Madras High Court
R.Radhakrishnan vs R.Nagarajan on 24 February, 2014
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 24.02.2014 CORAM The Hon'ble Mr.Justice R.S.Ramanathan S.A.No.830 of 2013 and M.P.Nos.1 and 2 of 2013 R.Radhakrishnan ...Appellant Vs. R.Nagarajan ...Respondent Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree, dated 28.09.2011 passed in A.S.No.203 of 1995 on the file of the Principal District Court, Coimbatore, in reversing the judgment and decree, dated 22.09.1995 passed in O.S.No.916 of 1986 on the file of III Additional District Munsif Court, Coimbatore. For Appellant : Mr.R.Bharath Kumar For Respondent : Mr.C.Deivasigamani JUDGEMENT
The plaintiff in O.S.No.916 of 1986 on the file of III Additional District Munsif Court, Coimbatore/Trial Court is the appellant herein. He filed the suit i) for permanent injunction, ii) for recovery of possession of 'B' schedule property and iii) for mesne profits.
2. The case of the appellant/plaintiff is as follows:-
i) The suit property and the eastern property originally belonged to one Alamelu Thayammal, who is the mother of the plaintiff and the defendant. The mother gifted the suit property, which is situate on the western side to the plaintiff, under a registered settlement deed-Ex.A.3, dated 17.06.1983. Eversince the date of settlement, the plaintiff is enjoying the property as the absolute owner. As the defendant attempted to interfere with the plaintiff's peaceful possession and enjoyment of the property, the plaintiff filed the suit for injunction. After the suit was filed, the defendant encroached upon 'B' schedule property, and therefore, the prayer was amended to include the relief of recovery of possession.
3) The defendant resisted the plaint, by filing a written statement, stating that under a registered settlement deed-Ex.B.1, dated 13.06.1986, the mother executed the property in respect of eastern portion and put him in possession of the same, and the plaintiff cannot claim absolute title to the entire extent of the suit property, and the plaintiff is also not entitled to 2,361 sq.ft., under the settlement deed, dated 17.06.1983 and the defendant has not encroached upon any portion and the alleged encroached portion absolutely belongs to the defendant and the plaintiff cannot claim any right over the same. The defendant also filed an additional written statement, denying various allegations made in the plaint.
4. During trial, the plaintiff examined himself as P.W.1 and the defendant examined himself as D.W.1, and fourteen documents were marked on the side of the plaintiff and nine documents were marked on the side of the defendant. An Advocate Commissioner was examined on the side of the plaintiff, and his report and plan were marked as Exs.C.1 and C.2.
5. The Trial Court on the basis of the above pleadings and evidence, framed the following Issues as well as Additional Issues : -
Issues:-
i) Whether the plaintiff is entitled to the relief of permanent injunction?
and
ii) To what relief, the plaintiff is entitled to?
Additional Issues:-
i) Whether the defendant along with Abdul Majith trespassed into 'B' schedule property ?
ii) Whether the plaintiff is entitled to the relief of recovery of possession in respect of 'B' schedule property?
and
iii) Whether the plaintiff is entitled to mesne profits, in respect of 'B' schedule property?
6. The Trial Court relied upon the Commissioner's plan and Exs.A1 to A.3 and Ex.B.1, and held that the settlement deed-Ex.A3 executed by the mother in favour of the plaintiff, is earlier in point of time than Ex.B.1, viz., the settlement deed executed in favour of the defendant, and after settling the western portion with specific measurements, the mother cannot give more extent in another settlement deed, viz., Ex.B.1 in favour of the defendant and therefore, the plaintiff is entitled to enjoy the property as per the measurements and boundaries given in Ex.A.3, and answered Issue No.i in favour of the plaintiff holding that the plaintiff is entitled to the relief of injunction.
7. Additional Issues i to iii) were also answered in favour of the plaintiff holding that i) the defendant has encroached upon 'B' schedule property after the filing of the suit, ii) the plaintiff is entitled to the recovery of possession of 'B' schedule property and iii) the defendant is liable to pay Rs.200 per month, as mesne profits.
8. In the result, the Trial Court decreed the suit, as prayed for, except that the mesne profits were given at the rate of Rs.200 per month.
