Research › Search › Judgment

Madras High Court · body

2020 DIGILAW 1274 (MAD)

Nancy Paplet v. Romy

2020-08-17

RMT.TEEKAA RAMAN

body2020
JUDGMENT : (Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908, against the decree and Judgment in A.S. No. 136 of 2006 dated 18.09.2008, on the file of the Sub Court, Padmanabhapuram, confirming the Judgment and Decree in O.S. No. No.63 of 2004, dated 31.07.2006 on the file of the Additional District Munaif Court, Eraniel.) 1. Defeated defendants 1 and 2 are the appellants herein. The plaintiff filed suit for declaration of title, for demarcation of the property and for mandatory injunction to remove the encroachment and construction and for consequential injunction. 2. After contest, the suit was decreed in respect of prayer for declaration of title and demarcation of the property and further based upon the Advocate Commissioner's report that there was no encroachment and consequently, the relief of mandatory injunction was negatived. 3. Aggrieved against the partially allowed suit, the defendants 1 and 2 have preferred A.S.No.136 of 2006 before the Sub Judge, Padmanabapuram, and Cross Appeal has preferred by the first respondent/plaintiff in respect of disallowed portion be the said relief of mandatory injunction viz., common order, dated 18.09.2008 the lower Appellate Court has dismissed the said appeal and cross appeal and hence this Second Appeal. 4. At the time of admission, the following Substantial Questions of Law have been framed for consideration. “1. Whether the Court below is justified in law in holding that the present suit is not barred because of the dismissal of the earlier suit in O.S.No.209 of 1999 since the subject matter in both the suits are same and the cause of action are also almost same? 2. Whether the Court below is justified in law in granting a decree in favour of the plaintiff more than 6.250 cents including BCD portion in C2 plan since the claim of the plaintiff is for 6.250 cents alone?” 5. Heard the rival submissions of both the counsels and also perused the documents. 6. Pending second appeal, the appellant/defendant has preferred C.M.P.(MD) No.4041 of 2016 under Order 41 Rule 27 C.P.C., to receive it as an additional document on the ground that the sale deed was executed on 04.10.2007 and the same is necessary for adjudication. When the matter was taken up for final disposal, a Judge of this Court, who has heard the matter, Hon'ble Mr. When the matter was taken up for final disposal, a Judge of this Court, who has heard the matter, Hon'ble Mr. Justice A. Selvam, by an order, dated 20.08.2014 has observed as follows: “During the course of arguments, it has been contended on the side of the appellants/ defendants 1 and 2 that the Advocate Commissioner, appointed by the trial Court has not fixed boundary in between the northern property of the defendants and suit property. Further it has been contended on the side of the appellants/ defendants 1 and 2 that a portion of their property has been annexed with the suit property. Further it is seen from the records that the Advocate Commissioner has not measured the property of the defendants which situate immediately on the northern as well as on the eastern sides of the suit property. In order to give quietus to the parties, both the suit property as well as property of the appellants/defendants 1 and 2 should be measured and proper demarcation has to be done. Under the said circumstances, the Additional District Munsif Court, Eraniel is directed to reissue the commission warrant in Original Suit No.63 of 2004 to the same Commissioner with a specific direction to measure the suit property as well as the properties of the defendants, situate immediately on the northern side as well as on the eastern side of the suit property and fix boundary line with the assistance of a qualified surveyor. The trial Court is directed to submit additional report of the Advocate Commissioner by 19.09.2014. The Registry is directed to send all material records immediately to the trial Court.” 7. Pursuant to the above said order of this Court, dated 20.08.2014, the very same Advocate Commissioner, who has been appointed in the trial Court had inspected the property and filed an additional report. 8. The first respondent/plaintiff has filed M.P.(MD) No.1 of 2014 to reject the Advocate Commissioner's plan and report, dated 18.09.2014. It is to be stated that before the trial Court, the first respondent/plaintiff, to substantiate his case, examined himself as PW.1 and an independent witness was examined as PW.2 and Exs.A1 to A14 were marked. On the side of the defendants, the second defendant examined himself as DW.1 and an independent witness was examined as DW.2 and Exs.B1 to B20 were marked. On the side of the defendants, the second defendant examined himself as DW.1 and an independent witness was examined as DW.2 and Exs.B1 to B20 were marked. Pending suit, in order to find out the physical features on the cite, the plaintiff has filed an IA for appointment of Advocate Commissioner for the local inspection of the property and to file report. Accordingly, an Advocate Commissioner was appointed and made local inspection and has filed Advocate Commissioner's report and plan that are marked as Exs.C1 and C2. 