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2018 DIGILAW 2113 (MAD)

Ganesan v. Vijayalakshmi

2018-07-13

M.SUNDAR

body2018
JUDGMENT : 1. One J.Vijayalakshmi and S.Ganesan are neighbours. They are owners of adjacent properties. S.Ganesan’s property lies on the Eastern side of Vijayalakshmi’s property. 2. A small strip of lane admeasuring 134.75 square feet or thereabouts between these two properties is the subject matter of this litigation, which commenced almost two decades ago. To be precise this litigation commenced on 15.07.1999, when J.Vijayalakshmi filed a suit in O.S.No.287 of 2002 on the file of 'District Munsif’s Court, Tirunelveli' (which shall herein after be referred to as 'Trial Court' for the sake of convenience and clarity), against S.Ganesan, his wife G.Kalavathi and S.Ganesan’s brother S.Ravi, arraying them as defendants 1, 2 and 3 respectively. 3. Parties to this lis are referred to by their aforesaid ranks in the Trial Court for the sake of convenience and clarity. In other words, 'Vijayalakshmi', who is 'sole respondent' in this second appeal before this Court, is referred to as 'plaintiff'. 'Ganesan, G.Kalavathi and S.Ravi', who are 'appellants 1, 2 and 3' respectively before this Court are referred to as 'defendants' collectively and 1st defendant, 2nd defendant and 3rd defendant' respectively, whenever a reference is made individually. 4. The aforesaid strip of lane admeasuring 134.75 square feet or thereabouts, which is the subject matter of this litigation shall herein after be referred to as 'said lane' for the sake of brevity, convenience and clarity. 5. There is no dispute or disagreement between the parties that the said lane admeasures 110 feet lengthwise, ie., North - South. East - West breadth is 1 foot for about 11 feet length and thereafter, it is 1, feet wide for the remaining 99 feet. 1, x 99 = 123.75 square feet and when this added to 1X11=11 square feet, it adds up 134.75 square feet. 6. To have an absolute clarity about the topography as well as the said lane, this Court deems it appropriate to scan and reproduce the plaint sketch, which reads as follows: (image) To be noted, said lane has been described as 'suit property in the sketch. 7. The aforesaid suit was filed by the plaintiff in the trial Court, complaining that the defendants have put up a small construction in the said lane and that the defendants have thus encroached upon the said lane. 7. The aforesaid suit was filed by the plaintiff in the trial Court, complaining that the defendants have put up a small construction in the said lane and that the defendants have thus encroached upon the said lane. On such complaint, the plaintiff prayed for declaration of title, recovery of possession and mandatory injunction to demolish the alleged offending construction put up by the first defendant in the sain lane. 8. To be noted, it is not in dispute that the aforesaid property adjacent to plaintiff's property belongs to the first defendant. It is averred in the plaint that first defendant’s spouse and his brother have been arrayed as 2nd and 3rd defendants, as they had aided first defendant in putting up the aforesaid alleged offending construction. 9. Defendants entered appearance, filed written statement and completed pleadings. The sheet anchor defence of the defendants is that the said lane does not form part of plaintiff’s property and that it forms part of first defendant's property. 10.In this regard, it is relevant to note that in the plaint, the plaintiff has averred that she has purchased 2420 square feet land from one K.Rengachari vide sale deed dated 24.02.1993, which has been marked as Ex.A.2. Defendants' title deed and anterior document have been marked as Ex.B2 and Ex.B.1 respectively. 11. On the aforesaid rival pleadings, the Trial Court framed three issues, which read as follows:' xxx xxx xxx 12. Parties went to trial on the aforesaid issues. On the side of the plaintiff, plaintiff’s spouse Jeyachandran was examined as PW.1 and five documents, ie., Ex. A1 to Ex.A5 were marked. On the side of the defendants, 1st defendant examined himself as DW.1, Advocate Commissioner was examined as DW.2 and seven documents, ie., Ex.B1 to Ex.B7 were marked on the side of defendants. 13. Besides the aforesaid exhibits, an Advocate Commissioner was appointed in the Trial Court and the Commissioner’s report, sketch, communication from Tahsildar to the Commissioner and the sketch of the Surveyor/Revenue Authority were marked as Exs.C1, C2, C3 and C4 respectively. After full contest, Trial Court dismissed the suit vide Judgment and Decree dated 10.12.2003. 