Judgment : 1. Plaintiffs 2 and 3 in O.S.No.15 of 1979 on the file of the Principal District Munsif, Coimbatore are the appellants in the Second Appeal. The suit itself was instituted by their father one Kumaraswamy Konar, who was the first plaintiff in the suit. He having died pending suit, the appellants came on record as plaintiffs 2 and 3. The suit was for declaration of the plaintiffs title to the suit property, for recovery of possession and for past and future profits. The suit property is described in the plaint as door No.6, Assessment No.7711 in Plot No.26 measuring east west 70 feet, north west 70 feet of a total area of 7 cents in S.No.37 bounded on the north by a street, south by Palaniappa Konars house and west of Palaniappa Konars house and Ramaswamy Konars house and east of door No.7 in Uppilipalayam Village, Masakkalipalayam, Singanallur Municipality. 2. The case as set out in the plaint is as follows: The suit site was assigned in favour of the first plaintiff Kumaraswamy on 18. 1935 under H.S.D.No.227/44. Kumaraswamy thereafter put up construction as per the directions contained in the assignment deed within the stipulated period of six months from the date of issue of the patta. He also made several improvements and put up pucca construction on the site. He was the absolute owner of the suit property. He was in possession and enjoyment ever since 1935. The construction existing at the time of the suit was put up about 20 years prior to the suit. He was also paying property tax to the Municipality. The first defendant/first respondent was the younger brother of Kumaraswamy. At his request the said house put up by Kumaraswamy was leased out to him on a monthly rent of Rs.20 about three years prior to the suit. He was not regular in the payment of rent. He was in arrears for the past 11 months as on the date of the suit. Without the written consent and knowledge of Kumaraswamy, the first defendant sub-leased the said portion to the second respondent and shifted his own residence to another place Kuppakonampudur and was actually residing with his son Ponnuswamy. Kumaraswamy caused a notice to be issued on 210. 1978 calling upon defendants 1 and 2 to vacate the premises forthwith. Without the written consent and knowledge of Kumaraswamy, the first defendant sub-leased the said portion to the second respondent and shifted his own residence to another place Kuppakonampudur and was actually residing with his son Ponnuswamy. Kumaraswamy caused a notice to be issued on 210. 1978 calling upon defendants 1 and 2 to vacate the premises forthwith. The first defendant took an indifferent attitude and set up title in himself and with a view to cheat and defraud the plaintiffs and grab at the property, created a make-believe document of sale in favour of the second defendant, who was his henchman and a close associate. He had no right to sell the property to the second defendant. The first defendant put the third defendant as a sub tenant and therefore he was also impleaded as a party in the suit. The suit was therefore necessitated. 3. The first defendant filed a written statement denying the various averments in the plaint and disputing the ownership of the plaintiff to the suit property. It is stated in the written statement that on 18. 1935 patta for site No.24 was granted to Palaniswamy Thevar, elder brother of the first defendant. Next to that, on the western side patta for site No.25 was issued to the first defendant and for site No.26, which was situated to the west of the first defendants site, patta was issued to Kumaraswamy. The first defendant, apart from site No.25, with an extent of 7 cents, occupied a portion in site No.26 also on the northern extremity, though the said site was allotted to Kumaraswamy. The first defendant put up a small south facing tiled house in site No.25 and an east facing house in the portion of site No.26 and also spent from his pocket to construct the houses of Kumaraswamy and their brother Palaniswamy in site Nos.26 and 24 respectively. In 1957 the small houses were converted after the plan was approved by the Uppilipalayam Panchayat on 11. 1957. The first defendant was in possession and enjoyment of the suit property ever since the date on which the patta was issued and the house was constructed in the sites as mentioned above. The door numbers and assessment numbers of the suit property changed. The original door number was 7/37 and subsequently it was changed to No.6. 