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2012 DIGILAW 1148 (MAD)

B. Vijaya v. Subbiah Reddiar

2012-03-02

V.PERIYA KARUPPIAH

body2012
Judgment :- 1. This appeal is directed against the judgment and decree passed by the First Appellate Court in A.S.No.142 of 1986 in confirming the judgment and decree passed by the trial Court in O.S.No.956 of 1984 dated 21.10.1986, since the said appeal was remanded by this Court in the judgment made in Second Appeal.No.497 of 1988 dated 16.7.2001 after setting aside the judgment and decree passed by the then first appellate Court dated 14.9.1987, in allowing the appeal. 2. The appellants herein were the legal representative of the deceased plaintiff S.Balu and the respondent was the defendant before the trial Court. 3. The case of the plaintiff before the trial Court as stated in the plaint are as follows: The suit property lying under Survey No.123/1 is a part of a large extent of land of 1.90 acre, which was belonging to one Alameluammal, from which the plaintiff's father one Subramaniya Pillai has purchased on 24.7.1946 for Rs.700/-and its patta number is 500. The plaintiff's father was in possession and enjoyment of the same till his death on 1.8.1981. The plaintiff was the only son of the said Subramaniya Pillai and he had a sister by name Sethulakshmi, who executed a release deed in favour of the appellant/plaintiff releasing her right in the suit property on 25.6.1974, for a sum of Rs.1500/-. As on this date, the plaintiff is the absolute owner of the same and he also enjoyed the same for more than 12 years. The defendant trespassed into the suit property on 3.12.1982 and a lawyer's notice was issued by him on 3.6.83, directing the respondent/defendant to vacate the same and to pay mesne profits for his wrongful occupation till the delivery of possession. The defendant's claim is denied to the effect that the said land is a railway promboke. Therefore, the plaintiff has filed the suit for declaration of his title over the suit property and for recovery of possession and mesne prifits with costs. 4. The objections raised by the defendants would be thus: The defendant had constructed his house at Railway Promboke and it is no way connected to the land lying under survey No.123/1. The defendant had been in possession of the same right from 1981. Under such circumstances, the suit is liable to be dismissed. 5. The trial Court had framed necessary issues and entered trial. The defendant had been in possession of the same right from 1981. Under such circumstances, the suit is liable to be dismissed. 5. The trial Court had framed necessary issues and entered trial. It had examined the plaintiff as P.W.1 and admitted Exs. A1 to A10, series of documents, produced by the plaintiff and Exs. B1 to B6 , the documentary evidence produced by the defendant, apart from the Commissioner's report in C1 and C3 and his sketches as C2 and C4. After appraising the evidence adduced on either side, the trial Court had dismissed the suit with costs. Aggrieved by the judgment and decree passed by the trial Judge, the plaintiff preferred an appeal in A.S.No.142 of 1986 and the First Appellate Court had set aside the said judgment and decree of the trial Court dated 21.10.1986 and allowed the appeal on 14.9.1987. 6. Aggrieved defendant preferred a second appeal before this Court in S.A.No.497 of 1988 and after hearing both parties, this Court had remitted the matter to the first appellate Court, after setting aside the judgment and decree of the first appellate Court dated 14.9.1987 by its judgment passed on 16.7.2001. Accordingly, the first appellate Court had taken the matter once again and heard the arguments of both sides and dismissed the appeal filed by the plaintiff thereby confirmed the judgment and decree passed by the trial Court. 7. Aggrieved against the judgment and decree passed by the first appellate Court in the second instance on 31.7.2003, the present second appeal has been preferred by the appellants. 8. On admission of the appeal, the following substantial questions of law were formulated for consideration in this appeal. "1) Whether the courts below are correct in dismissing the suit filed by the plaintiff without properly considering the documents -Exs.A.1 to A.10 and the oral evidence of P.W.1, which would discharge the burden of proof by the plaintiff in proving his title over the suit property? "1) Whether the courts below are correct in dismissing the suit filed by the plaintiff without properly considering the documents -Exs.A.1 to A.10 and the oral evidence of P.W.1, which would discharge the burden of proof by the plaintiff in proving his title over the suit property? 