiff's Court, Neyyattinkara. 2. O.S.Nos.654 of 1989 and 361 of 1992 have been tried jointly and a common judgment was passed. O.S.No.654/1989 was taken as the leading case and evidence was adduced in it. O.S.No.654 of 1989 has been filed for declaration and permanent R.S.A.Nos.1122/2006 13 and conn.cases prohibitory injunction and subsequently amended including a prayer for fixation of boundary also. 3. Plaintiff in O.S.No.654/1989 is Viswanathan Nadar, S/o.Kochukunjan Nadar. Plaint A and B schedule properties originally belonged to father, Kochukunjan Nadar, of the plaintiff and defendants. Kochukunjan Nadar gave permission to the plaintiff to put up a building in plaint A schedule property which is having an extent of 11 cents out of total 68 cents of property belonging to him. On the basis of the permission given by the father, he completed the construction in plaint A schedule and started residence therein. First defendant was also given permission to put up building in the property which is lying south to plaint A schedule property and he also put up a basement for constructing a building. Subsequently, a settlement deed, Ext.A1 dated 16.12.1987 was executed, as per which plaint A schedule property was given to the plaintiff and B schedule property to the first defendant. The gift was accepted by the plaintiff on the very same day and even though the possession was initially reserved by the father, subsequently he granted possession of the property R.S.A.Nos.1122/2006 and conn.cases 14 around the building in A schedule. As per Ext.A1, the ownership of the property is vested with the plaintiff and hence he is entitled to get the remedies claimed in the suit. Defendant No.1 also accepted the gift deed. He also proceeded with the construction of the building in B schedule property and it reached upto the lindle level but defendant made some wooden framework abutting the plaintiff's property for constructing concrete porch. It abuts more than 6 ft. to plaint A schedule property and the first defendant is making attempt to put concrete on the wooden structure and to make it a permanent one. It will cause irreparable injuries to the plaintiff and is also against the building rules. 2[nd] defendant, another brother of the plaintiff, is also causing obstruction to the construction of northern boundary wall of A schedule property. Hence plaintiff stopped the construction work. But the defendant is trying to destroy the boundary wall put up by the plaintiff and constructed a new boundary wall including plaint A schedule property. Before the visit of the Commissioner, first defendant demolished the boundary between plaint A and B schedule properties. Hence the R.S.A.Nos.1122/2006 and conn.cases 15 plaint was amended seeking to fix the southern boundary of plaint A schedule property and to declare the plaintiff's title and possession over plaint A schedule property and restraining the 1[st] defendant from further constructing building abutting plaint A schedule property and directing the 1[st] defendant to remove 'thattu' constructed in the vacant land over the plaint A schedule property and further restraining the 2[nd] defendant from tampering the northern boundary of the plaint A schedule property. 4. Defendants filed written statement contending that the plaintiff has no manner of right or possession over the scheduled property. There is no property described in the plaint in existence. No permission was given to the plaintiff for constructing a house as alleged, by the father. He has not constructed any house in 68 cents of property. Kochukunjan Nadar, his wife and first defendant are residing in the building in the property having an extent of 68 cents. Another building is also there in the property belonging to Augustine, another son of Kochukunjan Nadar. 1[st] defendant with the permission of father, R.S.A.Nos.1122/2006 and conn.cases 16 started construction of the building in the property south to the building No.10/169. Settlement deed dated 16.12.1987 is a fraudulent document forged by the plaintiff. It has not come into effect. It is void ab initio and the plaintiff has got no right on the basis of settlement deed. Plaintiff has no right to question the defendant in constructing the building in the property since he is constructing the building in the property of the Kochukunjan Nadar, the father. The allegation against the 2[nd] defendant is also incorrect. There is no cause of action for filing the suit. After the amendment of the plaint, defendants filed additional written statement contending that there is no boundary separating plaint A and B schedule properties. The suit is bad for non-joinder of necessary parties since Kochukunjan Nadar, father of plaintiff and defendants 4 and 5 who is the absolute owner in possession of the property is not made a party to the proceedings. 