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2015 DIGILAW 3713 (MAD)

Abdul Wahith v. Mohammed Ali

2015-12-04

P.R.SHIVAKUMAR

body2015
JUDGMENT P.R. Shivakumar, J. The defendant in the original suit is the appellant in the second appeal. Mohammed Ali, the respondent herein filed the suit O.S. No. 197 of 2004 in the Court of the District Munsif, Paramakudi against Abdul Wahith, the appellant herein, for a declaration of his title in respect of first item of the suit property and for recovery of possession after removal of the wall put up by the appellant herein/defendant encroaching upon the first item of the plaint schedule properties and for a further declaration that the second item of the suit property is the common backyard of the respondent/plaintiff and the appellant/defendant and for a mandatory injunction to remove the constructions put up in the second item of the suit properties. The suit was dismissed by the trial Court and on appeal, the lower appellate Court partly allowed the suit and granted a decree as prayed for in respect of the first item of the suit properties and confirmed the dismissal of the suit in respect of the second item of the suit properties. It is as against the said decree of the lower appellate Court (Sub-Court, Paramakudi) dated 04.12.2008 made in A.S. No. 38 of 2007, the present second appeal has been filed by Abdul Wahib, the defendant in the original suit. For the sake of convenience, the parties are referred to in accordance with their ranks in the original suit and at appropriate places, if necessity arises, their ranks in the second appeal will also be referred to. 2. The suit was filed based on the following plaint allegations:- The first item of the suit properties and the property immediately lying on the west originally belonged to Syed Fathima Ammal and they were in her possession and enjoyment. A stretch of land measuring North-South 60 feet and East-West 3½ feet lying on the east of the first item of the suit property was commonly enjoyed by Syed Fathima Ammal and the defendant as their backyard as well as passage. The first item of the suit properties and the property immediately lying on its west was gifted by Syed Fathima Ammal to the plaintiff under a gift settlement deed dated 30.01.2004 and thus, the plaintiff became entitled to the same. Thereafter, the plaintiff was in possession and enjoyment of the same. The first item of the suit properties and the property immediately lying on its west was gifted by Syed Fathima Ammal to the plaintiff under a gift settlement deed dated 30.01.2004 and thus, the plaintiff became entitled to the same. Thereafter, the plaintiff was in possession and enjoyment of the same. While so, about 6 months prior to the filing of the suit, taking advantage of the absence of the plaintiff as he had gone to an outstation along with his family members, the defendant trespassed into the first item of the suit properties and put up a wall and thereby annexed first and second items of the suit properties along with his house property, which lies on the east of the second item of the suit properties. In addition, the defendant put up a building in the second item of the suit property as an annexure to his house property. On his return, the plaintiff noticed the encroachments and demanded removal of the constructions put up and the encroachments made by the defendant. The defendant, who initially agreed to remove the unauthorised constructions and the encroachment, was simply postponing the same under one pretext or other. Under the said circumstances, the plaintiff was constrained to file the suit for the above said reliefs. 3. The suit was resisted by the appellant herein/defendant based on the averments found in his written statement, which are, in brief, as follows:- The plaint averment as if the first item of the suit properties and the property immediately lying on the west originally belonged to Syed Fathima Ammal is not correct. Similarly, the claim that the stretch of land measuring North-South 60 feet and East-West 3½ feet lying on the east of the first item of the suit properties was used jointly by Syed Fathima Ammal and defendant as their backyards and passage is also false. The defendant was not aware of the particulars of the gift settlement deed dated 30.01.2004 sought to be relied on by the plaintiff. Even if such a settlement deed could have been obtained, the same was legally invalid since Syed Fathima Ammal herself did not have any right or title in respect of the first item of the suit properties. The defendant was not aware of the particulars of the gift settlement deed dated 30.01.2004 sought to be relied on by the plaintiff. Even if such a settlement deed could have been obtained, the same was legally invalid since Syed Fathima Ammal herself did not have any right or title in respect of the first item of the suit properties. Even if the first item of the suit properties was included as the subject matter of the gift under the settlement deed dated 30.01.2004, the same will not in any way affect the right of the defendant in respect