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2021 DIGILAW 998 (MAD)

Paulvanna Sangupillai v. Ganesan

2021-03-19

N.SATHISH KUMAR

body2021
JUDGMENT : (Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, to set aside the judgment and decree dated 28.04.2005 in A.S.No.56 of 2003 on the file of the Sub Court, Srivilliputhur, in confirming the judgment and decree, dated 19.03.2003 in O.S.No.334 of 2000, on the file of the Principal District Munsif Court, Srivilliputhur.) 1. Aggrieved over the concurrent findings of the Courts below, the present Second Appeal has been filed. 2. The parties are arrayed in the Second Appeal, as per their own ranking before the Trial Court. 3. The brief facts leading to the filing of the present Second Appeal are as follows: 3.(1). Item No.1 as shown in the schedule of the plaint is ancestrally belonged to the plaintiff through his father and grandfather. The grandfather put up a construction in one portion of the Item No.1 in the suit schedule property and kept the other portion as a vacant site. The entire property devolved upon the plaintiff is surrounded by a common wall. Thereafter, the plaintiff has also partitioned the property on 02.04.1980. The defendant has no right in the suit schedule property. The defendant has put up a thatched hut in the said house in his portion. However, in the month of May, 2000, the defendant has raised a compound wall of the plaintiff at about 1 ½ feet and encroached the above portion. The defendant has encroached the portion at about 11 feet length and 1 feet breadth. Hence, the suit is filed for declaration, mandatory injunction and also for permanent injunction. In a reply statement, it is the contention of the plaintiff that the compound wall constructed around the house is of more than 100 years. 3.(2). The defendant took a defence to the effect that the suit property is a common lane to an extent of 4 1/2 feet and the documents of the plaintiff would also prove the above said facts. In order to encroach the common lane, the suit has been filed. 4. Based on the above pleadings, the trial Court has framed as many as five issues. “1. Whether the plaintiff is entitled to get right over the suit property? 2. Whether if any common lane is lying on the east side of the suit property? 3. Whether the defendant has constructed any building by encroaching upon the suit property? 4. 4. Based on the above pleadings, the trial Court has framed as many as five issues. “1. Whether the plaintiff is entitled to get right over the suit property? 2. Whether if any common lane is lying on the east side of the suit property? 3. Whether the defendant has constructed any building by encroaching upon the suit property? 4. Whether the plaintiff is entitled for seeking declaration, mandatory injunction and permanent injunction? 5. Whether the plaintiff is entitled to get any other relief and any other cost?” 5. During trial, on the side of the plaintiff, P.W.1 and P.W.2 were examined and Ex.A.1 to Ex.A.7 were marked. On the side of the defendant, D.W.1 was examined and Ex.B.1 to Ex.B.5 were marked. Ex.C.1 and Ex.C.2 were marked as Court documents. 6. Heard the learned counsel on either side. 7. Based on the oral and documentary evidence, the trial Court has found that the plaintiff has not established the alleged encroachment in the suit schedule property and the second schedule of the suit property is only a common lane and there was 1 ½ feet encroached by the defendant and the remaining area is in encroachment of the plaintiff. As against which, the appeal has been filed. The First Appellate Court, after re-appreciation of the entire evidence, has found that as per the documents of the plaintiff, the plaintiff is entitled to 15 feet East-West and 110 feet North-West. Item No.2 is a common lane and there was no encroachment in entirety by the defendant and in fact, the Courts below held that the right of the plaintiff over the second schedule of suit property has not been established factually. Aggrieved over the same, the present Second Appeal is filed. 8. While admitting the Second Appeal, the following substantial questions of law have been framed by this Court: “(a). Whether in law are not the decree and judgment of the Lower Appellate Court vitiated in not referring to the additional documents viz., Decree and judgment in O.S.No.46 of 1993, on the file of the District Munsif Court, Srivilliputhur and Resurvey in 1991, after receiving them as additional documents under Order-41, Rule-27 of C.P.C? (b). Have not the Courts below misconstrued Ex.B.1, which was resulted in perverse findings warranting interference under Section-100 of C.P.C.? (c). (b). Have not the Courts below misconstrued Ex.B.1, which was resulted in perverse findings warranting interference under Section-100 of C.P.C.? (c). Having found that the suit property is a common lane, have not the Courts below erred in dismissing the suit instead of granting lesser relief?” 9. Heard the learned counsel on either side. 10. On a perusal of the entire materials, it is seen that the Courts below have in fact analyzed the entire facts not only the oral evidence, but also, the documentary evidence and particularly, the partition deed / Ex.B.1. A perusal of the boundaries would clearly show that the partition deed between the plaintiff's grand- father and brother itself shows that there was a pathway measuring about 4 ½ feet East-West and the measurement is only 15 feet. This fact also shows that the second item of property was not the absolute property of the plaintiff as contended by him. Though the substantial questions of law have been framed by this Court, the learned counsel for the appellant has submitted that the first substantial of law does not arise for consideration in this matter and has given up the same. Therefore, there is no need to answer the first substantial question of law. 11. With regard to the substantial questions of law Nos.2 and 3, the Courts below had factually on re-appreciation of evidence and the documents including the Commissioner's report, had held that the plaintiff is entitled to 15 feet East-West and 110 North-West as per the documents. The second schedule of the property is only a common lane, in which, the defendant has encroached only 1 ½ feet and also found that the plaintiff has not established his right over the second schedule of the suit property and the Courts below have rightly granted declaration and also granted decree as against the defendant and not to interfere with the possession of the plaintiff in respect of 15 feet East-West and 110 feet North-West. When the Courts below have factually arrived at the right conclusion, this Court is of the view that there is no substantial question of law involved though the above substantial questions of law have been framed as above. Accordingly, there is no merit in this second appeal and the judgment and decree of the Courts below stands confirmed. 12. When the Courts below have factually arrived at the right conclusion, this Court is of the view that there is no substantial question of law involved though the above substantial questions of law have been framed as above. Accordingly, there is no merit in this second appeal and the judgment and decree of the Courts below stands confirmed. 12. An application under Order 41 Rule 27 C.P.C. has been filed to receive the judgment copy of the earlier suit in O.S.No.46 of 1993 filed by the grandfather of the plaintiff as against the third party, which is sought to be filed. This Court is of the view that the defendant was not a party to the above judgment and merely because some self-serving statements have been given to the other side, in which, the defendant is not a party and the above judgment is not the binding on the defendant, the same cannot be used in fact for any other purposes. Accordingly, all the substantial questions of law are answered as against the appellant. 13. Accordingly, the Second Appeal stands dismissed. No costs.