Madras High Court
T.M.Parsuanatha Nainar (Died) vs The Secretary on 11 July, 2024
Author: V.Sivagnanam
Bench: V.Sivagnanam
S.A.No.484 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.07.2024
CORAM:
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
S.A.No.484 of 2010
1.T.M.Parsuanatha Nainar (Died)
2.P.Rajakumari
3.P.Appadurai
4.P.Duraisamy
5.P.Mohan ...Appellants
(Appellants 2 to 5 brought on records as
LR's of deceased sole appellant vide order
of Court dated 03.03.2023 made in
C.M.P.Nos.23044, 23046, 23048 of 2022
in S.A.No.464 of 2010)
Vs.
1.The Secretary,
Villupuram Regulated Market Committee,
Villupuram Town, Villupuram District.
2.The Superintendent,
Regulated Market Committee,
Gingee Town, Gingee Taluk. ...Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C. against the
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S.A.No.484 of 2010
judgment and decree passed in A.S.No.142 of 2005, dated 30.01.2010, on
the file of the Subordinate Judge, Gingee, reversing the judgment and
decree passed in O.S.No.528 of 1989, dated 17.08.2005, on the file of the
Additional District Munsif Court, Gingee.
For Appellants : Mr.D.Rajagopal
For Respondents : Mr.V.Jayaprakash Narayanan
JUDGMENT
Second Appeal has been filed against the judgment and decree passed in A.S.No.142 of 2005, dated 30.01.2010, on the file of the Subordinate Court, Gingee, reversing the judgment and decree passed in O.S.No.528 of 1989, dated 17.08.2005, on the file of the Additional District Munsif Court, Gingee.
2.The case of the plaintiff, in brief, is that the suit property was purchased by the plaintiff under the registered sale deed dated 22.06.1981. The defendants have no locus standi to dispute the plaintiff's title to the suit property. S.No.85/2 comprises Ac.0.42. The Government acquired an extent of Ac.0.31 and delivered to the defendants for the purpose of establishing regulated market committee at Gingee. The plaintiff purchased the property in S.No.85/2 and it has been sub divided 2/13 https://www.mhc.tn.gov.in/judis S.A.No.484 of 2010 as 85/2A AC 0.31 and 85/2B1. So, the defendants can claim title to S.No.85/2 Ac.0.31 only. But, the defendants trespassed in the suit property and constructed a compound wall. The plaintiff came to know about the same and requested to remove the compound wall from his property. But the defendants threatened to increase the height of the wall. Hence the plaintiff filed the suit.
3.The defendants contested the suit, filed a written statement and denied the allegations contained in the plaint and contended that the plaintiff purchased on the east of the defendants' property. South of Tindivanam Road and Syed Akbar's property, North of odai and west of Thoppai Gounder's land and lake channel. The description of the plaintiff's property as on the east of the defendants' property is false. The description relates to S.No.85/2A and 85/282. Akbar's Property is also involved in the suit. He is a necessary party to the suit. After the suit, Commissioner was appointed. The Pirka Surveyor accompanied the defendants and measured S.No.85/2 Ac.0.42. 85/2A, 85/2B1 and 85/2B2 and measured the properties. The Commissioner submitted his report along with the plaint. Inspite of the report and the plan, the plaintiff 3/13 https://www.mhc.tn.gov.in/judis S.A.No.484 of 2010 wrongly stated that the compound wall has been raised to 8.42 cents and were owned by one Lakshmipathy Naidu and out of that 31 cents have been acquired and not in enjoyment of the defendants. Similarly, 0.8 ¼ cents have been purchased by the plaintiff by sale deed dated 22.06.1981 and 0.2 ¾ cents have been sold to Syed Akbar Sahib. Therefore, it is clear that the total 42 cents in old survey No.85/2 have been distributed as explained above. Compound wall has not been constructed in the plaintiff's land. Therefore, the contention of the plaintiff regarding the encroachment are highly imaginary, contrary to the facts and none of the documents support this contention and thus, pleaded to dismiss the suit.