5. O.S.No.361/1992 was filed by the plaintiff in O.S. No.654/1989 along with another son of Kochu Kunjan Nadar. Plaint A schedule property is 68 cents of land originally belonged to the father of the plaintiffs and defendants 4 and 5. Father R.S.A.Nos.1122/2006 and conn.cases 17 executed settlement deed with respect to 57 cents of property out of plaint A schedule on 16.12.1987. Plaint B schedule is 11 cents of property out of plaint A schedule allotted to the first plaintiff as per Ext.A1 settlement deed. It is alleged that as per settlement deed, A schedule in the settlement deed was given to the first plaintiff, C schedule to second plaintiff, B schedule to the 4[th] defendant and plaint D schedule to the 5[th] defendant and plaint E schedule to Kamalabhai, daughter of Kochukunjan Nadar. As per the settlement deed, parties are in enjoyment and possession of the property. Subsequently, Kochukunjan Nadar executed an assignment deed with respect to 11 cents left by him in the name of son of first plaintiff as per document No.2949/1987 on the same day. That property is being enjoyed by the son of the first plaintiff and his mother. It is also alleged that building in plaint B schedule was constructed by the 1[st] plaintiff and in C schedule in the settlement deed by second plaintiff. 5[th] defendant demolished the family house in the D schedule property of the settlement deed and put up a new building. R.S.A.Nos.1122/2006 and conn.cases 18 6. Plaint C schedule is a property obtained by the plaintiffs and their brothers who are defendants 4 and 5 and one Vedanayakam. They obtained the property as per document No.2504/1956. While so, Vedanayakam died unmarried and issueless and his rights devolved upon plaintiffs and defendants 4 and 5. Hence, plaintiffs are entitled to get ¼ right in plaint C schedule property and defendants 4 and 5 are also entitled to ¼ share each. So, they seek for partition of plaint C schedule property. It is further alleged that 4[th] defendant is an employee in re-survey department. After the completion of re-survey of plaint A and C schedule properties, 4[th] defendant influenced the re-survey authorities and in B schedule property, a separate plot having 2½ cents was carved out and renumbered as re-survey No.353/37 and settled in favour of 4[th] defendant .Originally plaint A schedule property as a whole was re-surveyed as re-survey No.353/07 in plot No.47. But new sub division was created as re-survey No.353/37 at the instance of 4[th] defendant. 4[th] defendant has no right over plaint B schedule property. No property lying separate within B schedule property. B schedule 11 R.S.A.Nos.1122/2006 and conn.cases 19 cents is lying as a compact plot. C schedule property in the plaint was originally resurveyed as re survey plot No.261/10 in Block No.47 but defendants 4 and 6 colluded together and influenced the resurvey authorities and they sub divided re survey No.261/10 into two plots as resurvey Nos.261/23 and 261/26. The Survey Sub Division have been done without measuring the properties. Though plaintiffs filed complaint before the Assistant Director of Resurvey and District Collector, Thiruvananthapuram no action was taken. The plaint C schedule property was obtained by the plaintiffs and defendants 4 and 5 and their brother Vedanayakam as per document No.2504/1956. Vedanayakam died and his right in the property was devolved upon plaintiffs and defendants 4 and 5 equally. The joint enjoyment of the property causes inconvenience. Hence the suit for declaration that the resurvey demarcation done are illegal and to carry out the rectification and also for partition and separate allotment of plaintiffs share in plaint C schedule property. 7. The 3[rd] defendant filed written statement justifying the resurvey demarcation. After the death of Vedanayakam, his 20 R.S.A.Nos.1122/2006 and conn.cases parents alienated share of Vedanayakam in favour of 6[th] defendant. On the application of 4[th] defendant the property obtained by him as per document No.262/90 also subdivided. Notice of resurvey was given to concerned parties. 8. Defendants 4 and 6 filed separate written statement disputing the description of the plaint schedule properties. Execution of the settlement deed by Kochukunjan Nadar is denied. The existence of plaint B schedule property is also denied. Building No.KDPX/169 is in the possession and occupation of Kochukunjan Nadar. Plaintiffs are residing in Thiruvananthapuram. Deceased Vedanayakam and his brothers and parents are Christians. After the death of Vedanayakam his right in the property is devolved upon the father and accordingly father sold 8 cents from C schedule to the 6[th] defendant and he is in possession and enjoyment of that property. Resurvey Sub Division was done correctly. The 4[th] defendant obtained 3.5 cents of property as per document dated 18.01.1990 executed by Kochukunjan Nadar. On the basis of that document the property was sub divided by the resurvey authorities. Kochukunjan Nadar R.S.A.Nos.1122/2006 and conn.cases 21 is a necessary party to the suit and plaintiffs are not entitled to get any share in the plaint C schedule property. The 5[th] defendant also filed written statement raising similar contentions. 