Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 3266 (MAD)

Arulmurugan v. B. Chandra

2018-09-26

S.S.SUNDAR

body2018
JUDGMENT S.S. Sundar, J. S.A(Md)No.160 of 2016 is filed against the judgment and decree of the Additional Sub Court, Dindigul in A.S.No.20 of 2014 confirming the judgment and decree in O.S.No.35 of 2001 on the file of the District Munsif Court, Nilakottai. 2. S.A(Md)No.161 of 2016 is filed against the judgment and decree of Additional Sub Court, Dindigul in A.S.No.21 of 2014 partly modifying the judgment and decree in O.S.No.145 of 2001 on the file of the District Munsif Court, Nilakottai, and dismissing the suit insofar as the mandatory injunction is concerned. 3. The second defendant in the suit in O.S.No.35 of 2001 and the second plaintiff in the suit in O.S.No.145 of 2001 on the file of the District Munsif Court, Nilakottai is the appellant in the above second appeals. 4. The first respondent herein, as plaintiff, filed the suit in O.S.No.35 of 2001 before the District Munsif Court, Nilakottai, for a declaration that the suit property belongs to the plaintiff and for other consequential injunction restraining the defendants from in any manner interfering with her peaceful possession and enjoyment of the suit property. The suit property is a building, bearing New Door No. 10-5-06 and Old Door No. 10-5-34, Santhaipettai Street, Batlangundu Taluk, comprised in S. No. 412B/10 A1A1A within the specific four boundaries. The suit property has been described as one comprising two contiguous plots one measuring East-West 74 feet and North-South 10 + feet and the second plot measuring East-West 23 feet and North-South 9, feet. 5. The case of the plaintiff in the suit in O.S.No.35 of 2001 is as follows: 5.1. The suit property was purchased by the plaintiff from the original owner under a registered sale deed, dated 10.01.2000 for a valuable consideration. The plaintiff obtained due permission from the Batlangudu Town Panchayat and obtained a plan approval for constructing a building. The suit property is a two storeyed building put up by the plaintiff recently. The suit property originally was a dilapidated Madras Terraced building belonged to one Ziavudeen and his brothers and sisters. After the suit property was sold in favour of the plaintiff, the plaintiff is paying property tax for the building. The plaintiff's husband is running a vegetable shop in the ground floor and the finishing work alone is pending in the first floor. 5.2. After the suit property was sold in favour of the plaintiff, the plaintiff is paying property tax for the building. The plaintiff's husband is running a vegetable shop in the ground floor and the finishing work alone is pending in the first floor. 5.2. The first defendant in the suit is one of the most influencing persons in Batlangundu. On the south of the plaintiff's property, there is a lane measuring 8 feet in breadth and on the further south of the lane, the property of one Ponnammal is located. The first defendant came into accommodation of the property of Ponnammal and she filed a suit for recovery of possession. Though, Ponnammal succeeded in the suit, she could not take delivery of the property from the first defendant. Since Santhaipettai Street is a busy market centre in Batlagundu, he is now leasing out the said Ponnammal property to several third parties on daily rent basis and the first defendant had also an eye over the suit property. Using the muscle power, the first defendant wanted to purchase the suit property for a lower price. Since the first defendant could not get the property, he started to give all troubles to the plaintiff from the date of his purchase of the suit property. Taking advantage of the support from the local police, the first defendant gave a false complaint against the plaintiff and her husband and further threatened to cause damage to the plaintiff's building on and from 05.02.2001. In view of the constant threat, the plaintiff could not complete the finishing work in the suit building. 5.3. The first defendant got an assignment of property on the southern side of the suit property from the Revenue Divisional Officer, Usilampatti. The said assignment order is not legal as there is no Poramboke land available on the south side of the suit property. Since the south side of the suit property is a lane, there cannot be an assignment in favour of the first defendant. However, alleging that the plaintiff has encroached into one portion of the property of first defendant, the first defendant is causing trouble to the plaintiff and hence, the suit. 6. The first defendant in the suit in O.S.No.35 of 2001, as plaintiff, filed the suit in O.S.No.145 of 2001 before the same Court for declaration of title over the suit property and for other consequential injunction. 