1957. The first defendant was in possession and enjoyment of the suit property ever since the date on which the patta was issued and the house was constructed in the sites as mentioned above. The door numbers and assessment numbers of the suit property changed. The original door number was 7/37 and subsequently it was changed to No.6. Kumaraswamy was in possession and enjoyment of the house bearing door No.7, constructed over site No.26. Kumaraswamy could not lay claim over the suit property when he was not in a position to explain his source of income under which the property under his occupation was acquired by him. When the first defendant alienated the house bearing door No.8 constructed by him in site No.26 on 2. 1975 situate on the northern side of Kumaraswamys house to one Palaniammal, wife of Periaswamy of Pattanam Village. Kumaraswamy did not question the same. The suit had been filed with a view to harass the second defendant since he happened to be a member or some other community. Kumaraswamy was aware of the factum of possession by the second defendant as a tenant of the first defendant for 22 years in the suit property prior to the filing of the suit. The first defendant was living in door No.8 till he sold the suit property on 2. 1975 after letting out the suit property to the second defendant. Only Kumaraswamy had encroached a portion of the vacant site measuring 40 feet north south and 4 feet east west in south west corner of the suit property and he was bound to hand over the strip of land encroached by him since the second defendant was the absolute owner of the suit property. On 11. 1978 the suit property was sold for valuable consideration to the second defendant who was in occupation of the suit property including the poramboke land situate on the southern side. The description of the property given by Kumaraswamy was not in conformity with the existing facts and measurements. There was no landlord tenant relationship. There was no privity of contract. The first defendant was the absolute owner. There was no cause of action. The suit had to be dismissed. 4. The description of the property given by Kumaraswamy was not in conformity with the existing facts and measurements. There was no landlord tenant relationship. There was no privity of contract. The first defendant was the absolute owner. There was no cause of action. The suit had to be dismissed. 4. The second defendant Nanjappan alias Ramamurthi resisted the suit contending inter alia that he had been in possession and enjoyment of the suit property for about 22 years prior to the filing of the suit. On 110. 1978 he purchased the suit property from the first defendant for valuable consideration and let out a portion to the third defendant and after sometime he vacated the premises. After the property was purchased by the second defendant, Kumaraswamy and his family members were giving lot of trouble to the second defendant with a view to knock him out of the property since he was neither related to Kumaraswamy nor did he belong to the same community. Kumaraswamy was preventing the second defendant from getting transfer of the tax assessment in his name, though he had no right over the suit property. Kumaraswamy did not take any steps when the house situated on the western side of the suit property was sold by the first defendant to one Palaniammal. This defendant had been unnecessarily dragged to the Court. Only Kumaraswamy had encroached upon the suit property. The suit was therefore not maintainable. 5. On the above pleadings, the learned District Munsif framed the necessary issues. There were 16 documents marked on the side of the plaintiffs as Exs.A-1 to A-16. The second plaintiff examined himself as P.W.1 while on the side of the defendants Exs.B-1 to B-73 were marked. The first defendant was examined as D.W.1 and the second defendant was examined as D.W.2. The trial court found that the suit property in plot No.26 was assigned to the first plaintiff Kumaraswamy, that the construction had been put up by Kumaraswamy and that the first defendant had not established that the building claimed by him as his property had been put up by him. The trial court found that the suit property in plot No.26 was assigned to the first plaintiff Kumaraswamy, that the construction had been put up by Kumaraswamy and that the first defendant had not established that the building claimed by him as his property had been put up by him. In coming to that conclusion, the trial court relied on the rough plan Ex.A-14 filed in the case by the plaintiffs and held that the sale deed relied on by the first defendant was not true, the first defendant having no right over the suit property and by judgment and decree dated 2. 