of the first item of the suit properties. The claim of the plaintiff that the first item of the suit properties absolutely belongs to the plaintiff and that the second item of the suit properties was the common backyard of the parties to the suit is against the truth. The plaint averment regarding alleged trespass and erection of a wall in the first item of the suit properties and erection of a superstructure in the second item of the suit properties are denied as false. The suit properties and the properties lying on the west and east of the suit properties originally belonged to Emaneswaram Muslim Jamad. One Gulam Moideen, the father of the plaintiff and his elder brother Abdul Salam paid the entire sale consideration for the property lying on the west of the suit properties to the Jamatdhars under an agreement for sale, put up a house therein and were residing therein. The property lying on the east of the said property thus got by Abdul Salam and Gulam Moideen, measuring East - West 34 feet and North - South 60 feet was purchased by Mohammed Lebbai, the father of the defendant from the Jamatdhars under a sale agreement dated 15.10.1970. In 1972, the father of the defendant put up a house in the second item of the suit properties and the property abutting it on the east. Similarly, besides digging a well in the first item of the suit properties, the defendant's father constructed a tiled house and bathroom. Septic tank and drainage pipes were provided in the second item of the suit properties. The compound wall found in the first item of the suit properties was also put up in the year 1972 itself. Similarly, besides digging a well in the first item of the suit properties, the defendant's father constructed a tiled house and bathroom. Septic tank and drainage pipes were provided in the second item of the suit properties. The compound wall found in the first item of the suit properties was also put up in the year 1972 itself. The entire suit properties described as first and second items along with the property lying on the east were enjoyed by the father of the defendant as a single unit from 1970 and he died about 20 years prior to the filing of the written statement. On the death of Mohammed Labbai, Abdul Rahim, Samsul Janabeevi and the defendant, as legal heirs of Abdul Labbai, effected a partition among themselves and in the said partition, the house property, including the properties shown as first and second items of the suit properties, came to be allotted to the share of the defendant. Then onwards the suit properties and the property lying on the east of the second item of the suit properties were enjoyed by the defendant as a single unit belonging to him. He had also mortgaged the said properties to one Mohammed Javin on 28.10.1993 which was later redeemed by him. As such, the defendant alone is entitled to the absolute title and possession of the suit properties. In any event, the defendant and his predecessors-in-title were in possession and enjoyment of the same for over a period of limitation and hence the suit filed by the plaintiff is absolutely barred by law of limitation. The suit has not been properly valued and the Court fee paid is not correct. Based on the above averments, the defendant prayed for the dismissal of the suit with costs. 4. The trial Court framed necessary issues and conducted trial. One witness was examined as PW1 and 7 documents were marked as Exs.A1 to A7 on the side of the plaintiff. One witness was examined as DW1 and 5 documents were marked as Exs.B1 to B5 on the side of the defendant. The report and the plan submitted by the Advocate Commissioner appointed by the trial Court were marked as Court documents and exhibited as Exs.C1 and C2. 5. One witness was examined as DW1 and 5 documents were marked as Exs.B1 to B5 on the side of the defendant. The report and the plan submitted by the Advocate Commissioner appointed by the trial Court were marked as Court documents and exhibited as Exs.C1 and C2. 5. The learned trial Judge, on an appreciation of evidence, came to the conclusion that the plaintiff's case was not proved and accordingly dismissed the suit by a judgment and decree dated 25.06.2007. On an appeal preferred by the plaintiff in A.S. No. 38 of 2007 on the file of the lower appellate Court (Sub-Court, Paramakudi), the learned lower appellate Judge concurred with the findings of the trial Court in respect of the second item of the suit property, but deferred from the findings of the trial Court in respect of the first item of the suit properties. Accordingly, the learned lower appellate Judge allowed the appeal in part, set side the decree of the trial Court in respect of the first item of the suit properties and confirmed the decree of the trial Court in respect of the second item of the suit properties, by a judgment and decree dated 04.12.2008. As against the said decree of the lower appellate Court dated 04.12.2008, the present second appeal came to be filed. 