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2011 DIGILAW 3563 (MAD)

Palani Nadar v. Selvin

2011-08-04

M.M.SUNDRESH

body2011
JUDGMENT ( 1. ) THE plaintiffs are the appellants. A suit has been filed by the plaintiffs for declaration, mandatory injunction and permanent injunction. It is the case of the plaintiffs that the suit property being a pathway exclusively belongs to them. According to the plaintiffs /appellants, the respondents/defendants have encroached upon a portion of the suit property belonging to the appellants. THErefore, the suit has been laid seeking the reliefs of declaration, mandatory injunction and permanent injunction. ( 2. ) THE trial Court after considering Ex.A.6 filed by the appellants as well as the report of the Advocate Commissioner was pleased to decree the suit in so far as the declaration and mandatory injunction are concerned. However, the relief of permanent injunction was rejected even though the finding of the trial Court is that it is a common pathway. Being aggrieved against the judgment and decree of the trial Court, the defendants preferred an appeal in A.S.No.94 of 1993. THE lower appellate Court also concurred with the finding of the trial Court in holding that the suit property is a common pathway belonging to both the appellants and respondents. However, the lower appellate court allowed the appeal in toto on the ground that in view of the specific stand taken by the appellants that the suit property is their exclusive property, the relief sought for cannot be granted. Challenging the decree and the judgment of dismissal, the appellants have come forward with the present Second Appeal. At the time of admitting the Second Appeal, the following substantial questions of law have been framed: "(a) After having held that the suit property is a common pathway for both the plaintiffs and the defendants, whether the learned Sub Judge is right in not granting a decree for mandatory injunction to remove the constructions put up by the defendants within the suit property? (b) Whether the lower appellate Court is right in not exercising the power under o-26 R-10(3) of C.P.C. when the Court did not accept the report and plan of the Advocate Commissioner especially in a case where there could not be any effective adjudication without the report and plan of the Advocate Commissioner?" ( 3. (b) Whether the lower appellate Court is right in not exercising the power under o-26 R-10(3) of C.P.C. when the Court did not accept the report and plan of the Advocate Commissioner especially in a case where there could not be any effective adjudication without the report and plan of the Advocate Commissioner?" ( 3. ) THE learned counsel appearing for the appellants submitted that even assuming the findings of the Courts below are correct, the lower appellate Court has committed an error in law in not granting a decree for declaration. It is further submitted that the Commissioner's Report as found by the trial Court has not been considered in a proper perspective by the lower appellate Court, which indicate that the suit property is about 9 links. THErefore, the learned counsel submitted that on those ground the Second Appeal will have to be allowed. ( 4. ) PER contra, the learned Senior Counsel appearing for the respondents submitted that the report of the commissioner is nothing but a piece of evidence to be appreciated by the Court of f4s. The commissioner's Report has been made without the assistance of Survey Officials. The Commissioner has made inspection and filed an exparte report. Merely because, the Commissioner has found higher extent in the earlier occasion, the same is not binding on the Court, more so the subsequent report indicates that the suit pathway is only 6 links. Therefore, the learned Senior Counsel submitted that the Second Appeal will have to be dismissed. A perusal of the judgments and decrees rendered by the Courts below would show that concurrent finding has been given to the effect that the suit path way is a common way. It is trite law, when a larger relief is sought for and if the Court satisfies, it has got power to grant a lesser relief. The findings are to the effect that the suit pathway is a common pathway to be used by both parties. The lower appellate Court ought to have granted relief to the effect that the appellants are entitled to use the suit pathway as a common pathway. Further, this Court finds considerable force in the submissions made by the learned Senior counsel. The appellants have placed reliance on Ex.A.6, which is a public document. The lower appellate Court ought to have granted relief to the effect that the appellants are entitled to use the suit pathway as a common pathway. Further, this Court finds considerable force in the submissions made by the learned Senior counsel. The appellants have placed reliance on Ex.A.6, which is a public document. Ex.A.6 clearly states that the suit pathway is only 6 links and not 9 links as alleged by the appellants. Considering the fact that Ex.A.6 is a document filed by the appellants, it is not open to them to go back from the same and contend otherwise by making reliance only on the Report of the Commissioner, which is nothing but a piece of evidence to be appreciated by the Courts below. The substantial questions of law are answered accordingly. ( 5. ) THEREFORE, in the light of the discussions made above, the Second Appeal is party allowed and the judgment and decree of the lower appellate Court is hereby modified to the extent there is a declaration granted in favour of the appellants declaring that they are entitled to use the suit pathway as found under Ex.A.6 (6 links) along with the defendants/respondents. In the circumstances of the case, there is no order as to the costs.