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2012 DIGILAW 2428 (MAD)

Iyyankutty v. Vasanthakumari

2012-06-13

M.SATHYANARAYANAN

body2012
Judgment :- 1. The plaintiff was successful before the trial Court and lost before the lower appellate Court, is the appellant. 2. The appellant/ plaintiff filed a suit in O.S.No.271 of 1987 on the file of the Principal District Munsif, Padmanabhapuram, against the respondent/defendant praying for a judgment and decree to declare that in respect of the suit property measuring 3/¾th cents in resurvey No.295/6 at Thumbacode Village, Kanyakumari District, he is the owner of the said property and for mandatory injunction directing the respondent/defendant to remove the offending construction put up on the said property. It is averred by the appellant/plaintiff that the plaint schedule property in Survey No.295/6, at Thumbacode Village, Kanyakumari District having an area of 3 ¾th cents with the superstructure thereon and the compound wall was purchased by him by means of a registered sale deed dated 12.01.1981 (Ex.A.1). Thereafter, he is in possession and enjoyment of the southern compound wall. The appellant/plaintiff would further submit that originally the compound wall was constructed with granite stones with a height of six feet and the thickness of the said wall is 1 ¼th feet and the wall is aged about 35 to 45 years. From the date of purchase of the property (Ex.A1), the appellant/plaintiff is in possession and enjoyment of the property and its compound wall. The respondent/defendant started claiming the title to the property which lies south of the suit property in resurvey No.295/7. Taking advantage of the fact that the appellant/plaintiff is working in foreign country, namely Oman, the respondent/defendant raised a height of the scheduled property to 3 feet by putting up construction and the said construction is also projecting about 9 inches north of the schedule property. 3. According to the appellant/plaintiff, the respondent/defendant has no right whatsoever in respect of the suit compound wall in question and since his title and possession is disputed by the respondent/defendant, he came forward to file the said suit. 4. The respondent/ defendant has filed a written statement denying the averments made therein stating that the appellant/plaintiff is not entitled to the whole of the property in resurvey of 295/6 as he has purchased only 3 ¾ cents with the superstructure thereon. The respondent/defendant would further state that there is a compound wall on the eastern side only and on the northern side in the front portion, there is a small compound wall. The respondent/defendant would further state that there is a compound wall on the eastern side only and on the northern side in the front portion, there is a small compound wall. There is no compound wall at all on the northern limits and the appellant/plaintiff did not purchase the compound wall and consequently, there is no compound wall for the appellant/plaintiffs house site on the southern side. The respondent/defendant specifically took a stand that the alleged compound wall is only on the northern wall or the defendant's house and the southern limit of the plaintiff's property is a small drainage channel and the compound wall of the plaintiff of the eastern is only 25 feet and further that neither the plaintiff nor his purchasers were in possession of the suit compound wall. 5. It is also stated by the respondent/defendant that he has purchased the total eight cents including the building and he is the owner of the property in the schedule property and that he has not raised the height of the schedule property and also did not make any construction as alleged in the plaint. Therefore, the respondent/defendant prayed for the dismissal of the suit. 6. The trial Court on consideration of the pleadings, framed the following issues:- “1. Whether the suit property belongs to the plaintiff? 2. Whether the plaintiff is entitled for a decree of mandatory injunction? 3. Whether the defendant has the title by adverse possession? 4. To what relief the plaintiff is entitled?” 7. During the course of the trial, the plaintiff himself examined as P.W.1 and Exs.A.1 to A.7 were marked. On the side of the defendant, D.W.1 to D.W.3 were examined and Exs.B1 to B9 were marked. Pending suit, an advocate commissioner was appointed and he visited the property in question and filed his Report and Plan, which were marked as Exs.C1 and C2. 8. The trial Court on consideration of the pleadings, oral and documentary evidence, decreed the suit as prayed for vide judgment and decree dated 05.02.1993. Challenging the viresof the same, the respondent/defendant preferred A.S.No.50 of 1993 on the file of the Subordinate Judge, Padmanabhapuram. 8. The trial Court on consideration of the pleadings, oral and documentary evidence, decreed the suit as prayed for vide judgment and decree dated 05.02.1993. Challenging the viresof the same, the respondent/defendant preferred A.S.No.50 of 1993 on the file of the Subordinate Judge, Padmanabhapuram. The lower appellate Court vide judgment and decree dated 26.02.2011 made in A.S.No.50 of 1993 remanded the matter to the trial Court with the direction to give opportunity to the parties to seek for the appointment of an Advocate Commissioner and also permitted the parties to lead further evidence in the form of oral and documentary evidence. 