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2012 DIGILAW 2833 (MAD)

K. Dakshinamoorthy v. D. Viswanathan

2012-07-05

T.RAJA

body2012
JUDGMENT The suit was filed by the plaintiffs/appellants herein seeking --- a) for declaration of title of ABCD portion of the suit property as shown in the plaint sketch and for recovery of possession of the removal of the superstructure; b) for declaration of title of CDEF portion of the suit property and for consequential injunction restraining the defendant and their men or agent from in any manner encroaching upon or interfering with the CDEF portion of the suit property; The learned trial Court in O.S.No.124 of 1999, dated 24.09.2002, had dismissed the suit filed by the plaintiffs. As against that, when an appeal was preferred by the plaintiffs, the same was dismissed by the learned first appellate Court in A.S.No.6 of 2005, dated 21.11.205, confirming the judgment and decree passed by the learned trial Court. As against the concurrent findings of the Courts below, the present second appeal has been filed by the plaintiffs/appellants herein. 2. Brief facts leading to the filing of the second appeal are given as under:- The plaintiff/first appellant herein is the owner of the house site bearing Gramantham S.No.212/8-C and Door No.1/43, Sengunthar Street @ Pillaiyar Koil Street, Thiruppulivanam Village, Uthiramerur Taluk, as he has purchased the above property from Tmt.Maragathammal and other by a registered sale deed, dated 22.09.1981, which is marked as Ex.A2. According to him, ABCD portion is having a measurement East-West 1 ½ feet and North-South 40 feet and the portion shown as CDEF is having measurement East-West 1 ½ feet and North-South 76 feet. It is seen that, as per the sale deed-Ex.A2, dated 22.09.1981, the plaintiff had purchased 3 ¾ cents measuring 20 feet East-West and 80 feet North-South from one Maragathammal. It was also the case of the plaintiff that his vendor Maragathammal had inherited the property under a Will executed by her husband Manickam Mudaliar. The plaintiff had also produced the Will executed by the husband of Maragathammal to show that he had purchased the Survey No.212/8, measuring East-West 20 feet and North-South 80 feet. It is also mentioned in the plaint that the suit Survey No.212/8c is reassigned with new no. as 392/11. Whileso, the defendant is the owner of the house located on the Eastern side of the plaintiff's house and the East-West breadth of the defendant's house is only 36 feet. It is also mentioned in the plaint that the suit Survey No.212/8c is reassigned with new no. as 392/11. Whileso, the defendant is the owner of the house located on the Eastern side of the plaintiff's house and the East-West breadth of the defendant's house is only 36 feet. Just five years back the defendant had put up a tiled constructions resting its roof on the Eastern wall of the plaintiff. When the plaintiff objected for the same, the defendant promised to remove the roof and leave back the wall to the plaintiff as and when required by him. But, again, he rested his roof on the plaintiff's old wall to a length of 22 feet North-South. When the matter stand thus, just one month before filing of the suit, the defendant put up a new wall, therefore, when the plaintiff prevented the defendant to construct the new wall, the defendant hit the plaintiff with stone on the head and caused injury and as a result, the plaintiff gave a police complaint and the same was also registered against the defendant under Section 323 IPC. However, in view of the civil dispute, he was constrained to file the present suit against the defendant with the aforesaid prayer. 3. Refuting the claim of the plaintiff, the defendant filed a detailed written statement admitting that the plaintiff is the owner of the house site bearing door No.1/43, Sengunthar Street in Gramanathan Survey No.212/B-C. However, it was contended that the plaintiff's vendor Maragathammal was entitled to only 13.6 feet East-West and not 20 feet. Therefore, it was contended that the alleged purchase of 20 feet East-West by the plaintiff from the said Maragathammal and others is wholly unsustainable and again, it was stated in the written statement that the plaintiff cannot plea anything more than 13.6 feet taking advantage of the wrong measurement in his sale deed. On that basis, it was pleaded that the plaintiff is not entitled to 20'x80', but only entitled to 13.6' x 120 sq.ft. On that basis, it was pleaded that the plaintiff is not entitled to 20'x80', but only entitled to 13.6' x 120 sq.ft. It was also pleaded in the written statement that the breadth of the defendant's site is 39 feet and not 36 feet as alleged by the plaintiff and again, the defendant refuted the allegation of the plaintiff that a police case was filed under Section 323 of IPC against him and also claimed that he is the owner of ABCD portion of the suit property. Further, the case of the defendant is that even as early as 06.08.1927, the house in the defendant's site is mentioned as to an extent of 37 feet and the suit wall belonged to the defendant and only upon the defendant's wall, the defendant resting his roof, therefore, no portion of the roof is rested on the alleged wall, which belongs to the plaintiff. 4. Under these circumstances, the matter was taken up for trial. But, the trial Court, before taking up the matter, appointed an Advocate Commissioner to inspect the suit property along with Surveyor, so as to submit a report. On the side of the plaintiff, the plaintiff himself was examined as P.W.1 and 3 independent witnesses were examined as P.W.2 to P.W.4 and 14 documents were marked as Exs.A1 to A14. On the side of the defendant, the defendant himself was examined as D.W.1 and three documents were marked as Exs.B1 to B3. The Advocate Commissioner's report, survey sketch and rough sketch were marked as Exs.C1 to C3. On the pleadings and the materials placed, the learned trial Judge framed the following issues:- i. Whether the plaintiff is entitled for declaration with respect to ABCD portion? ii. Whether the plaintiff is entitled for recovery of possession of ABCD portion? iii. Whether the plaintiff is entitled for declaration with respect to CDEF portion? iv. Whether the plaintiff is entitled for permanent injunction with respect to CDEF portion? v. To what relief? 