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2018 DIGILAW 3500 (MAD)

M. Ramachandran v. C. Kumarasamy

2018-10-04

R.THARANI

body2018
JUDGMENT R. Tharani, J. Heard Mr.V.Meenakshisundaram, learned counsel appearing for the appellant and Mrs.J.Ananthavalli, learned counsel appearing for the respondents. 2. This appeal is filed to set aside the Judgment and Decree dated 07.02.2015 passed in A.S.No.89 of 2014 on the file of the Principle Sub Court, Madurai confirming the Judgment and Decree dated 06.03.2014 passed in O.S.No.377 of 2008 on the file of the District Munsif Cum Judicial Magistrate Court, Vadipatti. 3. The respondents herein are the plaintiffs and the appellant herein is the defendant in the suit. The respondents herein has filed a suit in O.S.No.377 of 2008 against the appellant herein that the appellant has encroached upon the property of the respondents praying for permanent injunction and for mandatory injunction. 4. The case of the plaintiff/respondents herein is that the suit property in Survey No.117/4 with a total extent of 44 cents belonged to the respondents herein. The respondent herein purchased the property on 29.05.1995 from one R.K. Ganeshram and Others. He purchased 4 cents in the same Survey number along with another property in Survey No.120/B2 from one Velusamy on 08.08.2005. The appellant herein is the owner of Survey No.117/1A. The appellant herein encroached upon the property by altering the furrow now and then. The respondents measuring the property with the help of Surveyor and the Surveyor after issued notice to the appellant measure the property and it was found out that the appellant has encroached 5 cents of land. The respondents filed the suit for permanent injunction and for removal of encroachment. 5. The case of defendant/appellant is that the appellant herein never encroached upon the property of the respondents and the appellant herein has purchased the land in Survey No.117/1B2 from one Ganeshram in the year 1991. Only on presumption, the respondents are raising an imaginary claim. 6. The respondents herein have examined 2 witnesses and marked 8 documents. The appellant herein examined three witnesses and marked 5 documents. 7. In the grounds of appeal, the learned counsel appearing for the appellant raised five issues, which are reads as follows: "(a) when there is no details about the measurements of alleged encroachment in the plaint schedule except plaint rough plan, whether the Courts below are correct in decreeing the suit for mandatory injunction? 7. In the grounds of appeal, the learned counsel appearing for the appellant raised five issues, which are reads as follows: "(a) when there is no details about the measurements of alleged encroachment in the plaint schedule except plaint rough plan, whether the Courts below are correct in decreeing the suit for mandatory injunction? (b) whether the Courts below are correct in decreeing the suit for mandatory injunction based upon Advocate Commissioner's report and plan in Exhibit C1 and C2, more particularly when there are contradiction about the measurement of alleged encroachment between Exhibit C1, C2 and Exhibit C3, C4 and hence the judgment and decree of the Courts below warrants interference under Section 100 of civil procedure code? (c) whether the Courts below are correct in ignoring the contradiction between first Commissioner's report and plan (Exhibit C1, C2) and the second Commissioner's report and plan (Exhibit C3, C4) and decreed the suit as prayed for in the plaint and thus the Court below warrants interference under Section 100 of civil procedure code? (d) when a cloud is raised upon the title of the plaintiff's regarding the suit schedule property, whether suit for mandatory injunction is maintainable without prayer of declaration? (e) whether the Courts below are correct in interpreting the recitals of Exhibit B1 and Exhibit B3 for deciding the title of the defendant?" 8. This Court has framed three issues in this appeal, which reads as follows: "(a) when there is no details of alleged encroachment whether the decree in the suit for mandatory injunction is acceptable? (b) The matter to be decided in question Nos.1, 2, 3 and 5 are the same. Whether the court below are correct in decreeing the suit, based upon the Advocate Commissioner's reports and plan in Exs.C1 and 2 when there are contradiction between the measurements in Exs.C1 and C2 and Exs.C3 and C4? (c) when there is a cloud raised upon the title of the respondents, whether the suit for mandatory injunction is maintainable without the prayer of declaration?" 9. On the side of the appellant, it is stated that only 44 cents in the Survey No.171/4 is mentioned as suit property and the measurement in the plaint for the portion ABCD is not specifically mentioned in the schedule of property and no specific boundary is given for the alleged encroached portion. 