14. 13. Besides the aforesaid exhibits, an Advocate Commissioner was appointed in the Trial Court and the Commissioner’s report, sketch, communication from Tahsildar to the Commissioner and the sketch of the Surveyor/Revenue Authority were marked as Exs.C1, C2, C3 and C4 respectively. After full contest, Trial Court dismissed the suit vide Judgment and Decree dated 10.12.2003. 14. The reasoning given by the Trial Court for non suiting the plaintiff is that the plaintiff’s spouse, who was examined as PW.1 has admitted in his deposition that there is a two feet wide strip on the Western side of the plaintiff’s property, where admittedly there is a channel. This is articulated in paragraph 22 of the judgment of the Tiral Court, which reads as follows: xxx xxx xxx 15. The Trial Court has also found that the Commissioner’s report is in tandem with this. Unsuccessful plaintiff carried the matter in appeal by way of regular first appeal under Section 96 Code of Civil Procedure, 1908' (herein after referred to as 'CPC' for brevity). This regular first appeal is A.S.No.39 of 2004 on the file of 'Principal District Judge’s Court, Thanjavur' (herein after referred to as 'First Appellate Court' for the sake of convenience and clarity). 16. First Appellate Court, framed points for determination/consideration in accordance with the mandate under Order XLI Rule 31 CPC and the same are three in number. They are as follows: xxx xxx xxx 17. The three defendants in the Trial Court were arrayed as three respondents in the first appeal, they entered appearance and contested regular first appeal. After full contest and hearing, First Appellate Court allowed the first appeal, reversing the judgment of the Trial Court. In other words, First Appellate Court decreed the suit as prayed for, vide judgment and decree dated 27.07.2006. 18. Before we advert to the reasoning of the First Appellate Court for allowing the appeal and reversing the dismissal decree of the Trial Court, it may be necessary to notice the trajectory of the appeal. 19. In the appeal, an Advocate Commissioner was appointed. The Advocate Commissioner appointed by the First Appellate Court submitted a Commissioner’s report, sketch and Surveyor’s sketch. These three have been marked as Exs.C5, C6 and C7, respectively in the First Appellate Court. 20. 19. In the appeal, an Advocate Commissioner was appointed. The Advocate Commissioner appointed by the First Appellate Court submitted a Commissioner’s report, sketch and Surveyor’s sketch. These three have been marked as Exs.C5, C6 and C7, respectively in the First Appellate Court. 20. To be noted, Exs.C1 to C4 had already been marked in the Trial Court and therefore these three exhibits were marked sequentially as Exs.C5 to C7. Besides these, in the course of first appeal, additional evidence was let in, ie., additional documentary evidence and two documents were marked on the side of the plaintiff/appellant, which were marked as Exs.A6 and A7. Suffice to say that Exs.A6 and A7 marked in the first appeal are dated 01.06.1970 and 15.02.1919 respectively and these two documents are plaintiff’s title deed and anterior document qua title deed respectively. 21. Reasoning of the First Appellate Court primarily is that the plaintiff/appellant had no burden of proof on her to establish that there is a two feet wide lane adjoining the channel on the Western side of the plaintiff's property. Notwithstanding the position that the First Appellate Court which has appointed an Advocate Commissioner and taken on record, report, sketch and Surveyor’s sketch filed through the Advocate Commissioner as exhibits, sketch filed by the Advocate Commissioner in the Trial Court being Ex.C4 has been referred to. There is also a reference to Ex.C5. To be noted, this Ex.C5 was marked in the First Appellate Court. First Appellate Court referred to both Ex.C4, which was marked in the Trial Court as well as Ex.C5 which was marked in the First Appellate Court. 