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2008 DIGILAW 174 (KAR)

T. C. Ranganath v. H. P. Jayachandra

2008-03-10

D.V.SHYLENDRA KUMAR

body2008
Judgment :- D.V. Shylendra Kumar, J. This second appeal has a chequered history behind it and it is coming back to this Court in the second round. The second round of second appeal is due to the reason this Court had passed the following order in the first round of second appeal: "The short point in this second appeal is the dispute regarding the measurement. The plaintiff was allotted a site of 20' x 40' and the defendant was allotted a site of 20' x 40'. It appears when the dispute arose, Commissioner was appointed on two occasions – one Commissioner's report landing in favour of the plaintiff and another in favour of the defendant. Unfortunately, the Courts below have chosen to rely upon the defendant and granted the land claimed by him namely 20' x 40' without finding whether such grant will affect the rights of the plaintiff. 2. It is represented before this Court that if at all a short fall the Court should first find out the short fall, that is, the short fall the one measurement of 45' (20' + 25'), then the Court must find out who is responsible for the short fall; otherwise, it is the duty of the Court to make both the plaintiff and the defendant share the short fall. This has not been admittedly done by the Courts below. 3. It is also seen that there is discrepancy in the Commissioner's reports prepared and filed before the Courts below. Therefore, it is necessary to appoint a Commissioner from the Survey Department to make a correct measurement and find out where exactly the short fall lies and on receipt of such report the Court shall apportion the short fall equally on the sale deeds of both the plaintiff and the defendant. 4. Only for the purpose of this apportionment, the matter is remitted to the first Appellate Court with the specific direction to apportion the short fall, if any, on both the plaintiff and the defendant. The matters is therefore remitted to the first Appellate Court for the above specific purpose and it is open to either of the parties to apply for appointment of Commissioner. 5. In this view, the judgment and decree of the first Appellate Court is set aside. The second appeal is allowed. The parties to appear before the first Appellate Court 29.1.1998” 2. 5. In this view, the judgment and decree of the first Appellate Court is set aside. The second appeal is allowed. The parties to appear before the first Appellate Court 29.1.1998” 2. Under the said circumstances, the matter went back to the lower appellate Court. The lower Appellate Court in order to implement the directions issued by this Court appointed one T.C. Chikkahanumaiah, Assistant Executive Engineer, National Highway Sub-Division, Hassan, as the Court Commissioner to submit the report in the appeal and the Commissioner on taking actual measurements in the sport inspection conducted on 27.10.2001 submitted his report dated 30.10.2001 along with the sketch indicating the factual position on the land in question as to which of the parties was in possession of what extent of land or buildings which are all included in terms of the sketch wherein the actual measurements were mentioned and which was described to be self explanatory as part of the report. It is thereafter the learned Judge of the lower Appellate Court formulated the following points for determination: 1. What is the total extent of the property of H.D. Parswanathaiah and B.K.S. Naidu? 2. If the Commissioner's report is accepted, what would be the measurements of the properties of H.D. Parswanathaiah and B.K.S. Naidu? 3. Whether plaintiffs are entitled for declaration? If so, to what extent? 4. What order? Having answered the first point to be that the extent of property of the parties is 36 ft. x 11 inches and having answered the second point in the affirmative so also third point in the affirmative has in terms of the impugned judgment allowed that appeal in part by judgment and decree of the Trial Court which had dismissed the suit and instead decreed the suit to the following effect: 'Appeal is allowed in part. The judgment and decree dated 30.3.1991 passed in O.S. 19 / 1983 on the file of then Munsiff, Hassan (Now Principal Civil Judge (Junior Division) is hereby set-aside. They shall be a decree declaring that Parswanthaiah is the owner of Site No. 3 ADEJ portion) measuring east-west: 18 5½ inch and north-sought: 40 ft, with the boundaries on East B.M. Road, West: Site No.5 measuring east-west 18 inch 5½ inch North: Nehru Road and South: Private property (as mentioned in `ADEJ' portion of the Commissioner's sketch). They shall be a decree declaring