4.Before the Trial Court, in support of the plaintiff's case, PWs 1 & 2 were examined and 14 documents were marked as Ex.A.1 to Ex.A.14. On the side of the defendants, DW 1 was examined and 1 document was marked as Ex.B.1. Exs.C1 to C4 were also marked.
5.On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Trial Court decreed the suit as prayed for. Aggrieved by the same, defendants 4/13 https://www.mhc.tn.gov.in/judis S.A.No.484 of 2010 filed an appeal in A.S.No.142 of 2005, on the file of the Subordinate Judge, Gingee. The First Appellate Court, after considering the entire materials and evidence on record, allowed the appeal. Aggrieved by the same, the present second appeal has been filed.
6.Heard the learned counsel for the parties with regard to the substantial questions of law.
7.The learned counsel for the appellant submitted that the commissioner's report is misconstrued by the First Appellate Court and the Commissioner in his report has not identified the extent in which the compound wall has been built and he has not measured the property purchased by the defendants and the actual extent is not mentioned. The Trial Court had rightly rejected the Commissioner's report. But the First Appellate Court, without any valid reasons, relied upon the Commissioner's report and dismissed the suit. Further, the defendants admitted that they have acquired 31 cents of lands. The appellants filed C.M.P.No.10545 of 2023 to mark the copy of the Award passed by the Land Acquisition Officer and Revenue Divisional Officer, Tindivanam, as 5/13 https://www.mhc.tn.gov.in/judis S.A.No.484 of 2010 additional documents and mark the same as Ex.A15 to adjudicate the case and it is also necessary to show the extent that they have acquired. Further, to support his arguments, he relied upon the decision reported in MANU/TN/0374/1988 in Charles Hereward Simpson and Ors. Vs. The Government of Tamil Nadu and Ors. and he further submitted that the findings of the First Appellate Court is erroneous and the learned counsel reiterated the other grounds raised in the grounds of appeal and thus, pleaded to allow the appeal.
8.The learned counsel for the respondents supported the judgment of the First Appellate Court and contended that the commissioner inspected the property with the help of a surveyor, measured the property and clearly found that there is no encroachment upon the properties of the plaintiff in S.No.85/2B1. The plaintiff, in the plaint schedule properties, had given the false description of the properties and boundaries. Therefore, the Trial Court misconceived the same and found that the defendants had encroached and constructed a compound wall upon the plaintiff's property. The same has been rightly set aside by the First Appellate Court and further submitted that there is no need for receiving 6/13 https://www.mhc.tn.gov.in/judis S.A.No.484 of 2010 the additional evidence and the petition is also not maintainable. Admittedly, the defendants seems to have admitted that they have acquired 31 cents of land and not more than that. In the said circumstances, additional evidence is not required to adjudicate the case. Therefore, the petition filed by the learned counsel for the appellant is unwarranted and seeks to dismiss the appeal since the findings of the First Appellate Court is based upon evidence on record and there are no perverse findings, no substantial questions of law involved in this appeal and thus pleaded to dismiss the appeal.
9.I have considered the matter in the light of the submissions made on either side and perused the materials on records as well as the Judgments passed by the Courts below.
10.On perusal of the records and evidence, it is seen that the plaintiff filed a suit for declaration and mandatory injunction to remove the compound wall allegedly constructed by the defendants upon the plaint schedule properties. Further, in the pleadings, in the plaint paragraph No.3, it is stated that he had purchased 0.13 ¼ cents from his 7/13 https://www.mhc.tn.gov.in/judis S.A.No.484 of 2010 vendor. Though in the sale deed, it is mentioned as 0.8 ¼, he is in enjoyment of 0.13 ¼ cents and now the suit is filed for 0.05 cents extended, upon which, the defendants encroached and constructed the compound wall. In this case, a Commissioner has been appointed to find out whether the defendants encroached upon the plaintiff's property and constructed the compound wall. He filed a report inspecting the suit property and measured the property along with the Surveyor, with the aid of FMB plan and field map and he filed a detailed report, which is marked as Exs.C1 & C2. On perusal of the commissioner report, it is noticed that the suit property was originally in S.No.85/2. After the land has been acquired by the defendants and allotted to 31 cents it was sub divided into 85/2A, 85/2 B1 and 85/2B2 and also filed a map to disclose the property and measured the properties and found that the disputed compound wall is in S.No.85/2A which belong to the defendants and there is no encroachment upon the plaintiff's property in S.No.85/2B1. The Trial Court misconceived the report and recorded that the commissioner report is not a reliable one since he has not stated about the encroachment. The First Appellate Court considered the commissioner's report and other evidence which was observed in paragraph No.7. For 8/13 https://www.mhc.tn.gov.in/judis S.A.No.484 of 2010 better appreciation, it is reproduced hereunder:
7.From the Commissioner Plan and Report, to the east of the compound wall of the defendant, the extent abetted by the plaintiff clearly is not disputed. It is only on the area which was sold by Akbar Sahib the construction of the compound wall is disputed. In fact the plaintiff has nothing to do on the date of filing the suit in the lands that belonged to Akbar sahib. The plan and sketch would clearly show the shape of the plaintiff's land.