2.) Whether the courts below are correct in dismissing the suit of the plaintiff without considering the commissioner's report and plan - Exs.C.3 and C.4 - wherein he has categorically found that the northern boundary of the suit property is S1 to S5 and for which the defendant has not even filed any objection even though he admitted in the cross examination that he was present while the Commissioner and the Surveyor inspected the suit property for the second time.?" 9. Heard, Mr.S.Krishnasamy, learned counsel for the appellants/ plaintiff. No appearance for the respondent/ defendant, despite his name is printed in the cause list. 10. Learned counsel for the appellants would submit in his argument that the first appellate Court had failed to discuss the evidence adduced by the plaintiff and the documents produced in Exs.A1 to A10 would discharge his burden and prove his case. He would further submit that the lower Appellate Court has not considered the report of the Commissioner and his sketch produced in Exs. C3 and C4 which are very relevant for deciding the issue especially when the defendant was present during his inspection and was taking measurement of the suit property with the help of FMB and surveyor. He would further submit in his argument that the first appellate Court did not find the facts after completely discussing the oral and documentary evidence produced by the plaintiff. He would further submit that the documentary evidence produced in Exs. A1 to A4 would prove the title to the suit property including the plots laid out and sold by the plaintiff, subsequently to various persons. He would also submit that the lay out plan produced in Ex.A5 would go to show that there was some vacant site left out on the northern end of the lay out plan to which the plaintiff kept for his use, which was the suit property. He would further submit that the documents produced in Exs.A8 to A10 would go to show that the plaintiff was in possession and enjoyment of the suit property. He would further submit that the documents produced in Exs.A8 to A10 would go to show that the plaintiff was in possession and enjoyment of the suit property. He would further submit in his argument that the commissioner's report would go to show that the properties had been encroached by the defendant without any right over the property. He would also submit that the commissioner's report and sketch produced in Exs. C3 and C4 would categorically show that the suit property is located within the boundaries as described in the suit schedule despite the measurements given in the plaint are slightly varying. He would also submit that while the boundaries of the property are found to be correct, the conflicting measurements need not be considered for the grant of relief. He would refer to the judgment of the Honourable Apex court reported in 2006(5) SCC 466 (Subhaga v. Shobha) in support of his arguments. He would also submit that the principle as putforth by this Court in the earlier judgment passed on 14.9.2001 that the plaintiff has to prove his case and to discharge his burden and he cannot rely upon the weakness of the defendant and seek for the relief, is not disputed. However, the first appellate court has not considered the evidence produced by the plaintiff towards the discharge of burden cast upon the plaintiff in proving his case. He would therefore, submit that the first appellate Court did not perceive the evidence as spoken to by the witnesses of the plaintiff as well as the documentary evidence but it had acted perversely against the plaintiff and therefore it has to be necessarily interfered and set aside. He would therefore request the court to set aside the judgment and decree passed by the first appellate Court and to reverse the finding of the trial Court and the second appeal be allowed. 11. I have given anxious thoughts to the arguments advanced on the side of the appellant. The respondent remained absent, I have carefully perused the records and the judgment of both the courts below and the judgment of this Court made in S.A.No.497 of 1988 dated 14.9.2001. 12. 11. I have given anxious thoughts to the arguments advanced on the side of the appellant. The respondent remained absent, I have carefully perused the records and the judgment of both the courts below and the judgment of this Court made in S.A.No.497 of 1988 dated 14.9.2001. 12. The suit has been filed by the plaintiff seeking for the following reliefs:- "To pass a decree a) declaring the plaintiff's absolute title to the suit property hereunder described; b) directing the defendant to put the plaintiff in vacant possession of the suit property free of all obstruction c) directing the defendant to pay to the plaintiff the sum of Rs.681/- with subsequent interest by way of past mesne profits; d) directing the determination of future mesne profits proceedings under Order 20 Rule 12 of C.P.C. e) directing the defendant ot pay the cost of suit to plaintiff. f) granting such other reliefs as to the Hon'ble Court may deem fit and proper in the circumstances of the case." 13. The suit property is described in the suit schedule as situated in S.No.123/1 in an extent of 1 acre 90 cents and out of