Judgment : 1. Second Appeal No.1360 of 1988 arises out of O.S.No.163 of 1985 and Second Appeal No.1361 of 1988 arises out of O.S.No.227 of 1985, both the suits on the file of the Subordinate Judges Court, Sankari. 2. Suit O.S.No.163 of 1985 was for declaration that the plaintiffs therein were entitled to the suit property and for permanent injunction restraining the defendants and their men from in any way interfering with the plaintiffs peaceful possession and enjoyment of the suit property. O.S.No.227 of 1985 was for a permanent injunction restraining the defendants therein, their men, servant, and agent from in any way interfering with the peaceful possession and enjoyment of S.No.31/1A by the plaintiffs. 3. The plaintiffs, 1, 2, 4 to 6 in O.S.No.163 of 1985 are the appellants in S.A.No.1360 of 1985. They were defendants 2, 1, 4, 6 and 7 in O.S.No.227 of 1985. The respondents in S.A.No.1360 of 1985 were the defendants and the third plaintiff in O.S.No.163 of 1985 and they were respectively defendants 3, 5 and 8 in S.A.No.1361 of 1988. 4. The short point for consideration in both the appeals, as stated by the learned senior counsel for the appellants, is as to the mode of division and enjoyment of the properties by the parties. It is necessary to have a genealogical table for proper appreciation of the dispute between the parties. A genealogical tree is given in the printed judgment of the lower appellate court and the same is extracted below: 5. For purposes of the present discussion the reference to the parties will be as per the ranks in O.S.No.163 of 1985. There were three brothers Sengoda Gounder, Kumarasamy Gounder and Sellappa Gounder. We are not concerned with the the branch of Sengoda Gounder, Kumarasamy Gounders son was Palani Gounder, who had two sons: (1) Pachaiyannan and (2) Kumarasamy and this Kumarasamy is the first defendant. Pachaiyannas son is one Palanimuthu, who is the second defendant and the widow of Pachaiyannan, Pavayee Ammal is the third defendant. Sellappa Gounders sons were Nallaiya Gounder, Pachaiyan, Chinna Gounder and Palani Gounder. Nallaiya Gounders son Thangamuthu alias Sellappa Gounder is the second plaintiff. Pachaiyans son-in-law Sengoda Gounder is the first plaintiff. Chinna Gounders heirs Kandappa Gounder and Nalla Gounder are plaintiffs 3 and 4. Plaintiff No.5 is the second wife of Palani Gounder and plaintiff No.6 is the son. They claimed under Palani Gounder. Nallaiya Gounders son Thangamuthu alias Sellappa Gounder is the second plaintiff. Pachaiyans son-in-law Sengoda Gounder is the first plaintiff. Chinna Gounders heirs Kandappa Gounder and Nalla Gounder are plaintiffs 3 and 4. Plaintiff No.5 is the second wife of Palani Gounder and plaintiff No.6 is the son. They claimed under Palani Gounder. The genealogy is not disputed. 6. The plaintiffs case is that about 17 years prior to the suit, in or about 1965-66, there was an oral partition between the defendants on the one hand and the plaintiffs on the other. In the said partition it was agreed that the northern 2 acres of land marked in RED colour in the plaint rough plan should be allotted to the defendants and the southern 2 acres to the plaintiffs. This extent should be further divided into four shares of half and acre each marked in the plain rough plan, in green. It was also specifically agreed that the portion marked ‘A’ should be allotted to the first plaintiff, the portion marked ‘B’ should be allotted to the second plaintiff, the portion marked ‘C’ should be allotted to plaintiffs 3 and 4 and the portion marked ‘D’ to be allotted to plaintiffs 5 and 6. It was so agreed and accepted, and possession of the respective shares was also taken immediately after the said oral partition. Ever since each of the sharers was in possession and enjoyment of the properties allotted to him separately in his own right and to the knowledge of everybody including the defendants. The plaintiffs reclaimed their land, levelled the same and closed the pits and were cultivating the same. The fourth plaintiff had also put up a power loom factory in his land, which was in or about 1979. There was a high tension power line running across the portion marked A and B. It was only plaintiffs 1 and 2 who had expressed their objection for such a power line to be taken and the telephone line to be installed across their lands. The defendants had no manner of right in the land across which the said power line was running and hence they had not raised any objections. The lands were punja lands and only groundnut crop was being raised for many years by the parties after the oral partition and allotment. The defendants had no manner of right in the land across