M.M. Ismail, J.
1. The plaintiff in O.S. No. 32 of 1966 on the file of the Court of District Mjnsif, Nagapattiaam, who lost before the Courts below is the appellant herein.
2. The plaintiff was the owner of the land in T.S. No. 1741. In that land an extent of 1 acre and 1,609 sq. ft. was sought to be acquired by the Government under the provisions of the Land Acquisition Act. From Exhibit B-g, the copy of the award, it appears that the notification under Section 4(1) of the Land Acquisition Act was pubished in the Fort St. George Gazette, dated 27th March, I9.63 and the declaration under Section 6(1) of the Act was published in the Fort St. George Gazette, dated 16th October, 1963. Thereafter, the award was passed on 13th August, 1964. Admittedly, the declaration under Section 6(1) of the Act referred to the extent of the land sought to be acquired only as 1 acre and 1,609 sq. ft. and the award also provides for compensation only for that extent of land. The case of the appellant is that when subsequently in October, 1964, he went to the spot, he found that the area enclosed between the boundary stones was actutally 1 acre and 3,240 sq. ft. in excess of the land acquired under the Land Acquisition Act. As soon as he found this excess, he moved the revenue authorities in this behalf. Exhibit A-1 is a notice issued under the Survey and Boundaries Act, 1923 by the Firka Revenue Inspector. Though the year is not mentioned, the notice is shown to be 15th August, and from the subsequent proceedings, it will be clear that it was 15th August, 1964. This notice showed the sub-divisions of T.S. No. 1749 as 1-A measuring 18,767 sq. ft. and 1-B measuring 1 acre and 1,609 sq. ft. the latter being the land acquired under the provisions of the Land Acquisition Act. That notice also stated that any apleal with reference to that notice will have to be preferred to the Taluk Tahsildar within a period of three months from the date of the receipt of the notice. According to the appellant, he received the notice on 17th September, 1964 and on 12th October, 1964. he sent a communication to the Tahsildar, Nagapattinam, under Exhibit A-9 requesting him to supply him with a copy of the field map within a week or ten days, so as to enable him to take proceedings by way of objection or otherwise. He sent an appeal dated 11th November, 1964 to the Tahsildar under Exhibit A-1 complaining of taking possession of the excess land. He sent additional objections under Exhibit B-1 dated 3oth November, 1964 to the Tahsildar. The objection petition sent by him was returned to the appellant on 8th December, 1964 by the Tahsildar, Nagapattinam, stating that the objection might be sent to the Revenue Divisional Officer, Nagapattinam, who was the Land Acquisition Officer and who passed the award. However, the Revenue Divisional Officer, Nagapattinam, by his endorsement dated 25th January, 1965, marked as Exhibit A-4 informed the appellant that the petition was being forwarded to the Tahsildar, Nagapattinam, who was the competent authority to dispose of it. Under Exhibit A-5 dated 22nd February, 1965, the Tahsildar, Nagapattinam, informed the appellant as follows:
The adjusted area adopted in the above case of acquisition is correct as per instructions contained in Appendix VIII to B.S.O. No. 34-A. The petition is, therefore, rejected.
It is thereafter after issue of notice, the appellant instituted the present suit claiming the value of the excess land of 1631 sq. ft. and some compensation for a certain pipe line totalling Rs. 1,206-06.
3. As far as the present second appeal is concerned, it is confined only to the claim of value of land amounting to Rs. 750-26 P. since the appellant had obtained relief with regard to the other claim from the lower appellate Court. The respondent herein filed a written statement. In that written statement, there was no denial that the respondent took possession of or occuped the excess extent of the land. All that was contended in the written statement was that the appellant should have agitated his claim before the Land Acquisition Officer in the land acquisition proceedings and he ought not, to have filed the present suit and Section 18 of the Land Acquisition Act is a bar to the present suit. In paragraph 4, it is further stated as follows:
Further this defendant submits that as the demarcation of survey has been completed and notified, the record of survey is conclusive proof of 1 the boundaries determined and recorded and is not liable to be questioned except as provided under law. The plaintiff is not entitled to any relief in this suit in regard to the extent of land covered by such demarcation.
