Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 2267 (MAD)

R. RAMAMOORTHY v. KANAKAMMA

2018-07-26

P.T.ASHA

body2018
COMMON ORDER Ms. P.T. Asha, J. - Since the issue in all the three Civil Revision Petitions has its genesis in the Suit O.S.No.6 of 2006 pending on the file of the learned District Munsif, Thiruttani, Tiruvallur District, this Court is taking up all the three revisions and passing a Common Order. 2.The revisions and the orders against which they have been filed are detailed herein below: a) C.R.P.(PD).No.1463 of 2010 is filed challenging the order passed in I.A.No.379 of 2009 in O.S.No.6 of 2006 which is an application to strike out the report and sketch filed by the Taluk Head Surveyor in I.A.No.808 of 2007. b) C.R.P.(PD)No.1464 of 2010 is filed challenging the order passed in I.A.No.380 of 2009 which is an application filed to appoint the Assistant District Surveyor, Tiruvallur, to inspect the suit property and to measure the suit disputed land in Survey No.49/1B by fixing G.line in relation to the F.M.B and to fix the survey number in which the suit first item wall is found constructed and to note the extent of encroachment made by each of the defendants and the surveyor may be directed to take assistance of a photographer to take photos of each crucial fact and file his report with sketch. c) C.R.P.(PD).No.1556 of 2011 is filed challenging the order passed in I.A.No.808 of 2007 which is filed to appoint the Head Surveyor, Tiruttani to localize Survey Nos.48/1 to 48/3 and 49/1 to 49/5 of the Old Survey held in 1954. 3.The parties are described in the same array as in the suit. The plaintiff is the Civil Revision Petitioner in all the three Civil Revision Petitions. 4.The suit O.S.No.6 of 2006 was filed by the plaintiff to declare his right, title and interest over the suit properties and consequently, grant a permanent injunction, restraining the defendants 1 to 9 and their children and other family members and others claiming under them, from interfering with the plaintiffs peaceful possession and enjoyment of the suit properties including the stone fencing wall by letting their sullage water or dumping their rubbish in the suit first item land or causing damage to the stone fencing wall in the suit first item land. They had also sought for a permanent injunction, restraining the 10th defendant from dumping rubbish in the suit second item of the property. They had also sought for a permanent injunction, restraining the 10th defendant from dumping rubbish in the suit second item of the property. 5.The 1st item of the suit property is an extent of 3.98 acres of dry land, comprised in Survey No.49/1B, Amruthapuram Village, Tiruttani Firka, Tiruttani Taluk, Tiruvallur District, in New Patta Nos.220, 221, 227, 1208, before U.D.R Old Patta No.354 and 1504, which is bounded on the North by the land comprised in Survey No.49/1A belonging to Sumathy, South by stone fencing wall of the plaintiff and further South by the defendants Backyard, East by the land belonging to Sumathy comprised in Survey Nos.49/4 and 49/5 west by the Suit second item land in Survey No.47/4 and other belongings to the plaintiff. 6.The 2nd item of property is an extent of 25.98 cents of dry land, comprised in Survey No.49/1 within the following boundaries North by land big rock in Survey No.47/3 being poramboke land; South and East by suit first item of property and West by the Podatturpet Road in New Patta No.352 and Old U.D.R.Nos.354 and 1504. 7.The plaintiff had claimed exclusive right to the stone fencing put up along the length of his property including the suit property stating that the same had been put up 150 years ago by his ancestors and the stone wall ran the length of Survey No.49/1 now 49/1B, 47/4 and 49/4. The breadth of this wall was 3 feet and the height ranged from 43 feet to 6 feet. The cause of action for filing of the suit was the attempts made by the defendants to drill holes into the stone wall and remove the stones from the stone wall to throw rubbish and let out sullage waters into the property of the plaintiffs, namely the first item of the suit property. The 10th defendant, who is none other than the Executive Officer of the Tiruttani Municipality, was also arrayed as a party, since they were attempting to throw rubbish into the suit second item of the property. 8.The 2nd defendant had filed a written statement inter alia contending that they have been enjoying the vacant land and the stone wall for over 25 years and therefore, the defendants are entitled to let out the sullage water or throw waste, for which, the plaintiff cannot have any objection. 