which the said power line was running and hence they had not raised any objections. The lands were punja lands and only groundnut crop was being raised for many years by the parties after the oral partition and allotment. Finding that the property allotted to the plaintiffs had a frontage in the Komarapalayam - Tiruchengode Main Road and the price of the land on the road side would be more, the defendants grew greedy and wanted to take advantage of the fact that there was no partition deed and were attempting to trespass upon the suit property belonging to plaintiffs 1 and 2 making a novel claim that the property should be divided afresh. They could not ask for a fresh partition. On 19.5.1983, the defendants came with about 20 persons armed with deadly weapons tried to commit trespass into the suit property stating that they had got patta for the plaintiffs properties in their favour. But for the intervention of respectable persons and tactful behaviour of the plaintiffs, the defendants would have trespassed and succeeded in ousting the plaintiffs from the suit property. A police complaint was given by the first plaintiffs son. Only thereafter, it was found that the patta had been wrongly issued for the plaintiffs property in the name of the defendants as though the said properties had been allotted to them. There was no sub-division of the properties alleged by the defendants. There was no notice, at any time, given to the plaintiffs, and not even to their adjoining owners. There was no opportunity given for the plaintiffs or adjoining landowners to represent their title or enjoyment of the properties. The sub-division was incorrect and improper, and it was against the facts and it was against the title and enjoyment of the properties by the parties. The plaintiffs had represented their grievances to the Special Assistant director of Survey and Land Records on 20.5.1983. He ordered the Inspector of Survey, Updating Registry Scheme, Trichengode, to inspect the filed in question, namely, the land comprised in S.No.31/1 and submit his report within three days. The plaintiffs had represented their grievances to the Special Assistant director of Survey and Land Records on 20.5.1983. He ordered the Inspector of Survey, Updating Registry Scheme, Trichengode, to inspect the filed in question, namely, the land comprised in S.No.31/1 and submit his report within three days. However, the defendants acted in a high handed manner and on the basis of patta alleged to have been issued to them tried to trespass into the suit property on 23.5.1983 and attempted to cause damage to the ploughed lands and to the power loom factory of the forth plaintiff. There was intervention by respectable persons and the problem was solved temporarily. The suit, therefore, came to be filed for the reliefs already mentioned. 7. The first defendant, namely, Kumarasami Gounder, filed a written statement disputing the mode of allotment pleaded by the plaintiffs and stating that the lands had been divided east-west and not north-south as claimed by the plaintiffs. The land in the possession and enjoyment of the defendants was sub-divided as S.No.31/1A measuring 2.52 acres in the recent government Survey conducted just prior to the suit and the defendants were given patta for the said lands. The sub-divisions were effected as power the respective separate possession and enjoyment of the parties. The defendants had been given patta under patta Nos. 4 and 3 in respect of S.No.31/1A measuring 1.02.0 hectares equivalent to 2.52 acres. So also, the plaintiffs had been given patta S.No.31/18 measuring 2.27 acres. There was no doubt an oral partition even during the life time of their ancestors, namely, Sengoda Gounder, Kumarasami Gounder and Sellappa Gounder about 50 years prior to the suit, and 7.29 acres in S.No.31/1 and their other lands were orally divided and partitioned among the three sharers and eversince each of them had been in separate possession and enjoyment of his share and these separate shares devolved on their respective heirs. In the property, Sengoda Gounder was allotted about 2.50 acres on the eastern side and on the northern portion from the road in the south-north strips. The said share has been sub-divided as S.No.31/1C to 31/1K as per the possession and enjoyment of respective parties. In the property, Sengoda Gounder was allotted about 2.50 acres on the eastern side and on the northern portion from the road in the south-north strips. The said share has been sub-divided as S.No.31/1C to 31/1K as per the possession and enjoyment of respective parties. The western northern portion 2.52 acres, out of 7.29 acres, was allotted to Kumarasami