P. Somarajan, J. - Whether Section 14 of the Kerala Survey and Boundaries Act, 1961 (hereinafter referred to as the) would attract in a suit for rectification of mistake crept in the resurvey plan is the question essentially came up for consideration in this appeal.

2. A suit for declaration of title, recovery of possession and mandatory injunction to rectify the resurvey was dismissed by both the trial court and the first appellate court, against which the plaintiff came up with this appeal. The dispute is with respect to 25 cents of property belonged to the Panchayath, the plaintiff. The 4th defendant claimed 36 cents of property lying adjoining with the plaint schedule based on a family partition and it forms part of a large extent of 2 acre 36 cents. As per resurvey, its extent is only 31 cents.

3. One of the reliefs sought by the plaintiff is to rectify the mistake crept in the resurvey plan in respect of the plaint schedule property. Though a survey commission was issued, they could not identify the property based on the document of title due to the non-availability of old survey records. Attempts made by the plaintiff to obtain a certified copy of old survey records also not served the purpose. Earlier this court had issued a survey commission, who in turn submitted mahazar, plan and report, but the surveyor could not locate the property due to the non-availability of old survey records. This court hence issued a direction to the survey authorities and in compliance of the said direction, Exts. R1(a) to R1(e) documents, the copies of old survey plan, Litho plan and other connected records, were produced.

4. In the trial court, the commission who visited the property prepared the plan based on the resurvey plan overlooking the relief sought by the plaintiff for rectification of mistake crept in the resurvey plan. There is no physical boundaries separating the property of plaintiff from that of the defendants, except a portion of Kayyala, which was not accepted by both the courts below as the dividing line.

5. The resurvey conducted is under challenge and sought to rectify the mistake crept in the resurvey plan. It was objected on the ground that the suit was filed after the expiry of one year after the finalization of resurvey and that the hit of Section 14 of thewould come into play. Admittedly, resurvey was conducted not only on the basis of old survey records or earlier survey plan, but also on the basis of possession, which is a matter to be adjudged and adjudicated by a civil court when dispute arises. It is neither permissible nor advisable for the resurvey authorities to refix the boundary line of particular survey under the guise of resurvey based on possession. No such power can be vested with the resurvey authority and hence what is done by them by refixing the boundary based on possession can only be considered as without any authority or exceeding the authority vested with them. The resurvey authority cannot exercise the jurisdiction of a civil court to fix any boundary based on possession. The possession is really a matter to be decided by a civil court. The power vested with the survey authority under Sections 9 and 10 of theis relating to record an undisputed boundary or to determine any dispute of boundary with reasons. Sections 13 and 14 of the Survey and Boundaries Act, 1961 are extracted below for reference:

13. Completion of demarcation to be notified.-- When the survey of any land or boundary which has been notified under section 4, or ordered under section 5 has been completed in accordance with the orders passed under section 9, section 10 or section 11, the Survey Officer shall notify the fact in the Gazette and a copy of such notification shall be posted in the village office, if any, of the village to which the survey relates. Unless the survey so notified is modified by a decree of a civil court under the provisions of section 14, the record of the survey shall be conclusive proof that the boundaries determined and recorded therein have been correctly determined and recorded.

14. Right to institute a suit in respect of boundary of the property surveyed.--

(1) Any person deeming himself aggrieved by the determination of any boundary under section 9, Section 10 or Section 11 may, subject to the provisions of the law of limitation in force for the time being, institute a suit within one year from the date of the notification under Section 13 to set aside or modify the said determination and the survey shall, if necessary, be altered in accordance with the final decree in the suit and the alteration, if any, shall be noted in the records.

(2) In any suit under sub-section (1) the plaintiff shall join as parties to the suit all persons whom he has reason to believe to be interested in the boundary which is subject to the suit. (emphasis supplied)

