Research › Search › Judgment

Madras High Court · body

2022 DIGILAW 917 (MAD)

A. Adinarayanan v. A. Samivel

2022-04-13

N.ANAND VENKATESH

body2022
JUDGMENT (Prayer: Second Appeal filed under Section 100 of C.P.C., against the Judgment and Decree dated 23.03.2010 in A.S.No.29 of 2009 on the file of the Subordinate Court, Tiruchengode, reversing the Judgment and Decree dated 30.09.2008 in O.S.No.138 of 2001 on the file of the District Munsif Court, Tiruchengode.) 1. The defendant is the appellant in the present Second Appeal. 2. The respondent/plaintiff filed a suit seeking for the relief of identifying and specifying the western boundary of the suit property and to demarcate the same from the land of the defendant on the western side as per the recitals of the title documents of the plaintiff and defendant and for the relief of permanent injunction restraining the defendant from trespassing into the suit property. 3. The case of the plaintiff is that he purchased the suit property under a registered Sale Deed dated 03.09.1999 and thereby, he became the absolute owner of the suit property. The further case of the plaintiff is that the defendant also purchased the remaining portion in the same Survey Number from the common owner on the very same day and this property is situated on the western side of the suit property. 4. The grievance of the plaintiff was that the defendant was attempting to interfere with the peaceful possession and enjoyment of the suit property by taking advantage of the non-demarcation of the properties. Hence, the suit was filed seeking for the reliefs stated supra. 5. The defendant filed the written statement and took a stand that he is the owner of an extent of 2.11 acres by virtue of the Sale Deed dated 03.09.1999. According to the defendant, the plaintiff is only entitled for 1.87 acres and the balance 24 cents actually belonged to a temple. The plaintiff was trying to take possession of the land in excess of 1.87 acres by misusing the Sale Deed that was executed after the same common owner had already conveyed 2.11 acres of land in favour of the defendant. Hence, the defendant rejected the very claim made by the plaintiff and had sought for the dismissal of the suit. 6. Hence, the defendant rejected the very claim made by the plaintiff and had sought for the dismissal of the suit. 6. The trial Court on considering the facts and circumstances of the case and on appreciation of the oral and documentary evidence, was pleased to decree the suit and grant the relief of declaration of title in favour of the plaintiff for an extent of 2.11 acres and for demarcation of the property. The relief of permanent injunction was also granted in favour of the plaintiff. 7. Aggrieved by the Judgment and Decree passed by the trial Court, the defendant filed an appeal in A.S.No.29 of 2009. The lower Appellate Court on re-appreciation of the oral and documentary evidence and after considering the findings of the trial Court, was pleased to interfere with the relief of declaration of title granted by the trial Court. Insofar as the other reliefs granted by the trial Court, the same was confirmed through Judgment and Decree dated 23.02.2010. Aggrieved by the same, the defendant has filed this Second Appeal. 8. Heard the learned counsel for the appellant and the learned counsel appearing on behalf of the respondent. 9. This Court also carefully perused the materials available on record and the findings of both the Courts below. 10. During the pendency of the Second Appeal, this Court appointed an Advocate Commissioner to measure the property and file a Report along with Sketch. Accordingly, the Advocate Commissioner has also filed a Report along with Sketch. 11. In the present case, the plaintiff has purchased 2.11 acres of land out of 4.26 acres in S.F.No.44/2C through Sale Deed dated 03.09.1999, registered as Document No.2819/1999, marked as Ex.A1. The defendant has also purchased on the very same day an extent of 2.11 acres out of 4.26 acres in S.F.No.44/2C from the same owner and the document was registered as Document No.2818/1999, marked as Ex.A5. Both the Courts below on considering the oral and documentary evidence, came to a conclusion that the plaintiff has established his right over the entire 2.11 acres and the 24 cents which belongs to the temple does not come within the property that was sold in favour of the plaintiff. For this purpose, the Courts below took into consideration the boundaries as was described in the Sale Deed marked as Ex.A1. 12. For this purpose, the Courts below took into consideration the boundaries as was described in the Sale Deed marked as Ex.A1. 