4. The learned District Munsif held that the suit was barred by Section 18 of the Land Acquisition Act since the appellant should have agitated his claim for compensation for the excess extent of land only in the proceedings under the Act and his independent suit was not competent and consequently he dismissed the suit on 29th July, 1967. As against this dismissal, the appellant preferred an appeal, namely, A.S. No. 24 of 1968 before the learned Subordinate Judge of Nagapattinam. In that appeal, the parties filed I.A. Nos. 317 and 33 of 1968 seeking to let in additional evidence and those applications were ordered and the appellant filed Exhibit A-13, a notice issued by the Revenue Officer, Nagapattinam to the appellant, dated 9th July, 1964 and the respondent filed Exhibit B-6 Sub-Division Sketch for T.S. No. 1749; Exhibit B-7, dated 30th September, 1962, town survey extract for T.S. No. 1749; Exhibit B-8, dated 29th September, 1962 copy of area calculation sheet of T.S. No. 1749/1B, Exhibit B-9, dated 13th August, 1964 award passed by the Land Acquisition Officer, Nagapattinam Award No. 5 and Exhibit B-10, dated 16th November, 1964 field register extract from Ward II-Block No. 1.
5. The learned Subordinate Judge also dismissed the suit of the appellant in this behalf; but as I pointed out already, he has given relief with regard to the compensation claimed by him for the pipe line of 430 feet running underneath the ground in the site acquired. It is the correctness of the decision of the learned Subordinate Judge dismissing the claim of the appellant for the value of the excess land which is challenged before me in the present second appeal.
6. Immediately, I may mention one thing. As I pointed out already, the written statement filed by the respondent did not deny that the respondent took possession of or occupied the excess extent of 1,631 sq. ft. So long as the land acquisition proceedings were confined only to the acquisition of 1 acre and 1,609 sq. ft. the excess extent occupied or taken possession of by the respondent can only be said to be illegal taking over or occupation of the land. Before the learned Subordinate Judge, probably it was contended that really no excess land was occupied and that is the reason why the learned Subordinate Judge had posed the following point as one of the points for determination:
Whether the contention of the defendant that the site acquired is only of an extent of 1 acre and 1,609 square feet as notified by it is correct
If the respondent had not denied in the written statement that it had taken over or occupied the excess extent of the land, without there being an amendment of the written statement, how such a question can be raised before the appellate Court, passes one's comprehension Notwithstanding this, even the learned Subordinate Judge who posed such a point for determination has not recorded a finding that the respondent had not taken possession of the excess extent of land and has taken possession of exactly 1 acre and 1,609 sq. ft. notified for acquisition and actually acquired under the Land Acquisition Act, Under these circumstances the only qeustion for consideration is whether the respondent can take refuge under Appendix VIII to Board Standing Order No. 34-A paragraph 13(a), as contended by the Tahsildar, Nagapattinam in his communication, dated 22nd February, 1965 Pent to the appellant under Exhibit A-5. I am clearly of the opinion that that particular provision contained in the Appendix has no application whatever to the facts of this case. Chapter II of the Board Standing Order--Volume II deals with maintenance of revenue records and registration and Board Standing Order No. 34-A deals with the same in the normal course of revenue administration. Paragraph 13 of the said Board Standing Order provides for the procedure to be followed in demarcating, measuring, mapping and registering a new survey field or sub-division and in demarcating Sub-divisions already mapped and legistered. The provisions in Appendix VIII are as follows:
Where the difference between the actual area and the registered area of either the entire survey field or of its component sub-divisions does not exceed 5 per cent., no alteration should be made in the registered area....
2. Where the actual area of the entire field does not differ from its registered area by more than 5 per cent., but the actual area of any of its component sub-divisions differs from the registered area by more than that limit, the area of each of the sub-divisions should be adjusted rateably with reference to the registered area of the whole field and the areas so adjusted should be adopted....
3. Where the actual area of the entire survey field differs from its registered area by more than 5 per cent, no adjustment is permissible, but the actual area should be adopted for the entire survey field and for its component sub-divisions.
4. The above instructions apply also to cases when new sub-divisions are created in an entire survey field or in an already existing sub-division.