9. O.S. No.654/1989 was taken as the leading case and evidence was adduced in it. PWs1 to 9 were examined and Exts.A1 to A41 were marked from the side of the plaintiffs. DW1 examined from the side of the defendants. Exts.B1 to B32 were marked. Exts.C1 to C3 and Ext.X1 to X7 were also marked. On evaluating the facts, circumstances and evidence, trial court decreed both suits. 10. Against which 1[st] defendant and 2[nd] defendant in O.S. No.654/1989 filed A.S.No.146/2001 and A.S.No.140/2001 respectively before the Subordinate Judge's Court, Neyyattinkara. Against the judgment in O.S. No.361/1992 4[th] defendant and 6[th] defendant filed A.S. No.139/2001 and 5[th] defendant filed A.S. No.147/2001 before the Subordinate Judge's Court, Neyyattinkara. By the impugned common judgment, the learned 1[st] Appellate Court confirmed the judgment and decree passed by the court below in both suits. R.S.A.Nos.1122/2006 22 and conn.cases 11. Aggrieved by the same 1[st] and 2[nd] defendants, who are the appellants in A.S. No.146/2001 and A.S. No.140/2001 filed R.S.A.No.40/2007 and R.S.A. No.1172/2006 respectively. Against the judgment in A.S. No.139/2001 and A.S. No.147/2001 the 4[th] , 6[th] and 5[th] defendants filed R.S.A.No.262/2007, R.S.A. No.35/2007 and R.S.A. No.1172/2006 respectively. 12. At the time of admission of the RSAs, the following substantial questions of law were formulated : RSA No.35 of 2007 : Whether the sale in favour of minor is valid under law, in view of the dictum laid down in 1903 ILR 30 PC 539; 2015 (5) SCC 622? ## R.S.A.No.262 of 2007 i) Is not the suit barred by law and have not the courts below gone beyond their jurisdiction in adjudicating matters solely to be exercised by statutory authorities and if aggrieved parties could proceed to resolve their disputes as provided by the authority under the Survey and Boundaries Act? R.S.A.Nos.1122/2006 and conn.cases 23 ii) Whether re-survey sub division conducted can be set aside and resurvey authorities can be directed to prepare fresh re-survey records, in view of the specific provisions of Kerala Survey and Boundaries Act? ## R.S.A.No.40 of 2007 and 1172 of 2006 a) Has Ext.A1 been construed and interpreted in accordance with law? What is the nature and legal effect of that document? b) Has Ext.A1 taken effect? R.S.A.No.1122 of 2006 a) Has Ext.A1 been construed and interpreted in accordance with law? What is the nature and legal effect of that document? b) Has Ext.A1 taken effect? c) Was courts below right in granting the decree, when the aggrieved parties have a remedy under Survey and Boundaries Act? Since all the appeals arouse out of the common judgment of the 1[st] Appellate Court all these R.S.As. were heard together. Lower R.S.A.Nos.1122/2006 and conn.cases 24 court records were called and perused. 13. The main contention of the learned counsel for the appellants in R.S.A. No.40/2006 & R.S.A. No.1162/2006 ie. the defendants in O.S. No.654/1989 is with regard to the execution of Ext.A1 settlement deed by Kochukunjan Nadar. According to them Ext.A1 is a fraudulent document, it has not been executed by Kochukunjan Nadar. Respondent/plaintiff in O.S. No.654/1992 will not get any right over the plaint A schedule property as per Ext.A1. So the main issue in O.S. No.654/1992 is with regard to the execution of Ext.A1 settlement deed by Kochukunjan Nadar. It has been concurrently found by the courts below that Ext.A1 has been duly executed by Kochukunjan Nadar and it has also been acted upon by the plaintiff and hence the subsequent cancellation deed has no legal effect. 14. To prove execution of Ext.A1 settlement deed, PW1 the attester of Ext.A1 was examined and he deposed about the attestation of the document and also measurement and demarcation of property prior to the execution of Ext.A1. PW2 is the scribe who prepared Ext.A1 document also gave evidence in R.S.A.Nos.1122/2006 and conn.cases 25 support of the execution of Ext.A1. PW3 is another attester, who also deposed regarding the execution of the document. PW4 is the brother of PW5 who is the plaintiff in O.S. No.654/1989. PW4 also supports the case of the plaintiff and O.S. No.361/1992 was filed by PW4 along with PW5 the plaintiff in O.S. No.654/1989. PW6 is the expert who compared the thumb impression of the executant of Ext.A1 and C3 is the report of the expert and he gave evidence to the effect that the finger prints of Kochukunjan Nadar in