10. On the side of the appellant, it is stated that only 44 cents in the Survey No.171/4 is mentioned as suit property and the measurement in the plaint for the portion ABCD is not specifically mentioned in the schedule of property and no specific boundary is given for the alleged encroached portion. 10. On the side of the respondents, it is stated that in the plaint it is specifically mentioned as north-south 12 ft., east-west 175 ft is encroached and the prayer for the permanent injunction is for the entire property. The encroached portion is within the survey No.117/4 which is within the 44 cents that belonged to the respondents. It is further stated that the petitioner has not raised this point in the written statement and he is not entitled to raise this point at the second appeal stage. 11. The measurement of the encroachment is stated in the plaint as east and west 12 ft., south-north 175 ft. In the written statement the measurement of encroachment is denied by the appellant. The encroached portion is not mentioned as a separate property in the schedule of property. The encroached portion is within the Survey No.117/4 and this entire portion of 44 cents was stated as the schedule of property. The measurement was given in the plaint and was stated in the written statement also. 12. The next point raised by the appellant is that when there is contradiction between the reports of two Commissioners regarding the measurement, the Courts below cannot rely upon the Commissioners' reports. 13. On the side of the appellant, it is stated that two Commissioners visited the suit property and both the Commissioners filed separate reports and plans Exs.C1 to 4. It is stated that there are contradictions between the measurement in the patta and in the Commissioners' reports and these Commissioners reports cannot be relied upon by the Court. On the side of the respondents, it is stated that plans filed by the Commissioners are the same and the encroached portion is the same. 14. On the side of the appellant, it is stated that first Commissioner has given a report that the appellant has encroached upon the property in Survey no.117/4 and the Commissioner has no locus standi to give any such finding. The Commissioner can visit the property. He can note down the physical features and measurement. 14. On the side of the appellant, it is stated that first Commissioner has given a report that the appellant has encroached upon the property in Survey no.117/4 and the Commissioner has no locus standi to give any such finding. The Commissioner can visit the property. He can note down the physical features and measurement. He cannot give findings regarding the case. In support of his contention, the Judgment passed by this Court in the case of Subramanian v. Velayudham and another in S.A.No.1556 of 2003 is cited. 15. The learned counsel for the appellant appearing for the appellant relied upon the Judgment passed by this Court in the case of Arulmighu Kothandaramasamy Koil v. Vairam and Others, (2012) 1 CTC 708 , which reads as follows: "Since this Court is of the view that an opportunity can be given to the appellant/plaintiff for the purpose of amending the plaint suitably, the Judgments and decrees passed by the Court below are liable to be set aside and the suit is liable to be remitted to the file of the trial Court." 16. On the side of the appellant, it is stated that the second Commissioner in his report has stated that when the measurement is taken, Survey No.117/4 comes into the property of the appellant and the same is protruding. It is stated that there is no encroachment on the part of the appellant and the Judgment based on this Commissioner's report is not acceptable. 17. On the side of the respondents, it is stated that the appellant has not filed any objection to the Commissioners' reports and the appellant has not raised any such points before the trial Court and the encroachment is clearly proved. Both the commissioners are not called upon as witnesses by the appellant. Both the Commissioners particularly gave the same measurement for the encroached portion. Though the second Commissioner did not use the term "encroachment", he has clearly stated that the land is protruding into the land of the respondents and the difference in measurement in both the Commissioners' reports are only 0.2 m which is negligible. 