Madras High Court
Marimuthu vs Gurusamy on 29 October, 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:29/10/2012
CORAM:
THE HONOURABLE MR.JUSTICE M.VIJAYARAGHAVAN
S.A.No.853 of 2004
and
C.M.P.No.6511 of 2004
and
C.M.P.No.6512 of 2004
Marimuthu .. Appellant/Respondent/Plaintiff
Vs.
1.Gurusamy
2.Karunanidhi
.. Respondents/Appellants/Defendants
PRAYER
Appeal is filed under Section 100 of the Civil Procedure Code against
the judgment and decree dated 30.09.2003 made in A.S.No.110 of 1998 on the
file of the Sub-Court, Sivagangai modifying the judgment and decree dated
30.04.1998 made in O.S.No.11 of 1998 on the file of the District Munsif,
Manamadurai.
!For Appellant .. Mr.A.Sivaji
^For Respondents .. Mr.B.Pugalenthi
:JUDGMENT
This Second Appeal is arising out of the judgment and decree passed by the first appellate Court in A.S.No.110 of 1998, dated 30.09.2003, in partly allowing the appeal after setting aside the judgment and decree of the trial Court in O.S.No.11 of 1998, dated 30.04.1998.
2. For better appreciation of the appeal, the brief averments of the plaint and the written statement are reproduced hereunder:
(i) The brief averments made in the plaint are as follows:
The suit schedule property originally belonged to Vattappa Konar and he sold the same to one Ramasamy Chettiar for valuable consideration under a sale deed dated 09.06.1958 and thereafter, the said Ramasamy Chettiar after enjoying the same, sold it to Pooranam Ammal under a sale deed, dated 22.08.1961 and the said Pooranam Ammal sold the same under a sale deed dated 26.03.1981 to the plaintiff and handed over possession to him and the plaintiff has been enjoying the same by constructing one tiled house in a particular portion and keep the balance portion as vacant site abetting to the house with full knowledge of others without any interference after paying kist and electricity charges. From 21.05.1995, the defendants have been declaring that they are going to prevent the plaintiff from enjoying the same peacefully and prayed to grant injunction as against the defendants restraining from interfering with his peaceful possession and enjoyment of the property and prayed to decree the suit with costs.
(ii) The brief averments made in the written statement filed by the first defendant and adopted by the second defendant are as follows:
It is true that Vattappa Konar is the father of the first defendant and the plaintiff and the suit schedule property is ancestral property of Vattappa Konar and there was one old house on the western side and on the eastern side there was vacant site. It is not true that Vattappa Konar sold the property to Ramasamy Chettiar and thereafter, the said Ramasamy Chettiar was enjoying the same. It is also not true that the said Ramasamy Chettiar sold the same to Pooranam Ammal namely the sister of the first defendant and in turn, the said Pooranam Ammal sold the same to the plaintiff. It is also totally denied that the plaintiff is enjoying the schedule property by putting up construction of a house and the vacant site. The first defendant is having equal right over the schedule property and this defendant is residing on the eastern side of the house and the plaintiff is residing in the western side of the house. During his absence, the plaintiff created a false document and claiming title over it. This defendant is enjoying half of the house property and half of the land by paying house tax. Since this defendant is the co-owner of the schedule property, the plaintiff is not entitled to injunction. Since this defendant is enjoying the suit schedule property over a statutory period and he has also acquired title over the same, the suit should be dismissed with costs.
3. The trial Court based on pleadings, framed necessary issues and during the course of trial, the plaintiff in order to sustain his case, examined himself as P.W.1 and Vattappa Konar as P.W.2 and Exs.A-1 to A-18 were marked. On the side of the defendants, the first defendant examined himself as D.W.1 and one M.Gurusamy was examined as D.W.2 and Exs.B1 to B17 were marked. Besides Exs.C1 and C2 were marked.
4. The trial Court on consideration of oral and documentary evidence decreed the suit vide judgment and decree, dated 30.04.1998.