Exts.A1 and A41, admitted document, are one and the same. Kochukunjan Nadar was examined as DW2 and he denied the signature and thumb impression in Ext.A1. But Ext.A41 which is a sale deed executed by Kochukunjan Nadar DW2 on the same day in favour of his grand son stands undisputed. That was also taken as a circumstance to strengthen the execution of Ext.A1 settlement deed. Moreover, Ext.A19 cancellation deed of Ext.A1 executed by DW2 Kochukunjan Nadar itself will amounts to an admission of execution of Ext.A1 settlement deed. As rightly found by the courts below if at all Ext.A1 is not executed, there is no necessity to cancel the document. DW3 who is the 1[st] R.S.A.Nos.1122/2006 and conn.cases 26 defendant in O.S.No.654/1989 stated about the execution of Ext.A19 the cancellation deed. Moreover, Ext.A1 document has been produced by the plaintiffs and there is specific recitals in Ext.A1 settlement deed that in A schedule in Ext.A1 there is a bungalow building roofed with tiles which has been constructed by the plaintiff with his fund on the permission of the executant and he is residing therein and that has to be continued and it is further specified that either in A schedule or in the building constructed therein the other children has no right. It is also stated that in C schedule allotted to the 3[rd] party and B schedule alloted to the 4[th] party, both of them had put up basement with his permission and they have to complete the same. There is also specific recitals in Ext.A1 that apart from his life interest created by him with respect to the properties, he has no right over the respective scheduled properties and all his right over the properties has been left out. 15. With regard to the acceptance of the gift deed it has been discussed by the courts below that Ext.A1 gift deed is not an onerous gift and normally when a person gifted properties to R.S.A.Nos.1122/2006 and conn.cases 27 another and it is not an onerous gift, normally it is expected that the other person accept the gift once it comes to his knowledge. 16. The entire factors have been taken into account by the courts below and come to a conclusion that Ext.A1 settlement deed has been duly executed by Kochukunjan Nadar and has been acted upon by the plaintiff. It is also taken into account that on the very same day a sale deed was executed in the name of the son of the plaintiff and that is not under challenge also. The presence of plaintiff at the time of execution of gift deed has also come out from the evidence of PW1 to PW5 and that was taken as another circumstance to prove the acceptance of the gift by the plaintiff. Though Ext.A19 cancellation deed was projected from the side of the defendants, since it has come out from the evidence that gift has already been accepted and acted upon by the plaintiffs as per the dictum laid down in **Gopalakrishnan v. Rajamma [2006 (4) KLT 377]** after the acceptance of the gift if the donor wants to revoke the gift by resorting to Section 126 of the Transfer of Property Act, 1882, the donor will have to institute a suit for the same.It is also to be R.S.A.Nos.1122/2006 and conn.cases 28 noted that a gift can be cancelled only if the gift is a one executed in contemplation of S.126 of TP Act and not otherwise. Nobody has any case that Ext.A1 has been executed in consonance with S.126 of the TP Act. As per Ext.A1 there is no such agreement between the donor and donee to suspend or revoke the gift and it also provides that a gift which parties agree shall be revocable wholly or in part on the mere will of the donor is void wholly or in part as the case may be. So a gift deed once executed cannot be revoked and even if such contingencies as contemplated under Section 126 of Transfer of Properties Act, 1882 is in existence in the deed a suit has to be filed for cancellation. 17. In the present case, by unilateral act the Kochukunjan Nadar, (the donor) he is legally not entitled to execute a cancellation deed to cancel Ext.A1 settlement deed.Hence Ext.A19 cancellation deed is having no legal effect and is not enforceable in law. So courts below rightly found that Ext.A1 settlement deed was duly executed by Kochukunjan Nadar and it has been acted upon by the plaintiff. Since Ext.A1 settlement R.S.A.Nos.1122/2006 and conn.cases 29 deed is proved to have been executed by Kochukunjan Nadar and acted upon by the plaintiff the prayer for declaration and fixation of boundary of the property based on Ext.A1 sought for by the plaintiff has been rightly granted by the courts below. 