6. The first defendant in the suit in O.S.No.35 of 2001, as plaintiff, filed the suit in O.S.No.145 of 2001 before the same Court for declaration of title over the suit property and for other consequential injunction. The suit is also for mandatory injunction to remove the encroachment made by the plaintiff in the suit in O.S.No.35 of 2001 for an extent of 33'x2' feet and to direct the defendant to hand over possession of the encroached portion as a vacant site. 7. The case of the plaintiffs in O.S.No.145 of 2001 is as follows: 7.1. The suit property is an extent of 390 sq ft., in S.No.412B/10A1A1A in Santhaipettai Street, Batlangudu Taluk. The suit property was assigned to him on 10.04.1981 as a sale. The said property was originally a Poramboke land, which was originally shown as a Natham property as per the revenue records. It is the further case of the first plaintiff that he was in enjoyment of the property adjacent to the suit property as a lessee under one Ayyadruai Pillai from 1951 and that the assignment was given to the first plaintiff taking into account the enjoyment of the property by the first plaintiff. It is further stated that the land was assigned in favour of the first plaintiff after collecting market price and that the Batlangudu Town Panchayat, by a resolution, has given no objection for the assignment. Since the entire extent of 390 sq.ft., land is the absolute property of the first plaintiff, the first plaintiff got patta and he constructed a compound wall and Thar shed in the suit property. It is further stated that taking advantage of the plaintiff's absence, the defendant in the suit in O.S.No.145 of 2001, who is the plaintiff in O.S.No.35 of 2001 encroached into the suit property to an extent of 33'x2' on the southern side of the suit property by putting up a wall. Though the first defendant in the suit agreed to remove the construction after measuring the property, she did not do so. It is further stated that the defendant, instead of demolishing the wall, filed the suit in O.S.No.35 of 2001 for declaration of title and for consequential injunction on the ground that she has purchased the property from Ziavudeen and Others. 7.2. It is further stated that the defendant, instead of demolishing the wall, filed the suit in O.S.No.35 of 2001 for declaration of title and for consequential injunction on the ground that she has purchased the property from Ziavudeen and Others. 7.2. During the pendency of both suits, the first defendant in the suit in O.S.No.35 of 2001 and the first plaintiff in the suit in O.S.No.145 of 2001 died. The second plaintiff in O.S.No.145 of 2001 is the son of first plaintiff, who impleaded himself as a party on the basis of a Will alleged to have been executed by the first defendant in his favour. The other legal heirs of the first defendant were impleaded as defendants 3 to 7 at the instance of first defendant in O.S.No.35 of 2001. In the suit in O.S.No.35 of 2001, defendants 3 to 7 were impleaded as legal representatives of the first defendant. It is to be noted that the plaintiff in O.S.No.35 of 2001 is the first defendant in the suit in O.S.No.145 of 2001. Similarly, the defendants 1 and 2 in O.S.No.35 of 2001 are the plaintiffs in O.S.No.145 of 2001. The averments made in O.S.No.35 of 2001 is also the stand taken by the first defendant in O.S.No.145 of 2001. Similarly, the averments made in the written statement filed in O.S.No.35 of 2001 is also the case of the plaintiff in O.S.No.145 of 2001. 8. Both the suits were tried together. But, the evidence was recorded separately for both suits. The plaintiff in O.S.No.35 of 2001 filed Ex-A1 to Ex-A4 and examined the plaintiff's husband as PW-1 and on behalf of defendants, three witnesses were examined, apart from marking Ex-B1 to Ex-B9. The plaintiff in the suit in O.S.No.145 of 2001 filed Ex-A1 to Ex-A5 and the appellant herein examined himself as PW1 and further examined three other witnesses as PW-2 to PW-4 and on behalf of the first defendant, her husband was examined as DW-1 and marked Ex-B1. In the suit in O.S.No.145 of 2001, an Advocate Commissioner was appointed and he has also filed a report and plan, which were marked as Ex-C1 and Ex-C2. 9. In the suit in O.S.No.145 of 2001, an Advocate Commissioner was appointed and he has also filed a report and plan, which were marked as Ex-C1 and Ex-C2. 9. The trial Court, after elaborately considering the evidence on both sides in both suits including the Advocate Commissioner's report and plan, found that the plaintiff in O.S.No.35 of 2001 has proved her title to the property on the basis of sale deed, which was marked as Ex-A2, dated 10.01.2000. Though the Advocate Commissioner has given a finding that the first respondent has encroached into the property of the appellant to an extent of 2 feet on the northern side of the appellant's property, the trial Court, on an analysis of report and other evidence, came to the conclusion that the Advocate Commissioner has not measured the property after fixing the boundary with reference to documents and that therefore, the report is not helpful to establish the case of appellant herein, who has filed the suit in O.S.No.145 of 2001 for mandatory injunction. Since the alleged encroachment pleaded by the appellant is not proved, the trial Court further found that the appellant, who is the plaintiff in O.S.No.145 of 2001, is not entitled to the relief of mandatory injunction. The trial Court also found that the assignment of land in favour of the appellant does not contain the measurement and that therefore, the encroachment alleged by the appellant cannot be presumed on the basis of Advocate Commissioner's report. The trial Court has decreed the suit in O.S.No.35 of 2001 by granting a decree of declaration in favour of the first respondent herein. Though the trial Court found that the appellant is entitled to get a declaration and granted a decree declaring the appellant's right in respect of the suit property, with reference to either injunction or mandatory injunction, the trial Court dismissed the suit in O.S.No.145 of 2001, mainly on the ground that the plaintiff therein has not proved his case. Aggrieved by the judgment and decree of the trial Court in both suits, the appellant preferred an appeal in A.S.No.20 of 2014 against the judgment and decree in O.S.No.35 of 2001 and filed another appeal in A.S.No.21 of 2014 against the judgment and decree in O.S.No.145 of 2001 before the Additional Sub Court, Dindigul. 