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2011 DIGILAW 1858 (MAD)

N. Pasupathy v. A. M. Sekar

2011-03-31

G.RAJASURIA

body2011
Judgment :- 1. This second appeal is focussed by the original defendant, animadverting upon the judgment and decree dated 13.02.2008 passed in A.S.No.160 of 2007 by the IV Additional Judge, City Civil Court, Chennai, confirming the judgment and decree of the learned VIII Asst. Judge, City Civil Court, Chennai in O.S.No.3214 of 2004. The parties are referred to hereunder according to their litigative status and ranking before the trial 2. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiff filed the suit seeking the following reliefs: (i) For permanent injunction restraining the defendant his men or agents acting through him from interfering with plaintiff's possession of suit schedule 'B' property; (ii) For mandatory injunction directing the defendant to remove the pillars raised on suit schedule 'B' property; and (iii) for costs.(Extracted as such) (b) The defendant filed the written statement resisting the suit. (c) Whereupon the trial Court framed the issues. (d) During trial, the plaintiff-A.M.Sekar examined himself as P.W.1 along with P.W.2-Thangadurai and Exs.A1 to A7 were marked. The defendant-Pasupathi examined himself as D.W.1 and Exs.B1 to B5 were marked. Exs.C1 and C2 were marked as Court documents. (e) Ultimately the trial Court decreed the suit, as against which appeal was filed for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial Court. 3. Challenging and impugning the judgments and decrees of the both the Courts below, this Second Appeal has been filed on various grounds and also suggesting the following substantial questions of law: "(1) Whether the Courts below could ignore the suit documents namely Exhibits A1 and A2 filed by the respondent/plaintiff to establish his case. (2) Whether the Courts below could ignore the plaint averments contrary to Exhibits A1 and A2. (3) Whether the Courts below were justified in decreeing the suit on the basis of oral evidence of respondent/plaintiff which is contrary to Exhibit A1. (4) Whether the Courts below were justified in decreeing the suit of the plaintiff when he approached the Honourable Court with false case contrary to Exhibit A1 and A2. (5) Whether the Courts below are right in decreeing the suit of the respondent/plaintiff on the basis of Commissioner's report and the plan submitted by the Commissioner ignoring the suit documents Exhibits A1 and A2." (extracted as such) 4. (5) Whether the Courts below are right in decreeing the suit of the respondent/plaintiff on the basis of Commissioner's report and the plan submitted by the Commissioner ignoring the suit documents Exhibits A1 and A2." (extracted as such) 4. My learned Predecessor virtually adopted the aforesaid substantial questions of law. 5. Heard both sides. 6. After hearing both sides, I have also formulated one additional substantial question of law to the effect that: (6) Whether the Advocate Commissioner measured the suit property properly and that too, in the absence of the assistance of a Government Surveyor and also public records and maps concerned? 7. A 'resume' of facts absolutely necessary and germane for the discussion would run thus: The plaintiff is claiming to be the owner of the superstructure of the property referred to in Ex.A1 - the sale deed dated 30.09.1985, and as a lease holder of the ground on which the superstructure stands with certain appurtenant areas, totally measuring an extent of 1431 sq.ft. The defendant is owning property to the west of the plaintiff's property. According to the contention of the plaintiff, the defendant after demolishing his old house, while starting to construct a new house attempted to trespass into the plaintiff's property to an extent of 2 feet on the western portion of the plaintiff's property which alone evoked the filing of this suit. 8. The learned counsel for the plaintiff would contend that Ex.A2 is the approved plan, which would clearly show that the plaintiff is having two feet width of passage on west of the built up portion of the plaintiff, whereas, the defendant after demolishing his compound wall and while raising new structure, attempted to trespass into the said two feet passage of the plaintiff. He would also submit that there was nothing wrong in the Commissioner's report, because it is in commensurate with Ex.A2 as well as the title deed - Ex.A1 of the plaintiff. 9. Whereas, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiff, the learned counsel for the appellant/defendant would advance his arguments thus: (a) The trial Court was not justified in appointing an Advocate Commissioner ex parte and the Commissioner was also not justified in visiting the suit property and measuring the same without giving prior notice to the defendant. (b) Simply because at the time of the Commissioner measuring the suit property and noting the physical features, the defendant and his wife were stated to have been present along their maistry, that would not cure the defect. (c) Without the assistance of a Government Surveyor, whatever measurement effected by the Commissioner cannot be taken as correct. (d) The Commissioner should have measured the suit property with reference to the document of the plaintiff and the defendant and also with reference to the records concerned, but absolutely there is no indication to that effect. (e) In the plaint, the plaintiff would claim as though he is the owner of the plot, whereas, in Ex.A1 it is found demonstrated and displayed that he is only a lease holder of the plot, even though superstructure was purchased by him. (f) Simply because no specific objection was filed to the Commissioner's report, the appellant/defendant is not precluded from raising objections to the Commissioner's report, which is ex facie and prima facie not in accordance with law. 10. All the aforesaid substantial questions of law are taken together for discussion as they are inter linked and inter woven with one another. 