18. In O.S. No.361/1992 the main contention of the learned counsel for the 6[th] defendant is that Ext.A21 which is the document by which the 40 cents of property was purchased in the name of Vedanayakam, plaintiffs and defendants 4 and 5 is void as against the plaintiffs and defendants 4 and 5, since plaintiffs 1 and 2 as well as the defendants 4 and 5 were minors at the time of execution of Ext.A21. No guardian was appointed on behalf of them and hence they are not competent to contract and the entire sale deed will only stand in the name of Vedanayakam who was the only major son of Kochukunjan Nadar at the time of execution of Ext.A21. When Vedanayakam died in the year 1958, unmarried and issueless as per Section 42 of the Indian Succession Act, the entire property would devolve upon his father Kochukunjan Nadar. Hence, Kochukunjan Nadar is well within his powers to transfer the property of 8 cents to the 6[th] R.S.A.Nos.1122/2006 and conn.cases 30 defendant. 19. The 6[th] defendant did not have any such contentions before the courts below and no argument that Ext.A21 is void as against plaintiffs and defendants 4 and 5 was also advanced before the courts below. However, since the argument so advanced by the learned counsel is a substantial question of law this Court is bound to entertain the question so raised. As per Ext.B32 Kochukunjan Nadar and his wife after the death of Vedanayakam Nadar, on the ground that his right will devolve upon them being the parents, transferred their 1/5th share over the 40 cents to the 6[th] defendant. But it has been found by the courts below that 6[th] defendant obtained 1/5th of plaint C schedule property which is an undivided right. The rest of the property belongs to the plaintiffs and defendants 4 and 5 entailing 1/5th share each to them and hence the 1/5[th] share each out of C schedule property allotted to the plaintiffs and the defendants 4 to 6. 20. The contention of the learned counsel is that except Vedanayakam parties No.2 to 5 in Ext.A21 are minors and hence R.S.A.Nos.1122/2006 and conn.cases 31 they are not competent to contract and hence the sale deed Ext.A21 is void as against them and they will not get any right over the C schedule property as per Ext.A21. 21. In this Context, the learned counsel bring to my attention **Dhurmodas Ghose v. Mohori Bibee and Others 1903 ILR 30 PC 539** ; in that decision the effect of contract with infants has been dealt with and it has been held that Section 7 of the Transfer of Property Act provides that every person competent to contract and entitled to transfrable property is competent to transfer such property in the circumstances to the extent and in the manner allowed and prescribed by any law for the time being in force. In Para No.16 the impact of Section 11 of the Contract Act, defining the persons competent to contract also has been discussed and it has been held that, a person who by reason of infancy is incompetent to contract cannot make a contract within the meaning of the Act. The impact of Section 68 of the Contract Act, has also been discussed which provides that if a person incapable of entering into a contract or any one whom he is legally bound to support is supplied by another person with R.S.A.Nos.1122/2006 and conn.cases 32 necessaries suited to condition in life, the perosn who has furnished such supplies is entitled to reimburse from the property of such incapable person. Hence, it is found that an infant falls within the class of persons here referred as incapable of entering into a contract and it is clear from the Act that he is not to be liable even for necessaries and that no demand in respect there of is enforceable against him by law though a statutory claim is created against his property. 22. **Mathai Mathai v. Joseph Mary @ Marikkutty Joseph and Others : AIR 2014 SC 2277:2014 KHC 4323** was further brought to my attention by the counsel wherein it has been held that a mortgage in the name of a minor is not valid unless the minor is represented by natural guardian or guardian appointed by court. For laying the above principles **Mohori Bibee** was followed. 23. So according to the learned counsel since the sale effected to plaintiffs and defendants 4 and 5 as per Ext.A21 is without being represented by a guardian, it is void. Para No.9 of **Mathai Mathai** was highlighted by the learned counsel. In that R.S.A.Nos.1122/2006 and conn.cases 33 case a mortgage deed was executed in favour of deceased mother of the appellant who was a minor aged 15 years at the time of execution of the mortgage deed. In the said context, it was found that to acquire competency to enter into a contract the parties should have been age of majority as required under Section 11 of the Indian Contract Act, 1872. The decision in **Mohori Bibee** was referred and it has been held that the contracting party should be competent to contract and minors contract was held to be void as he cannot be a mortgagor or mortgagee. 