Gounder, the defendants ancestors from the road in the South in South to northern strip and the same had been sub-divided as S.No.31/A measuring 1.02.0 hectares out of 2.52 acres. The middle share was allotted to Sellappa Gounder and the same was in the possession and enjoyment of the plaintiffs son Palani Gounder. The Government under the scheme of Update Survey and Settlement had measured the separate possession and enjoyment of the parties and accordingly sub-divided as per their separate possession and enjoyment and separate patta had been issued. It was only the plaintiffs, who tried to commit trespass and the same was averted by the intervention of the defendants and other respectable persons. The defendants filed O.S.No.68 of 1983 before the Vacation Civil Judge, Salem and in I.A.No.710 of 1983 obtained an order of interim injunction against the plaintiffs from committing trespass. The said suit was renumbered as O.S.No.327 of 1983 after the summer vacation, on the file of the District Munsif, Tiruchengode. The plaintiffs had suppressed the filing of the earlier suit. 8. The trial court accepted the case of the plaintiffs, decreed their suit and dismissed the other suit filed by defendants 1 and 2. However, on appeal in A.S.Nos.193 of 1986 and 197 of 1986, the learned Additional District Judge, Salem, reversed the decision of the trial court, allowed both the appeals and dismissed the suit O.S.No.163 of 1985 filed by the plaintiffs and decreed the suit O.S.No.227 of 1985 filed by the defendants. It is, as against this, the present second appeals have been filed and at the time of admission, the following substantial questions of law were raised for decision: 1. Whether the communication of the order of the Survey Officer under Sec.9(1) of the Tamil Nadu Survey and Boundaries Act is mandatory or not as per Sec.9(1) of the said Act. 2. Whether the communication of the order of the Survey Officer under Sec.9(1) of the Tamil Nadu Survey and Boundaries Act is mandatory or not as per Sec.9(1) of the said Act. 2. Whether because the appellants had knowledge about the issue of patta to respondents 1 to 3, the survey officer is precluded from complying with the provisions of Sec.9(2) of the Tamil Nadu Survey and Boundaries Act. 9. A mere reading of the judgment of the lower appellate court gives the impression that the learned Additional District Judge had got mixed up the rival contentions of the parties. A reading of paragraph 16 onwards would bear this out. Sheer confusion permeates the whole judgment. More often than onto it is not known as to whose case the learned judge is discussing about. The learned Additional District Judge has proceeded to rely on the UDR Scheme proceedings where the defendants were granted patta in respect of the suit lands without notice being served on the plaintiffs. According to the learned Additional District Judge, the provisions of the Survey and Boundaries Act do not contemplate any notice being given to the parties and further even according to the plaintiffs, they knew about the proceedings and that nothing prevented them from raising objections before the Tahsildar. It is the finding by the learned District Judge that those survey proceedings got over prior to the filing of the suits and they would have binding effect. It is to be noticed that the plaintiffs took exception to the authorities under the Surveys and Boundaries Act granting patta in favour of the defendants without reference to the plaintiffs. The Assistant Director of Survey and Boundaries was addressed by the plaintiffs. The Assistant Director called for a report from the Tahsildar. Thereafter there was a fresh enquiry. However, the Tahsildar made a mistake in not considering the objections raised by the defendants. The defendants filed and appeal before the Revenue Divisional Officer, who set aside the order of the Tahsildar confirmed the patta already issued in favour of the plaintiffs. The appeal therefor by the defendants was dismissed. Thereafter there was a fresh enquiry. However, the Tahsildar made a mistake in not considering the objections raised by the defendants. The defendants filed and appeal before the Revenue Divisional Officer, who set aside the order of the Tahsildar confirmed the patta already issued in favour of the plaintiffs. The appeal therefor by the defendants was dismissed. These proceedings were not taken into consideration by the lower appellate court on the ground that when these proceedings came to an end, the suit had been filed and the result of those proceedings would not matter and that it was for the civil court to decide the question. Having observed that the learned Additional District Judge