6. The following questions have been projected by the appellant/defendant as substantial questions of law involved in the second appeal: (1) Have not the learned Appellate Judge committed an error in granting the relief of declaration by presuming that there is no dispute with respect to Exs.A1 to Ex.A5 documents when there is a specific denial? (2) Whether the suit for mandatory injunction in respect of the construction which is 30 years old is maintainable in view of Article 113 of Limitation Act? 7. Notice of motion was issued and the parties entered appearance and the second appeal has been listed for final hearing without formally admitting the same. After hearing the submissions and after perusing the judgments of the Courts below and the grounds of second appeal, the following questions were formulated as the substantial questions of law involved in the second appeal:- (1) Whether the finding of the lower appellate Court that the first item of the suit property is part of the property belonging to the plaintiff is perverse? (2)Whether the lower appellate Court has rendered a finding that the plaintiff has proved the encroachment in respect of the first item without properly considering the evidence of PW1 to localise the property covered by Exs.A1 to A5, making such finding a perverse one? 8. Thereafter, the arguments advanced by Mr. K. Govindarajan, learned counsel for the appellant/defendant and by Mr. K. Mahendran, learned counsel for the respondent/plaintiff were heard. The judgments of the Courts below and the materials available on record were also perused. 9. It is an admitted fact that the property of the plaintiff and the property of the defendant originally belonged to Emaneswaram Jamad. However, the plaintiff claimed title under a registered settlement deed dated 30.01.2004 executed by Syed Fathima Ammal in favour of the plaintiff. Besides the contention that the property originally belonged to and was in the possession and enjoyment of the said Syed Fathima Ammal, the plaintiff has not stated in the plaint as to how Syed Fathima Ammal got the property. On the other hand, the defendant in the written statement simply claimed that the plaintiff's property and the defendant's property which lies on the east of the plaintiff's property were purchased by their respective predecessors-in-title, not by any registered sale deed, but by virtue of unregistered sale agreements under which total sale consideration came to be paid and possession of the respective properties were taken by the purchasers under the agreement for sale. The said contention of the defendant is proved to be erroneous so far as the property of the plaintiff is concerned. The plaintiff's property which at that point of time measured East - West 45 feet and North-South 60 feet, lying on the northern alignment of the east-west street, was purchased by a registered sale deed dated 19.07.1956 from Emaneswaram Jamadhars by one Abdul Salam S/o. Mohammed Meera Labbai registered as Document No. 1468 of 1956 in the office of the Sub-Registrar, Paramakudi. A certified copy of the sale deed is marked as Ex.A1. The said Abdul Salam was the brother of one Gulam Moideen. They effected a partition of their properties including the property purchased under the original of Ex.A1 under a registered partition deed dated 30.10.1956 registered as Document No. 2202 of 1956 in the office of the Sub-Registrar, Paramakudi. The original partition deed is Ex.A2. The said Abdul Salam was the brother of one Gulam Moideen. They effected a partition of their properties including the property purchased under the original of Ex.A1 under a registered partition deed dated 30.10.1956 registered as Document No. 2202 of 1956 in the office of the Sub-Registrar, Paramakudi. The original partition deed is Ex.A2. Though the east-west measurement of the property purchased under the original of Ex.A1 has been stated to be 45 feet, by the time Abdul Salam and Gulam Moideen effected a partition under Ex.A2, the actual extent available was found to be only 40 feet and hence, the said property was divided into two parts and southern part measuring East-West 37+3 and North-South 50 feet came to be allotted to Gulam Moideen. The southern part allotted to Gulam Moideen under Ex.A2 came to be sold by Gulam Moideen through his power agent to one Mohammed Saliya under a sale deed dated 18.06.1958 registered as Document No. 1297/58 on the file of Sub-Registrar, Paramakudi. The original sale deed is Ex.A3. Again, the northern portion measuring North-South 10 feet and East - West 40 feet retained by Abdul Salam came to be sold to the above said Mohammed Saliya himself under a sale deed dated 13.02.1971 registered as Document No. 201/71 on the file of Sub-Registrar, Paramakudi. The original sale deed is Ex.A4. Thus, Mohammed Saliya became the owner of the entire property with the measurement 40 x 60 feet. After the death of Mohammed Saliya, his wife Syed Fathima Ammal gifted the said property measuring 40 x 60 feet to the plaintiff under a registered settlement deed dated 30.01.2004 registered as Document No. 176/2004 in the office of the Sub-Registrar, Paramakudi. A certified copy of the said settlement deed is Ex.A5. From the above said documents, coupled with the oral evidence of PW1, the plaintiff was able to show that she got title to the property in which her house is situated and her property measured East-West 40 feet and North-South 60 feet. 10. Admittedly, the property lying on the east of the plaintiff's property is the property in the possession and enjoyment of the defendant. However, the defendant has not produced any sale deed under which he derived title to the said property. 