11. The gist and kernel, the pith and marrow, the warp and woof of the problem lies only in measuring and locating the suit property. Hence, I would like to extract here under the plaint scheduled property: "SCHEDULE OF PROPERTY 'A' SCHEDULE PROPERTY House and Land comprised in Survey No.3756 (Part) Old Survey No.1332 and bearing presently Door No.60, Old Door No.28, mananly Chinnaiya Mudali Street, Ist Lane (M.C.M.Garden) Old Washermenpet, Chennai bounded on the:- NORTH BY:: House belonging to Kuppusamy; SOUTH BY:: Street EAST BY:: House belonging to Shanmuga Gramani; & WEST BY:: House belong to Munusamy. 'B' SCHEDULE PROPERTY 2 Ft. Width, to a length of 30' only on the Western side of 'A' Schedule property, bounded on the:- WEST BY:: Pasupathy's Property EAST BY:: A.M.Sekar's Property SOUTH BY:: A.M.SEKAR'S Property; and NORTH BY:: 'A' Schedule Property; as per the Doc. No.1708/85, SRO Royapuram." (extracted as such) 12. In the 'B' scheduled property only the disputed property is found exemplified. Width, to a length of 30' only on the Western side of 'A' Schedule property, bounded on the:- WEST BY:: Pasupathy's Property EAST BY:: A.M.Sekar's Property SOUTH BY:: A.M.SEKAR'S Property; and NORTH BY:: 'A' Schedule Property; as per the Doc. No.1708/85, SRO Royapuram." (extracted as such) 12. In the 'B' scheduled property only the disputed property is found exemplified. A mere perusal of Ex.A2 - the approved plan which the plaintiff obtained before raising his construction, would display and demonstrate that the plaintiff to the north of the extreme lumber room which is on the western portion of his entire plot, left two feet passage. According to the plaintiff, in that two feet passage alone there is an attempt on the part of the defendant to trespass. The basic requirement for proper measurement is that there should be fixation of a point from which the measurement should start, that fixation could be made only by a competent Surveyor with reference to public records as well as the documents available. There is nothing to indicate from the Commissioner's report as to how the measurement was carried out. The eastern boundary of the plaintiff's property should have been fixed properly at the first instance, whereupon the measurement should have been started. 13. Over and above that, now the defendant himself admits that he is having no claim over the area of 1431 sq.ft. as found specified in Ex.A1; wherefore the issue got narrowed down. The Advocate Commissioner is expected to locate the actual area contemplated in Ex.A1. Incidentally the learned counsel for the plaintiff also would submit that it is better to locate the suit property with reference to the defendant's documents also. There could be no quarrel over such a proposition. Normally for the purpose of locating the disputed property which is bordering the property of the plaintiff and the defendant the documents of both sides should be referred to and measured and there cannot be any second opinion over it. However, it has also been admitted before me by the defendant's counsel that his client is having no claim over the plaintiff's area of 1431 sq.ft. The Commissioner also was not examined before the Court. No doubt Exs.C1 and C2 are Court documents which could be marked without examining the Commissioner. However, it has also been admitted before me by the defendant's counsel that his client is having no claim over the plaintiff's area of 1431 sq.ft. The Commissioner also was not examined before the Court. No doubt Exs.C1 and C2 are Court documents which could be marked without examining the Commissioner. But because the Commissioner was appointed ex parte; that he visited the suit property without giving notice to the defendant, and that he has also measured it without the assistance of a Government Surveyor, it necessitates this Court to interfere in the findings rendered by both the Courts below. In matters of this nature, the oral evidence would have only limited application. Proper measuring and locating the suit property could never be replaced by oral evidence is my firm view. Both the Courts below simply based on the plaintiff's document and the Commissioner's report and also with reference to certain versions given by the witnesses decided the lis ignoring the crucial point. As such there is perversity in the approval of the Courts below. Hence in the Second Appeal interference is warranted. 14. Accordingly, I am of the considered view that the matter has to be sent back to the first appellate Court for appointing an Advocate Commissioner, preferably the same Advocate Commissioner or some other Advocate Commissioner to visit the suit property and measure the same with the assistance of a Government Surveyor and also with reference to public records and documents of both sides, after giving due notice to them. The property of the plaintiff and the defendant should be measured and the suit property should be located precisely. By way of disambiguating the ambiguity, if any, I make it clear that if the appellate Court finds after such measurement that the 'B' scheduled property, so to say, the disputed property comes within the larger extent of 1431 sq.ft. belonging to the plaintiff as per Ex.A1, then automatically the plaintiff would be entitled to a decree in his favour. The first appellate Court shall take endeavour to see that the matter is disposed of within a period of two months from the date of receipt of a copy of this judgment. 15. Both the parties shall appear before the first appellate Court on 25.04.2011. 16. Accordingly, the aforesaid substantial questions of law are answered and the Second Appeal is ordered to this effect. 15. Both the parties shall appear before the first appellate Court on 25.04.2011. 16. Accordingly, the aforesaid substantial questions of law are answered and the Second Appeal is ordered to this effect. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed. 17. The learned counsel for the plaintiff would make an extempore submission that pending disposal of the proceedings before the first appellate Court there shall not be any construction in the disputed property, for which the learned counsel for the defendant undertakes that there will not be any construction in the disputed property and accordingly I order so.