JUDGMENT : 1. The plaintiff in the suit in O.S. No. 645 of 2002 on the file of the Principal District Munsif Court, Karur is the appellant in this Second Appeal. 2. The appellant, as plaintiff, filed a suit in O.S. No. 645 of 2002 on the file of the Principal District Munsif Court, Karur, for declaration that the plaintiff is the exclusive owner of the suit 'B' schedule property and for recovery of possession of suit 'B' schedule property. In the plaint, suit 'B' schedule property is described as part and parcel of the suit 'A' schedule property which is claimed to be the exclusive property of the plaintiff under a registered partition deed dated 03.07.2000. It is the case of plaintiff that the suit property and other properties originally belonged to one Mottaiyammal @ Palaniammal by virtue of a registered sale deed dated 13.08.1930 from the original owners. It is the further case of the plaintiff that after the demise of Mottaiyammal @ Palaniammal, her legal heirs have partitioned the properties under a registered sale deed dated 03.07.2000 and that in the said partition, the suit property was allotted to the plaintiff as 'C' schedule to the said partition deed. It is also the case of the plaintiff that the defendant was allotted the property which was described as 'A' schedule in the partition deed and that he has purchased the property that was allotted to one Papayee and others under the same partition by virtue of a sale deed dated 15.09.2000. The property allotted to the said Papayee and others was described as 'B' schedule in the said partition deed. The property purchased by the defendant is on the southern side of the property allotted to the plaintiff. It is stated that the defendant put up construction encroaching into the property allotted to the plaintiff to an extent of 36 sq. ft. (East-west 12 ft. North-south 3 ft.) which is described as suit 'B' schedule property. Though the plaint averments were disputed by the defendant, the fact that in the partition, the property originally owned by Mottaiyammal @ Palaniammal was allotted to the plaintiff, defendant and others is admitted. It is the case of the defendant that in the partition a 3 ft. North-south 3 ft.) which is described as suit 'B' schedule property. Though the plaint averments were disputed by the defendant, the fact that in the partition, the property originally owned by Mottaiyammal @ Palaniammal was allotted to the plaintiff, defendant and others is admitted. It is the case of the defendant that in the partition a 3 ft. lane was left by the parties on the western side of the whole property owned by the original owner, namely, their predecessor-in-title and that the defendant was compelled to file a suit in respect of the said common pathway in O.S. No. 523 of 2002 as the plaintiff interfered with the enjoyment of this common pathway by other co-owners and that the present suit is only a counter-blast to the said suit with false and untenable allegations. It is the positive case of the defendant that the defendant never encroached any property that was allotted to the plaintiff. The defendant also contended that the suit plan filed along with plaint is not picturing the real existence of the lands allotted to the parties on ground. 3. The trial Court decreed the suit holding that the defendant has encroached an extent of 3 ft. north-south and 12 ft. east-west over the suit 'A' schedule that was allotted to the plaintiff in the partition deed which was marked as Ex.A2 in the suit. The findings of the trial Court is based on the Commissioner's report which indicates that if the property is measured from the southern side and taking into account an extent of 2 ft. 4 inches north-south on the north of road as the property belongs to the family, there is an encroachment on the southern portion of the property allotted to the plaintiff under Ex.A2. After the disposal of the suit, the first defendant died and the respondents in this appeal filed an appeal in A.S. No. 7 of 2011 on the file of the Principal Sub Court, Karur. During the pendency of appeal, the respondents also filed an application in I.A. No. 37 of 2011 under Order 41, Rule 27 for reception of additional documents. However, the said petition was dismissed by the lower appellate Court. During the pendency of appeal, the respondents also filed an application in I.A. No. 37 of 2011 under Order 41, Rule 27 for reception of additional documents. However, the said petition was dismissed by the lower appellate Court. After considering the facts and evidence available on record, the lower appellate Court allowed the appeal in favour of the defendant and set aside the judgment and decree of the trial Court in O.S. No. 645 of 2002. The appellate Court found that the property if measured from the northern boundary, the plaintiff is enjoying the property that was allotted to him in the partition under Ex.A2 and that there is no encroachment by the defendant in respect of any portion of the property that was allotted to the plaintiff. 4. For better understanding of facts so as to resolve the dispute, it is necessary to record the following facts which are not in dispute. 5. The suit property was purchased by predecessor-in-interest of the plaintiff and the defendant under the document Ex.A1 dated 13.08.1930. As per this document Ex.A1, the property measuring an extent of 15 ft. east- west and 90 ft. north-south was purchased by one Mottaiyammal @ Palaniammal. It appears that under the registered partition deed, the plaintiff, his father Arumugam, defendant and another daughter of defendant's brother have divided the properties among themselves under a registered partition deed dated 03.07.2000 marked as Ex.A2. The property which is the subject matter of the partition deed is only an extent of 15 ft. east-west and 88 ft. north- south even though the property purchased by the predecessor in title of the parties was an extent of 15 ft. east-west and 90 ft. north-south. In the partition deed, the total property was referred to as the property on the south of one Veerappa Nadar and north of east-west road. The property described as 'A' schedule in Ex.A2 was allotted to the defendant and property described as 'B' schedule in the partition deed was allotted to one Pappathi and Kulanthaiappan. 