Madras High Court
Sathyanesan vs Elsy on 12 October, 2018
Author: S.Baskaran
Bench: S.Baskaran
1
BEFORE THE MADRUAI BENCH OF MADRAS HIGH COURT
Judgment Reserved on : 01.11.2017
Judgment Pronounced on : 12.10.2018
CORAM:
THE HONOURABLE MR. JUSTICE S.BASKARAN
S.A.(MD)No.416 of 2017
Thankayyan(Died)
Sathyanesan ... Appellant/3rd Party/3rd Party
Vs.
1.Elsy
2.Stella
3.Kingsley Devajose
4.Freeda
5.Hendry Dhass
6.Dhasan
7.Lysammal(died)
(Respondents 5 to 7 brought on record as LRs
of Deceased/Appellant in C.M.P.No.1 of 2014
vide order dated 15.09.2016)
(R7 died, R 5 and R6 are the LRs of the
Deceased R-7 vide Memo in USR No.3407/2017
dated 25.07.2017, vide Court Order dated
31.07.2017 in CMP(md).No.11818/2016 in
S.A.(md)SR.42637/2010) ...Respondents/Respondents/
Defendants
http://www.judis.nic.in
2
This second appeal has been filed under Section 100 of CPC,
against the Judgment and Decree dated 12.10.2009 made in A.S.No.4
of 2007 passed by the learned Sub Judge, Kuzhithurai, confirming the
Judgment and Decree dated 23.03.2006 in O.S.No.298 of 2000 passed
by the learned I Additional District Munsif, Kuzhithurai.
For Appellant : Mr.K.P.Narayanakumar
For Respondents : Mrs.J.Anandhavalli
JUDGMENT
This second appeal arises out of the Judgment and Decree dated 12.10.2009 made in A.S.No.4 of 2007 passed by the learned Sub Judge, Kuzhithurai, confirming the Judgment and Decree dated 23.03.2006 in O.S.No.298 of 2000 passed by the learned I Additional District Munsif, Kuzhithurai.
2. Brief facts of the case is as follows:-
The entire plaint 'A' schedule property originally belonged to the plaintiff and the defendants got the same as per the final decree and plan in O.S.No.221 of 1963 of the Principal District Munsif Court, Kuzhithurai. The plaint 'B' schedule property is a portion of plaint 'A' http://www.judis.nic.in 3 schedule property. In the suit in O.S.No.221 of 1963, the present plaintiff was impleaded as 5th defendant. As per the final decree, he got plot No.1 measuring to an extent of 32.167 cents and plot No.1-A measuring to an extent of 5 cents. He sold plot No.1-A to one stranger, namely, Sathiyanesan who is the appellant herein. Plot No.2 lies south of Plot No.1 and the same is allotted to one Rajayyan Nadar who is the plaintiff in O.S.No.221 of 1963. He sold his Plot No.2 to one Chinnayyan Nadar and he was in possession of the same. Plot No.2 measuring to an extent of 43.790 cents is scheduled as plaint 'C' schedule property of the present suit. The said Chinnayyan Nadar died and his entire rights devolved on the defendants. The plaintiff became owner of plaint 'A' schedule property and put up a residential building in 'A' schedule property and he is residing there along with his family. There are puramboke lands on the north west and east of the plaint 'A' schedule property. On the northern side, there is a Thodu Puramboke and on the eastern side there is a Tank Puramboke. The plaintiff is in possession of the puramboke lands and he is paying 'B' Memo charges to the Government. On the northern side, there is a granite construction put up by Edaicode Town Panchayat to separate the puramboke land from patta land and the said , which is now being used by pathway. The defendants have no right or possession over the http://www.judis.nic.in 4 plaint 'A' and 'B' schedule properties. The said Chinnayyan Nadar who is predecessor in interest of defendants 1 to 4 herein trespassed into the southern portion of the plaint 'A' schedule and put up barbed wire fence by force on 30.09.1996. By that illegal act about 10 cents of land in suit 'A' schedule was occupying the said Chinnayyan and the same shown an 'B' schedule in the suit. 'B' schedule property forms part of the suit 'A' schedule property. Since the said Chinnayyan who is the predecessor in title of the defendants disputed the southern limit of 'A' schedule property, the present plaintiff filed the suit for demarcation of Plot No.1 from Plot No.2 in O.S.No.654 of 1996. Then he withdraw the same with liberty to file a fresh suit. Then he filed the present comprehensive suit for declaration, recovery of possession and for mesne profits.
