Madras High Court
K.Sivanu Velar vs Paramasivam Velar (Died) on 18 February, 2019
Author: R.Pongiappan
Bench: R.Pongiappan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.02.2019
CORAM:
THE HONOURABLE Mr.JUSTICE R.PONGIAPPAN
S.A.(MD)No.240 of 2009
[Judgment Reserved on 07.02.2019]
1.K.Sivanu Velar
2.S.Paramasivam ... Appellants / Respondents /
Plaintiffs
Vs.
1.Paramasivam Velar (Died)
2.P.Murugan
3.P.Arumugam
4.P.Audaiyappan ... Respondents / Appellants /
Defendants
*(R2 to R4 are brought on record as
L.Rs. of deceased sole respondent,
vide order dated 28.04.2014.)
PRAYER: Appeal filed under Section 100 of Civil Procedure Code, against
the Judgment and Decree passed in A.S.No.18 of 2008, dated 27.11.2008,
on the file of the Sub-Court, Kovilpatti, reversing the Judgment and Decree
passed in O.S.No.53 of 2006, dated 18.07.2007, on the file of the District
Munsif Court, Kovilpatti.
For Appellants : Mr.H.Arumugam
For Respondents : Mr.P.Subbaraj
(R2 to R4) For Mr.G.Marimuthu
http://www.judis.nic.in
2
JUDGMENT
This Appeal is directed against the Judgment and Decree in A.S.No.18 of 2008, dated 27.11.2008, on the file of the Sub-Court, Kovilpatti, in reversing the Judgment and Decree passed in O.S.No.53 of 2006, dated 18.07.2007, on the file of the District Munsif Court, Kovilpatti. The appellants are the plaintiffs.
2. The appellants/plaintiffs herein had filed a Suit in O.S.No.53 of 2006, on the file of the learned District Munsif, Kovilpatti, seeking for the relief of declaration, declaring the wall mentioned in the second schedule property is a common wall and consequently, for the relief of permanent injunction, restraining the defendant from interfering with putting up the joining wall, in the common wall and directing the defendant to remove the 'Vaarugal', (Water Drainage System), which was marked as portion, ' E F' in the suit plan. The learned District Munsif, Kovilpatti, by Judgment and Decree, dated 18.07.2007, had allowed the Suit, as prayed for, by the plaintiffs. Aggrieved by the same, the defendant had filed an appeal in A.S.No.18 of 2008, before the learned Subordinate Judge, Kovilpatti. The learned Subordinate Judge, Kovilpatti, by the Judgment and Decree, dated 27.11.2008, had allowed the said appeal and set aside the Judgment and Decree passed by the learned District Munsif, Kovilpatti. Feeling aggrieved by the same, the plaintiffs have filed the present Second Appeal. http://www.judis.nic.in 3
3. For the sake of convenience, the parties are referred to herein, as per their ranking in the Suit.
4. The averments made in the plaint, in brief, are as follows:-
Before 1948, the grandfather of the plaintiffs and the father of the defendant are commonly having a suit property. As per the partition deed, dated 04.02.1948, partition was effected, in which, the first item of suit schedule property was allotted in favour of one Subbiah Velar, who is the father of plaintiffs. The wall situated on the eastern side of the first item is a common wall, to both the plaintiffs and the defendant. The same was reflected in the said partition deed. In order to prove the same, a rough plan was enclosed along with plaint. Before filing of the suit, the defendant claimed that the disputed wall is his absolute property. On 01.03.2006, he constructed the 'Vaarugal', for leaving the waste water. For the said action, on 14.02.2006, a complaint was lodged against the wife of the defendant. Now, the defendants are attempted to encroach the property belongs to the plaintiffs. Hence, the Suit.
5. The averments made in the written statement filed by the defendant, in brief, are as follows:-
There is no common wall in between the plaintiffs' property and defendant's property. In the partition, dated 04.02.1948, there is no specific http://www.judis.nic.in 4 averments that the suit wall is common to both the defendant and the plaintiffs. The defendant is having the property on the eastern side of the plaintiffs' property. The wall, now claiming by the plaintiffs, is the absolute property of the defendant. The plaintiffs are not having any right or title over the said property. Suppressing the material facts, the plaintiffs filed the Suit. There is no complaint against the defendant. Without any right, the plaintiffs alone claiming the right over the wall.