'C' schedule property was allotted to the plaintiff and 'D' schedule consisting of two items were allotted to the father of plaintiff one Arumugam. In between items 1 and 2 of 'D' schedule, a small extent of 4+ feet north-south and 12 ft. 'C' schedule property was allotted to the plaintiff and 'D' schedule consisting of two items were allotted to the father of plaintiff one Arumugam. In between items 1 and 2 of 'D' schedule, a small extent of 4+ feet north-south and 12 ft. east-west was kept in common for all the sharers and a well is stated to be there in this portion. As pointed earlier, a 3 ft. lane on the western side of the property was left in the partition deed as a common pathway for the beneficial enjoyment of the properties allotted to all the parties. From the description of the properties found in the document Ex.A2, it can be seen that the defendant was allotted on the southern side of the property measuring 167 sq. ft. (13 ft. 11 inches north- south and 12 ft. east-west). Similarly, 'B' schedule allotted to Pappathi and Kulanthaiappan is also an extent of 167 sq. ft. i.e., 13 ft. 11 inches north-south and 12 ft. east-west. The property allotted to plaintiff is the 'C' schedule which measures 13 ft. 11 inches north-south and 12 ft. east- west. On the north of the property allotted to the plaintiff, the property measuring 20 ft. north-south and 12 ft. east-west referred to as item 1 of 'D' schedule was allotted to the father of plaintiff. On the immediate north of first item of 'D' schedule, a strip of property measuring 4+ ft. north- south and 12 ft. east-west and shown as 'E' schedule in Ex.A2 is kept as common with a well. This property measuring 4+ft. and 12 ft. east-west is reserved for the enjoyment of all the co-owners. On the further north, item 2 of 'D' schedule is located and it measures 21s ft. north-south and 15 ft. east-west and this property is also allotted to the father of plaintiff. It is to be noted that on the north of the property allotted to the father of plaintiff, the property of one Veerappa Nadar is shown as the northern boundary. The Commissioner during his inspection has found that this boundary is a permanent boundary and that though the defendant contended that the northern wall which is lying on the north of the entire property partitioned under Ex.A2 is the property of plaintiff, it is contended by the plaintiff that it is the wall constructed by Veerappa Nadar. The Commissioner during his inspection has found that this boundary is a permanent boundary and that though the defendant contended that the northern wall which is lying on the north of the entire property partitioned under Ex.A2 is the property of plaintiff, it is contended by the plaintiff that it is the wall constructed by Veerappa Nadar. Hence, it can be seen that there is a permanent boundary on the north of the whole property partitioned under Ex.A2. 6. The case of the plaintiff in this case is that the defendant was allotted a plot measuring an extent of 13 ft. 11 inches north-south and 12 ft. east-west on the south which lies on the north of public road. After purchasing the adjacent property which was allotted to one Pappathi and Kulanthaiappan on the northern side of his property, the defendant is entitled only to an extent of 27 ft. and 10 inches on the north-south and 12 ft. east-west. Since the defendant is enjoying an extent of 2 ft. 4 inches north-south on the immediate north of east-west main road which is referred to as 'Thinnai' in the Commissioner's report, the defendant's construction on the further north of this portion measuring 27 ft. 10 inches north-south will certainly establish that there is an encroachment on the southern side of the property allotted to the plaintiff. 7. Per contra, the contention of the respondents in this appeal is that the property which was identified as Thinnai in the Commissioner's report is a road poramboke and that therefore, the portion in which the defendant put up construction earlier is well within his property, namely, an extent of 27 ft. 10 inches north-south and 12 ft. east-west. 8. The learned counsel appearing for the appellant raised the following substantial questions of law in the memorandum of grounds: 1. Whether the First Appellate Court is right in reversing the well established judgment of the Trial Court? 2. Whether the First Appellate Court is right in not considering the measurement from an undisputed survey stone? 3. Whether the measurement from survey stone can be taken for consideration or the measurement from an old wall can be taken into consideration? 4. Whether the first appellate Court is right in not considering the title of the defendant regarding the encroached portion? 5. 3. Whether the measurement from survey stone can be taken for consideration or the measurement from an old wall can be taken into consideration? 4. Whether the first appellate Court is right in not considering the title of the defendant regarding the encroached portion? 5. Whether the first appellate Court is right in not considering the burden of proof shifted upon the defendant when the plaintiff established the encroachment through Commissioner's report? 9. To substantiate his case, learned counsel for the appellant submitted that the lower appellate Court committed an error by ignoring the measurements noted by Advocate Commissioner from the undisputed survey stone found on the southern side of the property and by accepting measurement that was taken by the Advocate Commissioner from an old wall on the northern side of the entire property partitioned under Ex.A2. It is stated that only because of the method adopted by the lower appellate Court, the well founded judgment of the trial Court was reversed by the lower appellate Court and that therefore, this appeal, deserves to be allowed. It is further submitted by the learned counsel for the appellant that the portion referred to as 'Thinnai' in the Commissioner's report on the south side of the property though claimed by the plaintiff as a road poramboke encroached by the defendant no document is produced by the respondents to prove such contention and that therefore, the survey stone found by the Advocate Commissioner on the southern side of the property ought to have been taken as the southern boundary of the property divided among the parties under Ex.A2. However, the learned counsel for the respondents submitted that the northern boundary of the property is a permanent wall and that therefore, the allotment under Ex.A2, should be identified by taking measurements only from the north, especially, when the parties to the document cannot dispute the fact that the property divided among the parties under Ex.A2 starts from the permanent boundary on the northern side, namely, the property of one Veerappa Nadar. Since the Advocate Commissioner appointed by the lower Court has found the existence of the permanent wall on the north and it is admitted as the permanent northern boundary by the parties under Ex.A2, this Court also does not find any irregularity in adopting the method of taking measurements from the north. 