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2012 DIGILAW 3824 (MAD)

Vadambigai v. Mangayarjarasi

2012-09-05

G.RAJASURIA

body2012
Judgment :- 1. This second appeal is focussed by the defendant in the suit as against the judgement and decree dated 8.4.2004 passed by the Principal Subordinate Judge, Myladuthurai, in A.S.No.105 of 2003 reversing the judgement and decree dated 3.6.2003 passed by the District Munsif Court, Sirkazhi in O.S.No.101 of 1994, which was one for declaration and mandatory injunction. 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of these appeals, in a few broad strokes can be encapsulated thus: (i) The respondent herein/plaintiff filed the suit O.S.No.101 of 1994 for getting declared her right over her share in the lane marked ABCD and also for injuncting the defendant from interfering with it. (ii) After the Commissioner submitted his report, the plaint also was got amended suitably so as to remove the obstruction caused by the defendant pendentelite. (iii) The defendant resisted the suit by filing the written statement. (iv) Several times Advocate Commissioners were appointed and they visited the suit property and submitted their reports. (v) During enquiry, on the plaintiff's side, the plaintiff's husband examined himself as P.W.1 along with P.W.2 and marked Exs.A1 to A5. The daughter of the defendant examined herself as D.W.1 along with D.W.2 and Exs.B1 to B6 were marked. Exs.C1 to C10 were marked as Court documents. (vi) Ultimately, the trial Court dismissed the suit. (vii) Impugning and challenging the said judgement and decree of the trail Court, the plaintiff filed the appeal, whereupon the first appellate Court reversed the judgement and decree of the trial Court and passed the decree based on Exs.C8 to C10-the Advocate Commissioner's report and sketchs and also specifying that the plaintiff is entitled to only 'J' marked portion in Ex.C9, measuring 126 links adjacent to her Eastern Wall. 4. Being aggrieved by and dissatisfied with the said judgement and decree of the first appellate Court, this second appeal has been filed by the defendant on various grounds. 5. My learned predecessor framed the following substantial questions of law: "a. Whether the learned Subordinate Judge was right in granting a relief not sought for pleaded or evidenced by the plaintiff? Being aggrieved by and dissatisfied with the said judgement and decree of the first appellate Court, this second appeal has been filed by the defendant on various grounds. 5. My learned predecessor framed the following substantial questions of law: "a. Whether the learned Subordinate Judge was right in granting a relief not sought for pleaded or evidenced by the plaintiff? b. Whether the learned Subordinate Judge was right in placing reliance as Exs.C8 to 10 to grant a decree in excess of the extent covered by the plaintiff's sale deed, Ex.B3? (Sic. Ex.A3) c. Whether the learned Subordinate Judge was justified in asking for a resurvey when there was already a report of the surveyor, Exs.C5 to 7 pursuant to the orders of the Court and the same had not been scrapped? (extracted as such) 6. Heard both sides. 7. All these points are taken together for discussion as they are interwoven and interlinked, interconnected and entwined with one another. 8. The learned Senior counsel for the appellant/defendant would advance her arguements, which could pithily and precisely be set out thus: (i) The defendant's husband-Kesavan purchased an extent of a plot area of 18 cents, including house thereon, from one Shenbagavalli and Kunjambal, vide sale deed-Ex.B3 dated 28.4.1965, on the Eastern portion of a larger extent of plot area belonging to them. (ii) The plot area of 18 cents includes 6 steps (one step = 9 inches) width of land adjacent to the Western wall of the house, which was sold under the said Ex.B3-the sale deed dated 28.4.1965. (iii) The plaintiff, who purchased the remaining Western portion of the plot area from the same vendorcannot try to encroach upon the extent, which was purchased by the defendant's husband from the said common vendors. (iv) The first appellate Court even though has upheld in the judgement that the defendant is entitled to a width of 4½ feet of land from the Western wall of her house, yet in some other portion of the same judgement, it observed vaguely as though the plaintiff is entitled to 13 cents of land, when in fact as per the Commissioner's report and sketch as contained in Exs.C8 to C10, the available area, at the most with the plaintiff could be only 12.300 links. (v) The first appellate Court was not justified in placing reliance on Exs.C8 to C10-the advocate commissioner's report and sketch and decreeing the suit ignoring the fact that the plaintiff, as per Exs.C8 to C10 would be getting less than 18 cents of land, because the Commissioner specifically highlighted that the available extent with the plaintiff at the most could only be 17 cents and 290 links. (vi) Unless the entire gap between the Western wall of the house of the defendant and the Eastern wall of the plaintiff's house is allotted to the portion of the defendant, she would not be able to have 18 cents of land as per her deed-Ex.B3 Accordingly, the learned counsel for the appellant/defendant would pray for setting aside the judgement and decree of the first appellate Court and for dismissing the suit. 9. Whereas, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the appellant/defendant, the learned counsel for the respondent/plaintiff would pyramid his arguements, which could succinctly and precisely be set out thus: (i) Fair and square, the first appellate Court gave its finding taking into consideration that