Decision of Survey officer final and binding.

One of the points raised in this case is as regards the finality of the decision of a Survey Officer when that decision is not challenged within the prescribed time by means of a suit. There are two conflicting decisions on this point namely Ponnuswami Servai v. Mariappa Servai1and Nagarathnam v. Guruswami2. The learned District Munsiff who decided this case in the first instance has pointed out in his judgment as follows:

“This conflict of decisions is a matter which could be set at rest only by the High Court and I have no option but to follow the latest decision on the point which according to the usual rule of following precedents should prevail.”

The first judgment in point of time was pronounced on 24th November, 1942, and the second judgment at point of time was dated 27th July, 1942. Both sides request that this matter may be placed before a Bench so that an authoritative decision can be got and it seems to me right and proper that it should be so referred to. The papers will be placed before my Lord the Chief Justice for appropriate orders.

(In pursuance of the above Order of Reference this appeal coming on for hearing, the Court delivered the following

Judgment: Govinda Menon, J.- This second appeal has been referred to a Bench by our learned brother Ramaswami, J., on account of the apparent conflict between two single Judge’s decisions of this Court, viz., Ponnuswami v. Mariappa Servai1and Nagarathnam v. Guruswami2. At the time our learned brother referred the case to a Bench, i.e., on 7th September, 1951 the decision of the Bench of this Court in Krishna Chundra v. Ramamurthy Pantulu3, had not been reported though the Judges had pronounced their judgment nearly five months earlier. The learned Chief Justice and Somasundaram, J., after considering the conflict between the two cases have laid down following the decision in Sri Sri Maharaja Krishnachandra Gajapathi Narayana Deo v. Rokkan Venkatapaa Rao Dora,4, that the question as to whether the determination of the boundary of a village under section 13 of the Madras Survey and Boundaries Act of 1923 will affect title to a piece of land lying within the said boundary would depend very much upon the nature of the claim to that land and the questions that arose for decision before the Survey Officer. The Learned Judges further went on to hold that there may be a case in which the result of a boundary fixed by the survey officer becoming conclusive under section 13 of the Act may have an indirect effect on the title to an area covered by the boundary; but strictly speaking this is not because the survey officer has any jurisdiction to determine the question of title and that it is the indirect result of the fixing of the boundary.

The point here is whether the re-survey plot marked Bin yellow colour in the Commissioner’s plan belongs to the Puthukudi Illom under whom the plaintiffs claim or is part of the defendants’ land which is registered as R.S. No. 173/1. On the question of title and possession both the lower Courts have found that the yellow marked portion belongs to the plaintiffs’ Jenmi. But it is argued that since this land according to the survey is included within R.S. No. 173/1 it should be held that in the absence of a suit under section 14 of the Madras Survey and Boundaries Act, the plaintiffs are debarred from claiming title or possession to that site. One thing has to be mentioned here and that is that the Jenmi of this disputed property, viz., the Puthukudi Illom has not been made a party to the suit. Ex. D-6 series are notices issued by the survey officer under section 9(2) of the Madras Survey and Boundaries Act (VIII of 1923) intimating to the defendants the result of the survey and informing them that if they have any dispute regarding thereto they have to file an application regarding that dispute under section 10(1) of the said Act. There is no evidence that there was any dispute at all; but even if there is no dispute as held by the Bench i