9. Taking into consideration of the Exs.A10 and A11 coupled with Ex.A1 that the Exs.A1 and A2, are the sale deeds that are executed by the legal heirs of one Jebamani Nadar excluding his daughters. The suit property was purchased by the plaintiff and the above factum of purchase was admitted by the defendant. The defendant is not a competent person to question the validity of Ex.A1 nor they have any right or interest over the suit property. As stated supra, the second defendant, DW1 in the cross-examination had admitted the purchase of the suit property by the plaintiff. According to the defendant, the plaintiff title is defective. However, the daughters of the vendor of the plaintiff has not chosen to do so and hence both the courts below have concurrently held that the defendant is not a competent person to question the validity of Ex.A1. The defective title, the alleged one cannot be questioned by the defendant since the defendants have no right or interest over the suit property. Further, regarding the alleged defective title, the defendants have not let in any positive evidence to disprove the title of the plaintiff is defective. The defendants have not adduced any positive evidence to show the title of the plaintiff is defective with regard to the shares of the two daughters. 10. Moreover, the objection with regard to the demarcation of the suit property was raised by the defendants not by daughters of the vendor of the plaintiff, namely, Jebamani Nadar. The possession of the extent of the property covered under the sale deed has been duly demonstrated by the first respondent/plaintiff under Exs.A2 to A10. 10. Moreover, the objection with regard to the demarcation of the suit property was raised by the defendants not by daughters of the vendor of the plaintiff, namely, Jebamani Nadar. The possession of the extent of the property covered under the sale deed has been duly demonstrated by the first respondent/plaintiff under Exs.A2 to A10. Further more, basing upon the Exs.C1 and C2 the Advocate Commissioner's report, there is no encroachment on the schedule property and the metre box fixed is available on the eastern side of the defendants' property as shown in Ex.C2 plan was taken note of and based upon the Exs.C1 and C2, the trial Court has rightly come to the conclusion that there is no encroachment by the defendant on the suit property. Accordingly that portion of the relief was negatived for the first respondent/plaintiff. The above said finding of the fact was confirmed by the lower Appellate Court thereby, the lower Appellate Court has chosen to dismiss both the Appeal and Cross Appeal. 11. In this second appeal, during the pendency, the above two petitions have been filed, as narrated above. After perusing the second report filed by the same Advocate Commissioner as directed by this Court, the total extent claimed by the plaintiff in the plaint is 6.250 cents and as per the Advocate Commissioner's report filed in this Court the total extent available on lie is likely shortage of 0.72 cents. It is also observed that this may be due to the variation in the water level body on the one side of the road. In view of the Advocate Commissioner's report now filed, which was filed by the Advocate Commissioner, pursuant to the order made by this Court and with the assistance of the town surveyor, the plaintiff's properties are in index 6, 7 and 8. The index 5 second of release to defend property in the absence of any positive points to reject the Advocate Commissioner's report, this Court finds that the Advocate Commissioner's report does not suffer any deficiency either in the measurement or in the procedure. Plaint schedule property is available on ground is 6.178 cents as per lie. Deficient area is 0.072 cents, which is negligible out of the total area of 45.5 ares in Survey No.36/2A. Plaint schedule property is available on ground is 6.178 cents as per lie. Deficient area is 0.072 cents, which is negligible out of the total area of 45.5 ares in Survey No.36/2A. Schedule of the property is 6.250 cents and available on ground is 6.178 cents and hence the report of the Advocate Commissioner is accepted. In this view of the matter, the Advocate Commissioner's report filed before this Court pursuant to the orders of this Court dated 20.08.2014 is hereby accepted. Consequently, M.P.(MD) No.1 of 2014 is rejected. 12. In view of the Advocate Commissioner's report, there is no necessity to go into the receipt of the additional document in C.M.P.(MD) No.4041 of 2016. Accordingly, the C.M.P.(MD) No.4041 of 2016 is closed. In view of the factual position as reflected in Advocate Commissioner's report, both the substantial question of law does not arise for consideration. The decree granted by the trial Court to the limited extent, as mentioned above, which was confirmed in the lower Appellate Court does not warrant any interference. 13. In the result, the Second Appeal stands dismissed. No Costs. Consequently, connected M.P.(MD) No.1 of 2009 is closed.