Madras High Court
C.Vedachalam vs B.Arunthathi Ammal (Died) on 10 September, 2012
Author: G.Rajasuria
Bench: G. Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.09.2012 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.386 of 2006 C.Vedachalam .. Appellant vs. 1. B.Arunthathi Ammal (died) 2. Balasundram 3. Sankaran 4. Paramasivam .. Respondents (R2 to R4 brought on record as LRs of the deceased sole respondent vide order of Court dated 06.08.2012) This Second Appeal is focussed as against the decree and judgment passed in A.S.No.61 of 2005 dated 03.01.2006 on the file of the learned Principal Subordinate Judge's Court at Chengleput, reversing the decree and judgment passed by the learned District Munsif-cum-Judicial Magistrate, Thirukalukundram dismissing the suit in O.S.No.101 of 1998 dated 01.04.2005. For appellant : Mr.S.V.Jayaraman, Senior Counsel for Ms.S.Hemalatha For Respondents : Mr.V.Anandamoorthy for R2 to R4 JUDGMENT
This Second appeal is focussed by the original defendant animadverting upon the judgment and decree dated 03.01.2006 passed in A.S.No.61 of 2005 by the Principal Subordinate Judge, Chengleput, reversing the judgment and decree of the District Munsif-cum-Judicial Magistrate, Thirukalukundram dated 01.04.2005 in O.S.No.101 of 1998.
2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A summation and summarisation of the germane facts absolutely necessary for the disposal of this Second Appeal would run thus:
(a) The plaintiff filed the suit seeking the following reliefs:
"(i) For declaration of plaintiff's title to the suit C- Schedule property and for consequential relief;
(ii) Recovery of possession of C-Schedule, directing the defendant to deliver vacant possession of C-Schedule;
(iii) For permanent injunction restraining the defendant from either by way of digging earth or by way of raising compound wall thereon or otherwise;
(iv) Directing the defendant to pay damages at Rs.1000/- p.a. For use and occupation of C-Schedule from the date of plaint till date of delivery; and
(v) For costs." (Extracted as such)
(b) The defendant resisted the suit.
(c) Whereupon issues were framed by the trial Court.
(d) During trial, the plaintiff's husband Balasundaram was examined as P.W.1 and Exs.P1 to P6 were marked. The defendant Vedachalam examined himself as D.W.1 and Exs.D1 to D5 were marked. Exs.C1 to C3 were marked as Court documents.
(e) Ultimately the trial Court dismissed the suit, as against which the appeal was filed by the plaintiff, whereupon, the appellate court set aside the judgment and decree of the trial court and granted the relief of recovery of possession as prayed by the plaintiff to an extent of 8.5 sq.ft.
4. Challenging and impugning the judgment and decree of the first appellate Court, the defendant preferred this Second Appeal on various grounds.
5. Whereupon my learned Predecessor formulated the following substantial questions of law:
"(a) Has not the first appellate Court erred in accepting the Commissioner's Report without assigning any reason while the trial Court rejected the same by giving reasons therefor?
(b) When the Advocate Commissioner and Surveyor accepted that the Reports were not based on measurements based on records, can the said Reports can be accepted by the Court?
(c) When the alleged trespass is negligible with extent of 8.5 sq.ft can there be a Decree for demolition and recovery of possession?"
(extracted as such)
6. Indubitable and indisputable germane facts could pithily and precisely be set out thus:
A plot area, originally belonged to the common vendor of the plaintiff and the defendant. At the first instance, the defendant purchased part of such plot from his vendor. Thereafter, the plaintiff purchased from the same vendor a different portion of the said plot area. It is the case of the plaintiff, that the defendant while raising construction encroached upon former's property to an extent of 2-1/2 feet from east to west and 62 feet from south to north. However, the defendant would deny and refute such allegation made by the plaintiff as against him. The trial Court appointed an Advocate Commissioner to visit the suit property and measure the same with the assistance of a surveyor and submit report. Accordingly, the Advocate Commissioner submitted his report. In fact, the Advocate Commissioner in paragraph 6 stated thus:
"6. The surveyor measured the suit property and the defendant property and found that the defendant has encroached 3 inches on the Western side as shown in my sketch, as 'DEK' and rose colour in the surveyor sketch. The encroachment measures 8.5 sq.ft. in which wall has been constructed. The encroachment is in Triangular shape. The encroachment is according to title deed."
7. The trial Court dismissed the suit on the main ground that the plaintiff did not prove her title to the alleged encroached portion and that the plot was not measured as per the documents of the rival parties. There is no knowing of the fact as to how the trial Court could simply give such a finding and express its helplessness. The trial Court is the Court which is duty bound to arrive at the truth, and if for any reason, the trial Court might find fault with the Advocate Commissioner that he has not executed the warrant properly, then the Court itself should set aside the Commissioner's report and sketch and mandate him to revisit the property and furnish a proper report after measuring it with reference to the documents of both sides. The method and manner in which the trial Court expressed its helplessness is something unknown to law. In paragraph 6 of the judgment, the trial Court would find fault with the surveyor in not measuring the property with reference to the documents. If really that be so, the trial Court should have given further directions in that regard and got accurate measurements. One significant fact should not be lost sight of. Both sides have not filed any objection to the Commissioner's report. In such a case, there is no knowing of the fact as to how the defendant was allowed to raise objections during trial relating to the measurement effected by the Advocate Commissioner with the help of the surveyor. The first appellate Court in its judgment would render a finding that the Commissioner submitted his report with the sketch after duly measuring the same. According to him, Ex.C3-the Surveyor's plan reflects the correct measurement and also the encroachment made by the defendant. The first appellate Court which is the last Court of facts, after analysing the available evidence, both oral and documentary, including the Commissioner's report sketches Exs.C1 to C3 held, that the Commissioner's finding was reliable. Precisely the contention of the defendant was to the effect that the total extent of the property from east to west available with the common vendor was 32 feet and after selling an extent of 16 feet from north to south on the southern side in the said plot area to the defendant, the vendor could not have sold 17 feet from north to south in favour of the plaintiff. As such, there was excess of one foot found mentioned in the document of the defendant.