24. So, according to the learned counsel, since plaintiffs and the defendants 4 and 5 were not attained majority they cannot enter into a valid contract and hence Ext.A21 is void as against them and hence the entire property covered by Ext.A21 deemed to have been transferred in favour of the 1[st] party Vedanayakam. Since he died after two years unmarried and issueless as per Section 42 of the Indian Succession Act, the property will devolve upon his father Kochukunjan Nadar. Since the property vested with Kochukunjan Nadar as his absolute R.S.A.Nos.1122/2006 and conn.cases 34 property, he is well within his powers to transfer 8 cents of property out of it as per Ext.A32 to the 6[th] defendant. So the findings made by the courts below that the property transferred to the 6[th] defendant is only the 1/5th share out of Ext.A21 is not correct position of law and the property sold to the 6[th] defendant as per Ext.B32 is to be set apart to him,the learned counsel contends. 25. Learned counsel for the second defendant, on the other hand, would contend that Section 7 of the Transfer of Property Act prohibits only transfer by a person not competent to transfer and there is no bar for transferring the property in favour of a minor as per Section 7. He would also contend that in **Mohori Bibee** 's case, paragraph 13 deals with contracts of infants and he would contend that while discussing Section 7 of the T.P.Act, it has been discussed that every person competent to contract and entitle to transfer property is competent to transfer such property and it deals with only persons competent to contract and hence, according to him, **Mohori Bibee** 's case does not deal with transfer in favour of a minor or competency of the R.S.A.Nos.1122/2006 and conn.cases 35 minor accepting the transfer. He would also contend that in **Mathai Mathai** Section 7 of the T.P.Act has not been dealt with and hence the principles laid down in **Mohori Bibee** cannot be made applicable to the present case. He would contend that it is following the dictum laid down in **Mohori Bibee** 's case that the issue in **Mathai Mathai** has been considered without discussing the ambit and scope of Section 7 of the T.P.Act which only bars the competency of a person to make transfer. 26. So the crucial question for determination is whether there is any bar in accepting the transfer by a minor. Section 7 of T.P. Act provides that every person competent to contract and entitled to transferable property or authorised to dispose of transferable property not his own is competent to transfer such property either wholly or in part and either absolutely or conditionally, in the circumstances to the extent and in the manner allowed and prescribed by any law for the time being in force. So Section 7 of the T.P. Act deals with the competency of the transferor and does not provide about the competency of the transferee. Section 6 of the T.P. Act deals with the properties R.S.A.Nos.1122/2006 and conn.cases 36 which could be transferred and Sub clause (h) which is relevant in this context provides that no transfer can be made (1) in so far as it is opposed to the nature of interest affected thereby or (2) for an unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act, 1872, or (3) to a person legally disqualified to be transferee. So obviously no transfer can be made to a person legally disqualified to be a transferee. So whether minor will come under the category of a legally disqualified person is another question. 27. In **Balakrishnan v. Kamalm [2004 (1) KLT 623 (SC)]** a two Judge Bench of the Apex Court had occasion to consider the gift made in favour of child of the donor. It is true that Section 127 of the T.P.Act provides that a donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if after becoming competent to contract and being aware of the obligation he retains the property given he becomes bound by the gift. The learned counsel for the 6[th] defendant has also got a contention that only Section 127 of the T.P. Act recognize the transfer in favour of R.S.A.Nos.1122/2006 and conn.cases 37 disqualified persons. But that cannot be made applicable in the case of any other transfers like sale, mortgage, lease etc. 28. In **Balakrishnan v. Kamalam** referred above it is true that the case was in relation to a gift made by the donor mother in favour of her child. But in para No.22 of the said decision the Apex Court had laid down a proposition that under the Transfer of Property Act read with Indian Contract Act, the acquisition of property being generally in benefit of a child , he can take property in any manner whatsoever either under in intestacy or by will or by purchase or gift or other assurance intervivos, except where it is clearly to his prejudice to do so. 29. It is relevant in this context to quote **Vijayakumar Motilal Plaintiff v, New Zealand Insurance Com.Ltd Defendants :** **AIR 1954 Bombay 347** where Bombay High Court considered a transaction of an agent