1985, decreed the suit. 6. However, on appeal in A.S.No.19 of 1985 by defendants 1 and 2, (the second defendant having died pending appeal, his legal representatives came on record as appellants 3 to 5 and they are respondents 2 to 4 in the Second Appeal) the learned Subordinate Judge by judgment and decree dated 10. 1988 allowed the appeal, set aside the decree of the trial court and dismissed the suit. In coming to the said conclusion, the learned Subordinate Judge relied on Ex.B-73 sketch, which, according to the learned Subordinate Judge, disclosed the correct state of affairs on ground. The learned Subordinate Judge found that the construction in the suit property had been put up by the first defendant and whether it was in site No.25 or not, it was immaterial and it belonged to the first defendant and the first defendant had every right to deal with the property and the sale deed by the first defendant in favour of the second defendant was valid and the plaintiffs could not question the same. As against this, the present Second Appeal has been filed. 7. At the timeof admission the following substantial questions of law were framed in the Second Appeal: .(1) Whether the lower appellate court is correct in reversing the judgment of the trial court and dismissing the suit contrary to the evidence on recorde and .(2) Whether the lower appellate court is correct in misdirecting itself while considering the description of the suit property which is against the materials placed before ite 8. The main documents so far as the plaintiffs; case is concerned, are Exs.A-1, A-2, A-3, A-14 and A-16. Ex.A-1 is the assignment deed which also corresponds to Ex.B-3. The main documents so far as the plaintiffs; case is concerned, are Exs.A-1, A-2, A-3, A-14 and A-16. Ex.A-1 is the assignment deed which also corresponds to Ex.B-3. Under Ex.A-1 Kumaraswamy Konar was assigned an extent of 7 cents measuring east west 70 feet, north south 70 feet, the plot number being 26 in the suit village. Ex.A-2 is the mortgage deed executed by Kumaraswamy in respect of southern half of the property in site No.26 in favour of one Nagammal for Rs.200 on 8. 1937. The discharge endorsement is found on the reverse of Ex.A-2 and bears date 212. 1938. It is conceded by the plaintiffs that a construction was put up by the first defendant on the northern extremity of site No.26 assigned to Kumaraswamy. That property was sold by the first defendant under Ex.A-3 to Palaniammal on 2. 1975. The address of the first defendant in the sale deed is given as 7/8, Vinayagar Koil Street. The property sold measures east to west 37 feet and north to south 32 feet. The house number is given as B. The plaintiffs do not make any claim with regard to this property sold by the first defendant to Palaniammal. What they are questioning is the original of the sale under Ex.A-7 dated 110. 1978 by the first defendant to the second defendant. The sale is in respect of door No.6 and it is stated that the purchaser/second defendant is residing in door No.6. The property sold measures north to south 104 feet, east to west 37 feet on the northern side and 24 feet on the southern side. The property is in the shape of a mirror reflection of Tamil letter and it further measures 34 feet north to south on the eastern side, then from the point it measures reads 34 feet, then it goes eat 13 feet and then north 70 feet. The western owner is given as Kumaraswamy. The northern boundary is given as east-west street. The eastern owners are given as Palaniswamy Konar and Ramaswamy Konar and the southern owner is given as Palaniappan. In Ex.A-3 sale deed in favour of Palaniammal, the northern boundary is given as Vinayagar Koil Street. The eastern boundary is given as ‘vandi thadam’. The southern boundary is given as Kumaraswamys property and the western boundary as Ramaswamys property. The eastern owners are given as Palaniswamy Konar and Ramaswamy Konar and the southern owner is given as Palaniappan. In Ex.A-3 sale deed in favour of Palaniammal, the northern boundary is given as Vinayagar Koil Street. The eastern boundary is given as ‘vandi thadam’. The southern boundary is given as Kumaraswamys property and the western boundary as Ramaswamys property. If we go by the boundaries, then the property subject matter of the sale is to the east of the first plaintiffs property. But the door number is given as 6, which is claimed by Kumaraswamy as his property. 