3.On the other hand, the defendants contended that the plaint schedule R.SY.No.153/2 is a portion of Old Survey No.2171 which was one of the subject matters in O.S.No.221 of 1963 filed by Rajayyan who was allotted plot No.2 measuring an extent of 43 cents 790 square links and Plot No.2-A measuring an extent of 1 acre 22 cents as per the final decree passed in O.S.No.221/63. The said Rajayyan took deriving in execution and was in possession of the same http://www.judis.nic.in 5 till he sold away No.2 to one Chinnayan who is the deceased husband of the first defendant and father of the defendants 2 to 4. After the death of Chinnayan, his right devolved on these defendants. Plot No.2 is described as 'C' schedule property. The plaintiff was allotted Plot No.
1. The limits of properties and extent of right of the parties is already decided in the suit in O.S.No.221/1963. There is no property in land answering to the description of the suit 'B' schedule property. On the western side of the suit 'A' schedule property, there is no road puramboke. The allegations with regard to trespass are all denied. The plaintiff has no manner of right, title or possession over any portion south of the northern boundary of plaint 'C' schedule property. The northern boundary of plaint 'C' schedule property is available on land at least from 22.06.1969. Even if any portion of plaint 'a' schedule property falls south of the existing boundary in between the plaint 'A' and 'C' schedule properties, the plaintiff has lost his title over the same due to long hosted, continuos adverse possession of the same by the defendant. The plaintiff is also not entitled for mesne profits. Hence, the suit is sought to be dismissed.
4.After contest, the trial Court dismissed the suit. Aggrieved upon that the plaintiff preferred the appeal before the lower appellate http://www.judis.nic.in 6 Court and after contest the lower appellate Court dismissed the appeal. Now, the plaintiff and one third party namely Sathianesan preferred the second appeal.
5. The following substantial question of law were framed in the appeal for consideration.
1)Whether the first appellate Court is right in dismissing the suit by considering the part of final decree plan in O.S.No.221 of 1963 and not considering the western measurement of 250 square links?
2)Whether the first appellate Court is wrong without considering the material aspect that the plaintiff is entitled to get decree for his entire property of 32.167 cents as per the final decree in O.S.No.221 of 1963 because the same was admitted by the defendant even in the written statement and oral evidence?
6.The learned counsel appearing for the appellant/plaintiff would submit that the defendants have admitted that the plaintiff is entitled to 32.167 cents in suit survey number as Plot No.1 in the final decree plan. Hence, the defendants cannot dispute the same. The http://www.judis.nic.in 7 defendants themselves admitted that there is no separate boundary between 'A' and 'B' schedule properties. Ex.A11 Commissioners report with Ex.C1 Commissioner's plan appears to be in correct, but, the Courts below failed to consider these aspects and arrived at wrong conclusion. The learned counsel for the appellant/plaintiff further submitted that as per the final decree and plan, the plaintiff is entitled to property on the western side measuring to an extent of 250 square links. As per the final decree plan, the plaintiff is entitled to 32.167 cents. It was also admitted by the defendants even in the written statement and oral evidence. Even then, the Courts below failed to consider the final decree measurement, title to the plaintiff and the defendants derived through final decree in O.S.No.221 of 1963. In such circumstances, the lower appellate Court ought to have decreed the suit. But, it failed to do so. It is against law. Hence, interference of this Court is warranted.
7.Per contra, the learned counsel appearing for the respondents/defendants would submit that the final decree was passed on the basis of the documentary evidence, but the Commissioner measured the property as on field and the plan was drawn with the help of surveyor. So, the available measurement of property http://www.judis.nic.in 8 mentioned by the Advocate Commissioner was considered by the Courts below and on that basis the claim of the plaintiff was negatived by the Courts below. There is no infirmity on the findings of the Courts below. Moreover, no question of law was involved in this case. Hence, the respondent contended that the second appeal is to be dismissed.
8.I have heard the rival contention and perused the materials available on record.