9. Challenging the order of remand passed by the lower appellate Court, the appellant/plaintiff preferred an appeal in CMA.No.1198 of 2011 on the file of the this Court. This Court vide judgment dated 26.02.2001 allowed the said appeal and directed the lower appellate Court to retain the appeal on its file and directed parties to approach the appellate Court for appointment of an Advocate Commissioner and directed the learned Advocate Commissioner to measure both re-survey Nos.295/6 and 295/7 and file his report and plan. After filing the report and plan by the Commissioner, the lower appellate Court was directed to afford opportunity to both parties and dispose of the appeal on merits. Liberty was given to the lower appellate Court to appoint the same Advocate Commissioner to file his report and plan. 10. After the orders passed in CMA.No.1198 of 2001, the appellant/plaintiff filed a petition in I.A.No.148 of 2008 praying for the appointment of the Advocate Commissioner to measure both resurvey Nos.295/6 and 295/7 of Thumbacode Village. The learned Advocate Commissioner has also visited the suit property. 11. On a perusal of the impugned judgment passed by the lower appellate Court would disclose that after the visit of the Advocate Commissioner, the appellant/plaintiff has not pressed the said application in I.A.No.148/08 and the fact remains that the Advocate Commissioner after re-visit, has not filed his plan. The learned Advocate Commissioner has also visited the suit property. 11. On a perusal of the impugned judgment passed by the lower appellate Court would disclose that after the visit of the Advocate Commissioner, the appellant/plaintiff has not pressed the said application in I.A.No.148/08 and the fact remains that the Advocate Commissioner after re-visit, has not filed his plan. The lower appellate Court has taken into consideration the earlier Commissioner's Report marked as C.1 and C.2 before the lower appellate Court and arrived at finding that the disputed compound wall is not within the resurvey No.295/6 and it is situated on the southern of the said Survey No, and taking note of the report and plan, has set aside the judgment and decree passed by the trial Court and allowed the appeal vide its judgment and decree dated 07.01.2010. The appellant/plaintiff aggrieved by the same, preferred the present second appeal. 12. The learned counsel appearing for the petitioner would submit that though the appellant/ plaintiff filed an application in I.A.No.148/08 seeking for an appointment of the Advocate Commissioner, on advice, withdrew the said application and the lower appellate Court ought not to have given much importance without looking into the oral and documentary evidence. It is the further submission of the learned counsel appearing for the appellant that the findings arrived at by the lower appellate Court were solely based upon by the Commissioner's Report C.1 and C.2 and in any event, the lower appellate Court being the final Court on being facts and law, ought to have taken into consideration oral and documentary evidence and decided the same on merits. Alternatively, the learned counsel for the appellant submits that the matter may be remitted to the lower appellate Court as the order in C.M.A.No.1198 of 2011 has become final and it has been allowed and in spite of such an order, the Commissioner's report and plan have not been filed and after filing it, an opportunity may be given to both parties to file objections to the Commissioner's Report and both parties may also be allowed to lead further oral and documentary evidence. 13. 13. Per contra, learned counsel for the respondent/defendant would contend that the conduct on the part of the appellant/plaintiff assumes much importance for the reason that after remand by this Court vide its order made in C.M.A.No.1198/11, the appellant/plaintiff filed an application in I.A.No.148/08 to appoint the same Advocate Commissioner to revisit the suit property and in fact, in the presence of both respective counsel appearing for the parties, he prepared the report and plan and before it could be filed, the appellant/ plaintiff withdrew the application and consequently, the advocate commissioner after revisit, could not file his report and plan and the lower appellate Court has rightly taken into consideration the said conduct and left with no other option except to rely upon the earlier Commissioner's report marked as Exs.C.1 and C.2. Further, the learned counsel for the respondent/ defendant would submit thereafter an application in I.A.No.122 of 2007 was filed directing the Advocate Commissioner to file his report and plan and it was also ordered and in the event of the matter being remitted to the lower appellate Court, direction may be given to the lower appellate Court to give the effect that the orders passed in I.A.No.122 of 2007 and both parties may also be given liberty to put forth their objections and to adduce further evidence. 14. The learned counsel for the appellant/ plaintiff would submit that the order in I.A.No.122 of 2007 came to be passed on 02.11.2009 and in view of the passage of time, the same Advocate Commissioner may be directed to revisit the suit property and file his report and plan afresh. 