Muthirulandi Poosari v. Sethuram Aiyar

Phillips, J.:— The question at issue in this appeal is whether the suit site belongs to plaintiffs or defendants. The District Judge, differing from the District Munsif, has found that in a litigation between the predecessors of the parties in 1900 the suit lane was found to belong to plaintiffs. In 1904–1906 the Madura Town Survey took place and the site was demarcated by the survey authorities as belonging to defendants. In the written statement it was pleaded that this demarcation took place after the settloment of a dispute between the parties and we must take it that this was so, although respondents now set up a contention, which was apparently never set up before, that there was no dispute about the site. In this view the decision of the Survey Officer was not ultra vires, whatever view be taken of the litigation of 1900 and 1902, for the parties referred their dispute to him and he had jurisdiction to determine it. The decision of the Survey Officer was not appealed against, nor did plaintiffs, file a suit within one year of the order. The District Judge, however, relying on the decision in Krishnamma v. Achayya, has held that in this suit for possession the decision of the Survey Officer does not estop plaintiffs from asserting their rights, and has found that plaintiffs were in possession in 1900 and 1902, and that the present suit is not barred by limitation by virtue of section 13 of Act IV of 1397. The decision in Krishnamma v. Achayya, does not appear to have been overruled, but in Kamaraju v. The Secretary of State for India(2) it was held that decision of a Survey Officer under the Boundary Act (XXVIII of 1860) was res judicata, and this was the view of another Full Bench in Muthammal v. The Secretary of State for India(3). Similarly is B. Krishna Rau v. Lakshmana Shanbhogue(4), Velayuthan v. Laksmana(5) and Peela Yarahayya v. Venkata Krishnamraju(6) it was held that an adverse order on a claim petition, when no suit was afterwards filed to set it aside, was a bar to the same plea in subsequent proceedings. In Raj Bahadoor Singh v. Achumbit Lal(7), which is quoted as authority in Krishnamma v. Achayya, it was held that it was unnecessary to set aside an adoption, which was wholly invalid, before bringing a suit for possession, and undoubtedly when the order to be set aside is ultra vires a suit need not be brought to set it aside before suing for an independent relief [vide Shivaji Yesji Chawan v. The Collector of Ratnagiri]. In Jagadamba Chaodhrani v. Dakhina Mohun Roy Chaodhri the decision in Raj Bahadoor Singh v. Achumbit Lal was explained as being based upon this ground, and the Judges in Nagu v. Salu referred to this and consequently doubted the authority of Krishnamma v. Achayya.

We cannot accept respondents' contention by which it is sought to uphold the decree appealed against, that plaintiffs had held adverse possession for over twelve years, for such possession must have been interrupted when the Survey Officer gave his decision and fixed the demarcation stones. It might be possible to distinguish Krishnamma v. Achayya on the ground that in that case it was not shown that the demarcation interfered with plaintiffs' possession so as to give rise to a cause of action, but as the facts appear to be very similar to those of the present case I think it advisable to refer to a Full Bench the following question:—

“When a plaintiff's claim has been disallowed under the Surveys and Boundaries Act IV of 1897, but he has been in possession of the property, does the decision of the Survey Officer operate as res judicata in a subsequent suit for possession?”

Seshagiri Ayyar, J.:— I agree that the question should be referred to a Full Bench. I take the facts found to be these:— There was a decision in favour of the plaintiff in Original Suit No. 802 of 1900 about a plot of ground. Subsequent to the decision the parties disputed whether that decision included the property in suit. Even in this suit, the Courts belows are not agreed whether the plot in dispute was included in the previous decree, the Court of First Instance holding one way and the lower Appellate Court the other way. In 1904 there was a survey of the town of Madura. From the judgment of the District Judge I take it that the plaintiff and the defendant asked the Survey Officer to determine to which of them the site now in dispute belonged. I am also of opinion that it must have been with reference to the question whether the decree included this site or not. I am sure that the decree was before the Survey Officer. He gave his decision in favour of the defendant. Plaintiff did not bring a suit to contest it. Mr. Venkatarayalayya contended that so long as a person against whom a Survey Officer has given his decision is in possession of the property he is not bound to set aside the order; and he is supported by Krishnamma v. Achayya. I regard the decision of the Survey Officer as in the nature of an award assigning the property in dispute to the defendant. In that view the defendant acquired a title to the property on the data of the Survey Officer's demarcation. The authorities to which my learned brother referred show that in similar circumstances where the Legislature has enacted that a decision would be final unless set aside within a prescribed period by the Civil Court, the party against whom the order was passed would be barred by res judicata even though he was in possession. Krishnamma v. Achayya is not reconcilable with these, decisions. I therefore agree that the question propounded by my learned brother should be submitted to the decision, of a Full Bench.

On this Reference—

M.S Ramanuja Ayyangar for C.S Venkatachariyar or appellants.— The decision of the Survey Officer was passed under section 11(2) of the Act on a dispute that arose between the parties as to the possession and ownership of the land and the boundary was then fixed by the Survey Officer as a result of his decision in favour of the present appellants. There was no appeal from, that decision nor any suit filed within one year to question that decision as provided by sections 12 and 13 of the Act. Hence that, order is final and conclusive both as to title and possession and bars the institution of the present suit. In Krishnamma v. Achayya which is relied on by the District Judge it does not appear that there was any dispute and that any decision of the Survey Officer was passed after dispute. Hence that decision is not applicable.

A. Venkatarayalayya and L. Venkatanarasayya for respondents relied on Krishnamma v. Achayya as a case on all fours and contended that, as his client had been in undisturbed possession for more than the statutory period even from before the date of the Survey Officer's decision that decision had no effect and that the jurisdiction of the Survey Officer was only to decide the question of possession and not of title which is the subject matter of the present suit.

The Opinion of the Court was expressed by

Wallis, C.J:— Assuming that in this case the boundary was disputed and the dispute was the subject of an order by the Survey Officer under section 11 of Madras Act IV of 1897, we think that order, if not reviewed by the appellate authority or questioned by suit as provided in the section, was conclusive as to the rights of the parties, and none the less so because the unsuccessful party who was in possession at the date of the order was not subsequently ousted from possession. In Krishnamma v. Achayya there does not appear to have been any order under section 25 of the Boundaries Act of 1860, which corresponds to sections 11 and 12 of the present Act. The suit had been treated in the District Court as a suit governed by Article 16 to Schedule II of the Limitation Act of 1871 “to set aside any act of an officer of Government, in his official capacity, not herein otherwise expressly provided for”. The official act appears to have been the actual demarcation of the land by fixing the boundary stones. If there was an order in that case under section 25 of the Act of 1860, we think the decision was wrong.

N.R