10. Since the Advocate Commissioner appointed by the lower Court has found the existence of the permanent wall on the north and it is admitted as the permanent northern boundary by the parties under Ex.A2, this Court also does not find any irregularity in adopting the method of taking measurements from the north. 10. Considering the rival submissions of the parties in this appeal, this Court is unable to find any irregularity in the judgment of the lower appellate Court. As pointed out earlier, the property which is referred to as Thinnai in the Commissioner's report is admittedly in the enjoyment of respondents. Though this portion is claimed to be the property encroached by the defendant and it was originally a road poramboke, there is no document produced by the defendant to prove his contentions. However, the fact that there is a permanent boundary on the north side cannot be disputed as the plaintiff and defendant are bound by the recitals in the document Ex.A2 regarding boundary descriptions. It is now admitted that the plaintiff is entitled to an extent of 27 ft. 10 inches north-south and 12 ft. east-west on the southern side and rest of the property on the northern side except the strip of land measuring 4+ ft. north-south and 12 ft. east-west which was kept as the common property of all the sharers, is in the enjoyment of plaintiff. The property which was allotted to the plaintiff and his father is only an extent of 55 ft. 8 inches north-south and 12 ft. east-west. From the permanent wall on the north of entire property, the Commissioner has measured 60 ft. 2 inches upto the construction that is now put up by the respondents. If the property is measured from the northern boundary, it is demonstrated before this Court that the plaintiff is in enjoyment of the property allotted to him without any diminution in extent. Since there is some dispute with regard to the southern boundary, the lower appellate Court cannot be faulted for accepting the measurement from the northern boundary of the whole property. 11. There is one factor that was highlighted by the learned counsel for the appellant in this appeal is about the location of the well situated in between the two items, namely, item No. 1 and item No. 2 of 'D' schedule as per the partition deed under Ex.A2. 11. There is one factor that was highlighted by the learned counsel for the appellant in this appeal is about the location of the well situated in between the two items, namely, item No. 1 and item No. 2 of 'D' schedule as per the partition deed under Ex.A2. From the Commissioner's report, the learned counsel for the appellant pointed out that the property referred to as 'E' schedule in partition deed Ex.A2 which was kept as a common property for all the sharers does not fit into the measurement if the property is measured from the north. Though this submission is appealing to this Court to some extent, this Court is not in a position to reverse the judgment of the lower appellate Court on this point alone for the following reasons: (a) There is some discrepancy that cannot be accounted if the property is identified on ground by measuring the same from the north or from the south. Hence, it would be inequitable to decide rights of parties by this logic alone. (b) The property which was originally acquired by Mottaiyammal @ Palaniammal was measuring an extent of 90 ft. north-south. However, the property that was partitioned under Ex.A2 is only an extent of 88 ft. north-south. This 2 ft. is also found available if the property is measured from the north. (c) The lower appellate Court has given a categorical finding as to the existence of additional 3 ft. between the southern and northern boundaries. 12. The lower appellate Court has rendered findings after considering the entire evidence on record. The factual findings of the lower appellate Court cannot be set at naught merely on probabilities or on the basis of some suggestions due to some discrepancies while measuring the property on ground. The northern boundary being a permanent wall and the parties are bound by the recitals of Ex.A2, the partition deed, the measurement taken from the northern boundary cannot be faulted or termed as illegal or irregular especially when the southern boundary is in dispute. 13. The plaintiff miserably failed to account the excess of land available within the boundaries. Hence, the findings of lower appellate Court are unassailable. 14. For the above reasons, the judgment of the lower appellate Court which is supported by evidence and reasons does not suffer from any perversity. 13. The plaintiff miserably failed to account the excess of land available within the boundaries. Hence, the findings of lower appellate Court are unassailable. 14. For the above reasons, the judgment of the lower appellate Court which is supported by evidence and reasons does not suffer from any perversity. Further, the questions of law raised by the appellant have no substance and this Court find no other question of law. As a result, this Second Appeal is dismissed. The judgment and decree in A.S. No. 7 of 2011 on the file of the Principal Sub Court, Karur, reversing the judgment and decree in O.S. No. 645 of 2002 on the file of Principal District Munsif Court, is confirmed. However, there is no order as to costs.