9. Aggrieved by the judgment and decree of the Trial Court, the defendant filed an Appeal, viz.., A.S.No.203 of 1995 on the file of the Principal District Court, Coimbatore/Lower Appellate Court. The Appeal was partially allowed and the relief of injunction was confined only in respect of the portions marked as A, B, E, F, C and D, as per the Commissioner's plan-Ex.C.2 and in other aspects, the judgment and decree of the Trial Court were set aside.
10. Challenging the judgment and decree passed by the Lower Appellate Court, the plaintiff/appellant filed a Second Appeal No.394 of 1998, on the file of this Court, and this Court set aside the judgment and decree of the Lower Appellate Court and remanded the matter to the Lower Appellate Court, directing it to appoint an Advocate Commissioner to visit the suit property and measure the areas concerned and locate the extents as per Exs.A.1 and A.2 and demarcate the same by metes and bounds and thereafter, decide the First Appeal.
11. As per the direction given by this Court, an Advocate Commissioner was appointed by the Lower Appellate Court and he filed a plan with report, which were marked as Exs.C. 3 and C.4. Thereafter, the Lower Appellate Court dismissed the suit in its entirety and allowed the Appeal filed by the defendant. Aggrieved by the same, this Second Appeal is filed by the plaintiff.
12. It is submitted by the learned counsel appearing for the appellant that the Lower Appellate Court, without properly appreciating Exs.A.3 and B.1, and also C.1 and C.2, erred in holding that the appellant/plaintiff is not entitled to the relief of injunction and other reliefs. The learned counsel contended that entire properties, viz., the properties which were dealt with under Ex.A.3 and B.1, were purchased by Alamelu Thayammal, under Exs.A.1 A.2 and A.15, and therefore, she purchased the entire extent of properties and under Ex.A.3, she settled the western portion, measuring 53 feet east west on the southern side and 52 = feet east west on the northern side and the suit property was also specifically bounded on four sides with specific boundaries. Therefore, having sold 52 = east west on the northern side and 53 feet east west on the Southern side, the plaintiff is entitled to claim that extent from the western boundary, viz., the Street.
13. The learned counsel for the appellant further submitted that as per the Commissioner's report, Ex.C.1, 52 = feet east west on the northern side starts from the point 'E' ends with the point 'H' and 53 feet east west on the southern side starts from the point 'A' and ends with the point "R". Therefore, the plaintiff is entitled to the entire extent, as given under the settlement deed Ex.A.3 and the disputed portion is coming within 52 = feet east west on the northern side and 53 feet east west on the southern side and those portions are marked as F, H, R and D in Ex.C.2 plan and therefore, the plaintiff has proved that he is entitled to the entire extent of 52 = feet east west on the northern side and 53 feet east west on the southern side, which has been marked as A, E, H and R, in the Commissioner's plan-C2.
14. The learned counsel for the appellant also submitted that the settlement deed in favour of the plaintiff, is dated 17.06.1983, and the settlement deed in favour of the defendant, is dated 13.06.1986. Therefore, after having sold 52 = feet east west on the northern side, the mother can settle only the remaining portion. But under Ex.B.1, the mother has settled 93 > feet east west on the northern side and at the time of execution of the settlement deed-Ex.B.1, she was not having 93 > east west on the northern side, east of the plaintiff's property. Hence, the defendant cannot claim any right over the disputed portion. The learned counsel also submitted that it is specifically stated in Ex.B.1 that the property settled in favour of the defendant was purchased by the mother, under the registered sale deed-Ex.A.1, dated 19.01.1958 from Subulakshmi, and after some portion was acquired by the Municipality, she has put up construction and that portion was settled on the defendant, under Ex.B.1.
15. The learned counsel for the appellant further submitted that under Ex.A.1, the vendor/mother purchased the property, measuring 89 feet east west on the northern direction and 88 = feet east west on the southern side, But, under Ex.B.1, she conveyed 93 > feet east west on the northern side, which is four feet > inches in excess, than what she got under Ex.A.1 and that would also prove that the defendant cannot claim any right or title over the disputed portion, viz., 'B' schedule property. The learned counsel, therefore, submitted that these aspects were not properly appreciated by the Lower Appellate Court.