10. Admittedly, the property lying on the east of the plaintiff's property is the property in the possession and enjoyment of the defendant. However, the defendant has not produced any sale deed under which he derived title to the said property. On the other hand, it is his case that he got the property after paying the entire sale consideration to the Jamadhars from them under an agreement for sale dated 15.10.1970. The said agreement is unregistered and the same has been produced as Ex.B1. We are not concerned with whether he could claim title based on the mere agreement for sale. We are concerned only with the extent of the property that is said to be purchased by his father under the said agreement. In the description of property, East-West measurement of his property has been shown as 34 feet, whereas North-South measurement of his property has been shown as 60 feet. It is said to be bounded on the west by Gulam Moideen's house and Vari and also the vacant site of Abdul Salam. The southern portion of the plaintiff's property measuring 50 x 40 feet allotted to Gulam Moideen under Ex.A2 came to be conveyed by him under Ex.A3 to Mohammed Saliya. Subsequently, under Ex.A4 dated 13.02.1971, the property retained by Abdul Salam, measuring 10 x 40 forming the northern part of the plaintiff's portion was sold to the very same person Mohammed Saliya. The properties have been shown as the western boundary of the defendant's property. It is pertinent to note that as early as on 18.06.1958 itself, the southern part of the plaintiff's property which formed the major part of the western boundary of the defendant's property had been purchased by Mohammed Saliya from Gulam Moideen. About 12 years after such purchase, the said portion and the house therein was shown in Ex.B1 to be the house belonging to Gulam Moideen, who had parted with the same in favour of Mohammed Saliya in 1958 itself. 11. Be that as it may, it is an admitted fact that the property of the plaintiff as per the above said documents measured East-West 40 feet and property of the defendant which lies on the east of the plaintiff's property measured East-West 34 feet. 11. Be that as it may, it is an admitted fact that the property of the plaintiff as per the above said documents measured East-West 40 feet and property of the defendant which lies on the east of the plaintiff's property measured East-West 34 feet. The case of the plaintiff is that the house of the plaintiff had been put up in such a way that a 3 feet wide space with a length of 60 feet had been left on the east of the house shown as item 1; that on the further east of the said property, there was a common passage to a width of 3½ feet and a length of 60 feet shown as Item 2 of the suit properties and that the defendant trespassed into 2nd and 1st items of the suit properties and annexed the same with his property by putting up a compound wall. Only on that basis, the plaintiff claimed declaration of his absolute title in respect of the first item of the suit properties and a declaration that the second item of the suit properties is a common passage belonging to both the plaintiff and the defendant. In addition, the plaintiff also prayed for the removal of the compound wall, recovery of possession of the first item of the suit properties and for the removal of the superstructure put up by the defendant in the second item of the suit properties. 12. The defence plea of the defendant is that there is no common space used as common backyard and there is no passage that lies between the house of the plaintiff and the defendant and that the defendant's compound wall was put up at the boundary line of his property, long back in 1972. In this regard, excepting the interested testimonies of PW1, the plaintiff himself and DW1, who is none other than the wife of the defendant, there is no other oral evidence of independent witnesses. From a consideration of the pleadings and evidence, it is quite obvious that the dispute between the parties is with regard to the fixation of the boundary line between the property of the plaintiff and that the defendant and whether there is any common space used as backyard and common passage by both the parties, which lies in between the properties of the plaintiff and the defendant. 13. 