Research › Search › Judgment

Madras High Court · body

2021 DIGILAW 662 (MAD)

Ramasamy (died) v. Chinnaiyn (died)

2021-02-26

N.SATHISH KUMAR

body2021
JUDGMENT : Prayer: This Second Appeal is filed under Section 100 of the Civil Procedure Code, against the judgment and decree made in A.S.No.59 of 2000 on the file of the Sub Court, Kuzhithurai dated 23.07.2004 confirming the judgment and decree passed in O.S.No.199 of 1995 on the file of the II Additional District Munsif Court, Kuzhithurai dated 30.06.2000. 1. Aggrieved over the concurrent finding of the Courts below, the present second appeal is filed. 2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court. 3. The brief facts, leading to the filing of this Appeal Suit, are as follows: 'A' schedule property originally belonged to one Sam Nadar and Davidson Nadar. 'B' schedule property is only a portion of 'A' schedule property. The Resurvey Authorities have assigned Survey No.27/22B to the said property. The plaintiff has purchased the 'A' schedule property on 23.03.1974. After the purchase, he put up a building and residing therein. The defendants are the owners of the adjacent lands owners. The defendants have constructed a building obstructing to the 'A' schedule property. It is the further case of the plaintiff that in the month of January, 1994, the first defendant put up a construction on the western side occupying a portion of 'A' schedule property. Again on 24.03.1995, the first defendant had expanded the same towards north. Now there is no separating boundary to separate the plaintiff's 'A' schedule property from that of the defendants property. Hence, the suit. (ii) The suit has been originally filed for demarcation on the basis of resurvey plan in respect of 'A' Schedule property and declaration that the 'B' schedule property is part of the 'A' schedule property and also recovery of 'B' schedule property and removal of structure put up by the first respondent. 4. Before the trial Court, on the side of the plaintiff P.W.1 to P.W.3 were examined and Exs.A1 to A8 were marked and on the side of the defendants D.W.1 and D.W.2 were examined and Exs.B1 to B6 were marked, further Exs.C1 to C4 were marked. Based on the evidence and materials, the trial Court has dismissed the suit and the First Appellate Court has also confirmed the findings of the trial Court. 5. Based on the evidence and materials, the trial Court has dismissed the suit and the First Appellate Court has also confirmed the findings of the trial Court. 5. The case of the defendants is that the first defendant has purchased 10 cents immediately west of 10 cents belonging to the defendants 2 to 8 on 12.02.1973. The defendants purchased the said land on 20.11.1972. The first defendant stated that 'B' schedule property is an imagination of plaintiff and there is boundary to separate the plaintiff's plot from that of these defendants property. The plaintiff's property lies in 3 feet lower than the property of the first defendant. 6. The main contention of the learned counsel for the appellant is that the Commissioner's report shows that 20 cents was purchased by the appellant, but now only 19 cents 916 sq.links alone is available. This measurement is as per the resurvey plan. Hence, it is contended that the defendant is in possession of excess extent of land. In the year 1994 itself, the defendants have tried to encroach upon the area, which was opposed by giving complaint thereafter, also the defendants put up construction. It is further submitted that if a decree for demarcation is granted, the entire lis would be settled. Hence, prayed for allowing the appeal. 7. The learned counsel for the respondent submitted that the prayer in the suit is innocuous. Without any notice to other side, resurvey entries have been carried out. The Commissioner's report never considered the lineal measurement found in Ex.A1. Therefore, merely on the basis of resurvey proceedings, the plaintiff cannot seek declaration. The Courts below have rightly found that the plaintiff has not established his case for grating relief of declaration, injunction and recovery of possession. 8. While admitting the second appeal the following substantial questions of law have been framed: 1. Whether the Courts below are correct in law in dismissing the suit for declaration and possession in its entirety when the plaintiff establishes his right over a portion of the suit property and further restricts his claim to that extent proved? 2. 8. While admitting the second appeal the following substantial questions of law have been framed: 1. Whether the Courts below are correct in law in dismissing the suit for declaration and possession in its entirety when the plaintiff establishes his right over a portion of the suit property and further restricts his claim to that extent proved? 2. Whether the Courts below are correct in law in not accepting the Commissioner's report and plan Ex.C3 and C4 which corroborates the Resurvey Ex.A16 and the encroachment of the plaintiff's property by the defendants on the ground that the Commission was only to find out the extent of the construction after the inspection of the earlier commission? 9. I have heard the learned counsel appearing on either side and perused the entire materials placed on record. 10. The suit has been filed for demarcation of the 'A' schedule property and also declaration in respect of 'B' schedule property and recovery of 'B' schedule property. The prayer is innocuously made, what cannot be achieved directly, to achieve the object indirectly. For better understanding, the prayer of the suit is extracted as follows: "A. Plaint A-Schedule property may be demarcated on the basis of the resurvey plan and separating boundary on the eastern side may be put up through court by appointing a Commissioner. B. The Plaintiff may be given a decree for declaration declaring that plaint B-schedule property forms part of plaint A-Schedule property in this suit and consequently. C. The plaintiff may be given a decree for recovery of possession of plaint B-Schedule property on removal of the structures put by the first defendant therein this suit. D. The Plaintiff may be given a decree for realisation of Rs.2,000/- towards damages from the first defendant and his assets. E. Defendant may be directed to pay all costs of this suit to the plaintiff. F. Such further reliefs as the matire and circumstances of this case may necessitate may also be granted to the plaintiff." 