16. The learned counsel for the appellant also relied upon the judgment reported in (2011) 1 C.T.C. 663 in the case of (A.Chandran and another Vs. Periyammal) for the proposition that when two sale deeds were executed by a common vendor, describing the areas conveyed and specifying the boundaries, and when the second sale is in respect of greater extent than what was remained with the vendor, in that case, the vendor could not have sold the extent having excess portion and the area mentioned in the parent document has to be accepted, and the normal rule that in case of conflict between boundaries and extents, the boundaries shall prevail, cannot be accepted in such cases.
17. The learned counsel for the appellant, therefore, submitted that under Ex.A.1, the vendor, viz., the mother purchased only 89 feet east west on the northern side, and while conveying the property under Ex.B.1, she conveyed 93 > feet east west on the northern side, and on that basis, the defendant has encroached upon the plaintiff's property and even before the settlement of property in favour of the defendant, the mother settled the western portion on the plaintiff by giving larger extent and after the execution of Ex.A.3, the mother was not in possession of 93 > feet east west on the northern side, and therefore, the defendant cannot claim 93 > east west on the eastern boundary, and this aspect was not properly appreciated by the Lower Appellate Court.
18. On the other hand, the learned counsel for the respondent submitted that the Trial Court failed to appreciate Ex.A.15, the sale deed obtained by the mother in respect of the property, which is situate south of the property settled on the defendant, by which, a right of way over the lane on the western side of the defendant's property to reach 100 feet road on the northern side was reserved and in Ex.A.3 also, viz., the settlement deed in favour of the plaintiff, eastern boundary is mentioned as the lane, as stated in Ex.A.15, and therefore, the plaintiff cannot claim 52 = feet east west on the northern side and 53 east west on the southern side as per Ex.A.3, and he can claim only 48 = feet east west on the northern side and 48 = feet east west on the southern side from the western boundary road, as stated in Ex.A.2, the prior document and these aspects were properly appreciated by the Lower Appellate Court, after remand.
19. The learned counsel for the respondent further submitted that in Ex.A.3 too, it is specifically stated that the mother conveyed the property, she got under the sale deed, dated 23.05.1960, and therefore, the excess measurement in Ex.A3 will not confer any title to the plaintiff. Hence, the plaintiff cannot claim any right over the property beyond the extent of 48 = east west on the northern side from the Street situate on the western side. As per the Commissioner's plan Ex.C2, the plaintiff is entitled to the area marked within A, E, F and D, and he cannot claim any right over the portion F, H, R and D. The learned counsel, therefore, submitted that the Lower Appellate Court has rightly appreciated the case and dismissed the suit filed by the plaintiff and it is does not warrant interference by this Court.
20. On the basis of the above submissions, this Second Appeal is admitted on the following substantial question of law :-
i) When two portions of properties were owned by one person, and thereafter, those two portions are settled to two different persons, by the owner, by giving larger extent than what was mentioned in the original deed, whether the party is entitled to claim that larger extent on the basis of the settlement deed in his favour on the ground that his sale was earlier in point of time than that of the sale made in favour of other party, and in such circumstances, whether the boundary will prevail over the extent or the extent will prevail over the boundary?
21. It is an admitted fact that the properties settled by the mother-Alamelu Thayammal on the plaintiff and the defendant under Exs.A.3 and B.1 originally belonged to one Subbulakshmiammal and those properties were purchased by Alamelu Thayammal, under Exs.A.1 and A.2. For convenient sake, the property purchased under Ex.A.1 is on the eastern side, and the property purchased under Ex.A.2 is on the western side of Ex.A.1. In other words, Ex.A.1 property is on the east of Ex.A.2 property and Ex.A.2 is on the west of Ex.A.1 property. Ex.A.1 is dated 19.01.1958 and the vendor is Subbulakshmiammal. Under Ex.A.1, she sold the property measuring 89 feet east west on the northern side and 88 = feet east west on the southern side.
22. In this case, we are concerned only with the east west measurement of both the properties, and therefore, there is no need to give any findings regarding north south measurements. While describing the boundaries in Ex.A.1, the vendor Subbulakshmiammal clearly stated that the property conveyed under Ex.A.1. is situate east of her property, bearing Door No.42, south of 100 feet road, west of third street, and the property on the north, bearing Door No.23 belongs to her sister. A reading of Ex.A.1, would make it clear that the eastern boundary is the road and the western boundary is the property, bearing Door No.42 belonging to the vendor, Subbulakshmiammal. Ex.A.2 is dated 23.05.1960 and the property covered under Ex.A.2 also belonged to Subbulakshmiammal and she sold to Venkata Naidu, who, in turn sold the same to the mother, Alamelu Thayammal. The property covered under Ex.A.2 is on the western side of the property mentioned in Ex.A.1. In Ex.A2, east west measurement is given as 48 < feet east west on the northern side and east west 48 = feet east west on the southern side. The eastern boundary of the property sold under Ex.A.2 is the property belonging to Subbulakshmiammal, vendor, the original owner. The western boundary is the road.