accepted the prior UDR proceedings as conclusive, that the plaintiffs were not entitled to notice and that the case of the defendants stood proved. The case of the respective parties with regard to the partitions pleaded by them was not at all considered by the appellate court. The lower appellate court without proper consideration of the materials on record and without giving proper weight to the proceedings under the Act, on mere surmises came to the conclusion that the facts and circumstances showed that the ancient partition set up by the defendants stood proved. The Additional District Judge would not consider the independent evidence of P.Ws.2 and 3 who were adjacent owners of the suit properties. According to the learned Additional District Judge, P.Ws.2 and 3 do not speak any partition either prior to the suit or between the years 1965-66 and what they spoke was only separate enjoyment. The rejection of the independent third party evidence by the lower appellate court is wholly unjustified. As already noticed, the lower appellate court had concentrated more on the UDR proceedings and in particular the ex parte proceedings holding that the defendants were entitled to patta in respect of the suit lands. 10. It is in this connection that Mr.R.Krishnasamy, learned Senior Counsel, took exception to the conclusion reached by the lower appellate court that the patta issued in favour of the defendants was binding on the plaintiffs since they had knowledge of the same overlooking that the patta had been issued in their favour without taking into consideration the possession and enjoyment of the parties. The learned Senior counsel further submitted that even under Sec.9(1) of the Act providing for issuance of patta with regard to the property over which there was no dispute, there was mandatory requirement that notice of the decision under Sec.9(2) had to be sent to the authorities concerned and when there was dispute, the Survey Officer was bound to send notices of his decision to the registered holders of the lands, the boundaries of which might be affected by his decision. By reason of the ex parte proceedings, the boundaries of the owners of the lands having been changed, the Survey Officer was duty bound to send notices to the plaintiffs as well about his decision of recording such boundaries as required under Sec.9(2) of the Act. The mere notification under Sec.6 of the Act would not be sufficient and in this regard the learned Additional District Judge was in error. The provisions of Sec.9(2) being mandatory, the failure by the Survey Officer to comply with the said requirement vitiated the proceedings and rightly those proceedings were set aside and revised proceedings were initiated in which the plaintiffs were given patta on the basis of their possession. 11. Let us nowhave a look at the relevant provision. Under Sec.6, when any survey is ordered under Sec.5, the Survey Officer shall publish a notification in the prescribed manner inviting all persons having any interest in the land or in the boundaries of which the survey has been ordered, to attend either in person or by agent at a specified place and time and from time to time thereafter when called upon for the purpose of pointing out boundaries and supply information in connection therewith. Such notification shall be held to be a valid notice to every person having any interest in the land or in the boundaries of which the survey has been ordered. Under Sec.9, the Survey Officer shall power to determine and record as undisputed any boundary in respect of which no dispute is brought to his notice. Sub-sec.(2) provides that notice of every decision of the survey officer under Sec.9(1) shall be given in the prescribed manner to the registered holders of the lands the boundaries of which may be affected by the decision. Sub-sec.(2) provides that notice of every decision of the survey officer under Sec.9(1) shall be given in the prescribed manner to the registered holders of the lands the boundaries of which may be affected by the decision. So far as Sec.9 is concerned, it contemplates a situation where there is no dispute in respect of any boundary being brought to his notice. Even then notice is required to be given under Sec.9(2) to registered holders of the lands affected by the decision. Sec.10, provides for a situation when there is no dispute with regard to boundary, where a boundary is disputed, the survey officer, after making such inquiry as he considers necessary, shall determine the boundary and record it in accordance with his decision. The survey officer shall record in writing the reasons for this decisions. Sub-sec.