there is a specification in the description of property in the schedule appended to the sale deed of the defendant's husband-Ex.B3 to the effect that the defendant is entitled to 18 cents of land subject to certain restrictions and one such restriction was to the effect that she cannot claim more than six steps or 4 ½ feet width of land from her Western boundary wall and accordingly applying the said principle, the lower appellate Court decreed the suit, warranting no interference in second appeal. (ii) According to him there is no question of law much less substantial question of law involved in this case. 10. Indubitably and indisputably, unarguably and unassailably, the following are the germane facts. (a) Shenbagavalli and Kunjammal, owned a large extent of plot area presumably measuring 30 cents; claiming to be the owners of it, they sold an extent of 18 cents out of it on the Eastern side in favour of the defendant's husband, vide sale deed Ex.B3 dated 28.4.1965. Subsequently, the remaining so called 13 cents of the plot was sold in favour of a third party and ultimately the present plaintiff purchased the said 13 cents of land. Subsequently, the remaining so called 13 cents of the plot was sold in favour of a third party and ultimately the present plaintiff purchased the said 13 cents of land. It is therefore discernible and inferable that out of the 30 cents of the larger extent of land, on the Eastern side, the defendant claims to be the owner of 18 cents and the plaintiff claims to be the owner of the remaining extent of 13 cents. (b) A dispute erupted in view of the fact that the plaintiff started laying claim of absolute right over the gap between her house and the defendant's house. (c) Several times advocate commissioners were appointed and ultimately, the Commissioner, who was appointed lastly submitted his report and sketches Exs.C8 to C10 detailing and delineating the area available on ground including the physical features. However, the lower Court thought that the plaintiff's case was a misconceived one and accordingly dismissed it. Whereas, the first appellate Court, as observed supra, believed the versions in the Commissioner's report as well as the description as found set out in the sketches and decreed the suit. 11. A bare running of the eye over Exs.C8 to C10 would amply make the point clear that as per the Commissioner's report and sketches, broadly the defendant's and the plaintiff's portions at the spot could be divided into two; the Eastern one i.e the defendant's portion would measure 17.290 and the Western one i.e. plaintiff's portion would measure 12.300 and those portions are marked as 2 and 1 respectively in Ex.C9. 12. The first appellate Court in its judgement, by referring to Exs.C8 to C10, would observe correctly that the gap between the plaintiff's house and the defendant's house, which is labelled or dubbed as lane, is having a width of 5 ½ feet running from North to South and he also correctly pointed out that as per Ex.B3-the sale deed in favour of the defendant, in that gap the defendant is entitled to 4 ½ feet adjacent to the defendant's Western wall. As such, precisely it is clear that out of the said 5 ½ feet gap, the plaintiff is entitled to an extent of only one foot width adjacent to her Eastern wall and the remaining width of 4 ½ feet in that lane belongs to the defendant. As such, precisely it is clear that out of the said 5 ½ feet gap, the plaintiff is entitled to an extent of only one foot width adjacent to her Eastern wall and the remaining width of 4 ½ feet in that lane belongs to the defendant. Understanding as above, the first appellate Court based on Exs.C8 to C10, decreed the suit, which sounds reasonable and it is akin to logic and fair play. 13. The core question might arise as to how the first appellate Court could arrive at the conclusion that the defendant is entitled to a width of 4 ½ feet in the said lane irrespective of the fact as to whether the plaintiff could work out his total 13 cents after losing the said width of 41/4 feet. 14. The answer is quite obvious and axiomatic. The original owners of the 30 cents of land, sold on the Eastern side 18 cents of land, subject to the condition that the defendant's husband was entitled to a width of six steps (4 ½ feet) from the Western wall of the house which was sold to the defendant's husband. Undeniable, the fact is that the plaintiff subsequently purchased the remaining extent and in such a case, the plaintiff cannot claim seniority over the defendant. 15. The first appellate Court appropriately gave importance to the defendant's claim over the lane to a width of 4 ½ feet. 16. My mind is reminiscent and redolent of the maxim'Qui prior est tempore potior est jure' – The person who is prior in time is stronger in right. 17. The learned Senior counsel for the appellant/defendant would submit that mere allotting a width of 4 ½ feet in favour of the defendant in the lane, would not subserve the cause of justice, as she would not be able to get her full 18 cents of land under Ex.B3, which is earlier to the defendant's side sale deeds Exs.A3, A2 and A1. 18. 18. The learned counsel for the respondent/plaintiff would appropriately and appositely and that too, legally, highlight that such an arguement as put forth on the side of the defendant cannot be countenanced and upheld as correct, because, the defendant's right to assert her claim for 18 cents of land, as per Ex.B3 the sale deed dated 28.4.1965, stood restricted by the clause that she cannot claim any area to the West of the house sold to her husband over and above a width of six steps (4 ½ feet) from her Western wall. 19. I could see considerable force in the submission made by the learned counsel for the plaintiff. 