23. It is seen from the Commissioner's plan, Ex.C.2, the Commissioner appointed by the Trial Court that east west 48 < on the northern side is covered between the points 'E' and 'F'. In other words, as per the measurements and boundaries given in Ex.A.2, the property conveyed under Ex.A.2 is marked as A, B, E, F, C and D. Under Ex.A.15, dated 05.05.1965, Subbulakshmiammal sold an extent of 30 feet north south and 10 feet east west situate on the southern side of the property sold to Alamelu Thayammal under Ex.A.1. In the Commissioner's plan Ex.C.2, the property sold under Ex.A.15 is shown as K, L, N and M. In Ex.A.15, it is also stated that under the document, the property measuring 5 < feet east west on the northern side and 4 > feet east west on the southern side to reach 100 feet road on the northern side was also given. As per Ex.C.2, that lane is situate in the portion marked as F, G, H, M and D. Ex.A.3 was executed by the mother-Alamelu Thayammal, after she became the absolute owner of the properties she purchased under ExsA.1. A2 and A.15.
24. As stated supra, under Ex.A.2, Alamelu Thayammal purchased 48 < east west on the western portion and under Ex.A.1, she purchased 88 = feet east west on the eastern portion. After becoming the owner of both the extents and also the portion purchased under Ex.A.15, Alamelu Thayammal became entitled to total an extent of 48 < + 88 = + 4 > on the northern side east west direction = to 141= feet east west. Under Ex.A.3, dated 17.06.1983, the mother settled 2,361 sq.ft. of the property, measuring 52 = feet east west on the northern side and on the southern side, 53 feet east west, and under Ex.B.1, the settlement deed, dated 13.06.1986, she settled 93 > feet east west on the northern side to the defendant, and therefore, under Exs.A.3 and B.1, she conveyed total extent of 52 = and 93 > feet on the northern side = 146 <. Therefore, she has settled a total extent of 146 1/4 east west on the northern side, whereas, under Exs.A.1, A.15 and A.2, she purchased 141 = east west on the northern side. Therefore, she has sold an extent of 4 > feet in excess of what was purchased by her actually. If we look into Ex.A.15, the sale deed in favour of Alamelu Thayammal, as stated supra, a right to go through the lane to reach 100 feet road on the northern side was given and the measurement of the lane is stated as 4 > east west on the northern side. Therefore, if the lane, measuring 4 > feet east west on the northern side, which is situate in between the properties purchased under Exs.A.1 and A.2 is taken into consideration, the total extent conveyed under Exs.A.3 and B.1 would tally. Admittedly, under Ex.A.3, the mother has stated clearly that she was conveying the property she purchased under Ex.A.2. As stated supra, under Ex.A.2, she purchased an extent of 48 < east west on the northern side. Nevertheless, she conveyed 52 = east west on the northern side. Therefore, apparently, she conveyed 4 1/4 feet in excess than what she got under Ex.A.2.
25. It is the contention of the learned counsel for the appellant that though under Ex.A.3, she conveyed 4 < feet in excess of what she got under Ex.A.2, considering the fact that after purchasing the two properties, under Exs.A.1 and A.2, she became the owner of the total extent of property covered under Exs.A.1 and A.2 and therefore, she is entitled to convey any extent of property to the plaintiff and even assuming that the extent is in excess of what she purchased under Ex.A.2, being the absolute owner of entire extent of the properties covering eastern and western portions, she is entitled to convey the extents covered under Ex.A.3 and Ex.A.3 is prior in point of time, and therefore, under Ex.B.1, the mother would have conveyed only lesser extent and she could not have conveyed any excess extent, as mentioned in Ex.B.1.