(2) of Sec.10 requires notice to the 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. Sec.11, provides for appeal against the decision of the survey officer either under Sec.9 or under Sec.10. Any modification of the survey officers decision, ordered by the appellate authority with reasons therefor shall be recorded in writing and notice of such decision shall be given in the prescribed manner to the parties to the appeal. A copy of the order and a copy of the map recording the boundaries as determined under Sec.9, 10 or 11(1) shall be furnished to any person interested in such order or map as the case may be on his application and at his cost. There are provisions for second appeal and revision with which we we are not presently concerned. 12. In V.M.S.Kandaswamy Nadar v. The Province of Madras V.M.S.Kandaswamy Nadar v. The Province of Madras V.M.S.Kandaswamy Nadar v. The Province of Madras (1952)1 MLJ. 804 : A.I.R. 1953 Mad. 391 it has been held that where the party concerned had no notice of the survey as contemplated by Sec.9(ii) of the Act, it could not be said that there had been a completion of the survey in accordance with the orders passed under Sec.9 of the Act within the meaning of Sec.13 and therefore the party adversely affected whereby was not bound to file a suit within three years to set aside the order of the Survey Officer. This principle is reiterated in Paramakudi Sri Sundaraja Perumal Devasthanam v. SKC.Kanakasabapathy Chettiar Paramakudi Sri Sundaraja Perumal Devasthanam v. SKC.Kanakasabapathy Chettiar Paramakudi Sri Sundaraja Perumal Devasthanam v. SKC.Kanakasabapathy Chettiar 97 L.W. 198. From the above rulings it would be clear that the ex parte order without notice to the plaintiffs had been rightly set aside and a redenomination was ordered. The reliance by the lower appellate court on the ex parte decision as conclusively determining the rights of parties, cannot therefore be upheld. 13. Then, we are left with the decision in the subsequent proceedings, in which, though initially there was a decision given without reference to the objections raised by the defendants, however, subsequently, after a remand by the appellate authority there was a decision in a properly conducted enquiry. This is very clear from Ex.A-16, dated 12.1.1984, the proceedings of the Tahsildar, Tiruchengode. The Tahsildar has gone into the question thoroughly and has found the case of the plaintiffs with regard to the enjoyment as acceptable and supported by materials. An objection appears to have been raised before the Tahsildar to the effect that the case had to be decided only by a competent civil court and till such time the matter got decided by the civil court, the survey authorities had to keep their hands off. Rightly did, the Tahsildar reject this contention holding that he was not touching any point regarding the subject matter of the cases pending before the civil court. According to the Tahsildar he was competent to sanction sub divisions according to the enjoyment of the parties as per para.3(iii) of BSO 31 and that if any of the parties was aggrieved by the orders, he could go on appeal before the Sub-Collector, revision to the Additional Collector and Commissioner of Land Administration and after all these things if he is not satisfied, he could file a suit in a civil court to maintain his right with reference to records. In short, the revenue authorities, were the officials, competent to do sub-divisions and this was in accordance with B.P.Rt.No.5812 (F), dated 5.10.1972. 14. The patta has been issued by the authorities as per the enjoyment. The approach by the lower appellate court in this regard has already been found to be faulty. 15. In short, the revenue authorities, were the officials, competent to do sub-divisions and this was in accordance with B.P.Rt.No.5812 (F), dated 5.10.1972. 14. The patta has been issued by the authorities as per the enjoyment. The approach by the lower appellate court in this regard has already been found to be faulty. 15. Now, we are left with the question as to the partition arrangement pleaded by the plaintiffs, as opposed to the still earlier arrangement pleaded by the defendants. On this question, there is the independent evidence of P.Ws.2 and 3, the adjacent owners of the property. The lower appellate court has rejected the oral evidence of PWs.2 and 3 on the alleged admission by the second plaintiff as P.W.2 that he accepted the mode of division as suggested by the defendants. 