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2014 DIGILAW 552 (MAD)

P. T. Narayana Nair v. Tahsildar

2014-02-28

M.VENUGOPAL

body2014
JUDGMENT 1. The petitioner has preferred the instant Writ of Mandamus praying for passing of an order by this Court in directing the Respondents particularly, the 1st Respondent to pass necessary order and direct the Taluk Surveyor attached to his office to survey and demarcate the boundaries of the land, measuring 36 cents comprised in Survey No.236/41G1 pursuant to his application dated 31.01.2012 after giving notice to all persons interested in the surrounding lands and furnish the copy of the report to him. 2. According to the petitioner, he is permanently living in United States of America. He is a citizen of India. He has a Flat at No.11, 5, Madhava Road, Mahalingapuram, Nungambakkam, Chennai and stayed there, on his visit to India. His late father K.K.Nair, along with his sister P.T.Lakshmi, mother P.T.Janaki and himself purchased number of properties in Survey Nos.236/1B5B, 236/2A and 236/41 (new sub division), in Jalladampet Village, Sholinganallur Taluk, Chengalpattu District through registered sale deed Nos.67 of 69 and 693 to 696 of 1995. The total extent is 10.03 acres. His father died and through a Will, which was later probated and he gifted his portion of lands to his mother. His father expired during the year 1980 and mother passed away on 15.11.2005 in Calicut, where she had shifted from Chennai after the demise of his father. He and his sister live in USA from the year 1972 and his mother was left without any one to assist her in managing the properties. Therefore, we had to depend on and reposed to their trust in one M.K.Kumar and M.K.Vijayashankar, cousins of his mother. Their driver name is Vaidyalingam. He used to go to Calicut on behalf of Kumar and Vijayashankar to collect documents and money to pay taxes from time to time. His mother trusted them and handed over documents pertaining to properties and investments. His mother expired during the year 2005. 3. He and his sister came from USA and tried to sort out their paper work on their property like succession certificate and other formalities. Under these circumstances, during the year 2010-2011, the said Kumar, Vijayashankar and vidyalingam became very non-co-operative in the matter and found that something was wrong. His mother expired during the year 2005. 3. He and his sister came from USA and tried to sort out their paper work on their property like succession certificate and other formalities. Under these circumstances, during the year 2010-2011, the said Kumar, Vijayashankar and vidyalingam became very non-co-operative in the matter and found that something was wrong. As such they caused an enquiry and found that the persons taking advantage of their absence from Chennai on the helplessness and demise of his mother, had fraudulently transferred the properties to a group of people running Asan Memorial College and one Dr.Jeyaraman by creating and fabricating false documents and committing forgery. As such they were in the process of knowing the details and gathering documents thereof in order to initiate legal action to retrieve their properties. However, the present writ petition does not relates to those fraudulent transfers. However, it is with reference to one property remaining still untouched by the said miscreants and standing in his name. Thus property measures 36 cents and that belongs to him, since it is part of lands purchased by him. 4. On coming to know of the fraud committed by the aforesaid persons, the petitioner filed petitions before the Revenue authorities and applied for survey and demarcation of the said property measuring 36 cents belonging to him. He made an application to the 1st Respondent on 31st January 2012 along with necessary fees. The said 36 cents is within the 10.03 acres of land and to his knowledge it is in Survey No.236/41G/1. The persons claiming to be the property owners, having purchased the properties by the fraudulent sale deeds had fenced all the properties together along with the unsold 36 cents. As a matter of fact, he had entered into a sale agreement in respect of that property with one Mr.Harikumar. 5. The 1st Respondent had not directed the Taluk Surveyor to do the survey of the said lands. The respondents are bound to consider his application and they should order the survey in law. It is their obligation to do the same. 6. 5. The 1st Respondent had not directed the Taluk Surveyor to do the survey of the said lands. The respondents are bound to consider his application and they should order the survey in law. It is their obligation to do the same. 6. It comes to be known from page No.7 of the typed set of papers (filed in the present writ petition) that the petitioner's petition was mentioned in the reference and in the subject caption, it was mentioned of that the petitioner had prayed for issuance of patta in his favour and in this regard when the Sub-Inspector of Survey, Taluk Office, Shollinganallur in his communication dated 08.02.2012 addressed to the Tahsildar, Shollinganallur had inter-alia stated that the entire file was transmitted to the Revenue Divisional Officer for taking further action. 7. It is to be noted that the petitioner on 31.01.2012, had submitted a printed application addressed to the 1st Respondent making a request to measure his land in respect of Survey No.236/41G1 bearing Patta No.424. At this stage, it is needless this Court to make a significant mention that the Tamil Nadu Survey and Boundaries Act, 1923 is an inbuilt and self-contained one. Further, as per Section 10 of the Tamil Nadu Survey and Boundaries Act, 1923 the survey officer is to determine and record a disputed boundary. The conclusiveness of the decision of a survey officer in a boundary dispute is not confined to the mere abstract question of what are the physical boundaries, but extends to questions of title which have been decided and were necessary to be decided. 8. At this stage, this Court cites the following decisions: (1) In the decision Sengoda Gounder Vs. Komarasami Gounder (2001) 1 MLJ 29 at special page 30, it is held that the exparte order without notice to plaintiffs had been rightly set aside and a re-determination ordered. (2) In the decision Venugopal Vs. Chandrakasa Padayachi 2003(2) CTC 677 , it is held that Sections 9 to 12 of the Tamil Nadu Survey and Boundaries Act, 1923, would reveal that these Sections are in respect of fixing of boundaries of undisputed boundaries. (3) in the decision Lingappa Gounder Vs. Palanisamy Gounder AIR 2006 Madras 192, it is held that any order passed without issuance of notice regarding survey will not bind the party to whom no notice was served. 9. (3) in the decision Lingappa Gounder Vs. Palanisamy Gounder AIR 2006 Madras 192, it is held that any order passed without issuance of notice regarding survey will not bind the party to whom no notice was served. 9. As far as the present case is concerned, in view of the limited prayer of the petitioner in the writ petition is only for passing of an order by this Court in directing the 1st Respondent to issue necessary orders by directing the Taluk Surveyor attached to his office to survey and demarcate the boundaries of the land measuring 36 cents comprised in Survey No.236/41G1 pursuant to the petitioner's application dated 31.01.2012, this Court, on the basis of Equity, Fair Play and even as a matter of prudence, directs the 1st Respondent/Tahsildar, Shollinganallur to consider the application of the petitioner dated 31.01.2012 in a Fair, Just, dispassionate manner and in terms of the ingredients of the Tamil Nadu Survey and Boundaries Act, 1923 and to dispose of the same in the manner known to law and in accordance with law (of course, after providing due opportunities to the petitioner by adhering to the principles of natural justice) within a period of eight weeks from the date of receipt of a copy of this order.