The plaintiff have not exactly shown where the 5 cents of suit land alleged to have been encroached is. He has purchased Akbar sahib's land only subsequent to the suit. The extent of land claimed by the plaintiff has not been explained in respect of measurement. No doubt they can only claim the extent of 81/4 cents of the land which has been sold to him under the document. There is no dispute in the identification of this land. In this case, the plaint properties of the schedule has not been bounded and separately identified upon which the dispute is raised. So the dictum of boundaries prevailed over the survey field and extent will not come into the picture. It is not the case of the plaintiff that he has purchased the remaining lands 9/13 https://www.mhc.tn.gov.in/judis S.A.No.484 of 2010 in the survey field 85/2. Even according to the surveyor, the field has been resurveyed giving a new survey number to the plaintiff's property as 85/2B1. Hence a blanket relief of declaration of 5 cents without the boundaries cannot be granted and it is in executable as well.
11.On evidence and based upon the commissioner's report, the commissioner report corroborated the defence taken by the defendants that the compound wall was within their property and no encroachment was made upon the plaintiff's property and no compound wall was constructed on that property. Therefore, the findings of the First Appellate Court is based upon evidence available on record. As per the Commissioner's report in Exs.C1 & C2, it is found that there is no encroachment upon the plaintiff's property and the compound wall is within the defendants' property. The commissioner has specifically stated that the compound wall was within S.No.85/2A within 2.4m from the boundaries.
12.Therefore, the First Appellate Court rightly observed that there is no encroachment and further, there is no evidence on record to show 10/13 https://www.mhc.tn.gov.in/judis S.A.No.484 of 2010 that the plaintiff is entitled for 0.13 ¼ cents and he is in enjoyment of the same but strictly as specified in the sale deed filed in the Trial Court which is marked as Ex.A3 dated 22.06.1981. The claim of the plaintiff was rightly rejected by the First Appellate Court. Since the entire findings is based upon evidence, no irrelevant fact has been considered and no evidence is misconceived and the findings of the First Appellate Court is relevant, sustainable and not erroneous.
13.In this circumstances, there cannot be any doubt whatsoever that consideration of irrelevant fact and non consideration of relevant fact would give rise to a substantial question of law. Further, it does not meet out the parameters laid own by the Hon'ble Supreme Court in the following decisions:
(i) AIR 2008 SC 379 – Moses Wilson Vs. Kasturiba.
(ii) AIR 2008 SC 956 – AbdulRaheem Vs. Karnataka Electricity Board.
(iii) AIR 2008 SC 1749 – Kashmir Singh Vs. Harnam Singh and another.11/13
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14.The Court below had decided the case based upon the evidence and documents submitted by the parties. There are no perverse findings, no mis-consideration of evidence and no substantial questions of law are involved in this case. There are no merits in this case and the second appeal fails.
15.Accordingly, this Second Appeal stands dismissed. No costs. Consequently, connected miscellaneous petitions, if any, are also closed.
sli 11.07.2024
Internet:Yes
Index:Yes/No
Speaking/Non speaking order
NCC: Yes/No
To:
1.The Subordinate Judge, Gingee.
2.The Additional District Munsif Court, Gingee.
V.SIVAGNANAM, J.
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