that Parswanthaiah is the owner of Site No. 3 ADEJ portion) measuring east-west: 18 5½ inch and north-sought: 40 ft, with the boundaries on East B.M. Road, West: Site No.5 measuring east-west 18 inch 5½ inch North: Nehru Road and South: Private property (as mentioned in `ADEJ' portion of the Commissioner's sketch). The defendants by themselves or any one else claiming through or under them are hereby permanently restrained from interfering with the plaintiffs' peaceful and enjoyment of the site No.3 measuring east-west 18' 51 inch and north-south: 40'. In view of the above declaration, the question of grant of mandatory injunction does not arise. The sketch prepared by the Assistant Executive Engineer, NH. 48, Hassan (appointed as Commissioner by this Court) shall form part and parcel of this decree. In the peculiar facts and circumstances of the case, parties to bear their own costs throughout. Draw decree accordingly." 3. It is aggrieved by this judgment and decree, defendants in the Original Suit has come to this Court in second appeal, though by himself in the first round, the subject-matter of the appeal itself is coming before this Court in the second round as indicated above as plaintiff had come up before this Court in the first round of the second appeal. 4. While admitting this appeal, this Court had formulated the following substantial question of law for consideration: "The finding of the first. Appellate Court in reversing the judgment and decree passed by the trial Court is perverse and arbitrary being contrary to the observations made by this Court in RSA No. 448/1997 and for not giving finding regarding shortfall." 5. 4. While admitting this appeal, this Court had formulated the following substantial question of law for consideration: "The finding of the first. Appellate Court in reversing the judgment and decree passed by the trial Court is perverse and arbitrary being contrary to the observations made by this Court in RSA No. 448/1997 and for not giving finding regarding shortfall." 5. On behalf of the Appellant Sri K.V. Narasimhan, learned Counsel while has made elaborate submissions asserting that the judgment and decree passed by the lower Appellate Court is not sustainable in law; that the learned Judge of the Appellate Court has not given effect to the direction of this Court in an appropriate manner particularly in not appreciating the report of the Commissioner and having recorded the factually incorrect inference based on the report 4nd having virtually converted the suit of the plaintiff into a suit for a different relief, as one for recovery of possession from the defendant, whereas the suit was one for declaration and injunction; that the judgment and decree passed by the lower Appellate Court is not sustainable and requires to be set aside and assuming that the suit of the plaintiff can be decreed, it can only be in consonance with the findings of the Commissioner and in the respect of the extent of suit property which is already in possession of the plaintiff and nothing beyond. In this regard, learned Counsel for the appellant has also filed a memo before this Court virtually giving an undertaking that defendant would not in any way travel beyond the ABCD boundary line dividing the properties of the plaintiff and the defendants that the defendant would not move the east of ABCD line wherein lies the property of the plaintiff; that the defendant would confine to the west of the demarcating boundary line ABCD indicated in the sketch appended to the report of the Court commissioner in terms of his report dated 30.10.2001. 6. The report of the Court Commissioner itself would read as under and the sketch appended to the trial Court is also indicated below: "I, T.C. Chikkahanurnaiah, Assistant Executive Engineer N.H. Sub-Division, Hassan, inspected the spot in dispute in report of RA 21/91 in the Court of Civil Judge, Senior Division, Hassan, on 27.10.2001 and taken actual measurements between 4 pm and 5 pm in the presence of plaintiff and defendant. The following are the findings. There are three reference points for measuring the dimensions of the sites in dispute viz., centreline of the Bangalore-Mangalore National Highway, Foundation wall of temporary shed belonging to Sri H.D. Paraswamanathaiah indicated BCD in the sketch and newly constructed National press building indicated OPQR in the sketch. The length of the site is 40' North-South as per records and is also 40' as per actual measurements and as such there is no difference in length. As per enquiry, the site width of National press is 20'. As per actual the building width is 21'. It is ascertained from the adjacent site owner's representative that 1 foot width is used from the