11. The prayer itself makes it very clear that the plaintiff, having lost his right, had tried to revive the same by way of the present innocuous prayer. 12. The main contention of the plaintiff is that he has purchased 20 cents in the suit survey field from a common owner, who has sold the property to the defendants also. The prayer itself makes it very clear that the plaintiff, having lost his right, had tried to revive the same by way of the present innocuous prayer. 12. The main contention of the plaintiff is that he has purchased 20 cents in the suit survey field from a common owner, who has sold the property to the defendants also. It is to be noted that the defendants 1 and 2, who are the earlier purchaser, have purchased the property on 20.11.1977 and 12.02.1973, respectively vide Exs.B1 and B2. The property lies on the east of the plaintiff's property as per Ex.B1 and B2. Further, it is to be noted that the plaintiff has purchased the property around 20 cents on 23.03.1974 as per Ex.A1. Ex.A1 not attached with any plan, though some measurement has been shown in Ex.A1. It is also to be noted that the evidence of P.W.1 makes it very clear that ever since the date of purchase, he put up construction and he is residing thereon during the years 1972, 1973 and 1974 respectively. Now it is the contention of the plaintiff that in the year 1994 the defendants tried to extend the house and tried to encroach. Except such contention, there is no material to show the nature of the encroachment made by the defendants. The very allegation in view of this Court, is only to maintain the cause of action to file the present suit. 13. Though the Commissioner was appointed to measure the suit property in pursuant to resurvey proceedings, it is to be noted that it is not the case of the parties that resurvey proceedings were done after issuing notice to both sides. When resurvey proceedings itself was taken place behind the back of the parties, such proceedings or measurement taken in that proceedings may not bind the persons, who are not the parties before such proceedings. The Courts below has also rightly found that the Commissioner's report with regard to the measurement cannot be accepted since the measurement shown in Ex.A1, sale deed and resurvey proceedings are entirely different. Besides, resurvey proceedings as indicated above has not been done after giving proper opportunity to the parties concerned and the same cannot be given any importance. 14. Be that as it may, the plaintiff tried to establish title on the basis of Ex.A1. Besides, resurvey proceedings as indicated above has not been done after giving proper opportunity to the parties concerned and the same cannot be given any importance. 14. Be that as it may, the plaintiff tried to establish title on the basis of Ex.A1. But on the contrary he has not taken any steps to measure the property with reference to Ex.A1. The application for appointment of Commissioner has been taken to measure the property with reference to resurvey proceedings. Admittedly, in resurvey proceedings, the area is reduced from 20 cents to 19 cents. Now the plaintiff submitted that he is atleast entitled to 19.09.6 square lings as per resurvey. It is to be noted that the fact that whether at the time of his purchase the actual 20 cents were available or not itself has not been established. Admittedly, the plaintiff has purchased the property much after the defendant's purchase. Though some extent was shown in Ex.A1, whether such extent was actually available on the ground at the relevant point of time of purchase itself was not established. Therefore, after passing of many years, now the plaintiff cannot seek decree by an innocuous prayer to achieve his object indirectly, when he cannot do it directly. 15. Even assuming that he is entitled to 20 cents as per sale deed Ex.A1 and some extent is already encroached, since the encroached portion is under the control of the other side for more than the statutory period, plaintiff's right is admittedly extinguished by law as he has not taken any steps within a period of 12 years. Therefore, by way of this innocuous prayer, relief of declaration cannot be granted. The plaintiff has filed a suit to establish his right and he has not even taken any steps to measure the property with reference to Ex.A1. That itself clearly shows that the entire suit is nothing but a futile exercise. 16. Accordingly, this Court is of the view that the Courts below have rightly analyzed the facts thoroughly to record a finding that the plaintiff is not entitled to the relief as prayed for. The suit itself is not filed for declaration in entirety. Relief of declaration is sought subject to the first relief that is demarcation. 16. Accordingly, this Court is of the view that the Courts below have rightly analyzed the facts thoroughly to record a finding that the plaintiff is not entitled to the relief as prayed for. The suit itself is not filed for declaration in entirety. Relief of declaration is sought subject to the first relief that is demarcation. Therefore, when the plaintiff himself is not entitled to make out a case for demarcation, merely on the basis of title in his favour in respect of certain portion, declaration cannot be granted. 17. In the result, this second appeal is dismissed confirming the judgment and decree made in A.S.No.59 of 2000 on the file of the Sub Court, Kuzhithurai dated 23.07.2004 confirming the judgment and decree passed in O.S.No.199 of 1995 on the file of the II Additional District Munsif Court, Kuzhithurai dated 30.06.2000. No costs.