Madras High Court
7.2015 vs S.Palanivel on 1 July, 2015
Author: R. Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.07.2015 CORAM THE HON'BLE MS. JUSTICE R. MALA S.A.No.107 of 2005 Date of Reserving the Judgment 24.06.2015 Date of Pronouncing the Judgment 01.07.2015 N.Palanivel ... Defendant/Respondent/Appellant -Vs- S.Palanivel ... Plaintiff/Appellant/Respondent Prayer: Second appeal filed under Section 100 of CPC against the judgment and decree of the Additional District Court, Namakkal in A.S.No.372 of 2002, dated 28.10.2004 reversing the judgment and decree of the District Munsif Court, Namakkal in O.S.No.740 of 1992, dated 14.11.1997. For Appellant : Mr.I.Abrar Mohammed Abdullah, for Mr.R.Subramanian For Respondent : Mr.C.Jagadish J U D G M E N T
The second appeal arises out of the judgment and decree dated 28.10.2004 made in A.S.No.372 of 2002 on the file of the Additional District Court, Namakkal, reversing the judgment and decree dated 14.11.1997 passed in O.S.No.740 of 1992 on the file of the District Munsif Court, Namakkal.
2. The averments made in the plaint are as follows:-
The AB wall shown in the rough plan filed along with the plaint is the wall in dispute. ABCD are the walls which were constructed by the predecessor in title of the plaintiff. However, at present there is no roof over the walls and the dilapidated walls are the standing proof of one owner. Beyond the AB wall in the south, the plaintiff has got one cubit of land in the south. P1 P2 house belong to the plaintiff by purchase. The plaintiff has purchased the suit property marked as P1 from one Ramayee and Anbu Selvi on 26.06.1990. Ever since the above purchase, the plaintiff was in continuous possession and enjoyment of the suit properties including the AB wall to the knowledge of all including the defendant. However, the defendant has now claimed right in the AB wall and projected a pandal over the AB wall. Hence, the plaintiff has come forward with the present suit for declaration, permanent injunction and mandatory injunction to remove the pandal from the AB wall.
3. The gist and essence of the written statement filed by the defendant is as follows:
The ABCD wall was not constructed by the predecessor in title of the plaintiff and the AB wall was not in exclusive enjoyment of the predecessor in title of the plaintiff. There was no roof over the AB wall to the knowledge of the defendant and the said wall was being used by the defendant as his compound wall. Further, neither the plaintiff nor his predecessor in title had used the wall. Based on the document, the AB wall belong to this defendant and the plaintiff has to prove his case that there was a house in the AB wall and it belong to the plaintiff. Thus, he prayed for dismissal of the suit.
4. The Learned Trial Judge after considering the averments both in the plaint and written statement and arguments on either side counsel, has framed necessary issues and on perusing the oral and documentary evidences viz., P.W.1, P.W.2, D.W.1, D.W.2 and Exs.A.1, A.2, Ex.B.1 and Exs.C.1 to C.4, dismissed the suit. Aggrieved against the judgment and decree passed by the trial court, the plaintiff preferred an appeal in A.S.No.372 of 2002 on the file of the Additional District Court, Namakkal.
5. The learned First Appellate Court has considered the arguments advanced on either side and framed necessary point for consideration and reversed the Judgment and Decree passed by the Trial Court and allowed the appeal. Against the Decree and Judgment passed by the first Appellate Court, the present second appeal has been preferred by the defendant/appellant.
6. At the time of the admission, the following question of law has been framed.
1. Whether the learned Additional District Judge erred in law in relying on the present measurements to hold that the plaintiff had established his title overlooking the well recognized principle that when there is a dispute with regard to extent, boundaries alone will prevail?
2. Whether the learned Additional District Judge was justified in decreeing the suit picking holes in the appellant's case without considering the claim of the plaintiff on the basis of the evidence let-in by him?
7. The learned counsel appearing for the appellant would submit that the respondent is the owner of the northern portion of the property and the appellant is the owner of the southern portion of the property. The property was originally purchased by one Muthu Gounder and Palaniapillai Gounder from one Seerangaraya Pillai under Ex.A.2/Sale Deed, dated 14.09.1914. Thereafter, the said property was partitioned under Ex.B.1/Partition Deed, dated 27.03.1937 between the children of Muthu Gounder and Palaniapillai Gounder. While so, in the year 1952, Subbaraya Gounder settled the property under Ex.A.3, dated 09.07.1952 in favour of his wife Ramayee Ammal, from whom the respondent/plaintiff has purchased the property. She has stated the measurement of her property as, East to West - 29 feet on the Southern side East to West 10 feet on the Northern side North to South - 108 feet on the Western side North to South 101 = feet on the Eastern side totaling an extent of 2043 sq.ft. The learned counsel would further submit that it is the duty of the respondent/plaintiff to prove his case and he cannot seek for relief on the basis of weakness of the case of the defendant. To substantiate the said argument, the learned counsel relied upon the decision reported in (2014) 2 Supreme Court Cases 269, Union of India and others v. Vasavi Cooperative Housing Society Limited and others. The learned counsel further contended that the boundary will prevail over the extent and to substantiate the said contention, he relied upon the following decisions:
1.2004-3-L.W.469, V.S.Kamaruddin v. M.A.Abdul Majid.
2.2011 (1) MWN (Civil) 85, Samayana Thevar v. Abdul Razack and other.