7. I am unable to see how those provisions contained in Appendix VIII can have any application whatever to the present case. Out of a larger extent of land, the Government is acquiring a part, namely, a specified extent of 1 acre and 1,609 sq. ft. Consequently, all that the authorities had to do was to sub-divide the original survey number into two, one sub-division covering the acquired portion of 1 acre and 1,609 sq. ft. and the other sub-division covering the balance. Whether that balance will be more or less than the registered area is totally irrelevant for the purpose of sub-division. Apart from this, the instructions contained in Appendix VIII can apply only where there is difference between the registered area and the actual area available on ground. In this particular case, there is absolutely no evidence, even after the admission of additional documents before the first appellate Court, to show what was the registered area and what Was the actual area and whether there was any difference between the two or not. On the other hand, Exhibit B-8 will clearly indicate that there is no scope whatever for invoking Appendix VIII to Board Standing Order No. 34-A. Exhibit B-8 is said to be an area calculation sheet prepared by the Tow n Surveyor, Nagapattinam, sub-dividing T.S. No. 1749 into 1749/1-A and 1749/1-B. It is shown in Exhibit B-8 as follows:
-------------------------------------------T.S. No. Actual Adopted area.area.-------------------------------------------1749/1-A 0--19,366 0--18,767 sq. ft. 1749/1-B 1-- 3,050 1-- 1,609 sq. ft.------------------------------1--22,416 1--20,376 sq. ft.-------------------------------------------
There is nothing there to show that there was any difference between the registered area and the actual area available, so as to attract the application of Appendix VIII to Board Standing Order No. 34-A. On the other hand, it is curious to note how the actual area of 19,366 sq. ft. in T.S. No. 1749/1-A can be adopted as 18,767 sq. ft. and the actual area of 1 acre and 3,050 sq. ft. in T.S. No. 1749/1-B can be adopted as 1 acre and 1,609 sq. ft. The respondent had not made clear undar what authority and under what rule this adoption can be made by, reducing the actual area. Taking all these things into consideration, it is clear that the respondent had taken possession of an excess extent of 1,631 sq. ft. over and above what was acquired under the provisions of the Land Acquisition Act and the respondent had no authority or right to take possession of that excess land and no law justifying or warranting such taking possession of excess land exists.
8. As far as the conclusion of the Courts below that Section 18 of the Land Acquisition Act is a bar to the present suit is concerned, I am unable to see how Section 18 can come into the picture at all. Section 18 merely states that if a person interested is not accepting the award passed by the Land Acquisition Officer and objects to the same either with reference to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among, the persons interested, be will have to call upon the Land Acquisition Officer to make a reference to the civil Court. Where the award itself specified the extent of the land only as 1 acre and 1,609 sq. ft. and there was nothing to show that a wrong measurement was adopted, there is no question of the appellant objecting to the measurement with reference to the award and, therefore, calling upon the Land Acquisition Officer to refer the matter to the Court. As I pointed out already, the awatd in this case was, dated 13th August, 1964 and Exhibit A-1, the notice sent by the Firka Revenue Inspector was dated 15th August, 1964 said to have been received by the appellant to prefer his objections only to the Tahsildar of the taluk. Consequently, the appellant, on the terms of the award, could not have any objection to the award and, therefore, could not have raised any objection with reference thereto. His complaint actually is that the respondent had taken possession of the land not acquhed under the provisions of the Land Acquisition Act and in such a situation, Section 18 can have no application whatever. As I pointed out already, Section 18, in terms, does not apply to the present complaint of the appellant and hence his suit cannot be said to have been barred by that provision.
9. Then remains the question regarding the actual value of the land to which the appellant is entitled. In paragraph 5 of the plaint, the appellant has stated that though the land would be much more valuable, he was claiming the value of the land only at the rate at which the Land Acquisition Officer has paiu compensation for the land actually acquired and on the part of the respondent, there was no dispute about the amount of value for the land claimed by him. In these circumstances, the second appeal is allowed and the judgment and decrees of the Courts below so far as they denied to the appellant the value of the land as claimed by him are set aside and the suit of the appellant will stand decreed in this behalf as prayed for with costs in all the Courts. No leave.