16. The learned counsel appearing for the respondents. Mr.T.D.Vasu, took me through the oral evidence of P.W.1 where, according to the learned counsel, there was admission regarding the mode of enjoyment in the manner alleged by the defendants. In chief-examination this is what the second plaintiff has said: From this is sought to be made out that the mode of division as South and North as alleged by the plaintiffs had been given a-go-by. A proper reading of the relevant evidence clearly shows that in the southern half on the western side the first plaintiff is in occupation and it belongs to him. This has been taken as admission by the lower appellate court on the side of the plaintiffs and in the process, the lower appellate court rejected the oral evidence of P.Ws.2 and 3. In para.17 of his judgment the learned First Additional District Judge has observed as follows: “Thus the evidence of P.W.1 in substance out and out proves the case of the appellants. From the evidence of P.W.1 it is impossible to hold that there was a partition either prior to the suit or in or about 1965-66 but at the same time if any inference at all is possible it is only in respect of the ancient partition set-forth by the appellants. It is significant to note that in the pleadings in O.S.No.227 of 1985 concerning the respondents it is said that the heirs of Komarasamy and heirs of Sellappa enjoyed the western four acres of S.No.31/1 between 1956 and 1966 jointly. If so, the pleadings are in variance with the evidence. It is significant to note that in the pleadings in O.S.No.227 of 1985 concerning the respondents it is said that the heirs of Komarasamy and heirs of Sellappa enjoyed the western four acres of S.No.31/1 between 1956 and 1966 jointly. If so, the pleadings are in variance with the evidence. When no partition is proved by the respondents, and when the evidence of P.W.1 and evidence of D.W.1 the facts and circumstances show the ancient partition set up by appellants to be true, it must be believed P.Ws.2 and 3 have been examined on the ground that they are adjacent owners. In view of the evidence of P.W.1 the evidence of P.Ws.2 and 3 could not advance the case of the respondent any further. Even P.Ws.2 and 3 do not speak of any partition either prior to the suit or between the years 1965 and 1966 for what they speak is only separate enjoyment. P.W.3 goes to the extent of saving that the heirs have enjoyed as their predecessors in interest had enjoyed separately.” 17. The reasoning of the learned Additional District Judge is clearly erroneous and his rejection of the evidence of P.Ws.2 and 3 cannot also be supported as they are independent witnesses and they have spoken to the enjoyment of the plaintiffs as claimed by them. P.W.3 has spoken to the enjoyment of the plaintiffs predecessors in interest also. This goes a long way in proving the case of the plaintiffs. As against such independent evidence, the first plaintiffs. As against such independent evidence, the first plaintiff alone had examined himself as D.W.1. No adjacent owners had been examined on the side of the defendants. The lower appellate court has lightly brushed aside the fact that only the plaintiffs had objected to the taking of electric and telephone lines over the lands claimed by them. The entire approach of the lower appellate court, we have already noticed, is faulty. The lower appellate court has been influenced and in my view wrongly by the proceedings in which the plaintiffs had not been heard. I have absolutely no doubt that the lower appellate court as final court of fact had come to accept the case of the defendants on practically no evidence. the reasoning is arbitrary and perverse. The lower appellate court has been influenced and in my view wrongly by the proceedings in which the plaintiffs had not been heard. I have absolutely no doubt that the lower appellate court as final court of fact had come to accept the case of the defendants on practically no evidence. the reasoning is arbitrary and perverse. Important and relevant evidence has been ignored by the lower appellate court while arriving at a finding in favour of the defendants. The lower appellate court has applied wrong tests and had on the basis of conjectures and assumptions held against the appellants. It has not focussed its attention on the weighty reasons advanced by the trial court and without examining the material on record in a proper perspective has interfered with the finding reached by the trial court. Essentially erroneously approach by the lower appellate court compels me to interfere under Sec.100, C.P.C. Consequently, the substantial questions of law raised are answered in favour of the appellants. The second appeals stand allowed, the judgment and the decree of the lower appellate court are set aside and those of the trial court restored. Consequently, C.M.P.Nos.13786 and 13787 of 1988 are closed.