22. Reading both these documents together, the First Appellate Court embarked upon arithmetics of the two properties and ultimately held that in the defendants’ document Ex.B.4, it has not been shown that there is a lane. All these are articulated in page No.9 of the printed judgment of the First Appellate Court and three most relevant portions, read as follows: xxx xxx xxx 23. Aggrieved, defendants carried the matter by way of the instant second appeal under Section 100 CPC, to this Court. All these are articulated in page No.9 of the printed judgment of the First Appellate Court and three most relevant portions, read as follows: xxx xxx xxx 23. Aggrieved, defendants carried the matter by way of the instant second appeal under Section 100 CPC, to this Court. Instant second appeal was filed on 20.11.2006 and it was admitted on 21.11.2006 on two substantial questions of law, which read as follows: 'a. Whether the lower appellate Court has erred in law in granting relief to the respondent on the basis of survey report filed in Ex.C.5 in the appeal? b. Whether the decree and judgment of the lower appellate Court suffer due to legal infirmity and illegality in appointing 2nd Commissioner in the appeal filed by the respondent in A.S.No.39 of 2004 and marking Ex.C.5, C.6 and C.7, when objections were not given by the plaintiff in the Trial Court to the report filed by the Commissioner and which are marked in Ex.C.1 to C.3?' 24. Instant second appeal was before this Court today for final hearing. Mr. MRS. Prabhu, learned Counsel on record is before this Court on behalf of the three appellants. To be noted, appellants 1, 2 and 3 are defendants 1, 2 and 3 in the Trial Court. From hereon in this judgment, 'defendants 1, 2 and 3' shall be referred to as 'appellants 1, 2 and 3' respectively. 'Defendants' collectively shall be referred to as 'appellants'. 25. Sole plaintiff in the Trial Court, ie., Vijayalakshmi is the lone respondent in the instant second appeal. From hereon, 'plaintiff' shall be referred to as 'respondent'. 26. Lone respondent has been duly served and her name together with her full address as given in the memorandum of grounds of second appeal has been shown in the cause list. Court is informed by the Registry that no one has entered appearance on behalf of sole respondent. Name of the sole respondent has been called out aloud thrice in the Court Hall, Visitors Gallery and Corridor adjoining the Court. No response. 27. To be noted, instant second appeal was listed in the same manner yesterday also before this Court, ie., it was listed on 12.07.2018 and the position qua sole respondent was no different yesterday. Name of the sole respondent has been called out aloud thrice in the Court Hall, Visitors Gallery and Corridor adjoining the Court. No response. 27. To be noted, instant second appeal was listed in the same manner yesterday also before this Court, ie., it was listed on 12.07.2018 and the position qua sole respondent was no different yesterday. Therefore, this Court proceeds to hear the second appeal on merits on the basis of available records and Court file placed before this Court, in the light of arguments of Counsel for appellants. 28. For disposal of the second appeal, it is necessary to examine the two substantial questions of law, on which instant second appeal was admitted on 21.11.2006 by this Court. To be noted, both substantial question of law have been extracted and reproduced supra. 29. A careful and close perusal of the two substantial questions of law would reveal that they turn on appointment of an Advocate Commissioner by the First Appellate Court and exhibits marked through/by him, ie, Ex.C5, C6 and C7, about which, this Court has alluded to supra, elsewhere in this judgment. 30. Therefore, to answer both the aforesaid substantial questions of law, one has to necessarily examine the course adopted by the First Appellate Court to dispose of the first appeal. 31. As alluded to supra, First Appellate Court, in the course of hearing the first appeal appointed an Advocate Commissioner and Exs.C5 to C7 were marked through/by him. 32. Mr. MRS. Prabhu, learned Counsel points out that an Advocate Commissioner was appointed by the Trial Court and his report, sketch, communication and Surveyor’s sketch were all marked as Exs.C1 to C4 in the Trial Court. Learned Counsel also points out that the plaintiff had not chosen to file any objection whatsoever to the report and aforesaid Exs.C1 to C4 marked in the Trial Court. It is only the defendants who filed the objection. Learned Counsel also points out that the plaintiff had not chosen to file any objection whatsoever to the report and aforesaid Exs.C1 to C4 marked in the Trial Court. It is only the defendants who filed the objection. It is the further contention of the learned Counsel for the appellants that when an Advocate Commissioner has already been appointed by the Trial Court and when he has filed report, sketch, etc., after making a local inspection and when the plaintiff has not chosen to file any objection to the same and when no objection has been urged by the respondent (plaintiff) in the first appeal, First Appellate Court, in an appeal preferred by the unsuccessful plaintiff, ought not to have appointed another Advocate Commissioner without scrapping the report or without recording any reason for saying that the report and findings of the earlier Advocate Commissioner are unsatisfactory. 