10. The lower appellate Court confirmed the judgment and decree in O.S.No.35 of 2001. 10. The lower appellate Court confirmed the judgment and decree in O.S.No.35 of 2001. With regard to the suit in O.S.No.145 of 2001, the lower appellate Court found that the appellant is entitled to decree for declaration of title in respect of 390 sq.ft., of land, but dismissed the suit insofar as the prayer of mandatory injunction. As against the concurrent findings and decree by both Courts, the appellant has preferred the above appeals. 11. In S.A.(MD)No.160 of 2016, the appellant has raised the following substantial questions of law: "1. Are the Courts below justified in granting a declaration of title and permanent injunction, in favour of the plaintiff/1st respondent, when the plaint plan, description of property and the measurements, have not been proved by her? 2. Whether the Courts below are justified in decree the suit by holding that the plaintiff's right and title is not disputed by the defendants, ignoring the specific pleadings in the written statement and additional written statement? 3. Are the judgements of the Courts below sustainable in law in the light of the evidence of the PW-1, the only witness on the plaintiff's side, which is totally unsupportive of the plaintiff's case? 4. Whether the findings of the Courts below ignoring the Ex-B4 and Ex- C1 and Ex-C2 proving the factum of encroachment by the plaintiff, sustainable in law?" 12. In S.A.(MD)No.161 of 2016, the appellant has raised the following substantial questions of law : "1. Are the Courts below justified in refusing to grand a relief of mandatory injunction despite the encroachment by the 1st defendant being clearly proved by Ex-A4, Ex-C1 and Ex-C2, which are official records entitled to presumption under Section 114 of Evidence Act? 2. Whether the Courts below are justified in ignoring the report of the advocate commissioner's report and plan in Ex-C1 and Ex-C2 when the same has not been proved to be false by the first defendant and when the same is supported by Ex-A4? 3. Are the judgments of the Courts below sustainable in law when the first defendant has not let in any evidence to prove acquiescence or estoppel against the plaintiffs?" 13. 3. Are the judgments of the Courts below sustainable in law when the first defendant has not let in any evidence to prove acquiescence or estoppel against the plaintiffs?" 13. At the time of arguing the second appeal, the learned Counsel for the appellant in both cases have relied upon the Advocate Commissioner's report and plan, which were marked as Ex-C1 and Ex-C2 in the suit in O.S.No.145 of 2001 and submit that the Advocate Commissioner has found that the building in O.S.No.35 of 2001 has been constituted by encroaching a portion of the suit property in O.S.No.145 of 2001, measuring an extent of 2'x33'. However, this Court found that the Advocate Commissioner has not located the boundaries of the parties in both suits. The Advocate Commissioner was asked to submit a report and plan as to the physical feature with reference to either boundary description or measurement given in the property. In this case, the Advocate Commissioner filed the report before the trial Court. He came to the conclusion on the basis of the measurement shown by surveyor without even drawing a plan to show the measurement of each survey number. It is to be noted that new survey number has been given to the properties as S.No.412/BA1A1A and both the suits refer to this survey number. However, it appears that there is a change in survey number and the present survey numbers are given as S.No.1346/3 and S.No.1346/5. In the Advocate Commissioner's report, there is no reference to survey numbers or measurement. 14. Accepting the position, the learned Counsel for the appellant represented before this Court to give an opportunity to file an application for appointment of Advocate Commissioner by this Court, so that the disputed property can be identified more accurately. Thereafter, the learned Counsel for the appellant filed a petition in C.M.P.(MD)No.590 of 2018 to reissue the warrant to the same Advocate Commissioner to inspect the property in O.S.Nos.35 and 145 of 2001 (on the file of the District Munsif Court, Nilakottai) with the help of a qualified surveyor to measure the property with reference to old and new survey numbers and the building constructed thereon and to file a report. This Court allowed the petition with a direction to the Advocate Commissioner to visit and inspect the property with the assistance of qualified surveyor and to submit a report. 