5. The defendants aggrieved by the same preferred an appeal in A.S.No.110 of 1998 on the file of the Sub-Court, Sivagangai.
6. The first appellate Court on consideration of the materials available on record and on appreciation of oral and documentary evidence, modified the judgment and decree passed by the trial Court, vide judgment and decree, dated 30.09.2003.
7. Aggrieved by the judgment and decree of the lower appellate Court, the plaintiff has preferred this second appeal.
8. At the time of admitting the second appeal the following substantial questions of law has been framed:
"1.Whether the lower Appellate Court is right in holding that the extent mentioned in Exs.A1 and A2 shall prevail over the boundaries mentioned under Exs.A1 to A3?"
9. The learned counsel for the appellant submitted that originally the suit property belonged to one Vattappa Konar, who is none other than the father of the plaintiff as well as first defendant and the said Vattappa Konar sold the same under a registered sale deed for himself as well as on behalf of his minor children including the plaintiff as well as the first defendant in favour of one Ramasamy Chettiar on 09.06.1958, which is marked as Ex.A1, wherein the definite boundaries namely, East of Karuppayee Ammal's land, West of Pattappa Konar Nanjai, North of East-west street and South of his backyard have been mentioned with measurement East-west 32 kaladi and North-South 24 kaladi and the same measurement and the boundaries have also been shown in the sale deed dated 22.08.1961 obtained by the plaintiff as well as D-1's sister Poornam Ammal from Ramasamy Chettiar, which is marked as Ex.A2. But the very same property and more particularly with the same description, was purchased by the plaintiff from the said Poornam Ammal under a registered sale deed dated 26.03.1981, which is marked as Ex.A3, but the measurement is mentioned as jathiyadi instead of kaladi, as East-West - 60 Jathiyadi and North-South 40 jathiyadi and taking advantage of this position, the defendants falsely claiming half share over the schedule property by taking a plea that the said sale deed was created as forged document.
10. A careful perusal of Ex.A1 registered sale deed said to have been executed by the father of the plaintiff as well as the first defendant namely Pattappa Konar for himself on behalf of the his minor sons namely plaintiff, first defendant, Ganesan and Neelamagam, clinchingly shows that with definite boundaries with the measurement kaladi instead of jathiyadi, the property has been sold to Ramasamy Chettiar on 09.06.1958. Eventhough this document was marked before the trial Court through P.W.1 the plaintiff, the production of this original registered document from the custody of the plaintiff as well as its execution for valuable consideration has not been disturbed. Eventhough the defendants took the plea that the documents eventhough registered one, the same are created as forged documents, there is no valid substantial evidence produced to deny the very existence of Ex.A1 sale deed, which was executed by D-1's father for himself and on behalf of the minor children including the first defendant. There is also amble evidence on record both oral and documentary that the property description under Ex.A1 and A2 is mentioned with the measurement kaladi. But under Ex.A3, Pooranam Ammal sold the property with the same description and boundaries to the plaintiff with measurement of east-west and north-south in jathiyadi not as found in Ex.A1 and A2 as kaladi. No doubt based on Ex.A3 measurement as found, the plaintiff has told the measurement as jathiyadi i.e., east-west - 60 jathiyadi and north-south 40 jathiyadi. It is not the case of the defendants that the properties sold under Ex.A1 was lesser in area and the plaintiff is enjoying more than that the area purchased from his sister namely Poornam Ammal under Ex.A3.
11. A careful perusal of the first appellate Court judgment did not show anything about the conversion of the measurement i.e., from kaladi to jathiyadi and without adverted to the above conversion method and without any valid substantial reasoning and finding, the lower appellate Court, set aside the judgment and decree of the trial Court, but decreed the suit to the measurement as found in Exs.A1 and A2 i.e., east-west 32 kaladi, north-south 24 kaladi was in possession and enjoyment of the plaintiff and granted the relief of injunction after setting aside the decree and judgment of the trial Court and the same is not sustainable. Even in the commissioner's report marked i.e., Ex.C1 nothing whispered about the measurement of the schedule property either in kaladi or in jathiyadi and hence, without any substantial basis for conversion method adopted from kaladi to jathiyadi, the decision arrived at by the first appellate Court, is not sound under law.
