IMPORTANT POINT
The court established that a party must act within the limitation period to challenge survey determinations, and easement rights can be extinguished if they become incapable of being beneficial.

JUDGMENT :

G. ARUL MURUGAN, J.

Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, 1908 against the judgment and decree dated 28.04.2005 made in A.S. No. 6 of 2005 on the file of the Sub Court, Bhavani confirming the judgment and decree dated 29.08.2003 made in O.S. No. 890 of 1992 on the file of the I Additional District Munsif Court, Bhavani.

1. The instant second appeal is filed by the plaintiff challenging the Judgment and decree dated 28.04.2005 in A.S. No. 6 of 2005 on the file of the Sub Court, Bhavani, confirming the judgment and decree dated 29.08.2003 made in O.S. No. 890 of 1992 on the file of the I Additional District Munsif Court, Bhavani.

2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.

3. The brief facts in the plaint are as follows: As per the plaint, there is a total extent of 5.01 acres of land in S.F. No. 544 of Ennamangalam Village, Bhavani Taluk. As per the exchange deed executed on 21.09.1936, an extent of 2.50.5 acres, i.e. half of the property mentioned in the suit A schedule property belongs to one Kumarappa Gounder, and the other extent of 2.50.5 acres in the B schedule property came to the hands of Nachiyappa Gounder, who is the paternal grand father of the plaintiff. The A schedule property, which belongs to Kumarappa Gounder has now come into the hands of the 3rd defendant. As per the plaint, it is admitted that there is a ridge (‘polie’) between the A schedule property and the B schedule property, which has been in existence even prior to the date of the exchange deed and further there are coconut trees located east of the ridge in the B schedule property and between the ridge and the coconut trees in the B schedule property, there is a vaikal that runs from north to south.

4. According to the plaint, when a resurvey was conducted, defendants 1 & 2 have without verifying the records wrongly sub divided the 3rd defendant’s properties as R.S. No. 281/3 showing an extent of 1.18.0 hectares that is 2.84 acres, whereas the 3rd defendant is actually entitled only for 2.50.5 acres. The plaintiffs have filed the suit claiming that proper notices were not issued at the time of resurvey and pray for a declaration and permanent injunction in respect of B schedule property and also seek to declare the resurvey conducted for S.F. No. 544 to an extent of 5.01 acres in Ennamangalam Village as invalid and not binding on the plaintiff and also claim half share right in the well in ‘A’ schedule property.

5. Brief facts in the written statement are as follows: The suit was resisted by the official defendants 1 and 2 by filing a written statement stating that proper notices were given to the plaintiff’s father under the Tamil Nadu Survey and Boundaries Act, 1923 and that S.F. No. 544 has been sub divided and re-numbered as R.S. No. 281/3. Further, after completion of the survey under Section 9(2) of the Act, notices were served on 14.04.1977 and a notification was also published under Section 13 of the Act on 27.08.1977. Therefore as three years have lapsed, from the date of the notification, the suit filed challenging the survey completed in the year 1977 is not maintainable and barred by limitation.

6. The 3rd and 4th private defendants have resisted the suit by filing the written statement and it is admitted that there is dividing ridge in between the A and B schedule properties which was in existence even before the exchange deed dated 21.09.1936. According to these defendants, the plaintiff neither has any right nor he was in possession of any of the land on the west of the dividing ridge and that he is always in possession and enjoyment of the lands located on the east of the dividing ridge. It is further submitted that apart from these lands, the parties are in possession of further extent of poramboke lands annexing to that portions. Further, it is stated that the plaintiff and his predecessors were never in possession of any area west of t