6. Based on the above said pleadings, the learned District Munsif, Kovilpatti, framed necessary issues and tried the suit.
7. Before the trial Court, the second plaintiff examined himself as P.W. 1 and marked 5 documents, as Exs.A1 to A5. On the side of the defendant, the defendant himself was examined as D.W.1. No documents were marked on the side of the defendant.
8. The learned learned District Munsif, Kovilpatti, having considered all the materials placed before him found that the wall in dispute is the common wall, belongs to both the plaintiffs and the defendant and thereby, granted the relief of declaration and permanent injunction. Further, the learned District Munsif, directed the defendant to remove 'Vaarugal', which was mentioned as portion 'E.F' in the rough plan. Aggrieved by the same, the defendants had filed an appeal before the learned Subordinate http://www.judis.nic.in 5 Judge, Kovilpatti, for setting aside the Decree and Judgment, passed by the learned District Munsif, Kovilpatti. The learned Subordinate Judge, Kovilpatti, after allowing the petition filed by the defendant, under Order 41 Rule 27, appointed an Advocate Commissioner, for measuring the suit property. After receiving the report from the Advocate Commissioner, marked the same as, Exs.C1 & C2 and based on the measurement found in the Commissioner's Report, came to a conclusion that the wall, now claimed by the plaintiffs, is not a common wall and hence, set aside the Decree passed by the learned District Munsif, Kovilpatti and allowed the appeal.
9. Feeling aggrieved, the appellants / plaintiffs have filed the present Second Appeal, for setting aside the Decree and Judgment passed by the learned Subordinate Judge, Kovilpatti, and to restore the Decree passed by the learned District Munsif, Kovilpatti.
10. While admitting the Second Appeal, this Court has formulated the following Substantial Questions of Law, for consideration:-
“1. Whether the Lower Appellate Court is correct in reversing the Judgment of trial Court solely relying upon the measurement given by the Advocate Commissioner in Ex-C2 ignoring the settled principle of law that boundaries alone prevail over measurement when there is a dispute between the measurement and boundary?
http://www.judis.nic.in 6
2. Whether the Lower Appellate Court has misconstrued the document namely Ex.A1, Partition Deed and reversed the Judgment of trial Court without considering the intention of the executors of the document and hence, warrants interference by this Court?
3. Having found that the dispute is only in respect of measurement as per statement of the respondent / defendant whether the lower appellate Court is right in relying upon Ex.C2, which does not have the report of qualified Surveyor and no survey commission was sought for by the respondent?
11. The learned counsel appearing for the appellants made two-fold submissions: (i) that without following the settled position that the boundaries alone prevail over the measurement, the learned Subordinate Judge came to a conclusion that the wall under dispute belongs to the defendant, and (ii) that Advocate Commissioner measured the suit schedule property without assistance of Surveyor, is not an appropriate one, as he is not a competent person to measure the property. Therefore, he prayed for allowing of the Second Appeal.
12. Per contra, the learned counsel appearing for the respondents would contend that only after measuring the suit property, as per the http://www.judis.nic.in 7 partition deed, the learned Subordinate Judge, Kovilpatti, came to the correct conclusion that the claim made by the plaintiffs is not having any merits. Therefore, the learned counsel prayed for dismissal of the appeal.
