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V.E.R.S. Ramaswamy Chettiar Vs. Assistant Engineer and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1968)2MLJ171
AppellantV.E.R.S. Ramaswamy Chettiar
RespondentAssistant Engineer and ors.
Cases ReferredMadras v. Karuppiak Ambalam
Excerpt:
- .....to put up a building on the site, a dispute was raised as to whether the site was included in the road poramboke in s. no. 384. thereupon, the petitioner, according to his affidavit, made an application to the survey officer, musiri, under section 10 (1) of the madras survey and boundaries act, 1923 complaining that the above mentioned property, which was really part of his land, had been erroneously included in 1927 in the survey conducted in that year, without notice to him and that the said survey was wholly wrong because it included the petitioner's private property within the boundaries of the road poramboke. the survey officer took evidence but refused to alter the boundary and confirmed the present demarcation. thereafter, the petitioner preferred an appeal to the appellate.....
Judgment:
ORDER

P. Ramakrishnan, J.

1. The petitioner claims to be the owner of S. No. 357/791 in Thuraiyur village, adjoining the bazaar road which bears S. No. 384. The predecessor-in-title of the petitioner purchased the property in Court auction and also obtained a sale certificate on 9th June, 1933 in execution of a decree on a mortgage. The petitioner got the property in a subsequent partition and has been enjoying the property ever since. When he wanted to put up a building on the site, a dispute was raised as to whether the site was included in the road poramboke in S. No. 384. Thereupon, the petitioner, according to his affidavit, made an application to the Survey Officer, Musiri, under Section 10 (1) of the Madras Survey and Boundaries Act, 1923 complaining that the above mentioned property, which was really part of his land, had been erroneously included in 1927 in the survey conducted in that year, without notice to him and that the said survey Was wholly wrong because it included the petitioner's private property within the boundaries of the road poramboke. The Survey Officer took evidence but refused to alter the boundary and confirmed the present demarcation. Thereafter, the petitioner preferred an appeal to the Appellate Survey Officer, Salem, under Section 11 (1) of the Survey and Boundaries Act. The said officer heard the appeal and on a perusal of the petitioner's documents came to the conclusion that what was really a part of the petitioner's land had been included in the road poramboke in the survey held in the year 1927 and that at the time of survey it was doubtful if the statutory notice under Section 9 (2) of the Survey and Boundaries Act had been given to the petitioner, because on a reference made to the Assistant Director of Survey, it was ascertained that the records relating to the service of the above notice was not available for production. The petitioner contends that since he has succeeded in the above manner in respect of his principal contention before the Appellate Sarvey Officer the latter officer should have thereafter passed appropriate orders for altering the boundary in such a manner that the portion erroneously included in the road poramboke in the 1927 survey should be excluded and included in survey number allotted to the petitioner's property. The affidavit of the petitioner went on to allege that subsequently the Village where in the disputed S. Nos. are situate, and which formed part of an estate, was taken over by the Government under the Estates (Abolition and Conversion into Ryotwari) Act, 1948 (XXVI of 1948) and for the purpose of effecting a ryotwari settlement under that Act, a re-survey had been conducted under Section 21 of the Estates Abolition Act, that at that re-survey, the earlier demarcation of S. No. 384 as highways road poramboke was confirmed. The petitioner contends that this is illegal and should be set aside. It was urged that the re-survey under Section 21 of the Estates Abolition Act is not a general survey under the Survey and Boundaries Act but is limited to the introduction of the ryotwari settlement.

2. In the counter-affidavit filed by the Deputy Director of Survey and Land Records on behalf of the respondents in this writ petition, it is alleged that the re-survey under Section 21 of the Madras Act XXVI of 1948 had been effected in accordance with the provisions of the Survey and Boundaries Act, 1923, that a decision had been given in that survey that the disputed land formed part of the road poramboke, and that the Survey authorities who had been asked to dispose of the dispute about the boundary could not ignore that decision given at the time of the re-survey under Section 21 of the Estates Abolition Act. The petitioner, if he is aggrieved with the decision of the re-survey, can seek his remedies by way of a civil suit after the publication of a final notification under Section 13 of the Survey and Boundaries Act, 1923.