this, an extent of 70 feet East-West and 23 feet North-South bounded on the North by: ural canal, South by : 20 feet Road, West by : Building society Road and East by : canal. The said property was divided into various plots and was sold by the plaintiff to various parties. The case of the plaintiff was that after selling such plots to various persons, he had retained the northern portion of the said extent of 1 acre 90 cents in S.No.123/1 which is located north of 20 feet Road, found in the lay out. The entire property in S.No.123/1 is comprised in 1 acre 90 cents which was evidenced by EX.A3 patta, standing in the name of Subramania Pillai, the father of the plaintiff. The title deed produced in Ex.A1 would go to show that Subramania Pillai purchased the said property from one Alamelu Ammal. 14. It is the further case of the plaintiff that the said Subramania Pillai died in the year 1983 and the plaintiff got the property along with Seethlakshmi Ammal, his sister and the said Seethulakshmi Ammal executed the release deed on 25.6.1984. 14. It is the further case of the plaintiff that the said Subramania Pillai died in the year 1983 and the plaintiff got the property along with Seethlakshmi Ammal, his sister and the said Seethulakshmi Ammal executed the release deed on 25.6.1984. In order to substantiate the case of the plaintiff, the death certificate of Subramania Pillai is produced as Ex.A2 and the registered release deed executed by Seethulakshmi Ammal in favour of the plaintiff is produced as Ex.A4. The said document coupled with the evidence of P.W.2 would go to show that he was the owner of the property of an extent of 1 acre 90 cents in S.No.123/1 and was in possession and enjoyment of the said property. Further more, it has been shown to Court that the plaintiff had laid out the said land and Ex.A5, the lay out plan for the said land would prove the same. The said lay out would show that there was some space left on the northern side of 20 feet road located on the northern end of the said lay out. The commissioner also inspected the suit property twice and his earlier report and sketch were superceded and his further report and his sketch which were produced as Ex.C3 and C4. Admittedly, both parties did not file any objection to the commissioner's report and sketch and they were admitted in evidence. In the commissioner's report and plan, it has been categorically found that the suit property was located in S1, S2, S3, S4 , S5, L, S9 in the suit Survey No.123/1. In the commissioner's report, I could see that the commissioner had measured the suit property with the help of the surveyor and the FM book and accordingly, the survey stones, S1 to S5 and S9 were verified by the Commissioner. The stones S7, S8 were taken as a permanent structure and the measurements were taken for locating S1 to S5 and the surveyor had planted the aforesaid stones accordingly. After fixing S1 to S5, the surveyor had referred to FM book and had verified the same to be correct. Therefore, the Commissioner's report would categorically show that the suit property had been located as mentioned in the plaint in S.No.123/1 which was not dealt with by the trial Court. After fixing S1 to S5, the surveyor had referred to FM book and had verified the same to be correct. Therefore, the Commissioner's report would categorically show that the suit property had been located as mentioned in the plaint in S.No.123/1 which was not dealt with by the trial Court. Moreover, the trial Court had bluntly stated that Exs.A1 to A5 and A6 to A10 were not helpful to establish the case of the plaintiff which is a basically erroneous view taken by trial court. The said serious mistake committed by the trial Court was not considered and corrected by the first Appellate Court when the matter has been remanded. When the plaintiff had proved that the property is lying on the north of 20 feet road, south of Ural canal and west of canal and east of Cooperative Society the 1st appellate Court ought to have considered that the said extent, even though, differs from the measurement and the extent mentioned in the said property, should have been concluded, as proved. 15. It is a settled principle of law that the boundaries will prevail over the measurements and dimensions when there is a conflict in between the two. No doubt, the plaintiff had mentioned 23 feet north- south, 20 feet east-west as the measurement of the suit property in the plaint to which the Commissioner found various dimensions regarding the north-south as 28 in S2 point, 23 in S3 point and 12 at S4 point. The measurement of east-west on the south and the north would also differ. However, the boundaries of all sides are in tact. 16. In the judgment of the Honourable Apex Court reported in 2006(5) SCC 466 (Subhaga v. Shobha), it is held as follows: "That a property can be identified either by boundary or by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail. There was no occasion to spin a theory that it was necessary in this suit to survey all the adjacent lands to find out whether an encroachment was made in the land belonging to the plaintiff." 