13. I have heard the rival submissions and perused the materials available on record.
14. It an admitted fact that Ex.A1, which is a partition deed, dated 04.01.1948 is between the predecessor of the plaintiffs and the defendants. As per the partition deed, the suit 1st schedule property was allotted in favour of one Subbiah Velar, who is the father of the plaintiffs, after mentioning the four boundaries. There by, the property mentioned as 1st schedule, was allotted in favour of the plaintiffs and the 2nd schedule property was allotted in favour of the defendant. As per the recitals found in Ex.A1, partition deed, the eastern boundary of plaintiffs' property was mentioned as a common wall and the western boundary was mentioned as a wall belongs to the plaintiffs. At the same time, the western boundary of the defendant's property was mentioned as common wall. So, there was a common wall in between the property of the plaintiffs and the defendants. However, the measurement for the above property was not mentioned in the said document. On a cursory perusal of the said partition deed, the measurement pertaining to the house situated in a property allotted in favour of the plaintiffs and the defendant alone mentioned. Accordingly, it http://www.judis.nic.in 8 will be the problem that the correct measurement will be fixed only through the Revenue Authorities. But, the learned Subordinate Judge, Kovilpatti, merely appointing the Advocate, as a Commissioner and received the Report. In the report submitted by the Advocate Commissioner, he has stated some measurement in respect of the suit property and taking into account the said measurement, the learned Subordinate Judge, Kovilpatti, had set aside the Decree passed by the trial Court.
15. In fact, the Advocate Commissioner, without any assistance from from the Surveyor, is not a competent person to measure the property owned by the plaintiffs and the defendants. Even though he is having necessary instrument for measuring the property, only the persons from the Survey Department are the competent persons to measure the property. They are the persons well trained only for the purpose of measuring the land and for preparing the sketch, in respect to the lands owned by the Government and the Public. So, the appointment of Advocate Commissioner, without the assistance of Surveyor, is no way helpful for deciding the issue properly. In otherwise, the learned counsel appearing for the appellants would contend that without giving any opportunity to the plaintiffs, the learned Subordinate Judge, Kovilpatti, marked the Commissioner's Report, as exhibits. In this regard, it is to be noted that a duty is cast upon the learned counsel appearing for the parties, in raising the objections, at an appropriate stage, in respect to the Commissioner's http://www.judis.nic.in 9 Report. Further, if he wanted to cross-examine the Advocate Commissioner, as a witness, provisions are available in the Civil Procedure Code, for the said purpose. So, without adopting the such procedures, now, arguing before this Court that he has not provided with sufficient opportunity to examine the Advocate Commissioner, is not at all a ground for allowing the appeal. However, in the partition deed, Ex.A1, it was clearly mentioned that there was a common wall between the properties of plaintiffs and the defendant. In respect to the said recitals, there was no dispute on either side. So, we have to decide the property owned by the plaintiffs and the defendants only in accordance with the four boundaries. In this aspect, it is relevant to refer the Judgment of this Court in N.Valliammal (dead) Vs. M.Kanniah reported in (2016 (2) MWN (Civil) 189) in which it has been held as follows:-
“Though there is some discrepancy in respect of the extent of the land, that will not prevail upon as the four boundaries will prevail upon. “
16. In this case also, since there is no specific measurement mentioned in the partition deed, the extent can be identified only by using the four boundaries. As rightly pointed out by the counsel appearing for the appellants that there was no clause in the partition deed to set up a “Vaarugal” in the plaint schedule property. The learned Subordinate Judge, http://www.judis.nic.in 10 Kovilpatti, without considering those aspects, had granted the relief in favour of the defendants and the same is not in accordance with Law, as per the dictum laid down by this Court, in the decision reported in (2016 (2) MWN (Civil) 189) (cited supra) and the same is required interference. The Substantial Questions of Law are answered accordingly.
17. In the result, this Second Appeal is allowed, by setting aside the Judgment and Decree passed in A.S.No.18 of 2008, dated 27.11.2008, on the file of the Sub-Court, Kovilpatti. The Judgment and Decree passed in O.S.No.53 of 2006, dated 18.07.2007, on the file of the District Munsif Court, Kovilpatti, is restored. However, there shall be no order as to costs.
18.02.2019
Index : Yes / No
Internet : Yes / No
MPK
http://www.judis.nic.in
11
To
1.The Subordinate Judge,
Kovilpatti.
2.The District Munsif,
Kovilpatti.
3.The Record Clerk
Vernacular Section
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
12
R.PONGIAPPAN, J.
MPK
Pre-Delivery Judgment made in
S.A.(MD)No.240 of 2009
18.02.2019
http://www.judis.nic.in