12. Admittedly there is no finding that within the schedule property with the measurement of jathiyadi, there is also house and vacant site and thereby the plaintiff's prayer is restricted to such measurement for injunction. Moreover, the learned counsel for the appellant submitted that the sale deed with the boundaries of the property under a deed will prevail over the measurement given and cited the judgment of this Court in a case namely, Kuppuswami Naidu v. Krishnasami Naidu reported in (2004) 4 M.L.J. 677
13. In the judgment cited, this Court has held as hereunder:
"On the other hand, it is contended by the learned counsel for the respondent/defendant that though the sale deed was executed on 15.3.1940 in favour of Nanjama Naidu with reference to 2 acres, the measurements and boundaries are correctly mentioned. In the subsequent sale deed, which is executed on 17.06.1982 in favour of the defendant, the boundaries mentioned in Ex.A-3 would prevail over the measurements given by the sale deed executed in the year 1940. The main contention urged by the counsel for the appellant is that the lower Court as well as the Appellate Court, instead of considering the validity of the sale deed executed in favour of the defendant, had gone into the question whether the plea of adverse possession is correct or not and as such, the judgments impugned are wrong. This contention, in my view, is untenable. Admittedly, Ex.A-3 sale deed executed by the Nanjama Naidu in favour of the defendant contains the boundaries as well as the extent as 2.25 acres. The question of the adverse possession, of course,is incidentally referred to by the Appellate Court. But the trial Court would elaborately consider the point with reference to the possession of the extent of area viz., 2.25 acres by the appellant/plaintiff on the basis of Ex.A-3, by observing that the measurement in Ex.A-2. Which was executed in favour of Nanjama Naidu, is wrongly given as 2 acres and such, the document Ex.A-3 which contains correct particulars and boundaries as well as the extent, has to be taken as true document. In order to substantiate this submission, the learned counsel for the respondent herein would cite the decision reported in Ramaiya Assari v. Ramakrishna Naicker alias, Kollimalai Naicker., (2000) 3 M.L.J. 327. In this context it should be relevant to refer the observation which is as follows:
"Where the deed sets out the extent and measurements correctly there can be no difficulty in determining the subject matter of the grant. But where no measurements are given or the extent mentioned in the deed is either vague or is only a rough and ready approximation one has to look to other indications in the deed in order to fix the identity of the property which is the subject of the grant. If the deed in question sets out the boundaries of the property conveyed, then these boundaries will have to be accepted as a clear reflection of the intention of the grantor and they will conclude not only the exact positioning of the property conveyed, but also its true extent. The boundaries given in the deed will also, in such cases, prevail over the measurement given in the deed, if these are given as approximations."
This observation, in my view, would apply in all force to the present case. According to the defendant, the extent of area in Ex.A-2 has been approximately given, though the boundaries were correct. The same boundaries were mentioned in Ex.A-3, which was executed in the year 1982 and found as 2 acres, 25 cents with the same boundaries. Under those circumstances, the plaintiff cannot claim recovery of possession, as the materials available on record would indicate that the defendant is the title holder of entire extent of 2.25 cents with these boundaries by virtue of the sale deed dated 17.06.1982."
14. In agreeing with the judgment cited, this Court holds that the description of boundaries as found under Ex.A1 to A3 was prevail over the measurement contained i.e., instead of kaladi as jathiyadi and there is question of law involved in the appeal.
14. In the result, this Second Appeal is allowed and the judgment and decree of the first appellate Court, dated 30.09.2003 made in A.S.No.110 of 1998 is set aside after confirming the judgment and decree of the trial Court, dated 30.04.1998 made in O.S.No.11 of 1995. The parties are directed to bear their own costs. Consequently, connected miscellaneous petitions are closed.
pm To
1.The Sub-Court, Sivagangai
2.The District Munsif, Manamadurai.