13. The plaintiff has not only by oral evidence, but also by a concrete documentary evidence, proved that he is entitled to an East-West measurement of 40 feet. It is also an admitted fact that the defendant is entitled to an east-west measurement of 34 feet. The Advocate Commissioner appointed by the trial Court was accompanied by the Surveyor, who measured the properties and prepared the plan. The said plan prepared by the surveyor along with the commissioner's report has been marked as Ex.C2. From the Commissioner's plan, it is quite obvious that there is a space of 1½ feet left as Vari on the wast of the house of the plaintiff bearing Old Door No. 5/159, New Door No. 10. The same has been marked in the plan as "H1, G2, G3 and G8. If the western 1½ feet vari is also included, the east-west measurement of the plaintiff's property will account for 38' 4½" (1' 6"+ 34' + 2' 10½"). The east-west measurement of the defendant's property accounts for 26' 6" + 6' 6" totalling to 33 feet. On the east of the defendant's property, there is a vari to a width of one feet. If the same is also take into account, then the total east-west measurement of the defendant's property will be 34 feet. If the plaintiff's claim that the first item of the suit property is part of his property is taken into account, it will make the east west measurement of his property 41½ feet. The documents of the plaintiff show that initially the property was purchased showing an east-west measurement of 45 feet. Only in the subsequent documents, the east-west measurement came be to be reduced to 40 feet. 14. It is also quite obvious from the plan submitted by the surveyor and marked as Ex.C2 that the western boundary of the defendant's property has not been shown in perfect alignment with the western boundary of the property lying on the north. When it proceeds towards south, a tapering towards east is found. The contention of the defendant is that the plaintiff, having lost some space on the west by the encroachment of the person holding the property on the west, is trying to get compensated by claiming that his property extends beyond the compound wall of the defendant. 15. When it proceeds towards south, a tapering towards east is found. The contention of the defendant is that the plaintiff, having lost some space on the west by the encroachment of the person holding the property on the west, is trying to get compensated by claiming that his property extends beyond the compound wall of the defendant. 15. The property lying on the west of the defendant's property came to be purchased by Abdul Salam under a registered sale deed dated 31.08.1956 registered as Document No. 1468 of 1956 in the office of the Sub-Registrar, Paramkudi. Abdul Salam is the father's brother of the plaintiff. The plaintiff's father was Gulam Moideen. Though the property purchased under the original of Ex.A1 by Abdul Salam is stated to be with measurements East-West 45 feet and North-South 60 feet, in a partition that took place within 2 months thereafter, namely on 30.10.1956, under Ex.A2 registered as Document No. 2202 of 1956 in the office of the Sub-Registrar, Paramakudi, East-West measurement of the property was stated to be 37+3 = 40 feet. The southern part measuring 40 x 50 feet fell to the share of Gulam Moideen, the father of the plaintiff. Out of the 40 feet, a 3 feet space on the west was shown to be a passage (lane) to reach the northern portion of 40 x 10 feet retained by Abdul Salam. Subsequently, under a sale deed dated 18.06.1958, registered as Document No. 1297/58, Gulam Moideen sold the southern portion he had got under Ex.A2 to one Mohammed Saliya. Again on 13.02.1971, the said Mohammed Saliya purchased the northern portion retained by Abdul Salam. The said sale deed dated 13.02.1971 registered as Document No. 201/1971 in the office of Sub-Registrar, Paramakudi is Ex.A4. Thus, Mohammed Saliya became entitled to the site totally measuring East-West 40 feet and North-South 60 feet, which includes the 3 feet passage shown on the west in Ex.A2. In fact, while Mohammed Saliya purchasing the southern portion under Ex.A3, 3 feet lane on the west as shown under Ex.A2 has been mentioned. Of course, on his purchase of the northern portion also, the title to the lane merged with his title in respect of the southern and northern portions and Mohammed Saliya became the owner of the site measuring East-West 40 feet and North-South 60 feet. Of course, on his purchase of the northern portion also, the title to the lane merged with his title in respect of the southern and northern portions and Mohammed Saliya became the owner of the site measuring East-West 40 feet and North-South 60 feet. The said Mohammed Saliya is none other than the maternal grandfather of the plaintiff. From Exs.A2 to A4, it is obvious that in the southern portion measuring East-West 40 x 50 feet, there was a south facing house with titled roof and beyond the house, there was 3 feet lane on the west. However, under Exs.A3 and A4, the lane was not shown and the properties purchased by Mohammed Saliya has been described without showing the 3 feet lane on the west. After the death of Mohammed Saliya, his wife, according to the evidence of PW1, settled the said property comprised in T.S. No. 69 along with the titled house therein bearing Door No. 6/59, Pallivasal 5th street, Emaneswaram on the plaintiff. If the contents of the said documents are considered in the light