33. Learned Counsel for appellants submitted that the principle that a second Advocate Commissioner should not or cannot be appointed without scrapping the report of the first Advocate Commissioner and without recording reasons for its disbelieving earlier Advocate Commissioner’s report or scrapping the same is well settled. It was also pointed out that two leading case laws, in this regard, are R.Viswanathan's case, reported in 1985(1) MLJ 254 and K.Kandaswamy's case, reported in 1988 (2) LW 440 . Both judgments were rendered by learned single Judges of this Court. 34. In the hearing today, learned Counsel pressed into service, R.Sivasubramanian's case, reported in 2006(2) CTC 54 , authored by Hon'ble Justice Mr.C.Nagappan, as His Lordship then was (as a Judge in this Court). In this judgment, the aforesaid R.Viswanathan's judgment and K.K.Kandaswamy?s judgment have been referred to and followed after extracting the most relevant and pithy paragraphs in the two said judgments. Elaboration in this regard is set out in paragraphs 4, 5 and 6 of R.Sivasubraminan's case and this Court deems it appropriate to extract the same. '4.The trial court in the impugned order has not discussed the earlier Commissioner's Report and has not expressed its opinion before appointing the second Commissioner. Elaboration in this regard is set out in paragraphs 4, 5 and 6 of R.Sivasubraminan's case and this Court deems it appropriate to extract the same. '4.The trial court in the impugned order has not discussed the earlier Commissioner's Report and has not expressed its opinion before appointing the second Commissioner. S.NAINAR SUNDARAM, J. [As he then was] in the first decision referred above has considered the similar question and has held as follows: "It is well settled proposition that until the Court is dissatisfied with the proceedings and report of the Commissioner earlier appointed, it will not be proper to ignore the same and direct even further enquiry, much less the scrapping of the earlier report as a whole and appoint a fresh Commission. The power in this behalf is circumscribed by the principles under Order 26 Rule 10(3) of the Civil Procedure Code, hereinafter referred to as the Code. The power has to be exercised only after the Court below renders a finding that the proceedings and the report of the earlier Commissioner are not satisfactory and there is need for a further enquiry. In the present case, the order of the Court below does not express an opinion that the proceedings and the report of the earlier Commissioner are not satisfactory. The court below has opined that the truth or otherwise of the allegations thrown against the Commissioner's report need not be gone into and it is better to change the Commissioner. It has proceeded on the basis that allegations are thrown against the earlier Commissioner and hence, it is not fair to accept his report. This is not the proper method of dealing with an application of the present nature." 5. Following the above decision, Sathiadev, J. in the second decision referred above, considered the necessity for appointment of the second Commissioner based on the objections filed by the parties to the earlier Commissioner's Report and held as follows: "Merely because certain objections have been filed, it would not result in a second Commissioner being appointed, on that day itself. Learned counsel for the petitioner relies on the decision in VISWANATHAN v.. SHANMUGHAM AND ANOTHER [1985-1-MLJ 254], to show as to when exactly the report of a previous Commissioner could be scrapped. Learned counsel for the petitioner relies on the decision in VISWANATHAN v.. SHANMUGHAM AND ANOTHER [1985-1-MLJ 254], to show as to when exactly the report of a previous Commissioner could be scrapped. It is obligatory on the part of the Court to give convincing reasons as to why the previous report filed cannot be acted upon." 6. I am in respectful agreement with the views expressed by the learned Judge in the above decisions. In the present case merely, because objection were filed by the respondent herein to the earlier report, the Trial Court cannot appoint a second Commissioner unless it renders a finding that the earlier commissioner's report is unsatisfactory. No such finding of dissatisfaction has been made in the impugned order and hence it is liable to be set aside.' 