6. The expression subject to the provisions of the law of limitation in force for the time being incorporated in Section 14 of thesaves the provision relating to limitation in the matter of institution of suits. But at the same time, one year period is incorporated for instituting a suit from the date of notification under Section 13 of the. This would make the area highly conflicting. In so far as possession of property without title is concerned, period of limitation available for the recovery of such property is 12 years under the provisions of Indian Limitation Act, 1908 (Old Act). The very same period of 12 years is incorporated under Article 65 of the Limitation Act, 1963. That itself shows that when boundary was refixed based on possession during the course of resurvey, it amounts to sanctifying either dispossession of a rightful owner from his registered holding or any part thereof and annexing the same to the adjoining property owner by way of re-survey records. When there is trespass or encroachment over any portion of registered holding, a cause of action would arise to institute a suit for its recovery within 12 years from the date on which the possession became adverse to the plaintiff, the owner. The owner can maintain a suit for its recovery within a period of 12 years. A situation may arise as to what would be the period of limitation available in a suit for recovery of encroached portion of immoveable property based on title and for consequential rectification of mistake crept in the resurvey. A suit for recovery of possession of immoveable property based on title can be maintained within 12 years as mandated under Article 65 of the Limitation Act, 1963. The very same period is available as per the provision contained in the Old Act, the Indian Limitation Act, 1908. But if the period available for instituting a suit for rectifying the mistake crept in the resurvey is only one year from the date of notification under Section 13 of the Act, it would destruct the very purpose of Section 14 of theand would run against Article 65 of the Limitation Act, 1963 and the provision dealing with recovery of possession of immoveable property as per the Old Act, the Indian Limitation Act, 1908. The resultant effect would be that even after the grant of recovery of possession of encroached portion, the resurvey records would stand unaffected due to the lapse of one year period available for its rectification. Necessarily, that may not be the legislative intention while incorporating a clause within Section 14 of thesaving the provisions of limitation for the time being in force, which stands for the provisions contained in the Old Act, the Indian Limitation Act, 1908 and the Limitation Act, 1963 as well. When the provisions contained in the Limitation Act dealing with period of limitation saved under Section 14 of the Act, there cannot be any imposition of further restriction either for limiting or expanding the said period of limitation, otherwise, it would stand contrary to the saving clause incorporated under that provision.

7. Necessarily, we should understand why the legislature has incorporated one year period for instituting a suit for rectification of survey by saving the provisions of limitation for the time being in force - the provisions contained in the Indian Limitation Act, 1908 and the new Act, the Limitation Act, 1963. In fact, by saving the provisions of limitation for the time being in force, the legislature has intended to maintain the period of limitation available to the suits governed by the provisions of limitation for the time being in force (the Indian Limitation Act, 1908 and the new Act, the Limitation Act, 1963) and to restrict the period of limitation to one year for a suit which would squarely come under the purview of Section 14 of the. A conjoint reading of Sections 10 and 14 of thewould abundantly make it clear that the power vested with the survey officer to determine and record a disputed boundary with reasons confined only to the determination of the disputes regarding fixation of boundary between the owners/sharers out of a large extent comprised in a particular survey so as to effect divisions based on ownership within that survey (any particular survey number or sub-division number). It really amounts to drawing a dividing line based on ownership within a particular survey. Necessarily, the survey officer empowered under Section 10 of thewill not have any authority to re-define the boundary lines of a particular survey already settled by old survey records. A right of appeal provided under Section 11 of theshould be understood in reference to the matters which would come under the purview of Sections 9 and 10 of theso as to have an understanding of the real impact and the power vested under Sections 9 and 10 of thewith the survey officer. The decisions under Sections 6 and 7 also brought under the purview of Section 11 of thefor the purpose of appeal, but neither in Section 6 nor in Section 7 of theany power was vested with the survey officer to re-define any boundary line of a particular survey which was already settled and finalised in an earlier survey, except for the purpose of Section 5 of the. Section 5 of thedeals with the situation wherein certain area was taken away by sea erosion or action of river and the registered holder of the property can apply for a survey of his land which is available after the sea erosion or action of river. Section 4 of thealso permits a survey of the land, but its purpose should be understood in relation to the necessity to have a resurvey, certainly, not for altering the earlier survey records, but for recording the further divisions of property out of a large extent within a particular survey, besides the purpose to be served under Section 5 of the. The one year period enumerated under Section 14 of thecan only be applied in a suit challenging the determination which would come under the purview of either Section 9 or Section 10 of the Act, besides Sections 6 and 7 of theand in so far as Sections 9 and 10 are concerned, the determination should be only with respect to the internal arrangement of a particular survey based on ownership and there is no scope for re-defining the boundary line of a particular survey except for the purpose of Section 5 of the. If it is with respect to any re-defining of boundary line of a particular survey other than the one under Section 5 of the Act, it is without any authority and a suit for rectification of mistake crept in the resurvey re-defining the boundary already settled earlier would stand outside the purview of Section 14 of theand hence, governed by the provisions of Indian Limitation Act, 1908 and the new Act, Limitation Act, 1963 as well, wherein there will not be any application of one year period provided under Section 14 of the.

8. At this juncture, it has to be borne in mind that when there are two provisions regarding limitation available, the longest period available under the law of limitation would be available to the party. There is no provision anywhere in the Old Act - Indian Limitation Act, 1908 and the Limitation Act, 1963 providing one year or a lessor period for instituting a suit pertaining to an immoveable property except in the case of preemption.

9. The records now produced can be used for rectifying the mistake, if any, crept in the resurvey records. These records were not produced either in the trial court or in the first appellate court. Hence a remand of the matter cannot be avoided. The decree and judgment of both the courts below are set aside. The matter is remanded back to the trial court for fresh disposal. The parties shall appear before the trial court on 20.11.2019.

10. The Registry shall forward the records produced before this court to the trial court along with the back files.

The appeal is allowed in part accordingly. No costs.