SUNDARESAN NAIR Vs. MALLAN NADAR KESAVAN NADAR

JUDGEMENT

(1.) A slight deviation in the survey boundary precipitated in re-survey proceedings is the bone of contention in the above appeal. Whether such deviation is natural or unnatural is not the question. But, the conclusiveness of the re-survey conducted by the authorities under the Kerala Survey and Boundaries Act, 1961, hereinafter referred to as "the Survey Act", especially when the plaintiff suffered an order in a validly filed appeal and failed to challenge the same; is the question directly arising in the appeal.

(2.) THE plaintiff sued for a declaration of title and possession of the plaint schedule property, injunction against any trespass into the plaint schedule property and destruction of the pathway lying on the western boundary of the plaint schedule property and a restrain order from cutting and removing the trees standing on the western boundary of the plaint schedule property. The plaintiff also sought for erection of a wall on the southern boundary. It was pleaded that defendants 1 to 4, having property on the western boundary, attempted trespass and destruction of the pathway. Defendants 5 and 6 were the property owners on the southern boundary. Defendants 1 and 2 filed joint written statement, while defendants 3 and 4 remained ex parte. Defendants 5 and 6 though filed a joint written statement, did not participate in the trial. They have not appeared before the first appellate Court or before this Court. The suit having been decreed and affirmed in first appeal, the defendants 1 and 2 alone are before this Court. Hence, the grant of the relief, with respect to the southern boundary is not under challenge.

(3.) THE suit was originally filed as O.S.No.755 of 1993 before the Munsiff's Court and a Commission was also taken out. Subsequently, noticing a defect in jurisdiction, the exact nature of which is not evident from the records, the suit was permitted to be withdrawn and presented before the Sub Court. The suit was returned on 27.3.1995 and was presented before the Sub Court on 14.6.1995.