18. A verification of the Commissioners' reports reveals that the alleged portion of encroachment is same in both the Commissioners reports. In the written statement, there is no allegations regarding the identity or the title of the disputed land. 18. A verification of the Commissioners' reports reveals that the alleged portion of encroachment is same in both the Commissioners reports. In the written statement, there is no allegations regarding the identity or the title of the disputed land. The appellant has not filed any objection to the Commissioners' reports. The respondents filed objection to the Commissioners' reports and that the objection is only regarding the wrong mentioning of the Survey No. Identification of the property is not disputed by the appellant. The appellant has not filed any objection to the Commissioner's report and has not taken any steps to examine the Commissioner. The difference in the measurement in the Commissioner's reports is negligible. 19. From the records, it is clear that the entire extent in Survey No.117/4 is 44 cents. The contention of the respondents is that they purchased the entire 44 cents through Exs.B1 and 2. In the written statement, the appellant has clearly admitted that the respondents are the owner of Survey No.117/4. Hence, the appellant is not questioning the title and there is no cloud upon the title and there is no necessity for the respondents to ask for the prayer of declaration. 20. The third point for consideration is that when there was no prayer for declaration of title, a prayer for bare injunction and mandatory injunction is not maintainable when there is cloud raised upon the title of the respondents. It is stated that the appellant purchased the property from one Ganeshram and the rectification deed was also executed by the vendor and both the respondents and the appellant were enjoying their share of the property for the past 10 years without any hindrance and the suit is not maintainable as the respondents failed to seek for declaration. On 17.05.1995, the defendants purchased a piece of land with an extent of 53 cents, on 16.11.1995 he purchased 60 cents of land in Survey No.117/1B north-west side which is marked as Ex.B1 and Survey No.117/4 western side which is marked as Ex.B2. In the document Ex.B2 Survey No.117/4 was left unmentioned. On 10.08.2005, the rectification deed, Ex.B3 was executed. On 28.07.2005, the defendant paid the amount for Surveying the land and the receipt is marked as Exs.B4 and 5. 21. On the side of the respondents, it is stated that the appellant has not raised any objection regarding the title of the respondents. On 10.08.2005, the rectification deed, Ex.B3 was executed. On 28.07.2005, the defendant paid the amount for Surveying the land and the receipt is marked as Exs.B4 and 5. 21. On the side of the respondents, it is stated that the appellant has not raised any objection regarding the title of the respondents. Even in the written statement, the appellant has admitted the title of the respondents wherein it is stated that the respondents have purchased 44 cents in Survey No.117/4 and the admitted fact need not be proved. Even then, the petitioner has proved his title, Ex.A8 for Survey No.117/4 and marked sale deeds in Exs.A1 and A2 and patta in Ex.A3 whereas the defendant filed Exs.B1 to 3 regarding his title and Exs.B1 and 2 are relating to some other land and not related to Survey No.117/4. 22. The vendor of the respondents has already sold his portion of the property in Survey No.117/4 to the respondents through the sale deeds, Exs.A1 and 2. The rectification deed is executed 10 years after the execution of Ex.B1. As the vendor has already sold the property to the respondent, the vendor cannot raise any objection to the title of the respondents. The rectification deed is vague as to the measurement in Survey Nos.120/B2 and 117/4. The total area of 53 cents is mentioned in the rectification deed. Even in the written statement, the appellant has accepted that in Exs.B1 and 2 Survey No.117/4 is not mentioned. Question of doubtful measurement and doubtful identification of the property cannot be raised at this stage. After the land is being measured by the Surveyor, the encroachment was found out by the respondents. Ex.B3 is executed, when the suit is pending and the same is not maintainable. As per the revenue records, the entire measurement of Survey No.117/4 is only 44 cents and that 44 cents of land was already purchased by the respondents. There is no cloud upon the title of the respondents and the contention of the appellant that prayer for mandatory injunction without prayer for declaration of title could not be raised, is not maintainable. 23. The questions raised by the appellant regarding the failure for a prayer for declaration of title is not sustainable. There is nothing to interfere in the concurrent Judgment of both the trial Court and the First Appellate Court. There is no merit in this appeal. 23. The questions raised by the appellant regarding the failure for a prayer for declaration of title is not sustainable. There is nothing to interfere in the concurrent Judgment of both the trial Court and the First Appellate Court. There is no merit in this appeal. Hence, this second appeal is dismissed. No Costs.