5. The learned trail Judge, on appreciation of evidence produced by both sides and on perusing the Advocate Commissioner's report, dismissed the suit filed by the plaintiff. Aggrieved by the same, when an appeal was filed, the learned first appellate Court dismissed the appeal filed by the plaintiff, confirming the judgment and decree passed by the learned trial Court. 5. The learned trail Judge, on appreciation of evidence produced by both sides and on perusing the Advocate Commissioner's report, dismissed the suit filed by the plaintiff. Aggrieved by the same, when an appeal was filed, the learned first appellate Court dismissed the appeal filed by the plaintiff, confirming the judgment and decree passed by the learned trial Court. As against which, the present second appeal has been filed by the plaintiff/appellants herein. 6. This Court, at the time of entertaining the second appeal, framed the following substantial questions of law:- a) Whether the Courts below were right in coming to a conclusion that the Commissioner report Exs.C1 to C3 are to be rejected, since the same gives more extent than the suit schedule property, without taking into consideration that measurement given in Exs.C1 to C3 correspondence to S.No.392/10 & 11, which finding resulted in dismissal of the suit and hence the same amounts to perverse judgment against the documentary evidence? b) Whether the Courts below were right in dismissing the suit in entirety, when the respondent/defendant has not made any claim of title or adverse possession over the suit schedule? 7. Heard the learned counsel appearing on either side and perused the materials available on record. 8. It is seen from the report filed by the Advocate Commissioner that the vacant site CDEF bearing Survey No.392/11 is forming part of plaintiff's property. The defendant's house is also mentioned in the Commissioner's sketch as EFGH, which is having measurement of 11.2 metres in the street side and 12.2 metres in the backyard and 33.8 metres in length. After giving all the features, it is also stated in the report that the defendant's tiled roof is projected for 1' x 10' over the plaintiff's house western side wall. The learned trial Court, by considering the sale deed-Ex.A2, dated 22.09.1981, has held that the plaintiff has purchased the Survey No.212/8c, measuring 20 feet East-West and 80 feet North-South. On the other hand, it also considered the defendant's case that the defendant's grandfather also had purchased the property under Ex.B2, dated 11.08.1987, measuring 39 feet East-West and 160 feet North-South. The learned trial Court, by considering the sale deed-Ex.A2, dated 22.09.1981, has held that the plaintiff has purchased the Survey No.212/8c, measuring 20 feet East-West and 80 feet North-South. On the other hand, it also considered the defendant's case that the defendant's grandfather also had purchased the property under Ex.B2, dated 11.08.1987, measuring 39 feet East-West and 160 feet North-South. After going through both the sale deeds purchased by the plaintiff as well as defendant, the learned trial Court took up the claim of the plaintiff to ascertain whether the defendant encroached upon his land and whether he attempted to trespass into his portion. The plaintiff, in his plaint filed before the trial Court, had clearly mentioned that ABCD portion is having 1 ½ feet East-West and 40 feet North-South. In respect of another portion, namely, CDEF portion, it is mentioned as 1 ½ feet for East-West and 76 feet for North-South. So, all put together, it is coming to 116 feet for North-South. Further, the plaintiff's vendor Maragathammal had sold the suit property by a registered sale deed-Ex.A2, dated 22.09.1981, to the plaintiff measuring only 20'x80' and it comes to only 1600 sq.ft. But the report of the Commissioner shows that the plaintiff is entitled to 107.26 feet North-South and 17.4 feet East-West, namely, 1866.33 sq.ft., i.e., 4.3 cents. This is not tallying with the real extent purchased by the plaintiff as mentioned in Ex.A2, sale deed, dated 22.09.1981. 9. Secondly, if we look at the schedule of property as mentioned in the plaint, ABCD portion is having East-West 1 ½ feet and North-South 40 feet and similarly, CDEF portion is having 1 ½ feet East-West and 76 feet North-South. If both ABCD portion and CDEF portion are added, it is coming to 116' feet North-South. This is also not tallying with the extent mentioned in the sale deed-Ex.A2, dated 22.09.1981, purchased by the plaintiff, for, as per the sale deed, only 80 feet of North-South and 20 feet East-West has been sold, therefore, the learned trial Court has rightly dismissed the suit filed by the plaintiff and even on appeal, the learned first appellate Court has also affirmed the findings rendered by the learned trial Court. In that view of the matter, this Court, sitting under Section 100 CPC, finds no merit in the appeal preferred by the plaintiff/appellants herein. 10. In that view of the matter, this Court, sitting under Section 100 CPC, finds no merit in the appeal preferred by the plaintiff/appellants herein. 10. In result, the second appeal is dismissed by answering the substantial questions of law against the appellants herein, with costs through out. M.P.No.1 of 2007 is closed.