12. The Courts below while appreciating the Sale Deed executed in favour of the defendant and marked as Ex.A5, found that the defendant had purchased the entire western portion of S.F.No.44/2C and it included the extent of 24 cents belonging to the temple. This temple is actually situated on the western side of the property that was purchased by the defendant. Unfortunately, this was not shown as a boundary in the Sale Deed executed in favour of the defendant. 13. Both the Courts below analyzed the documents and gave a finding to the effect that the plaintiff is entitled for an extent of 2.11 acres and the defendant is only entitled for 1.87 acres and that the common vendor could not have conveyed 2.11 acres as found in Ex.A5. 14. The above findings rendered by both the Courts below are purely factual in nature based on the appreciation of oral and documentary evidence and this Court, in the absence of finding any perversity, cannot sit over those findings in exercise of its jurisdiction under Section 100 of C.P.C. 15. This Court wanted to satisfy itself that the factual findings rendered by both the Courts below is correct and hence, an Advocate Commissioner was appointed and a Report has been fled by the Advocate Commissioner to the effect that the property in S.F.No.44/2C consist of a total extent of 4.26 acres. This is in line with the extent found in the revenue records. Out of this 4.26 acres, S.F.No.44/2C is subdivided into 44/2C-1 and 44/2C-2. In subdivision 44/2C-1, there is a temple which is fenced measuring an extent of 24 cents. The balance of 4.02 acres is situated in Subdivision No.44/2C-2. This also tallies with the revenue records. 16. The sketch that has been filed by the Advocate Commissioner shows that the 24 cents belonging to the temple is on the north-western portion. This temple is situated on the western side of the property that has been conveyed to the defendant. 17. It is clear from the Report of the Advocate Commissioner that it tallies with the findings of both the Courts below with respect to the identity of the property. 18. This temple is situated on the western side of the property that has been conveyed to the defendant. 17. It is clear from the Report of the Advocate Commissioner that it tallies with the findings of both the Courts below with respect to the identity of the property. 18. During the pendency of the Second Appeal, the respondent also filed a petition to bring additional evidence by way of filing certain documents to further substantiate the findings of both the Courts below. The petition was allowed by this Court by an order dated 12.01.2022 and those documents were marked as Exs.A8 to A12. These documents shows that the appellant had sold a portion of the suit property during the pendeny of the suit and the remaining property during the pendency of the appeal. Thus, the appellant is not owning any property. It is also seen that the purchaser of the property had gifted an extent of 24 cents in favour of the Temple Trust through Ex.A10 and the Temple Trust in turn has gifted the land to the temple through Ex.A11. It is very clear from these documents that the 24 cents of the temple land formed part of the property that was conveyed in favour of the defendant under Ex.A5. 19. There is no dispute with regard to the maintainability of a suit for demarcation and fixation of boundary. For this purpose, this Court takes note of the judgment of the Hon’ble Supreme Court in E.Achuthan Nair vs. P.Narayanan Nair and Another reported in 1987 4 SCC 71 and the judgment of this Court in Gnanaprakasam vs. Smitha and others reported in 1999 3 MLJ 778 . 20. In view of the above discussion, this Court does not find any ground to interfere with the findings rendered by both the Courts below and there is no perversity in those findings. The Report of the Advocate Commissioner and the additional documents wherein, the defendant has dealt with the property during the pendency of the proceedings, only substantiates and supports the findings of both the Courts below. No substantial questions of law are involved in this Second Appeal. 21. In the result, the Second Appeal is dismissed and the Judgment and Decree of the lower Appellate Court made in A.S.No.29 of 2009, dated 23.02.2010 is hereby confirmed. No substantial questions of law are involved in this Second Appeal. 21. In the result, the Second Appeal is dismissed and the Judgment and Decree of the lower Appellate Court made in A.S.No.29 of 2009, dated 23.02.2010 is hereby confirmed. Considering the facts and circumstances of the case, there will be no order as to costs. Consequently, connected miscellaneous petitions are closed.