20. The ground of substantial question of law (c) is relating to the first appellate Court having ordered for re-measurement and submission of report, which was sought to be projected in poor light by the second appellant/defendant in the grounds of appeal, however, while arguing the case, the learned Senior counsel for the plaintiff in no way could justify the earlier report and sketches Exs.C5 to C7 as against the current and latest Commissioner's report and sketches Exs.C8 to C10. When such is the factual scenario, the only presumption is that the first appellate Court justly and appropriately ordered for re-measurement of the area concerned and submission of the report and that would connote and denote that the first appellate Court was not satisfied with the earlier Commissioner's report and the sketches and such a measure undertaken by the appellate Court cannot be found fault with or looked askance at. 21. Then the question might would arise about the extent which is short of 18 cents as per the defendant's sale deed Ex.B3. 22. The suit has been filed only by the plaintiff and not by the defendant and this Court is concerned with the rival contentions of the parties and the apple of discard relating to the said lane and hence, for the purpose of adjudicating this lis, I need not ponder over any other point. 23. I could see no perversity or illegality in the judgement passed by the first appellate Court. 23. I could see no perversity or illegality in the judgement passed by the first appellate Court. However, in view of certain doubts raised by the learned Senior counsel for the appellant/defendant that the appellate Court, in portion of its judgement vaguely stated as though the plaintiff is entitled to 13 cents of land, I would like to disambiguate the ambiguity if any by pointing out further thus: The plaintiff cannot, under any pretext of asserting her right over 13 cents land as per Exs.A1, A2 and A3-the sale deeds, try to trespass into or infringe, the right of the defendant over the width of 4 ½ feet in the lane adjacent to the Western side wall of the defendant's house. If there is any ambiguity in the first appellate Court's decree, it shall stand interpreted subject to the aforesaid observation made by this Court. 24. The learned Senior counsel for the defendant by inviting the attention of this Court to clause (3) in the first appellate Court's decree, which is extracted hereunder: “TAMIL” wouldadvance her arguement that such a blanket mandatory injunction would connote and denote as though the defendant is having no right over the lane. 25. Whereas, the learned counsel for the respondent/plaintiff would in all fairness submit that it cannot be construed as though that mandatory injunction would be operative in respect of the said width of 4 ½ feet, belonging to the defendant in the lane. 26. As such, once again by way of disambiguating the ambiguity I would like to observe out that such mandatory injunction could be operative only in respect of one foot width adjacent to the plaintiff's wall in the said lane. 27. Accordingly, the substantial questions of law are answered as under: Substantial question of law (a) is answeredto the effect that the Court has got the power to mould the relief and grant it which cannot be labelled as one granted by the Court not asked for by either of the parties. Substantial question of law (b) is answered to the effectthat the learned Subordinate Judge i.e. the first appellate Court was justified in placing reliance on Exs.C8 to C10, but there is nothing to indicate that any extent in derogation of the extent found in the defendant's sale deed-Ex.B3 was decreed in favour of the plaintiff. Substantial question of law (b) is answered to the effectthat the learned Subordinate Judge i.e. the first appellate Court was justified in placing reliance on Exs.C8 to C10, but there is nothing to indicate that any extent in derogation of the extent found in the defendant's sale deed-Ex.B3 was decreed in favour of the plaintiff. Substantial question of law (c) is decided to the effectthat for the purpose of rendering justice, the appellate Court has got the power to call for fresh commissioner's report and sketch, which would imply that the appellate Court did not place reliance on the earlier report and that the earlier report was not up to the mark. 28. On hearing the judgement, the learned Senior counsel for the appellant/defendant would make an extempore submission that in view of the relief having been moulded and granted by this Court, both sides could be given option to execute the decree if there is any violation and also for the purpose of raising either fence or wall in their respective areas. 29. The learned counsel for the respondent/plaintiff also would submit that such a course would be fair. 30. I would like to point out that in matters of this nature when the relief is moulded and granted by the Court, both sides should be given liberty to file E.P. if there is violation at the insteance of either of the parties, so as to compel the infringer to adhere to the decree in strictosensu. Since as of now, there is no demarcation in the said lane, as stated supra, either of the parties, is at liberty to get even an advocate Commissioner appointed for putting up either a fence or a wall in their own area in accordance with the observation made by me supra, without infringing the respective rights of the parties, and that there should not be any obstruction to their respective areas at the instance of either of them. The second appeal is disposed of accordingly. However, there is no order as to costs.