adjacent site for common wall. As a result of this the width of site No.4 belonging to Sri Ranganatha Shetty and Veerabhadrappa will be 19' i.e., OM as per sketch. The site No.5 belonging to Smt. Rangamma W/o. B.K. Krishnappa and T.R. Sathya Bhama W/o. T.C. Ranganath starts from line MN. There is one temporary shed having very old stone masonry foundation wall which belongs to Sri H.D. Parswanathaiah at a distance of 22' 11 inches from the edge of site No.4. This masonry foundation wall seems to be constructed 20-30 years back, most probably during 1971 when the site was allotted to Sri H.D. Parswanathaiah by the Hassan Municipality. As such I am of the opinion that this old wall may be edge of site allotted by the Municipality to Sri H.D. Parswanathaiah. The width between edge of site No. 4 i.e., line MN and edge of the foundation wall i.e., line ABCD actually measures only 22'11 inches which is the width of site No.5 which belongs to defendant Sri T.C. Ranganath. Hence there a less width of 1 foot 1 inch between the actual measurement and the sale deed. The site No.6 is shown to back side of site No.5 i.e., to the South, in the sale deed of the defendant. There is no mention of Site No. in respect of site belonging to Sri H.D. Parswanathaiah, in the sale deed which is subsequently allotted by the Municipality during 1971. The actual width of site belonging to Sri H.D. Parswanathaiah and which is also the eastern edge of site No.5 belonging to defendant. Hence, there is a less width of 11' between the actual measurement and the allotted width. The actual width of site belonging to Sri H.D. Parswanathaiah and which is also the eastern edge of site No.5 belonging to defendant. Hence, there is a less width of 11' between the actual measurement and the allotted width. This difference may be due to negligence of the Municipal administration, while allotting 25' width of site to Sri H.D. Parswanathaiah the Municipal Administration might not have ascertained the land boundary line of the road. A sketch showing the details of actual measurements of sites in question is enclosed which is self explanatory." 7. Though it appears that neither the appellants nor the defendants were very enthusiastic in accepting the report of the Commissioner, the lower Appellate Court has accepted the report and has rendered its judgment on the basis of the report and not by rejecting the report. 8. On the other, Sri B. Vinayaka, learned Counsel appearing for the plaintiff in the suit who is the respondent in the second appeal very vehemently contends that there is absolutely no scope for interference in this appeal. Second appeal is to be dismissed for the reason that the lower Appellate Court has also given effect to the directions issued by this Court; that all other aspects which were between the parties have already been concluded in terms of the earlier order dated 2.12.1997 passed by this Court in R.S.A. No. 448/1997; that in the present appeal no fresh questions can be raised; that this Court cannot consider any such grounds which were raised in the earlier round, as it will amount to examination of the correctness of the judgment of the lower Appellate Court beyond the remand order passed by this Court on the earlier occasion and has vehemently urged that if the lower Appellate Court has only given effect to the directions issued in the remand order passed by this Court, there is absolutely no scope for correcting any other errors either in law or otherwise assuming that there are such errors in the passing of the judgment of the lower Court as that cannot be the scope of this second appeal and this second appeal has to be examined only within the limitations of the directions issued by this Court while remanding the order. In support of such submissions, Sri B. Vinayaka, learned Counsel has referred to the following decisions of the Supreme Court. In support of such submissions, Sri B. Vinayaka, learned Counsel has referred to the following decisions of the Supreme Court. 1) (2006) 1 SCC 212 (Satrucharla Vijaya Rama Raju Vs. Nimmaka Jaya Raju and Others) 2) (2004) 3 SCC 214 (Jamshed Hormusji Wadia Vs. Board of Trustees, Port of Mumbai and Another. It is submitted that questions which had been concluded in the earlier round, cannot be re-opened in the subsequent round before the very Court if such questions are not carried to the superior Court. Submission is that while the lower Appellate Court itself cannot travel beyond the remand order passed by this Court, in examining an appeal against the order of the lower Appellate Court giving effect to the remand order, no other questions can be raised or looked into which if either could have been raised before this Court in the earlier round and was not raised or raised but not answered in favour of the present appellants. Such conclusions unless had been carried to the Supreme Court, it is not open to the appellants in the present to agitate in this second appeal which can only be confined to questions as arising from the present judgment of the lower Appellate Court which are challenged in this appeal. 