entering into a contract of insurance on behalf of guardian of minor and question arouse as to whether the minor is entitled to sue on such contract. The suit was filed for recovery of money on a contract of fire insurance for the loss caused due to fire. The plaintiff was a minor at the time of R.S.A.Nos.1122/2006 and conn.cases 38 institution of suit. Defendants are the insurance company. While dealing with that issue there was an argument advanced in para No.13 by the defendant that the contract in suit was contract by a minor and as per Section 11 of the Contract Act such contract is void. **Mohori Bibee's** case referred above was placed reliance but it has been found by the learned Single Judge that the proposition laid down by the Privy Counsel in **Mohori Bibee's** case being in general term would have lead to startling results if very strictly applied. For in that case for guarding the interest of minors over whom the law throws its aegis of protection it would have done in calculable harm to their rights and caused much hardships. It is also found push to a logical conclusion the Privy Counsel's decision would have made it impossible for a minor to get benefit under or enforce any contract entered into by him even when the consideration has been wholly received by the other contracting party and it is also held that no such difficult position has arisen since the courts in India have as a rule in effect confined the application of the Privy Counsel ruling only to cases where a minor is charged with obligations and the other R.S.A.Nos.1122/2006 and conn.cases 39 contracting party seeks to enforce those obligation against the minor. It is true that in that case the contract was entered into not by the minor himself but by the guardian of the minor through an agent and for the benefit of the minor. Hence the contention of the defendants that the plaintiffs is not entitled to sue on the ground of his minority at the time of contract was negatived. 30. In **Jaykant Harikishandas Shah v. Durgashanker Valji** **Padya : (1970) 11 GLR 178 : MANU/GJ/0145/1968** is another decision in which Section 11 of the Contract Act and effects of contracts imposing personal liability on minors came up for consideration. In that case a de facto guardian imposed a liability upon a minor by executing a lease deed on behalf of minor and the question arouse whether minor is bound by any liability if incurred from the business. **Mohori Bibee's** case as well as **Vijakumar Motilal** referred above have been discussed and ultimately it was held that de facto guardian of a minor cannot start a new business on behalf of the minor which would impose liability on the minor, hence he cannot enter into a new business R.S.A.Nos.1122/2006 and conn.cases 40 on behalf of minor by which the liability to pay the rent would be incurred on behalf of the minor. Wherein it has also been discussed that there is nothing in the Transfer of Property Act according to which it is said that a minor is disqualified to be a transferee. There is no question of application of Section 7 because the minor is not a transferor in that case. Section 11 of the Indian Contract Act would not come in the way of Transfer of Property in favour of the minor. 31. In the present case, as per Ext.A21 property was purchased in the name of Vedanayakam Nadar and four minors who are plaintiffs 1 and 2 and defendants 4 and 5. Though it is contended by the counsel for the 6[th] defendant that the property was purchased by Kochukunjan Nadar in the name of his sons and hence it has to be taken as a purchase by the father on behalf of the minors, it has not been so recited in Ext.A21. It is true that Ext.A21 would show that even Vedanayakam Nadar was a student at the time of execution of Ext.A21. So the source of money may be from the father. But without any specific recitals in the document it cannot be found that the property was R.S.A.Nos.1122/2006 and conn.cases 41 purchased by Kochukunjan Nadar. But it is to be noted that the 1[st] purchaser was a major and when the document specifies that property was sold in the name of five persons including four minors the first person being the elder brother, the purchase can also be taken as a purchase for and on behalf of the minor brothers. That is the reason why no such contentions was raised against the right of the plaintiffs and defendants 4 and 5 before the courts below or no such pleading was raised by the 6[th] defendant in the written statement also. The purchase of property definitely would enure to the benefit of the minor children and there is no express bar in purchase of property by the minors as per Section 7 or Section 6(h) of the T.P. Act. So also no obligation has been cast upon the minors by the execution of Ext.A21. Moreover, one of the brothers Vedanayakam was a major at