9. Ex.A-14 is the rough plan given by the plaintiffs. Ex.A-14 with regard to allotment of sites, shows plot No.26 allotted to Kumaraswamy as lying to the east of plot No.25 allotted to the first defendant while plot No.24 allotted to their brother Palaniswamy is shown as lying to the west of plot No.25 belonging to the first defendant. The learned Subordinate Judge has reasoned that the eastern boundary of the property sold under Ex.A-3 is shown as cart-track and the western boundary of the property sold under the original of Ex.A-7 is shown as the property of Kumaraswamy. Thus the property subject matter of the sale as per the finding of the lower appellate court lies to the east of the property belonging to Kumaraswamy. If the learned Principal Subordinate Judge had stopped with saying that, there would not have been any problem. But then he had observed in paragraph 15 of his judgment as follows: .10. This observation by the learned Principal Subordinate Judge overlooks the specific admission made in the written statement of the first defendant that he encroached a portion of site No.26 and put up a construction and that constructed house was old to one Palaniammal in 1975. That is to say, the first defendant cannot claim any right to any property other than what he had put up in plot No.26 and sold to Palaniammal in 1975. It is not the case of the first defendant that he put up any other construction in plot No.26 and in regard to which he claimed any title. No doubt, he had said that he helped his brothers Palaniswamy and Kumaraswamy to put up constructions in the sites allotted to them. It is not the case of the first defendant that he put up any other construction in plot No.26 and in regard to which he claimed any title. No doubt, he had said that he helped his brothers Palaniswamy and Kumaraswamy to put up constructions in the sites allotted to them. Thus the observation by the learned Subordinate Judge that irrespective of where the construction was, unless the plaintiffs proved that Kumaraswamy put up the construction, they could not lay claim to such a property, is unwarranted. No doubt, lower down the learned Subordinate Judge in paragraph 16 finds that door No.8 is in plot No.26 and door No.6 is in plot No.25 and that is the suit property. So far as the defendants are concerned, the sheet anchor of their case is Ex.B-73 plan, which has been accepted by the learned Subordinate Judge to be the correct one. The learned Subordinate Judge has relied on Ex.B-73 to fix the location of the three sites 24, 25 and 26. As per Ex.A-14 site No.25 lies to the west of site No.26 while as per Ex.B-73 it is to the east. The learned Subordinate Judge rejected Ex.A-16 which conforms to Ex.A-14 on the ground that it had not been given by the proper authorities. For holding that Ex.B-73, is the correct document, the learned Subordinate Judge relies on Ex.A-2 which is a mortgage deed executed by Kumaraswamy Konar in favour of Nagammal and the eastern boundary owner is given as Palaniappa Konar, who had been allotted site No.24. 11. It is also in evidence that in respect of door No.6, the assessment in the Municipality was earlier in the name of the first defendant. However, Kumaraswamy had it transferred in his name subsequently in the seventies. As per Ex.B-4 dated 16. 1951, Kumaraswamy Konar mortgaged his house in site No.26 having old door No.7/38 to Nagammal. The eastern boundary owner is given as Kanthaswamy Konar. Thus under Ex.B-4, the old Door number for Kumaraswamys property had been accepted as 7/38 and that it was situated to the west of site No.25 belonging to the first defendant and under Ex.B-6 dated 6. 1956 the first defendant had mortgaged his property bearing door No.7/39 to the same Nagammal. Under Ex.B-7 which corresponds to Ex.A-3, the first defendant sold the property in door No.7/39 to Palaniammal. that was in 1975. 1956 the first defendant had mortgaged his property bearing door No.7/39 to the same Nagammal. Under Ex.B-7 which corresponds to Ex.A-3, the first defendant sold the property in door No.7/39 to Palaniammal. that was in 1975. The new door number for 7/39 has been given as B and we have already noticed that this sale deed under Ex.B-7 accepted by the plaintiffs and it had been stated that they did not want any relief with regard to this property. It was also accepted that to the east of the property sold to Palaniammal under Ex.B-7, a cart-track having a breadth of 10 feet was situate and the east west measurement of the property sold to Palaniammal is 37 feet. To this if we add 10 feet of cart-track, it could be stated that the plaintiffs were not claiming any right in the 47 feet east west measurement. The learned