of the testimony of PW1, it shall be quite obvious that there was a 3 feet lane on the west of the plaintiff's house. If it is again considered in the light of the report of the Commissioner marked as Ex.C1 and the plan of the surveyor submitted by the Commissioner and marked as Ex.C2, it will be quite obvious that 3 feet space left on the west of the building of the plaintiff has shrunk to 1½ feet lane. 16. As rightly contended on behalf of the defendant, 1½ feet space was lost by the plaintiff to the owner of the neighbouring plot on the west of the plaintiff's property and the owner of the said western property has put up a compound wall in such a way that the 3 feet lane was reduced into 1½ feet lane. The same is the reason why the said boundary line as shown in Ex.C2 is not in perfect alignment with the western boundary of the property lying on the north of the plaintiff's property and there seems to be a tapering towards east. The same is the reason why the said boundary line as shown in Ex.C2 is not in perfect alignment with the western boundary of the property lying on the north of the plaintiff's property and there seems to be a tapering towards east. If the 1½ feet space lost to the owner of the property lying on the west is added, then the total east-west measurement of the property, which is deemed to be the property with the plaintiff shall come to 1 feet 6 inches + 1 feet 6 inches + 34 feet + 2 feet and 10½ inches = 39 feet and 10½ inches. If the said measurement upto the compound wall of the defendant shown as "AD" in Ex.C2 is taken into consideration, the deficiency will be only a negligible i.e., 1½ inch. Therefore, the case of the plaintiff that the defendant encroached upon a space of 3 x 60 feet forming the eastern part of the plaintiff's property does not stand substantiated even by preponderance of probabilities. If the plaintiff's case that 3 feet space forming eastern part of the plaintiff's property was encroached upon by the defendant is accepted, then the total east-west measurement of the property of the plaintiff will come to 42 feet 10½ inches, which is more than the property purchased by the predecessor-in-interest of the plaintiff. 17. In this regard, though the plaintiff might have taken a stand in the plaint that out of the property of the plaintiff measuring East - West 40 feet and North-South 60 feet, the eastern most portion measuring East-West 3 feet and North - South 60 feet was encroached upon by the defendant by putting up a compound wall. However, during his evidence in the trial Court, as PW1, the plaintiff admitted that the northern border of his property, when measured by the Commissioner was found to be 40 feet, whereas on the south it was found to be with 38½ feet with a deficit of 1½ feet and that the said 1½ feet on the south alone was encroached upon by the defendant by putting up a compound wall. If the said contention of the plaintiff would be accepted, then the alleged encroached portion shown as the first item of the suit properties shall not be in rectangular shape with a length 60 feet and width 30 feet as shown in the plan. If the said contention of the plaintiff would be accepted, then the alleged encroached portion shown as the first item of the suit properties shall not be in rectangular shape with a length 60 feet and width 30 feet as shown in the plan. On the other hand, it would have been a triangular shape with the base of 1½ feet and a height of 60 feet. The said aspect itself will be enough to show that the plaintiff, who was not sure as to whether the defendant had encroached upon any portion of the plaintiff's property, wanted to take advantage of the defects in the case of the defendant and get a decree in his favour. Only in such an attempt, the plaintiff has chosen to produce Ex.A6 to show that the defendant had lost 2 feet on the east of his property to one Surya Beevi, whose land is abutting the defendant's property. The evidence of PW1, in this regard, is to the effect that the said Surya Beevi encroached upon a portion to a width 2 feet on the defendant's property and that as per the decision taken in the Panchayat held by the Jamatdhars, that two feet space was purchased by Surya Beevi under the original of Ex.A6. Though the plaintiff would have stated in the chief examination to the effect that two feet forming the eastern part of the defendant's property was encroached upon and a compound wall was put by Surya Beevi and thereafter the encroached portion was sold by the defendant's father to Surya Beevi under the original of Ex.A6, during cross-examination he deviated from the same and admitted that the property, which was sold to Surya Beevi under Ex.A6, after such sale is being enjoyed was enjoyed by Surya Beevi and defendant jointly. Therefore, the contention that two feet of land was encroached upon by Surya Beevi and it was enclosed by a compound wall by her pursuant to which the said encroached portion was sold to Surya Beevi cannot be correct. On the other hand, from the admission made by PW1 himself, it shall be obvious that Surya Beevi being the