26. In other words, the learned counsel for the appellant's contention is that under Ex.A.1., mother purchased 88 = feet east west on the northern side and under Ex.B.1, she conveyed 93 > feet east west on the northern side, i.e., in excess of what she got under Ex.A.1 and after settling 52 = feet east west on the northern side to the appellant/plaintiff under Ex.A.3, which is situate on the western side, the mother can convey only 89 feet east west on the eastern portion, and therefore, the defendant cannot claim any extent more than 89 feet east west and the Trial Court rightly considered all these aspects and decreed the suit.
27. I am unable to accept the contentions of the learned counsel for the appellant. As stated supra, the mother got a right of way over the lane measuring 4 > feet east west reaching 100 feet road, which is situate in between the properties purchased under Ex.A.1 and A.2. In Ex.A.3, while settling the western portion to the plaintiff, the eastern boundary is mentioned as house belonging to the mother, bearing Door No.46, a, b, c and 3 feet common pathway. Therefore, the presence of common pathway is specifically mentioned as the eastern boundary of the property settled under Ex.A.3 and under Ex.A.2, the mother purchased 48 < feet east west on the northern side and under Ex.A.1, she purchased 88 = feet east west on the northern and therefore, even while purchasing those two properties, the lane is situate in between those properties and that has been referred in Ex.A.15.
28. Therefore, eventhough the mother conveyed larger extent under Exs.A.3 and B.1, having regard to the boundaries given in Exs.A.3 and B.1, the mother did not convey the lane portion. It has been left as common to both the parties and the lane portion measures 4 > feet east west on the northern side. Therefore, the Lower Appellate Court, which originally decided the Appeal correctly held that the plaintiff is entitled to the relief of permanent injunction only with regard to the property shown as A, B, E, F, C and D, in the Commissioner's plan, Ex.C.2 and rejected the claim of the plaintiff in respect of other reliefs. The Commissioner appointed by the Lower Appellate Court, after remand also filed a plan and that is marked as Ex.C.4. As per Ex.C.4, the lane has been shown in pink color and the yellow coloured portion is described as the property belonging to the plaintiff and the blue colored portion belonged to the defendant. The pink colored portion, measuring 4 feet 9 inches east west on the northern side and 5 feet 3 inches east west on the southern side, having 43 feet 6 inches north south on the western side and 46 feet 6 inches east west on the northern side is a common pathway, over which, the plaintiff cannot claim any right.
29. Further, having regard to the disputed measurements, the boundary shall prevail. Admittedly, under Exs.A.3 and B.1, excess extent was settled by the mother than what was conveyed to her under Exs.A.1 and A.2. Further, in Exs.A.3 and B.1, she specifically stated that she settled the property she purchased under Exs.A.1 and A2. Therefore, wrong measurements are given in Exs.B1 and A.3 and it has been specifically stated in Ex.A.3 that the eastern boundary is the lane, and therefore, the plaintiff can claim only the property situate west of the eastern lane and that property is having only 48 = feet as per Ex.A.2. Therefore, the plaintiff cannot claim 52 = feet east west on the northern side under Ex.A.3. Hence, the substantial question of law is answered against the appellant/plaintiff and I hold that in case of disputed measurements, the boundary shall prevail and having regard to the fact that though larger extent was conveyed to the appellant/plaintiff under Ex.A.3, as boundaries shall prevail over the measurements, the appellant/plaintiff cannot claim more extent than what was covered under Ex.A.2.
30. In the result, the Appeal is partly allowed, the judgment and decree of the Trial Court are confirmed with regard to relief of permanent injunction only, in respect of the property shown as A, B, E, F, C and D in the Commissioner's plan-Ex.C.2, and in other respects, the judgment and decree of the Trial Court are set aside and the suit with regard to such claims are dismissed. Considering the relationship between the parties, they shall bear their own costs. Consequently, connected Miscellaneous Petitions are closed. The plan C2 shall form part of the decree.
24.02.2014 sd Index : yes/no Internet : yes/no To
1. The Principal District Judge, Coimbatore.
2. The III Additional District Munsif, Coimbatore.
R.S.Ramanathan,J., sd Pre delivery judgment in S.A.No.830 of 2013 24.02.2014 Pre delivery Judgement in S.A.No.830 of 2013 To The Hon'ble Mr. Justice R.S.Ramanathan Most respectfully submitted by sd (P.A. to R.S.R.J.,)