3. Learned Counsel appearing for the petitioner has referred me to the orders of the Appellate Survey Officer dated 20th April, 1964. That officer has referred to the documents produced by the petitioner as well as particular of enjoyment on ground, which show that the disputed land constitutes the frontage of the house of the petitioner, and cannot be treated as part of the adjacent street poramboke as per state on ground and that the present demarcation including it in the adjacent street is contrary to the state of affairs on ground. The officer also refers to a reply which he got from the Assistant Director of Survey on a reference made to him that the relevant records in connection, with the 1927 survey of estate were not available with him and that therefore it was not possible to know whether the Section 9 (2) notice was served on the owners or not. The officer observed that regarding the conclusiveness of the boundaries as per the earlier survey, the benefit of the doubt, should go to the petitioner. After giving his opinion in this manner the Appellate Survey Officer however refused to alter the boundary because in his view he could not do it on account of the fact that' the executive machinery created under the Estate Abolition Act has considered that the suit land forms part of the adjacent highways road poramboke.' Therefore he dismissed the appeal.

4. The petitioner has come to this Court aggrieved by the above order and seeks for the issue of a writ of certiorari under sect on 226 of the Constitution quashing the above orders of the Appellate Survey Officer. Mr. M. S. Venkatarama Ayyar, learned Counsel for the petitioner, stated that having given his conclusion on the facts in the above manner in favour of the petitioner and having stated that the earlier survey would not bind him, the Appellate Survey Officer ought to have Sen the appropriate relief under Section 11 of the Survey and Boundaries Act and that it was Improper for him to decline to make such an order on the ground that the executive authority under the Estate Abolition Act had arrived at a contrary decision Learned Counsel also referred to the decision of Ramachandra Ayyar J. in state of Madras v. Karuppiak Ambalam (1959) 1 M.L.J. 85. In that judgment the learned Judge observed that when a village is taken over by the Government under the provisions of the States Abolition Act and for the purpose of making a ryotwari settlement, survey is undertaken under Section 21 of the Act, it does not mean that the entire provisions of the Survey and Boundaries Act get incorporated in the Madras Act XXVI of 1948 and that such of the provisions of the Survey and Boundaries Act which are inconsistent with or unnecessary for the working out of the provisions of he Estates Abolition Act cannot be attracted in cases of survey held under the latter Act. The learned Judge proceeded to hold that in respect of lands in a village taken over by the Government under the Abolition Act, there is no ownership of any private individual till that person obtains ryotwari patta from the Government and that individual till that person obtains ryotwari Boundaries Act cannot apply as the concerned party could not be held to be a person aggrieved as he had no title to the property before he was granted a ryotwari patta.

5. I must observe that in the counter-affidavit filed by the Deputy Director of Survey in the present case, there is an averment that the survey under Section 21 of The Sites Abolition Act had been effected in accordance with the provisions of Survey and Boundaries Act and that the petitioner could seek his remedy by a civil suit after publication of a final notification under Section 13 of the Survey and Boundaries Act under Section 14. If this position represents the true state of affairs, so far as the estate in the present case is concerned, it may be proper to hold that the decision above cited that Section 14 of the Survey and Boundaries Ac will not apply to a case of re-survey of estates under Section 21 of the Estates Abolition Act may not apply to the circumstances of this ease. However, it appears to me that for the purpose of the present writ petition it is not necessary to examine further the above question as to whether the petitioner has a remedy by way of suit, for the following reasons.

6. It is common ground that both the adjacent highways road poramboke and the petitioner's land formed part of an estate village which taken over by the Government by the application of the Estates Abolition Act. The petitioner claims the disputed land as an appurtenant to his building. The appellate survey officer has also given a categorical finding in his decision that the land is a frontage to the house of the petitioner, and that it could never form part of the adjacent street poramboke as per state of things on ground. In such circumstances there will arise a question for decision under Section 18(6) of the Madras Estates (Abolition and Conversion into Ryotwari) Act. Section 18(4) of the Act says:

(4) Every building other than a building referred to in Sub-sections (1), (2) and (3) shall with effect on and from the notified date, vest in the person who owned it immediately before that date.

Section 18 (6) says;

(6) If any question arises whether any building or land falls or does not fall within the scope of Sub-sections (1), (2), (3), (4) or (5) it shall be referred to the Government whose decision shall be final and not be liable to be questioned in any Court of law.

Under the subsequent rules, the power to decide this question has been delegated by the Government to the Board of Revenue. In the above circumstances, if the facts are established as claimed by the petitioner that the disputed land is an essential part of his building constituting its frontage and could never form part of the street poramboke, he will be entitled to the appropriate remedy under Section 18 (6) of the Estates Abolition Act which he could obtain by an application to the Board of Revenue which has been empowered by the Government to deal with that question. It will not be proper in such circumstances to decide that question by way of writ proceedings in this Court.

7. Therefore while dismissing the petition I give the further direction that it is open to the petitioner to make an application to the Board of Revenue under Section 18 (6), of the Estates Abolition Act forgetting the appropriate relief if he is found entitled to it. There will be no order as to costs.


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