owner of the plot lying on the east of the defendant's property put up a wall on the edge of her property without leaving any space on its west to repair and maintain the said wall. On the other hand, from the admission made by PW1 himself, it shall be obvious that Surya Beevi being the owner of the plot lying on the east of the defendant's property put up a wall on the edge of her property without leaving any space on its west to repair and maintain the said wall. As such, there arose a problem which was conciliated by the Jamatdhars, pursuant to which the space in between the wall put up by Surya Beevi and 1½ feet vari on the east of the defendant's house was conveyed under the original of Ex.A6. The understanding was that the space thus conveyed to Surya Beevi is to be jointly used by the defendant and Surya Beevi and in fact, it is jointly used by them. PW1, during his cross examination, admitted the above said fact. The relevant portion in vernacular is reproduced hereunder: XXX XXX XXX 18. In addition, the disputed compound wall shown as "AD" is in perfect alignment with the eastern compound wall of the plaintiff's vacant site lying on the north of the plaintiff's property concerned in this suit. It is also admitted by PW1 during cross-examination. The plaintiff has chosen to produce Ex.A7 stating it to be the field map of the plaintiff's property. But it seems to be a copy of the Town Survey Field Register bearing S. No. 69 in Pallivasal 5th street classified as Poramboke. Though the same being the copy of the Survey Field Register relating to the plaintiff's property, the entries are confusing regarding the owners and occupants of the property. In stead of producing the filed map, the plaintiff seems to have produced the copy of the Survey Register without the field map as the field map itself. Of course, the defendant has not come forward with the plea that his father purchased his property under a registered sale deed. On the other hand, he simply produced an agreement for sale deed 15.10.1970 as the document under which his father got the property. A registered mortgage deed dated 28.10.1993, which mortgage was subsequently discharged, has been produced as Ex.B4. Ex.B2 in fact is a bunch of house tax receipts. Ex.B4 is the photograph with the negative of the house of the defendant. A registered mortgage deed dated 28.10.1993, which mortgage was subsequently discharged, has been produced as Ex.B4. Ex.B2 in fact is a bunch of house tax receipts. Ex.B4 is the photograph with the negative of the house of the defendant. Ex.B5 is the mutual agreement between the father of the defendant and Surya Beevi in respect of the space in between the house of the defendant and the house of Surya Beevi to jointly use the said space for draining the water and for repairing and maintaining their respective walls. From the said documentary evidence and the evidence of DW1 it will be quite obvious that the defendant has not shown a clear derivation of title from the Jamatdhars. 19. But, it is not a case filed by the defendant for a declaration of his title to his property or for any other relief on the basis of alleged encroachment upon his property, in which event alone the burden of proving his title or a better right and the alleged encroachment shall be cast on him. On the other hand, it is a case instituted by the plaintiff for declaration of title in respect of the plaint first item of the suit property, for recovery of the same after removing the compound wall put up by the defendant and for removal of the construction put up by the defendant in the second item of the suit properties. Having come to the Court as plaintiff with specific plea that the second item of the suit properties is the common backyard and passage for plaintiff and the defendant and the first item of the suit properties is a portion of the plaintiff property which had been encroached upon by the defendant, unless the plaintiff is able to prove his case with reliable evidence, he would not be entitled to a decree simply based on the weakness of the defence case. 20. As pointed out supra, the east-west measurement of the plaintiff's property was only 40 feet. Out of the same, as per the commissioner's report 39 feet 10½ inches is available to the plaintiff from the compound wall of the third party on the west upto the western compound wall of the defendant shown as "AD" in Ex.C2. 