35. As mentioned supra, in the aforesaid paragraphs, most pithy paragraphs in R.Viswanathan's case and K.Kandaswamy's cases have been extracted. 36. A perusal of the above, leaves no doubt in the mind of this Court that the course adopted by the First Appellate Court, ie., the course of appointing a second Advocate Commissioner without scrapping the report and sketch filed by the earlier Advocate Commissioner in the Trial Court and without recording any reason whatsoever, as to why the earlier Commissioner's report is unsatisfactory or that what is the need for appointment of a second Advocate Commissioner is unacceptable. It runs contrary to the well settled principle that has been laid down by this Court, particularly in R.Sivasubramanian's case extracted supra. 37. There are two other factors that buttress and bolster the plea that the course adopted by the First Appellate Court is unacceptable. These two aspects are as follows: (i) One aspect is even after appointment of the second Advocate Commissioner, the First Appellate Court has still referred to Ex.C.4 and documents filed by/through the first Advocate Commissioner in the Trial Court. This is articulated in page No. 9 of the printed judgment of the First Appellate Court and the relevant portions have already been extracted and reproduced supra. (ii) The second aspect which buttresses and bolsters the submission is that with regard to the first Advocate Commissioner and his report sketch, etc, plaintiff in the Trial Court, who is the respondent before this Court, has not chosen to file any objection whatsoever. (ii) The second aspect which buttresses and bolsters the submission is that with regard to the first Advocate Commissioner and his report sketch, etc, plaintiff in the Trial Court, who is the respondent before this Court, has not chosen to file any objection whatsoever. Therefore, appointment of second Advocate Commissioner in an appeal, preferred by the unsuccessful plaintiff in the Trial Court without scrapping the first Advocate Commissioner's report is unacceptable. Therefore there are two buttressing factors, which buttress, the submission of the learned Counsel for appellants that the course of appointing second Advocate Commissioner by the First Appellate Court is unacceptable and incorrect. 38. Therefore, it follows as an inevitable sequitur that both substantial questions of law have to necessarily be answered in favour of the appellants. 39. As already alluded to supra, both substantial questions of law, turn on the second Advocate Commissioner being appointed by the First Appellate Court without scrapping the report of the first Advocate Commissioner in the Trial Court and the Exhibits marked through him/by him, ie., Exs.C5, C6 and C7. 40. The moment appointment of the second Advocate Commissioner is faulted and found to be unacceptable, it follows as a necessary and inevitable sequitur that the First Appellate Court ought not to have granted relief to the plaintiff and decreed the suit on the basis of Ex.C5. 41. This straightaway answers substantial question of law No.1 in favour of the appellant and against the respondents. Equally, the judgment and decree of the First Appellate Court suffers from legal infirmity, as it has appointed the second Advocate Commissioner contrary to settled principle and taken into account Exs.C5, C6 and C7 marked through/by the second Advocate Commissioner, when report filed by the first Advocate Commissioner in the trial Court had not been objected to by the plaintiff. In other words, there was no objection to Exs.C1 to C4. This directly and clearly answers the second substantial question of law in favour of the appellants and against the respondent. 42. To be noted, this answers the two substantial questions of law unambiguously beyond any pale of doubt, as both substantial questions of law, on which, instant second appeal was admitted have now been answered in favour of the appellants and against respondent. In the light of the narrative supra, the instant second appeal is allowed. 43. Instant second appeal is allowed. In the light of the narrative supra, the instant second appeal is allowed. 43. Instant second appeal is allowed. Judgment and decree of the First Appellate Court are set aside and the dismissal decree of the Trial Court non suiting the plaintiff and dismissing the suit is confirmed. Considering the fact that the parties to this lis are owners of adjacent properties and are also neighbours, besides the fact that the suit lane admeasures 134.75 square feet, the parties are left to bear their costs respectively.