15. This Court allowed the petition with a direction to the Advocate Commissioner to visit and inspect the property with the assistance of qualified surveyor and to submit a report. 15. The Advocate Commissioner, appointed by this Court, has filed a report on 01.03.2018. Unfortunately, the Advocate Commissioner, this time, has filed the surveyor plan for S.No.1346/3 and the extract of Correlation registrar. The Advocate Commissioner has, of-course, inspected the property along with the assistance of Firka surveyor and another surveyor and conducted the inspection in the presence of Revenue Inspector and Village Administrative Officer. However, the report and plan submitted by the Advocate Commissioner, though refer to the S.Nos.1346/3 and 1346/5, no measurement is shown in the Advocate Commissioner's plan. On the basis of the revenue sub division, it is stated that the property, which is purchased by the first respondent has given S.No.1346/3 and the property, which is assigned in favour of the appellant's father is in S.No.1346/5. It is stated in the report that a surveyor and Firka Surveyor have located the service stones in point Nos. X and Y marked in the report of Advocate Commissioner. The measurement of the property purchased by the first respondent is not given. Similarly, the measurement of the property assigned in favour of the appellant's father is not given. However, the Advocate Commissioner has found that the wall with a width of 08 feet and length of 23 feet with a height of 27 feet put up by the first respondent in these appeal lies on the suit property in O.S.No.145 of 2001. In other words, part of the southern side wall of the first respondent's construction is found to be in the land in S.No.1346/5. The Advocate Commissioner, appointed by this Court, has also failed in taking note of the measurement shown and explain as to how the construction put up by the first respondent is by encroachment to an extent of 8.7 inches x 23 feet. Therefore, it is obvious that the Advocate Commissioner has allowed the revenue officials and the surveyors to measure the property as per the survey plan and accepted their version without actually measuring the property. Admittedly, the property assigned in favour of the appellant's father cannot be identified with reference to measurement, as there was no measurement in the assignment order. Therefore, it is obvious that the Advocate Commissioner has allowed the revenue officials and the surveyors to measure the property as per the survey plan and accepted their version without actually measuring the property. Admittedly, the property assigned in favour of the appellant's father cannot be identified with reference to measurement, as there was no measurement in the assignment order. The Advocate Commissioner, who was appointed by the trial court, has found that the encroachment is to an extent of 2 feet x 33 feet equivalent to 66 sq.ft. Now, the Advocate Commissioner, appointed by this Court, has found that a portion of wall, i.e., about 17 sq ft, is in encroachment. The learned Advocate Commissioner could not explain the conclusion arrived at by him with reference to his plan and the documents produced along with the report. Therefore, it is apparent, as it can be taken on its face, that some subdivision proceedings had taken place after dispute and that the encroachment found by the Commissioner is on the basis of subdivision proceedings of revenue department and the plan drawn by revenue. As per the present Commissioner's report, encroachment by the first respondent is to an extent of about 17 sq ft. 16. When there is a dispute with regard to title, the Civil Court has to consider the dispute on the basis of title deeds and revenue records, which were prepared based on survey conducted by the revenue officials in the presence of parties concerned on the basis of title and ownership of the properties by the parties concerned or as reflected from the revenue records, which were prepared earlier during settlement. In this case, the suit property in both suits were described with reference to S.No.412B/10A1A1A. In the same survey number, in which the first respondent claims title, the appellant's father was given assignment in respect of an extent of 390 sq.ft. The first respondent in this appeal purchased the property on 10.01.2000 from the legal heirs of S.P. Majeed Rawther and he produced the sale deed, which was marked as Ex-A2 in the suit in O.S.No.35 of 2001. 17. It is not in dispute that the suit property in O.S.No.35 of 2001 is as per the description of the property found in the sale deed dated 10.01.2000. As a matter of fact, the property itself was purchased as a building. 