8. The perusal of the Commissioner's report and sketches Exs.C1 to C3, would reveal that the Commissioner adverted to the fact that the plaintiff purchased an extent of 17 feet from north to south and 240 feet from east to west from his vendor. However, as per the antecedent title deed to the plaintiff's sale deed Ex.A1, it could only be 16 feet from north to south and 240 feet from east to west. The defendant's property is situated to the south of the plaintiff's property. As per the re-survey sketch, the defendant's property was measuring 16 feet from north to south and 153 feet from east to west. While measuring the properties of the defendant and the plaintiff, the Commissioner with the help of a Surveyor, found out that the plaintiff's property was measuring 17 feet from north to south on the northern side and in the middle, it was measuring 15 feet 2 inches from north to south and on the southern side, her property was measuring 15 feet 9 inches from north to south. However, the defendant's property was measuring 16 feet from north to south on the eastern side and in the middle it was measuring 15 feet 10 inches from north to south and on the western side it was measuring 16 feet 3 inches from north to south. It is therefore clear, that the defendant was in possession of an excess extent of 3 inches from north to south. There is clear indication in the sketch that from the middle portion, there was deviation at the instance of the defendant while raising the compound wall and it encroached into the plaintiff's property in a triangular fashion measuring 8.5 sq.ft in total.
9. As such, the Advocate Commissioner appears to be a very sagacious person who applied common sense and measured it, taking into account the documents of both sides and also the revenue map. Hence in such a case, the defendant cannot pick holes in the Court proceedings and try to eclipse the mind of the Court in the process of rendering justice. Here the Court was not called upon to locate the said 17 feet from north to south of the plaintiff's plot and hand over possession to her, but on the other hand, the Court was called upon to find out as to whether there was encroachment by the defendant into the plaintiff's plot. It is the categorical case of the defendant that he is entitled to 16 feet from north to south and that is found reflected in the re-suvery measurement book. As per that also, he is entitled to only 16 feet from north to south, but actually on ground, he is in excess of 3 inches from north to south as pointed out by the Commissioner and hence, the Commissioner concluded that there was encroachment into the plaintiff's property to an extent of 3 inches from east to west and it is in a triangular shape, constituting totally 8.5 sq.ft, which the appellate Court very correctly appreciated and held that the Commissioner's report and sketches were tenable. But on the other hand without considering the nuance involved in this matter, the lower Court simply threw the baby along with the bath water. As such, I am of the considered view that the first appellate Court arrived at a correct finding of fact, warranting no interference on that aspect.
10. However, the learned Senior Counsel for the defendant would submit that this is only a negligible extent for which the question of ordering recovery of possession after demolition would not arise and for that matter, there was no prayer for mandatory injunction. Whereupon, the learned counsel for the plaintiff would insist that whatever right to which the plaintiff is entitled, she could assert the same. I recollect the maxim:
Ubi jus ibi remedium: Where there is a right there is a remedy.
and in the meantime, scarcely one could lose sight of one other phenomenal maxim:
De minimis non curat lex : The law does not care for trivial things.
11. The Courts, no doubt, are expected to enforce the law, but not ruthlessly and unmindful of the consequences. The plaintiff could adequately be compensated in terms of money and that too heavily also instead of ordering demolition of the pococurante extent of 3 inches from north to south and the total area under encroachment is only 8.5 sq.ft. There is no gainsaying that elaborate enquiry also is not required and the Court within its discretionary power by adopting rough and ready method assess the damage. In the plaint one square foot has been valued in a sum of Rs.20/- in the year 1998. However, much water has flown under the bridge and now we are in 2012. When this Court is awarding damages, it need not have a narrow view, by adhering to the same old rate of Rs.20/- per sq. ft. The total extent itself is 8.5 sq.ft., wherefore, I am of the view that awarding totally a sum of Rs.5,000/- (Rupees five thousand only) as damages by way of damages payable by the defendant to the plaintiff would meet the ends of justice. Accordingly the aforesaid substantial questions of law are answered.
12. The substantial question of law No.1 is answered to the effect that the first appellate Court correctly accepted the Commissioner's report.
13. The substantial question of law No.2 is answered to the effect that the evidence on record would show that Exs.C1 to C3 are reliable ones.
14. The substantial question of law No.3 is answered to the effect that in view of the negligible extent of encroachment of 8.5 sq.ft., damages is awarded.
G.RAJASURIA, J.
gms
15. In the result, the Second Appeal is accordingly disposed of with the aforesaid finding. No costs.
16. The judmgnet and decree of the first appellate Court shall stand modified as under:
The judgment and decree of the first appellate Court in ordering recovery of possession is set aside and instead, the defendant is directed to pay for the entire 8.5 sq.ft., a sum of Rs.5,000/- (Rupees five thousand only) in total as damages to the plaintiff within a period of three months from the date of receipt of a copy of this order, and if there is any default in paying so within the time stipulated, it shall carry 6% interest from the date of expiry of the three months till payment. The defendant also shall pay the cost of the entire proceedings to the plaintiff.
To
1. The Principal Subordinate Judge, Chengleput.
2. The District Munsif-cum-Judicial Magistrate, Thirukalukundram