9. The brief facts leading to the present second appeal are as under: O.S. No. 19/83 is a suit instituted by the plaintiffs claiming to be the legal heirs of one Sri H.D. Parswanathaiah seeking the relief of declaration that the plaintiffs are the owners in possession of suit schedule property ABCD as shown in the rough sketch and for permanent injunction to declare that the plaintiffs are not only the owners but the defendants are to be restrained from putting up any construction in the area shown as ABEF in terms of the rough sketch and purporting to be in the portion of the plaintiffs' vacant site measuring 12 feet east to west and 40 feet south to north which was on the western portion of the site of the plaintiffs and to the east of the defendants who are the neighbours, a site which had been allotted to the defendants by the Town Municipal Council, Hassan. The case of the plaintiffs was that the defendants are the neighbours and persons claiming a purchasers of the site No. 5 lying to the west of Bangalore-Mangalore road end to the South of Nehru road, its erstwhile allottee, had dug up a portion of the land virtually causing damage to the existing building of the plaintiffs in their land and on the western side of the wall of the plaintiffs' building that the defendants should not only be restrained from interfering in the portion of the plaintiffs enjoyment and use of the suit land, but also be directed by a mandamus to fill up the dug up portion of western side of the land and for the consequential relief. 10. It is the case of the plaintiffs that Town Municipal Council, Hassan has sold to the plaintiffs' father a site measuring 25 feet east to west and 40 feet North to South, Bangalore-Mangalore road with Nehru Road being on to the north of the site and it is to the west of the site that the defendant had their property which is also a site that had been allotted by the very Municipal Council as a site which measures 24 feet east to west and 40 feet north to south. The specific allegation was that when the plaintiff was in possession and enjoyment of the site that had been sold to them by the Municipal Council, the defendants had tried to encroach upon a part of this land and had virtually caused damage to the property of the plaintiffs and therefore it had become nessary for the plaintiffs to seek for not only declaratory relief but also for the consequential relief of injunction. 11. The suit was contested by the defendants. Defendants contested that they are in possession of site measuring 24 feet by 40 feet and east of their site is the property sold in favour of the plaintiff's father by the Town Municipal Council; that the predecessor in title of the defendants' property. One D.K.S. Naidu had purchased the property in an open auction sale by the Municipality; that the plaintiffs in fact had put up a temporary construction in their property and had leased that in favour of the defendants for sometime. One D.K.S. Naidu had purchased the property in an open auction sale by the Municipality; that the plaintiffs in fact had put up a temporary construction in their property and had leased that in favour of the defendants for sometime. It was shown that the plaintiffs had encroached on the property of the defendants to a certain extent; that it was found out at the time when measurements were taken for the purpose of issue of building licence plan in favour of the defendants by the Municipal Council; that the plaintiffs to cover up their own mis-deeds, had filed a false and frivolous suit for taking proper legal action to get over the encroachment by the plaintiff's; that there is no attempt on the part of the defendants to encroach any part of the plaintiffs' property much less to an extent of 12 feet x 40 feet as shown in the plaint. Though the plaintiffs' father had received an advance in respect of the part of the property leased in favour of the defendants, he had come up with the false suit only to defeat the rights of the defendants and all the allegations are false; that the suit for injunction was not tenable, if the plaintiffs have admitted that the defendants are in possession of a part of the property and prays for dismissal of the suit. 2. 12. It is on the basis of such pleadings the trial Court had formulated the following issues: 1) Whether the plaintiffs prove their absolute right and title to the ABCD area shown in the rough sketch? 