17. Even if there was any discrepancy, normally, the boundaries should prevail. There was no occasion to spin a theory that it was necessary in this suit to survey all the adjacent lands to find out whether an encroachment was made in the land belonging to the plaintiff." 17. As per the said judgment of Hon'ble Apex Court when the area within the four boundaries is conflicting with the extent measured in the document, the boundaries will prevail over the said measurements. 18. Therefore, the plaintiff has established his title over the suit property as detailed in the commissioner's report and plan Exs.C3 and C4, but the trial Court has miserably failed to consider the same. It is the case of the defendant that he had been in occupation of Railway promboke and it was not comprised in S.No.123/1. The evidence produced on the side of the plaintiff as well as the commissioner's report would go to show that the suit property is well within S.No.123/1 as comprised within the four boundaries described in the plaint schedule. Therefore, the case of the defendant that he was in occupation of the railway promboke is not sustainable. The documents produced on the side of the defendant in Exs.B1 to B6 are relating to some other property and not in respect of the patta land in S.No.123/1. In the said circumstances, the first appellate Court, being a Court to decide the facts finally, had miserably failed to discuss the evidence and to perceive those evidence in a proper sense and to correct the trial Court through its findings. Since the First appellate Court had not done its duty by correctly perceiving the evidence for rendering its findings, it has become necessary for this Court to interfere in the findings of the first appellate Court. 19. In the judgment of the Honourable Apex Court reported in AIR 2003 SC 1905 (Bondar Singh vs. Nihal Singh) it is held as follows: "4.) .......An appeal under S.100, C.P.C. can be entertained by the High Court only on a substantial question of law. There can be no quarrel with this legal proposition. The scope of powers of High Court under S.100 C.P.C. is a matter of settled law. The learned counsel for the appellant cited several judgments in support of his contention. There can be no quarrel with this legal proposition. The scope of powers of High Court under S.100 C.P.C. is a matter of settled law. The learned counsel for the appellant cited several judgments in support of his contention. We do not consider it necessary to discuss these decisions because so far as the question of powers of High Courts under S.100 C.P.C. is concerned, it needs no discussion. If the findings of the subordinate Courts on facts are contrary to evidence on record and are perverse, such finding can be set aside by the High Court in appeal under S.100 C.P.C. A High Court cannot shut its eyes to perverse findings of the Courts below. In the present case, the findings of fact arrived at by the lower appellate Court were contrary to evidence on record and, therefore, perverse and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit being decreed." 20. In the aforesaid judgments, we could see that even though the judgments and decrees of both the courts below are concurrent and if they have erred in applying the legal principles and the evidence to the facts and circumstances of the case, certainly, this Court, under section 100 C.P.C., is empowered to interfere with those judgments, even though, they are concurrent. 21. As far as this case is concerned, the first appellate Court had not discussed the fact in full but had come to a conclusion without any discussion and therefore, it is found to be a perverse finding. Therefore, it has become necessary for this Court to interfere with the judgment and decree passed by the first appellate Court and to set aside the same and accordingly, the suit filed by the plaintiff ought to have been decreed but it was not set aside and decreed by the first appellate Court and therefore, the judgment and decree passed by the First Appellate Court as well as the trial Court are liable to be set aside and the suit filed by the plaintiff is liable to be decreed as prayed for. 22. In fine, the second appeal is allowed and the judgment and decree passed by the first appellate Court as well as the trial Court are set aside and the suit filed by the plaintiff was decreed as prayed for. Consequently, C.M.P.No.1189 of 2004 is closed. 22. In fine, the second appeal is allowed and the judgment and decree passed by the first appellate Court as well as the trial Court are set aside and the suit filed by the plaintiff was decreed as prayed for. Consequently, C.M.P.No.1189 of 2004 is closed. No costs. Time for handing over possession of the suit property is three months.