9.On perusal, it is clear that both the plaintiff and defendants are having properties as per the final decree passed in O.S.No.221 of 1963. In the above said suit, the present plaintiff was the 5th defendant. The plaintiff got Plot No.1 measuring to an extent of 32.167 cents and Plot No.1-A measuring to an extent of 5 cents. Plot No.2 lies south of Plot No.1 and the same is allotted to one Rajayyan, who is the plaintiff in O.S.No.221 of 1963. He sold his Plot No.2 measuring to an extent of 43.790 cents to one Chinnayyan Nadar, which is 'C' schedule property. After the death of Chinnayyan Nadar, his legal heirs were entitled to the property. So, both the plaintiff and the defendants have clearly and categorically admitted the origin of the title as well as the measurements and relied on the same as per http://www.judis.nic.in 9 the final decree. Now, the plaintiff has come forward with the suit for demarcation in O.S.No.654 of 1996. In the said suit, the Advocate Commissioner was appointed. The above said suit was withdrawn by the plaintiff with liberty to file fresh suit. Then he filed the present suit for declaratory relief. In the said suit, again Advocate Commissioner was appointed and he demarcated the properties and filed his report along with plan. The operative portion of the Commissioner's report in Para 10 of the report runs as follows:-
“The total area of plots land II as per resurvey is 71.500 cents. As per the decree plan in O.S.No.221 o 1963. Plot No.I is shown as having an area of 32.167 cents and Plot No.II 43.790 cents. Totalling 75.857 cents. If that total area is taken as jointly belonging to plaintiff and defendants, then the proportionate area of the plaintiff as per the allotment in the earlier decree will be 30.280 cents and that of the defendant will be 41.220 cents. If 30.280 cents is curved out for the plaintiff, then ABCFED in his plan will represent such a plot.
But as stated above, as per the decree plan, the http://www.judis.nic.in 10 portions CED and CFD clearly fall within Plot II.”
10.The Advocate Commissioner measured the entire suit property as per the final decree and plan. As on field, the total measurement, as per the final decree comes to 75.857 cents. According the total proportionate area is divided as 30.280 cents instead of 32.167 cents as Plot No.1 and 41.220 cents instead of 43.790 cents. So, as on field, he demarcated the properties and differentiate the measurements and draw the sketch as ABC FED. The measurement differentiated in point CED, CFE and CFED. He measured both the on field measurement as well as the extract, as per the decree. Apparently, there is no measurement as per the final decree plan in the field. Hence, he demarcated the property as per the existing measurement and boundries. The Commissioner has also described about the demarcation of existing structure. Hence, both the Courts below came to the conclusion that to satisfy the claim of the plaintiff as per decree plan in O.S.No.221 of 1963, there is no property on the field. Hence, the Courts below accepted the Commissioner's report as well as plan and found that the plaintiff is not entitled to the measurement claimed by him and negatived the claim of the plaintiff. Both the Courts below came to a concurrent findings with regard to the measurements, on the basis of extract available in the field. If the http://www.judis.nic.in 11 plaintiff is allotted land as per the final decree plan in O.S.No.221 of 1963, without considering the actual measurement in the field, the right of the defendants will be affected. It was lead to further litigation by the defendants. Hence, after considering the evidence on record, both the Courts below gave concurrent finding by accepting the Commissioner's report and plan which was drawn as per the actual measurement in the field. So, it is clear that on facts, there is no infirmity in the findings of the Courts below.
11.In the second appeal concerned, the appellant raised as question of law that when the defendants is accepting the final decree and measurement passed in O.S.No.221 of 1963, the measurements allotted to the plaintiff have to be accepted. But, as on date when there is no such property is available on field, certainly it is not possible to allot as per the decree. As per the decree, the defendants also are entitled for the property. As such, regarding the fact concerned, there is no infirmity on the findings of the Courts below. The question of law raised by the appellant are not sustainable, as no substantial question of law is involved. When there is no substantial question of law is raised in the second appeal, the concurrent findings cannot be interfered. Therefore, this Court comes to a conclusion that http://www.judis.nic.in 12 the findings of the Courts below are well reasoned and there is no scope for interference and this appeal is devoid of merits. Thus, the appeal has to fail and the point is answered accordingly.
12.In the result, the second appeal is dismissed. No costs. the Judgment and Decree dated 12.10.2009 made in A.S.No.4 of 2007 passed by the learned Sub Judge, Kuzhithurai confirming the decree and judgment dated 23.03.2006 in O.S.No.298 of 2000 passed by the learned I Additional District Munsif, Kuzhithurai is hereby confirmed.
12.10.2018 rrg To
1.The Sub Judge, Kuzhithurai.
2.The District Munsif, Kuzhithurai.
http://www.judis.nic.in 13 S.BASKARAN,J., rrg/vs Judgment in S.A.(md)No.416 of 2017 12.10.2018 http://www.judis.nic.in