2) Whether the plaintiffs prove their lawful possession of the ABCD area as shown in the rough sketch? 3) Whether the plaintiffs further prove the interference and obstruction by defendants to such of their possession? 4) Whether the plaintiff further prove that the defendants have illegally dug the area shown as ABEF in the rough sketch? 5) Whether the defendants prove that they have perfected their title by adverse possession in respect of the ABCD area as shown in rough sketch annexed to plaint? 6) Whether the suit is barred by limitation? 7) Whether the plaintiffs are entitled for the reliefs of declaration, permanent injunction and mandatory injunction? 8) To what order or decree? 13. 5) Whether the defendants prove that they have perfected their title by adverse possession in respect of the ABCD area as shown in rough sketch annexed to plaint? 6) Whether the suit is barred by limitation? 7) Whether the plaintiffs are entitled for the reliefs of declaration, permanent injunction and mandatory injunction? 8) To what order or decree? 13. The trial Court on appreciating the evidence lead by the parties that three witnesses have been examined on the plaintiffs' side and two witnesses on the defendants' side and the documentary evidence on behalf of the plaintiffs comprising of Exs.P-1 to P-15 and on behalf of defendants, Exs.D-1 to D-16, answered all the issues against the plaintiffs and answered the 5th issue, as to whether the defendants prove that they have perfected the title by adverse possession in respect of suit ABCD, area as shown in the rough sketch annexed to plaint also in the negative and dismissed the suit. 14. Plaintiffs being aggrieved by this judgment and decree had preferred regular appeal No. 21/91, which though came to be dismissed by the lower Appellate Court in terms of the judgment and decree dated 21.12.1996, where upon the plaintiffs had carried the matter to this Court in second appeal No. 448/1997, it is this second appeal which came to be remanded by this Court to the lower Appellate Court as noticed in the earlier part of this judgment. 15. A perusal of the order sheet in R.S.A. No. 448/97 indicates that while this Court had issued emergent notice regarding admission of the appeal, in terms of the order dated 22.10.1997, the appeal was directed to be listed for final disposal and in terms of the judgment dated 2.12.1997, the appeal had been allowed and the matter remanded to the lower Appellate Court as above. 16. It is for this reason, Sri B. Vinayaka, learned Counsel for the respondents in this appeal has vehemently urged that once the matter was remanded to the lower Appellate Court for a finding on the specific question as indicated by this Court, no further ground can be raised in this round of second appeal at the instance of the defendants. 17. 17. I am unable to accept the submission made on behalf of the plaintiffs and to apply the principles which emerges from the decisions cited by Sri B. Vinayaka, learned Counsel in support of the case of the plaintiffs, for the reason that earlier second appeal was not by the present appellant in the earlier round. The suit of the plaintiff had been dismissed by the trial Court and confirmed in appeal by the lower Appellate Court. It was the plaintiff who had approached this Court challenging the concurrent findings. This Court did not even admit the appeal filed under Section 100 of CPC. This Court setting aside the judgment of the Courts below, had only indicated that there was need for appointment of Commissioner to ascertain as to where exactly short fall lies which had resulted in dispute between the parties and only for such purpose of apportionment, matter as remitted to the first Appellate Court. While there cannot be any opinion with regard to the powers of a lower Court in dealing with a matter remanded to that Court and if the superior Court had remanded the matter to the lower Court with specific directions and for a specific purpose, the question is whether the lower Appellate Court had acted in terms of the remand and as to what was the remand and what consequences? 