8.The 2nd defendant had filed a written statement inter alia contending that they have been enjoying the vacant land and the stone wall for over 25 years and therefore, the defendants are entitled to let out the sullage water or throw waste, for which, the plaintiff cannot have any objection. In view of the stand taken by the 2nd defendant and in order to note down the physical features of the suit properties and the adjoining properties, the plaintiff and the defendants have taken out the following applications for appointment of Advocate Commissioner / Taluk Surveyors and these applications with its gist and the gist of the Commissioner/Surveyor's report are extracted herein below: (1)I.A.No.70 (A) of 2006 was filed by the plaintiff for noting down the physical features of the suit properties first item of the stone wall. The Commissioner had inspected the said property and submitted his report, wherein he has stated that the report of the Commissioner would show that he had noted down the sullage water being drained through the stone wall and also the dumping of rubbish, he has also seen the removal of a portion of the stone wall, particularly near the property owned by Venkata Reddy/4th defendant and Adhi Lakshmi/3rd defendant. He has also noted that the portion marked ABCDA has been encroached and the same levelled by using JCB. (2)(i)I.A.No.70 of 2006 was filed to appoint the Tiruttani Taluk Surveyor as Commissioner along with an Advocate Commissioner to locate Dry S.F.No.49/1B, and Gramanatham S.F.No.48; to note down the Houses and backyard of the defendants in Gramanatham S.F.No.48; to note down the entrances to the North of backyard in Gramanatham S.F.No.48; to note down the Rubbish, storing Firewood; and Drainage pipe in Gramanatham S.F.No.48; to note down the boundaries of S.F.No.49/1B; and Houses and Backyards of the defendants in S.F.No.48 to note down the other physical features as shown by both the parties at the time of local inspection to draw a Plan and Report with regard to the petition schedule mentioned properties. (ii)The Taluk Surveyor has submitted a report dated 02.08.2006, which was directly sent to the learned District Munsif, Tiruttani, in which, he has stated that Survey Nos.49/1B and 48/1 to 12 were measured and boundaries shown to both parties. The report further states that Adhi Lakshmi/3rd defendant has encroached into an extent of 15 cents in Survey No.49/1B. (ii)The Taluk Surveyor has submitted a report dated 02.08.2006, which was directly sent to the learned District Munsif, Tiruttani, in which, he has stated that Survey Nos.49/1B and 48/1 to 12 were measured and boundaries shown to both parties. The report further states that Adhi Lakshmi/3rd defendant has encroached into an extent of 15 cents in Survey No.49/1B. The report of the Taluk Surveyor indicates that he had done the measurements on the basis of the taluk records. (iii).The Commissioner, who visited the site on the next day, has observed that there is a survey stone available in the north east corner of Survey No.49/5 and when he tried to use it as the point of measurement, the same was objected by the defendants as they felt that the same could have been displaced from the original point. However, the Surveyor has proceeded to use this Survey stone and another stone on the Eastern portion of Survey No.49/5 as the point and fixed a G line (Guess Line) in between the south west corner of Survey Nos.49/1B and 49/5. The Advocate Commissioner also pointed out that the Surveyor has not considered F lines and offsets in Survey No.49/1A Survey No.49/1B and only on the basis of a Guess Line, the Survey had taken place and given the conclusion that the 3rd defendant compound wall is situate in Survey No.49/1B, which is an encroachment. (3)(i)I.A.No.177 of 2006 was filed to note down the physical features of the suit properties without the help of Surveyor and file a report noting the physical features and the draining of sullage water in the suit first item stone wall and note down the holes therein. (ii)This application was allowed on 08.03.2006 and the previous report submitted by the Surveyor Commissioner was scrapped. (4)(i)I.A.No.808 of 2007 was filed to appoint the Head Surveyor of Tiruttani to localise the Survey Nos.48/1 to 48/3 and 49/5 of the Old Survey held in 1954. (ii)The Advocate Commissioner in his report has opined that the 3rd defendant has encroached into 5 cents in Survey No.49/1B and this includes the compound wall. (4)(i)I.A.No.808 of 2007 was filed to appoint the Head Surveyor of Tiruttani to localise the Survey Nos.48/1 to 48/3 and 49/5 of the Old Survey held in 1954. (ii)The Advocate Commissioner in his report