Appellate Judge has found fault with the plaintiffs that when they had not claimed any right in the property sold to Palaniammal under Ex.B-7 and still they had included this property in the schedule to the plaint, it would show that they had not approached the court with clean hands. From Ex.A-1 itself this was clear. That the superstructure to the south of the property sold under Ex.B-7 belonged to Kumaraswamy had been an accepted case. The door number for that is 7 is also accepted by P.W-1. P.W-1 has further stated that the door for the property south of door No.7 was 7-A. .12. In those circumstances, as already noticed, the learned Subordinate Judge observed that any house other than 7 and 7-A to the south of door No.8 sold to Palaniammal, the plaintiffs cannot claim whether such a house was in site No.26 or in site No.25. After observing this, the learned Judge has in the next paragraph (paragraph 16) come to the conclusion that door No.8 was in site No.26 and door No.6 was in site No.25. This is where the whole problem arises. After finding that, the learned Judge has referred to the various documents relied on by the defendants and held that the plaintiffs had not established their case and on the contrary, the defendants had proved their case and the property sold to Palaniammal and the suit property bore the same door number viz., door No.6 put forward by the plaintiffs could not be accepted. Unless it is found on land as to where the suit property is situate, whether it is in site No.26 or site No.25, it is not possible to reach a conclusion as to which of the parties would be entitled to the suit property. The conclusion reached by the learned Subordinate Judge that the suit property was situate in site No.26 appears to be not fully based on the materials produced. The learned Subordinate Judge had also been influenced by the fact that the plaintiffs had included in the schedule the property sold to Palaniammal also and this had sufficiently affected his approach to the question. Unless it is found that the property sold by the first defendant to the second defendant is in site No.25 conclusively, the reversal of the decision of the trial court by the lower appellate court cannot be sustained. The parties should have sought the appointment of an Advocate Commissioner to measure the properties and with the aid of Revenue Records and the assistance of a surveyor fixed the actual location of the suit house, whether it was in site No.25 or in site No.26. 13. It has been made clear that apart from the property sold to Palaniammal by the first defendant in 1975, the first defendant is not claiming any right whatsoever in site No.26, notwithstanding his claim that he had assisted his brothers in putting up construction in their respective sites. In my view, the location of the property on land is essential to reach a right decision in the suit on the merits and inasmuch as this has not been done by the lower Appellate Court, it has becomes necessary to remit the matter to the lower appellate court. In my view, on the pleadings and on the materials the judgment and the decree of the lower appellate court cannot be sustained. It has therefore become necessary to invoke the provisions of O.41, Rule 23 of the Code of Civil Procedure. 14. The Second Appeal will stand allowed. The judgment and the decree of the lower appellate court are set aside and the matter is remitted to the lower appellate court. 15. It has therefore become necessary to invoke the provisions of O.41, Rule 23 of the Code of Civil Procedure. 14. The Second Appeal will stand allowed. The judgment and the decree of the lower appellate court are set aside and the matter is remitted to the lower appellate court. 15. The lower appellate court will appoint an Advocate Commissioner, who will locate the property on ground with the assistance of Taluk Surveyor and also with the assistance of the various exhibits marked in the present suit and with particular reference to Exs.A-1, A-2, A-3, A-14 and Exs.B-1, B-2, B-3, B-7 and B-73 and decide the appeal. The Commissioners fees and other expenses will have to be borne initially by the appellants. While deciding the appeal sufficient provision will be made in the appellate decree with regard to this depending on who the successful party is. The remission of the case is warranted on account of the fact that the lower appellate court has not located the property on the materials. The court-fee paid on the memorandum of appeal will be refunded to the appellants. There will be no order as to costs in the Second Appeal.