18. A reading of the earlier judgment of this Court in R.S.A. No. 448/ 1997 would virtually indicate what had been sought for was that of a finding of the lower Appellate Court and the report of the Commissioner and to submit a report to this Court and to dispose of the matter accordingly. Though it could have been assumed that judgments and decree passed by the Courts below are deemed to have been set aside as the matter is remanded to the lower Appellate Court, in the light of the language employed by this Court in the earlier round, it is difficult to the arrive at this conclusion also. Though it could have been assumed that judgments and decree passed by the Courts below are deemed to have been set aside as the matter is remanded to the lower Appellate Court, in the light of the language employed by this Court in the earlier round, it is difficult to the arrive at this conclusion also. However, assuming that the matter had gone back to the lower appellate Court for said purpose of ascertaining the shortfall if any in the measurement sought for by the plaintiff in the suit, it is rather difficult to sustain the judgment and decree passed by the lower Appellate Court, as it is obvious that the learned Judge of lower Appellate Court has mis-read the report of the Commissioner, particularly the report with sketch along with the report submitted by the learned Counsel to the Court. The Commissioner had taken upon himself the responsibility of indicating the shortfall that may occur if the measurements were to be taken from the boundaries of site numbers 4 and 5 on the western and the centre-line of Bangalore-Mangalore highway on the eastern site. It is from this background, the Commissioner had indicated that excluding the total distance that is required to be kept apart for a highway from the centre line of the Bangalore-Mangalore National Highway No. 48, the shortfall, if any, is to be computed in the total extent of the lands of plaintiffs and defendants put together etc. The Commissioner has given a factual report indicating that while the defendant was shown to be in the factual possession of a site measuring a distance of 22 feet 11 inches east to west, the plaintiffs are in actual possession of land measuring an extent of 24 feet east to west, but some part of this falls into the open space required to be left to the adjoining highway. The sketch prepared by the Commissioner and the measurements given therein very clearly indicate that the plaintiffs were already in possession of a site of the width of 24 feet whereas the defendants were in possession of site measuring 22 feet 11 inches and both sides being of the same measurement north to sought that is 40 feet. The sketch prepared by the Commissioner and the measurements given therein very clearly indicate that the plaintiffs were already in possession of a site of the width of 24 feet whereas the defendants were in possession of site measuring 22 feet 11 inches and both sides being of the same measurement north to sought that is 40 feet. If one were to bear in mind that the suit was one for declaration and consequential injunction the suit can only be to an extent of an area which was in possession of the plaintiffs and not for declaration in respect of any area which was in possession of the defendants. It cannot be that on the basis of such a report the lower Appellate Court could have passed a judgment and decree in favour of the plaintiffs which can virtually amount to a decree for recovery of possession from the defendants in respect of a portion of the land in which they are already in possession. Judgment and decree indicates that the defendants had to yield in favour of the plaintiffs on extent of 4 feet 5½ inches though such was not the relief claimed by the plaintiffs nor the suit was on such premise. 19. On the other hand, while the defendants themselves were found to be in possession of 1 foot 1 inch shorter than the actual land allotted to them by the City Municipal Council, the plaintiffs are found to be shorter in possession in respect of 1 foot of land. It is short of actual measurement of 25 feet east to west. It may be a different aspect that the plaintiffs put in possession by either causing encroachment of some part which was to form a part of the National highway or the land which was required to be left open. A perusal of the judgment and decree and the material on record very clearly indicate that the defendants' predecessor had purchased the land in open auction sale in the year 1962 in terms of Ex.D-6 in favour of one H.S. Padmarajaiah, under a registered sale deed dated 21.1.1967. The father of the plaintiffs for the first time had sold the adjacent site No. 5 and without bearing any Municipal number, but only the boundaries and the measurement in terms of a sale certificate dated 30.9.1971 that is four years later. The father of the plaintiffs for the first time had sold the adjacent site No. 5 and without bearing any Municipal number, but only the boundaries and the measurement in terms of a sale certificate dated 30.9.1971 that is four years later. Therefore; the question of the defendants being required to yield ally part of the site which they have already purchased from the City Municipal Council does not arise in a suit filed