20. As pointed out supra, the east-west measurement of the plaintiff's property was only 40 feet. Out of the same, as per the commissioner's report 39 feet 10½ inches is available to the plaintiff from the compound wall of the third party on the west upto the western compound wall of the defendant shown as "AD" in Ex.C2. As pointed out supra, the tiled house which was in existence as on the date of Ex.A2 and Ex.A3 is the house still in existence in the property of the plaintiff and a passage (lane) of 3 feet wide was available on the west and the 3 feet wide passage has shrunk into 1½ feet wide passage. It is not the case of the plaintiff that he put up any additional construction annexing 1½ feet on the west of the western wall of his house. As such, it is quite probable that the owner of the property lying on the west of the plaintiff's property, while putting up a compound wall, enclosed 1½ feet space out of 3 feet space and thus the plaintiff lost 1½ feet to third party. If that space is also taken into account, the total measurement upto the compound wall of the defendant will come to 39 feet 10½ inches. The plaintiff, while deposing as PW1, also admitted that upto the compound wall of the defendant, the east-west measurement of his property was found to be 38½ feet. If the 1½ feet space lost by him to the owner of the western property is added, the same will account for the total east-west measurement of 40 feet. Hence, this Court comes to the conclusion that the finding of the lower appellate Court that the property of the plaintiff extended upto the point marked as 'C' in Ex.C2 is not only not supported by evidence, but also the same is nothing but a perverse finding. In fact, the plaintiff, besides claiming the first item of the property, made a further claim that the second item to be the common property of the plaintiff and the defendant used by both of them as backyard and passage. The said contention of the plaintiff in respect of the second item has not at all been substantiated by any oral or documentary evidence. 21. The said contention of the plaintiff in respect of the second item has not at all been substantiated by any oral or documentary evidence. 21. The physical features noted by the Commissioner and the admissions made by PW1, including the plea of absence of knowledge as to whether there existed a wall and other constructions even prior to the alleged date of encroachment in the first and second item of the suit properties will go to show that the compound wall shown as "AD" in the plan marked as Ex.C2 was constructed only in 2004 when the plaintiff was away from the place has not been proved by reliable evidence. On the other hand, they should have been in existence for several years prior to the date of filing of the suit. The plaintiff's case that the encroachment took place 6 months prior to the filing of the suit has not been proved. In this regard, excepting the interested testimony of the plaintiff as PW1, no other witness has been examined. The evidence of PW1 is also not reliable as he has pleaded absence of knowledge regarding whether there existed a well closing which bore well was dug by the defendant in the alleged encroached portion and whether the septic tank and other constructions had been put up in the encroached portion. 22. The learned trial Judge, applying the principles of law regarding burden of proof and on proper appreciation of pleading and evidence, came to a correct conclusion that the plaintiff who approached the Court with the suit that his property measuring East-West 40 feet and North-South 60 feet was encroached upon by the defendant and that the first item of the plaint schedule properties was the portion thus encroached upon by the defendant had not been substantiated by reliable evidence. The learned trial Judge also came to a correct conclusion that there was no evidence to prove that the second item of the suit properties was the common backyard and passage belonging to both plaintiff and the defendant. Based on such clear and correct finding, the learned trial Judge held that the plaintiff was not entitled to any of the reliefs sought for in respect of either the first item or the second item of the suit properties. Based on such clear and correct finding, the learned trial Judge held that the plaintiff was not entitled to any of the reliefs sought for in respect of either the first item or the second item of the suit properties. Such a well considered judgment was unnecessarily interfered with by the lower appellate Court on surmises alone, forgetting the fact that the plaintiff has not proved his case and that on probabilities also, the plaintiff's case could not be true, especially in the light of the measurements found in Ex.C2 and admissions made by PW1 regarding the loss of 1½ feet on the western side. The lower appellate Court, which rightly concurred with the findings of the trial Court regarding the second item of the suit properties, rendered a perverse finding in respect of the first item of the suit properties holding the plaintiff to be entitled to the relief of declaration and recovery of possession after removal of the compound wall as prayed for. The said perverse finding of the lower appellate Court deserves to be interfered with and set aside by this Court in exercise of its power of appeal in the second appeal. Both the questions are answered accordingly in favour of the appellant. 23. In the result, the second appeal is allowed. The decree of the lower appellate Court in respect of the first item of the suit property is set aside. The decree of the trial Court dismissing the suit in entirety in respect of both items 1 and 2 of the suit properties is restored and confirmed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed. Appeal allowed.