has opined that the 3rd defendant has encroached into 5 cents in Survey No.49/1B and this includes the compound wall. (iii)The plaintiff had submitted his objections to this report stating that the Taluk Head Surveyor had not executed the work in terms of the warrant and though he was asked to measure Gramanatham land and the land in Survey No.49/1B to verify whether the defendants had encroached into Survey No.49/1B beyond the stone wall and to measure Survey No.49/1B and the land in Survey Nos. 48/1 to 12, the same has not been complied with. There is no clarity with regard to the encroachment made by the 3rd defendant. (5)I.A.No.379 of 2009 was filed to strike out the report and sketch filed by the Taluk Head Surveyor in I.A.No.808 of 2007. (6)I.A.No.380 of 2009 was filed to appoint the Assistant District Surveyor, Tiruvallur, to inspect the suit property and to measure the suit disputed land in Survey No.49/1B by fixing G Line in relation to F.M.B. and to fix the survey number, in which, the suit first item wall is found constructed and to note the extent of encroachment made by each of the defendants and the Surveyor may be directed to take the assistance of the photographer to take photos at each crucial facts and to file his report with sketch. 9.The last three Interlocutory Applications were dismissed by the learned District Munsif, Tiruttani and aggrieved over the same, the petitioner has come forward with the above referred revisions. 10.Mr.M.S.Subramanian, learned counsel appearing on behalf of the petitioner would contend that the reason for filing applications I.A.Nos.379 and 380 of 2009 was only on account of the fact that despite several applications being moved and request/s for measuring the disputed land in Survey No.49/1B by fixing the Guess Line in relation to the Field Measurement Book (F.M.B.), to identify survey numbers in which the suit item compound wall was constructed, as also the extent and area of the encroachment made by the defendants, the same has not been done till date. It was his contention that once the survey number in which the compound wall is situated is identified then all the other reliefs in the suit would follow. He would argue that though the Commissioner appointed in I.A.No.70 of 2006 and I.A.No.70A of 2006 concluded that the 3rd defendant has encroached into a portion of the property, the extent to which the encroachment has been made has not been demarcated in the F.M.B. sketch, which has been filed along with report of the Surveyor in I.A.No.70 of 2006 and also in the report in I.A.No.70A of 2006. The defendants have not filed their objections to this report and therefore, it can be stated that the defendants accepted the encroachment. 11.The learned counsel, in order to advance his arguments for allowing C.R.P.(PD).Nos.1463 and 1464 of 2010, would bring to my notice the sketch filed by the Advocate Commissioner in I.A.No.70A of 2006, wherein the Commissioner has noted that the stone wall has been removed between the points D and C, as also the existence of the stone wall. He would also point out the F.M.B. sketch filed by the Taluk Surveyor along with his report dated 02.08.2006, wherein the encroachment by the 3rd defendant has to be noted in the Field Measurement Book. He would also point out that in the report filed in I.A.No.70 of 2006, the Advocate Commissioner has clearly stated that the Surveyor has not identified the G Line or the F Line, which has resulted in the report of the Taluk Surveyor not being an accurate one. He would also draw this Court's attention to the counter filed in these two applications, where the defendants have not brought out any convincing reason to counter the averments made by the plaintiff in support of two Interlocutory Applications namely I.A.Nos.379 and 380 of 2006. 12.The learned counsel would also argue that the learned District Munsif, Tiruttani, had not considered the purpose, for which, the impugned applications were filed, particularly, when the report in I.A.No.70 of 2006 had been scrapped and the Advocate Commissioner as well as the Surveyor appointed pursuant to the orders in I.A.No.808 of 2007, has not returned the warrant, after executing the same, in keeping with the terms of the warrant. He would therefore submit that the order of the learned District Munsif, Tiruttani, is erroneous and calls for interference for this Court. He would therefore submit that the order of the learned District Munsif, Tiruttani, is erroneous and calls for interference for this Court. 