The learned counsel would also submit that the first appellate Court on the basis of the Ex.A.2/Sale Deed and Exs.C.1 and C.2/Reports of the Advocate Commissioner came to the conclusion that AB wall belong to the respondent herein, which is against law and perverse. He would further submit that by invoking Section 100 of CPC, the High Court can appreciate the evidence and facts and reverse the findings of the appellate Court, if the lower Court judgment is perverse. To substantiate the same, the learned counsel relied upon the decision reported in 2014 SCC OnLine SC 555, Easwari v. Parvathi and Others. Thus, he prayed for setting aside the judgment and decree of the first appellate Court.
8. Resisting the same, the learned counsel appearing for the respondent would submit that under Ex.A.3/Settlement Deed, dated 09.07.1952 the vendor of this respondent got the property by way of settlement. In the said document, the existence of the wall has been mentioned. The respondent had purchased the property under Ex.A.1/Sale Deed. The Trial Court has rightly held that the AB wall belong to him. Further, in Ex.A.1/Sale Deed, the actual measurement has been given. In the Ex.A.2/Sale Deed, the actual measurement has been given as East to West 15 kejam South to North 7= kejam totaling an extent of 22= kejam. As per the report of the Advocate Commissioner, AB wall forms part of the plaintiff/respondent property. The wall has been situated after 22 = kejam. So, considering the said aspect the first appellate Court has rightly come to the conclusion and granted decree. Further, the evidence of D.W.2/Subbaraya Gounder would support the case of the respondent. Hence, the learned counsel for the respondent prayer for dismissal of the appeal.
9. Considered the rival submissions made by both sides and perused the material records, oral and documentary evidences.
Question of law 1 & 2
10. The admitted facts are that the respondent has purchased the property from one Ramayee under Ex.A.1/Sale Deed within the stated boundaries and specific measurements viz., East to West - 29 feet on the Southern side East to West 10 feet on the Northern side North to South - 108 feet on the Western side North to South 101 = feet on the Eastern side totaling an extent of 2043 sq.ft. The vendor of the respondent viz., Ramayee got the property vide Ex.A.3/Settlement Deed, dated 09.07.1952. In that it was specifically mentioned Sutralai Suvar. It is appropriate to incorporate the relevant portion of the said document.
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11. The above extract would reveal that even in the year 1952, the existence of compound wall has been specifically mentioned. Merely because the existence of compound wall has not been mentioned in Ex.A.1/Sale Deed, it will not deprive the right of the respondent. Furthermore, as per Ex.A.2/Sale Deed, dated 14.09.1914, they had described the property with stated boundaries viz., East to West - 45 feet (35 kejam) South to North - 22 = feet (7 = kejam).
But, as per the report of the Advocate Commissioner, the AB wall does not come within 22 = feet.
12. At this juncture, it would be appropriate to consider the decisions relied on by the learned counsel for the appellant.
12.1. In the decision reported in (2014) 2 Supreme Court Cases 269, Union of India and others v. Vasavi Cooperative Housing Society Limited and others, it was held that the plaintiff has to prove his case and that he cannot take the plea of weakness in the defendant's case and seek for relief. It is appropriate to incorporate the relevant portion of the said decision:
The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. Even if the title set up by the defendants is found against them, in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited. There is no quarrel over the said proposition. But this Court has to decide whether the plaintiff has proved his case.
12.2. In the decision reported in 2014 SCC OnLine SC 555, Easwari v. Parvathi and Others, it was held that by invoking Section 100 of CPC, the High Court can appreciate the evidence and facts and reverse the findings of the appellate Court, if the lower Court judgment is perverse.
There is no quarrel over the said proposition.
12.3. In the decision reported in 2011 (1) MWN (Civil) 85, Samayana Thevar v. Abdul Razack and other, it was held that the boundary will prevail over the extent.
12.4. For the very same proposition, the learned counsel for the appellant also relied upon the decision reported in 2004-3-L.W.469, V.S.Kamaruddin v. M.A.Abdul Majid.
There is no quarrel over the same. However, the above citations are not applicable because in Ex.A.2/Sale Deed, parent document the extent has been specifically mentioned with stated boundaries. Likewise in Exs.A.3 and A.4, the extent has been specifically given with the stated boundaries.
13. In such circumstances, as per the report of the Advocate commissioner, it was correctly held that AB wall is located in the property of the respondent. Further, the first appellate Court on the basis of the evidence of D.W.1/Palanivel and D.W.2/Subbaraya Gounder, has held that except the AB portion of the compound wall, the other portion of the wall has been topped with kosavan tiles in order to prevent the compound wall from getting eroded during rain. If really the AB wall belong to the defendant/appellant, it would also be topped with kosavan tiles.
14. Considering the said facts and circumstances, I am of the view that the first appellate Court has considered this aspect in proper perspective and came to the correct conclusion. So, once specific extent has been given with stated boundaries, that extent will prevail. Thus, the substantial question of law is given against this appellant. Consequently, the appeal is dismissed.
15. In fine,
(a) The Second Appeal is dismissed. No costs.
(b) The judgment and decree passed by the first appellate Court is hereby confirmed.
(c) Two months time is granted to remove the 'panthal' from the AB wall.
01.07.2015 Index : Yes / No Internet : Yes / No To
1.The Additional District Court, Namakkal
2.The District Munsif Court, Namakkal
3.The Record Keeper, V.R.Section, High Court, Chennai.
R. MALA, J.
pgp Pre-delivery Judgment made in S.A.No.107 of 2005 Dated : 01.07.2015