by the plaintiffs for a declaration and permanent injunction. Assuming that the Town Municipal Council had sold the site less in area and shorter in measurement in favour of the father of the plaintiff that is not a question in issue in the present suit. All that can be made good in favour of the plaintiffs by applying equity was to apportion the short fall uniformity i.e., by averaging the short fall 1 foot of the plaintiff with the short fall of 1' 1" of the defendant. But the lower Court for decreeing the suit has indicated that both the plaintiffs and the defendants should remain in possession of a width of 18 feet 5½ inches measuring east to west. No principle of law can be invoked to make good the loss, if any, caused to the plaintiffs by wrong action of a third party Town Municipal Council and even otherwise the plaintiffs only having the property allotted in their favour even a part of the land which had already been sold in favour of the predecessor of the defendants and for such enjoyment, if the plaintiff encroached into some part of the national highway, that cannot be corrected by filing a suit in the year 1983, i.e., 16 years after the sale made by the Town Municipal Council in favour of the defendants, when the defendants had enjoyed the property sold in their favour acquired a valid title through the sale deed and were in possession of the same; also there is no interference or encroachment by the defendants into any part of the land belonging to the plaintiff, if the defendants remain in possession of their own land admittedly sold by the Town Municipal Council in their favour in the year 1967. 20. 20. The suit was filed by the plaintiff for a declaration in respect of any portion of the land that may in any way form part of the land sold in favour of the defendant cannot be granted. There is no question of granting injunction as the plaintiff has not even made out a case for interference into any part of the land sold in his favour. The defendant, on the other hand being content to remain in possession to an extent of 36 feet 11 inches as factually found by the Commissioner on measurement, and affirmed by a undertaking given by the defendants in terms of the memo filed by the learned Counsel Sri K.V. Narasimhan, memo of undertaking is received on record. 21. Even in terms of the directions issued by this Court in the earlier round of sound appeal, if it is a case of apportioning shortfall and actually found with reference to the extent of shortfall, the plaintiffs and the defendants are in possession in the light of their respective sale deeds by the Town Municipal Corporation, Hassan and on a proper reading of the report of the Court commissioner and the contents of the report understood along with the sketch prepared by the commissioner, which is forming part of the report, one can notice that the plaintiffs are in possession of an area with the width of 24 feet measuring east-west as against the measurement of 25 feet mentioned in the sale deed (Ex-P1) of the year 1971 in their favour as against the defendants being in possession of an area measuring 22 feet 11 inches east-west, as against the actual measurement of 24 feet mentioned in the sale deed (ExD6) of the year 1967 in favour of the defendants. That means while the plaintiffs are found to be in possession of one foot less than the actual width of 25 feet sold to them by the TMC, Hassan, the defendants are found to be in possession of an area measuring one foot one inch east-west i.e., the defendants have lost one foot one inch, whereas the plaintiffs have lost one foot only, if the measurements as indicated in the respective sale deeds are to be examined. The plaintiffs at any rate are not at any great disadvantage in comparison to the defendants and on the other hand, if the defendants who are at great disadvantage in comparison to the plaintiffs, in having lost an area measuring 1 foot 1 inch in width east-west, whereas the plaintiffs have lost an area of a width of only one foot. Even if such shortage is apportioned, if at all the plaintiffs lose and cannot gain anything at the cost of defendants. It is for this reason, I hold that the lower Appellate Court has not correctly given effect to the judgment of this Court and has not acted in terms of the directions issued by this Court in the earlier round of second appeal and this error is required to be corrected. 22. Accordingly second appeal is allowed. Judgment and decree passed by the lower Appellate Court is set aside and the judgment and decree passed by the trial Court is restored. Second appeal is allowed with costs. Issues framed by the trial Court and answered in favour of the appellant and against the plaintiffs are affirmed.