17. It is not in dispute that the suit property in O.S.No.35 of 2001 is as per the description of the property found in the sale deed dated 10.01.2000. As a matter of fact, the property itself was purchased as a building. The property has been described as the property in Natham S.No.412B/10A1A1A. In the document, namely the order of assignment, dated 19.09.1984, assigned in favour of the appellant's father, it has been described as a property classified as Natham in the village accounts. Hence, objection was invited before the proposed assignment in favour of the appellant's father. In the order of the Revenue Divisional Officer, it is stated that there was no objection and hence, the property is assigned after accepting sale price at market value from the appellant's father. The property on the northern side of the property assigned is referred to as the property of one Thiru.Pappu Rawther. It is to be noted that a property classified as a Natham, does not vest with the Government under any enactment. The property is not a Poramboke property or shown to be the property in which the Government can exercise the right of ownership. In such circumstances, the assignment itself is questionable and based on such unlawful assignment, the appellant's father cannot claim right or title to the property against a person, who is in enjoyment of the land. The document of assignment do not give any indication as to the measurement of the property. Hence, it is very difficult to accept the case of the appellant's father that he was in enjoyment of the land as per the assignment. The trial Court as well as the lower appellate Court has categorically given a finding as to the title of plaintiff in respect of the suit property in O.S.No.35 of 2001 in favour of the first respondent. 18. On the basis of the sale deed, the Courts below have further held that the appellant has not proved the encroachment by the first respondent into the property that was assigned in favour of the appellant's father. The Advocate Commissioner's report and plan marked as Ex-C1 and Ex-C2, were considered and found that the findings of the Advocate Commissioner regarding encroachment is not justified without fixing the boundary and without a measurement being taken with reference to documents of title. The Advocate Commissioner's report and plan marked as Ex-C1 and Ex-C2, were considered and found that the findings of the Advocate Commissioner regarding encroachment is not justified without fixing the boundary and without a measurement being taken with reference to documents of title. In such circumstances, the Courts below have right in not placing reliance on the Advocate Commissioner's report and plan. This Court has already found that the Advocate Commissioner appointed by this Court has also come to the conclusion without giving measurements as per title deed or authenticated survey records during settlement (old survey number). The question whether the building and the property which is in the enjoyment of the first respondent is in excess of extent of property purchased by the first respondent is not focussed. The findings of the Courts below are on the basis of proper appreciation of oral and documentary evidence. The Courts below have not decided the question of title of suit property solely rest on acquiescence, but on facts. 19. The property purchased by the first respondent under the sale deed dated 10.01.2000 is not in dispute. The title of predecessor-in-interest of the plaintiff is not disputed. The extent of property shown in the plaint schedule in O.S.No.35 of 2001 is exactly the same as found in the sale deed, dated 10.01.2000. The encroachment now alleged is less than 17 sq.ft. This Court has already seen that the first plaintiff in O.S.No.145 of 2001 is claiming title only on the basis of assignment given by the Revenue Divisional Officer. The assignment itself shows that the property which is assigned by the Government was classified as Natham. Hence the Government has no title and the assignment cannot confer any right in favour of the appellant's father. It is stated that the appellant's father was in possession and that the assignment was in recognition of his possession. If the property is classified as Natham and a person is in possession, he need not get an order of assignment by paying market value to claim title over the property. The plaintiff in O.S.No.35 of 2001 has pleaded that the property which lies on the south of her property is a lane and that the Government or the revenue officials has no power to assign the land. Hence, there is a plea questioning the validity of assignment. The plaintiff in O.S.No.35 of 2001 has pleaded that the property which lies on the south of her property is a lane and that the Government or the revenue officials has no power to assign the land. Hence, there is a plea questioning the validity of assignment. Though the Courts below have not given any finding, this Court cannot ignore the admitted fact as brought out from the order of assignment. The plaintiff in O.S.No.35 of 2001 has proved her case and the Courts below have concurrently found title and enjoyment of the suit property in O.S.No.35 of 2001 in favour of the first respondent. In such circumstances, this Court do not find any merits in any of the substantial questions of law raised in these appeals. 20. As a result, these second appeals are dismissed. The judgment and decree in A.S.No.20 of 2014 by the learned Additional Subordinate Judge, Dindigul, confirming the judgment and decree in O.S.No.35 of 2001 by the learned District Munsif, Nilakottai and the judgment and decree in A.S.No.21 of 2014 modifying the judgment and decree by the learned Additional Subordinate Judge, Dindigul, in O.S.No.145 of 2001 by the learned District Munsif, Nilakottai are affirmed. No costs. Consequently, connected miscellaneous petitions are closed.