13.Per contra, Mr.P.R.Thiruneelakandan, learned counsel appearing for the defendants would contend that the earlier reports have not been scrapped and he would also contend that the F Line has been identified by the Surveyor and that the report in I.A.No.70A of 2006 are in respect of two different properties and that the earlier report was sufficient to arrive at a conclusion. He would therefore state that no interference was called for in respect of the orders of the learned District Munsif, Tiruttani. 14.Heard the learned counsel appearing on either side and perused the material available on record. 15.C.R.P.No.(PD).1556 of 2011 has been filed challenging the order passed in I.A.No.808 of 2007 in O.S.No.6 of 2006 by the learned District Munsif, Tiruttani. From the additional typedset filed on 26.11.2014, it is seen that the Commissioner has already submitted his report in I.A.No.808 of 2007 on 15.09.2008 and the plaintiffs/petitioners herein have filed their objections to the said report. Therefore, nothing survives for decision by this Court. Hence, C.R.P.(PD).No.1556 of 2011 stands dismissed. 16.As regards, the orders which are impugned in C.R.P.(PD).Nos.1463 and 1464 of 2010, it is seen that the suit is for a declaration with reference to the properties situate in Survey No.49/1B, measuring an extent of 3.98 acres within the specified boundaries and the Southern boundaries is shown as a stone fencing wall belonging to the plaintiff. The plaintiff's case is that the defendants have encroached into the land in Survey No.49/1B by removing a portion of the stone wall and by boring holes into the stone wall to throw rubbish and let out the sullage water into the property belonging to the plaintiff. In order to arrive at a decision, it is of paramount importance to identify the survey number in which the compound wall is situate which is located in the Southern end of the plaintiff's land. Once this identification is made, all other reliefs would flow from this. From the narration, it is seen that though the orders with reference to the identification and location of the wall as well as draining out of the sullage water and the storage of rubbish, has not been noted down. Once this identification is made, all other reliefs would flow from this. From the narration, it is seen that though the orders with reference to the identification and location of the wall as well as draining out of the sullage water and the storage of rubbish, has not been noted down. It is clear that there is an encroachment and a draining of sullage water as well as a dumping of rubbish. However, the report is silent with reference to the survey number in which the compound wall is situate, and also, the survey number into which the rubbish is being dumped. Though I.A.No.70 of 2006 was a comprehensive application, unfortunately, the Report and Plan submitted in this Interlocutory Application, has been scrapped and therefore, there is nothing available on record to arrive at a conclusion. The Report of the Commissioner and the Taluk Surveyor is rather sketchy and the Court is unable to comprehend as to whether the encroachment runs through out the length and breadth of the compound wall or whether it is in isolated pockets and there is a doubt with reference to Survey Number, in which, the compound wall is situate. The report in I.A.No.70A of 2006 and the report in I.A.No.808 of 2007 does not give much assistance. In fact, the Advocate Commissioner appointed in I.A.No.70 of 2006 (which no doubt has been scrapped) has reported that the Surveyor has not identified the survey stone fixed in the G line and F line which is very vital for arriving at a decision in this suit O.S.No.6 of 2006. The report of the Surveyor in I.A.No.808 of 2007 is also not in accordance with the orders passed in I.A.No.808 of 2007. 17.In the result, C.R.P.(PD).Nos.1463 and 1464 of 2010 are allowed and consequently, I.A.Nos.379 and 380 of 2009 are allowed. The trial Court is directed to expedite the hearing of the suit. The Assistant District Surveyor, Tiruvallur, is directed to inspect the suit property in keeping with the prayer made in I.A.No.380 of 2009 and submit his report within a period of one month from the date of receiving the warrant from the learned District Munsif, Tiruttani. The learned District Munsif, Tiruttani, is directed to dispose of the suit within a period of three months from the date of receipt of the report from the Assistant District Surveyor. The learned District Munsif, Tiruttani, is directed to dispose of the suit within a period of three months from the date of receipt of the report from the Assistant District Surveyor. In the result, C.R.P.(PD).No.1556 of 2011 is dismissed and C.R.P.(PD).Nos.1463 and 1464 of 2010 are allowed on the terms indicated above.