the time of execution of deed. So the contention of the learned counsel for the 6[th] defendant that Ext.A21 document is void as against the plaintiffs and defendants 4 and 5 is not sustainable in law. 32. It is contended on behalf of the 4[th] defendant that the R.S.A.Nos.1122/2006 and conn.cases 42 suit is not maintainable in view of Sections 4, 9, 10 and 13 of the Kerala Survey and Boundaries Act, 1961 (for short 'the Act') as well as Rule 22 of Kerala Survey and Boundary Rules, 1964. According to him, in a suit for partition, the prayer for setting aside the re-survey sub division is not maintainable. Section 4 of the Act provides that the Government or subject to the control of the Government, any officer or, authority authorised by the Government in this behalf, may, by notification in the Gazette, order the survey of any land or of any boundary of any land or of the boundary forming the common limit of any Government land and registered land. Section 9 deals with the power of the Survey Officer to determine and record as undisputed any boundary in respect of which no dispute is brought to his notice and sub Section (2) of Section 9 provides that notice of every decision of the Survey Officer under sub-section (1) shall be published in the Gazette or in two daily newspapers which, in the opinion of Survey Officer have wide circulation in the locality in which the land in respect of which the survey has been ordered is situated. Section 10 of the Act empowers the Survey Officer to determine R.S.A.Nos.1122/2006 and conn.cases 43 and record a disputed boundary and notice of every decision of officer shall be given in the prescribed manner to the parties to the dispute and other registered holders of the lands the boundaries of which may be affected by the decision and Section 13 of the Act provides that when the survey of any land or boundary which has been notified under Section 4 or ordered under section 5 has been completed in accordance with the orders passed under section 5 has been completed in accordance with the order passed under section 9, section 10 or section 11 the Survey Officer shall notify the fact in the Gazette and a copy of such notification shall be posted in the village office, if any of the village to which the survey relates. It also provides that unless the survey so notified is modified by an order of the Collector under Section 13A or modified by a decree of the 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. As per the Amendment Act, 2007 the words that unless the notification by the Survey Officer under Section 13 is modified by R.S.A.Nos.1122/2006 and conn.cases 44 an order of Collector under Section 13A or by a decree of Civil Court has been inserted. Section 14 of the Act also gave right to any person aggrieved by the determination of any boundary under Sections 9, 10 or 11 or aggrieved by an order passed by the Collector under sub Section (1) of Section 13A may subject to the provisions of the law of limitation in force for the time being, institute a suit within one year from the date of the notification under section 13 to set aside or modify the said determination and the survey shall, if necessary, be altered in accordance with the final decree in the suit and the alteration, if any, shall be noted in the records. The period of one year limitation is not applicable in a case instituted disputing survey demarcation based on title (See **Venugopalan Nair v. Saraswathi Amma : 2013 (4) KLT 717** ). So, Section 14 itself empowers any person aggrieved by the determination of boundary under Sections 9, 10 and 11 to institute a suit to set aside or modify the determination and Act also empowers the civil court to alter the boundaries in accordance with the final decrees in the suit and to note the same in the records. That is, exactly what is sought for by the R.S.A.Nos.1122/2006 45 and conn.cases plaintiff while seeking to set aside the survey sub division wrongly made after the execution of the cancellation deed as well as the subsequent deed by deceased Kochukunjan Nadar. Rule 22 of the Kerala Survey and Boundaries Rules, 1964 which deals with the contingencies where new sub-division is to be made though placed reliance by the learned counsel, Section 14 of the Act is not controlled by Rule 22 of the Rules. 33. It has already been found that Ext.A1 settlement deed executed by Kochukunju Nadar is valid and binding on the parties. So, the contention of the learned counsel for the 4[th] defendant that the suit is not maintainable as per Sections 4, 9, 10 and 13 of the Act is not at all sustainable in law. Based on the afore discussions, I find that Regular Second Appeals are devoid of any merit and hence dismissed. In the facts and circumstances, there is no order as to costs. ## (sd/-) **M.R.ANITHA, JUDGE** jsr P.S to Judge True Copy