15. This Court has carefully considered the rival submissions made on either side and also perused the impugned judgments passed by the Courts below. This Court while remanding the matter directed the lower appellate Court to retain the appeal on its file and permitted the parties to approach the same Court for the appointment of the Commissioner and the lower appellate Court was also directed to appoint the Commissioner with a direction to measure the properties in re-survey Nos.295/6 and 295/7 and file his report. An opportunity was also granted to appoint the same Commissioner and after filing of the said report and plan, this Court further directed the lower appellate Court to afford opportunities to both parties and dispose of the appeals on merits. An opportunity was also granted to appoint the same Commissioner and after filing of the said report and plan, this Court further directed the lower appellate Court to afford opportunities to both parties and dispose of the appeals on merits. After the said order of remand, the appellant/plaintiff filed an application in I.A.No.1148 of 2011, wherein the Advocate Commissioner who earlier visited the suit property, filed his report and plan and marked documents C.1 and C.2 before the trial Court, once again visited the suit property, but before he could file his report and plan, the appellant/plaintiff has withdrawn the said application and consequently, the report and plan said to have been prepared by the learned Advocate Commissioner on revisit, could not be filed. 16. Aggrieved by the same, the respondent/ defendant filed I.A.No.122 of 2009 praying for a direction to direct the learned Advocate Commissioner to file his report and plan and the same was ordered on 03.11.2009. The fact remains that though the said order came to be passed on 03.01.2009 and the appeal came to be disposed of on 07.01.2010, the order passed in I.A.No.122 of 2009 has not been given effect to by the lower appellate Court and no reason has been assigned as to why the lower appellate Court did not do so. The learned counsel appearing for the parties would submit that the report and plan of the Advocate Commissioner on revisit, are very crucial documents for deciding the points for determination of the lower appellate Court and hence, the matter may once again be remanded to the lower appellate Court for filing the said report and plan. The learned counsel for the appellant/ plaintiff also prays in the event of Advocate Commissioner files his report and plan, both parties may be afforded opportunity to file their objections and let in further evidence. 17. Though the appellant/plaintiff withdrew I.A.No.148 of 2008 and thereafter, I.A.No.122 of 2009 filed by the respondent/defendant came to be allowed, the lower appellate Court without directing the learned Advocate Commissioner to revisit the property in question has taken into consideration his earlier plan and report (Ex.C.1 and C.2) and has chosen to proceed based on that basis. The said procedure adopted by the lower appellate Court resulted in prejudice, to both parties. 18. The said procedure adopted by the lower appellate Court resulted in prejudice, to both parties. 18. In the memorandum of grounds of appeal, the appellant/ plaintiff has framed the following substantial questions of law:- “a) Is not the lower appellate Court committed an error in not looking into admissions made by the deponents D.W.1 to D.W.3? b) Is not the lower appellate Court erred in not framing point for determination for disposal of the appeal? c) Whether the lower appellate Court is right in proceeding with the appeal without issuing notice to the appellant? d) Is not the findings of the lower appellate Court are not perverse? e) Whether the lower appellate Court has committed an error in not drawn adverse inference against the respondent?” 19. This Court, taking into consideration the rival submissions of the learned counsel for the appellant/plaintiff and the respondent/ defendant is inclined to frame the following substantial question of law:- “1. Whether the lower appellate Court is correct in law in disposing of the appeal suit though it allowed I.A.No.122 of 2009 for direction to direct the Advocate Commissioner to file his report and plan?” 20. This Court, upon hearing the rival submissions, is of the considered opinion that the matter requires remand for proper adjudication of the issues involved and accordingly, framed the above substantial question of law and for the reasons assigned above, answer the same in affirmative and in favour of the appellant/ plaintiff. 21. In the result, the second appeal is allowed and the judgment and decree dated 07.01.2010 made in A.S.No.50 of 1993 is set aside and the matter is remanded to the Court of Subordinate Judge, Padmanabhapuram, with a direction to the lower appellate Court to direct the learned Advocate Commissioner who was appointed in I.A.No.148 of 2008 to submit his report and plan in terms of the order dated 03.11.2009 in I.A.No.122 of 2009 and after the receipt of the Commissioner's Report and plan, shall afford opportunity to the parties to file their objections and also permit them to adduce further evidence, if any, and dispose of the appeal as expeditiously as possible by giving utmost importance as the suit is of the year 1987. In the circumstances, there is no order as to costs. The parties are directed to appear before the lower appellate Court on 14.08.2012. 22. In the circumstances, there is no order as to costs. The parties are directed to appear before the lower appellate Court on 14.08.2012. 22. At this stage, the learned counsel for the appellant/ plaintiff prays for the revisit of the Advocate Commissioner. However, this Court is not inclined to consider the request for the reason that in the light of the I.A.No.122 of 2009 which remains unchallenged sofar, it is not possible to direct the learned Advocate Commissioner to revisit the suit property and file a report afresh. However if the parties are so advised and permissible under law, it is open to them to file appropriate application.