Madras High Court
Rangaiya Gounder vs Eswaran on 24 October, 2018
Author: S.Ramathilagam
Bench: S.Ramathilagam
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 25.04.2018
Pronounced on 24.10.2018
CORAM
THE HONOURABLE MRS.JUSTICE S.RAMATHILAGAM
C.M.A.No.2467 of 2013
and
M.P.No.1 of 2013
1. Rangaiya Gounder
2. Ravi ...Appellants
Vs.
Eswaran ...Respondent
PRAYER: Civil Miscellaneous Appeal filed under Order 43 Rule 1(u) of
Civil Procedure Code, against the judgement and decree dated
22.01.2013 passed by the Sub Judge, Thiruchengode remanding the
matter to the Trial Court by reversal of the judgement and decree dated
29.10.2011 made in O.S.No.50 of 2007 on the file of the Additional
District Munsif, Tiruchengode.
For Appellants : Mr.N.Manokaran
For Respondent : Mr.M.S.Palaniswamy
****
http://www.judis.nic.in
2
JUDGMENT
This Civil Miscellaneous Appeal has been preferred against the judgement and decree passed in A.S.No.3 of 2012 by the Sub Judge, Thiruchengode remanding the matter to the trial Court by reversal of the judgement and decree dated 29.10.2011 made in O.S.No.50 of 2007 on the file of the Additional District Munsif, Tiruchengode.
2.The suit in O.S.No.50 of 2007 was filed by the plaintiff claiming right in Survey No.237/3 which is a poromboke land and the extent of the same is 1.84 acres and in which, the plaintiff is claiming right over 0.75 cents.
3. The case of the plaintiff is that he is in possession and enjoyment of the suit property which is a poromboke land along with his patta land. It is also the averment of the plaintiff that the defendants are also enjoying part of the poromboke land in Survey No.237/3. When the defendants were trying to disturb the plaintiff's possession and enjoyment of the suit property, the plaintiff has filed a suit for the relief of permanent injunction restraining the defendants in any way disturbing his peaceful possession and enjoyment over the suit property.
http://www.judis.nic.in 3
4. In the written statement, the defendants 1 and 2 have stated that the extent of land in Survey No.237/3 is 0.74.5 hectare and further, the defendants have stated that the defendants are the owner of the land in Survey No.237/2 and further, the entire land in Survey No.237/3 to the extent of which 0.74.5 is under his enjoyment.
5. Based on the pleadings, documents and evidence placed before the trial Court, the trial Court has analysed the same and decreed the suit as prayed for by the plaintiff. Aggrieved against the same, the defendants had preferred an appeal in A.S.No.3 of 2012 before the Sub-Court, Tiruchengode. The First Appellate Court after analysing the finding of the trial Court and also the documents and evidence placed before the trial Court has decided the case. The First Appellate Court based on the evidence placed before the trial Court and also the Commissioner's report has found that the question by saying that whether the plaintiff is enjoying an extent of 75 cents in the poromboke land or not and to arrive a finding, the said property in dispute with regard to the extent of only a portion in the poromboke land and the measurement of the entire property and also the measurement of 75 cents has to be appropriately measured, only then, the enjoyment of 75 cents out of a larger extent since the Survey No.237/3 is a larger extent cannot be ascertained. Based on http://www.judis.nic.in 4 the Commissioner's report, the plaintiff's enjoyment to the limited extent was demarcated by way of physical features and stone revetment first made by the plaintiff. Hence, the First Appellate Court is of the view that the trial Court should have ordered the Advocate Commissioner to measure the suit property with the help of a qualified surveyor to find out the exact extent of poromboke land, wherein, the plaintiff is in possession and enjoyment. Hence, on the basis of the said finding, the First Appellate Court set-aside the decree and judgement passed by the trial Court and remanded the case to the trial Court with a direction to reissue the Commission Warrant and measure the entire poromboke land in Survey No.237/3 to ascertain the right of the plaintiff to the said extent as stated by him. Aggrieved against the same, this Civil Miscellaneous Appeal has been preferred by the defendants.
6. In the grounds of appeal, the appellants/defendants had stated that the First Appellate Court has failed to note that the suit was decreed on 29.10.2011 and by remanding back to the trial Court has not proceeded in consonance with the Order 41 Rule 23 of CPC. Further, remanding back to the trial Court for the purpose of reissuing the Commission Warrant to measure the property and to identify the portion when it is not an object of Order 26 Rule 9 of CPC. The other grievance raised by the appellants/defendants is that when the plaintiff http://www.judis.nic.in 5 himself has failed to prove his possession and enjoyment of 75 cents, remanding the matter by way of giving an opportunity to the plaintiff is not justified. The finding given by the First Appellate Court is also against the settled principles of law. Hence, the remand made by the First Appellate Court is unwarranted and the said remand is also not supported by reasons. The First Appellate Court has also failed to note that the First Appellate Court itself has to dispose the same when the commission and omission made by the trial Court and it could be corrected only by the First Appellate Court. Hence, it is the grievance of the appellants that when once the judgement has been given, now the remanding of the case to the trial Court and compelled the trial Court to re-write the judgement is not proper. Hence, this Civil Miscellaneous Appal has been preferred by the defendants against the direction of the remanding of the case to the trial Court by the First Appellate Court.
7. Heard both sides.
8. The learned counsel appearing for the appellants/defendants has argued that the trial Court has decreed the suit based on the oral and documentary evidence placed by the plaintiff and also by the report of the Commissioner appointed by the http://www.judis.nic.in 6 said Court. It is also argued by the learned counsel appearing for the appellants/defendants that when the plaintiff says that he is in possession and enjoyment of 75 cents of the property in Survey No.237/3 which is the poromboke land, whereas the appellants/defendants claims the extent of the said Survey number is 0.74.5 and denied the version of plaintiff who says that the total extent is only 1.84 cents. On perusal of the judgement of the trial Court and also the pleadings made by both parties, it is observed that the plaintiffs says the extent of the Survey No.237/3 is 1.84 cents, whereas the defendant says the extent is 0.74.5 hectare and he claims that the entire property is under his possession and enjoyment. To prove the enjoyment over the said property, the plaintiff made construction in the said property and he has also planted trees in the said property. Whereas, the defendants had deposed before the trial Court that it is the defendants who are enjoying the entire survey number in the poromboke land and the defendants have also raised a wall to demarcate the poromboke land. Hence, the defendants alone are enjoying the property at the western side of the poromboke land. A criminal case has also been preferred by the defendants before the Thiruchengode Police Station. It is also made before the First Appellate Court that when the plaintiff claims right over 75 cents in Survey No.237/3, he has not specifically stated the boundary by which http://www.judis.nic.in 7 he is enjoying the property to the extent of 75 cents.
8.The First Appellate Court has also observed that the plaintiff has not filed any document to show that the said property is in his possession and enjoyment for more than 100 years. Even for enjoying the poromboke land, he has not paid any receipts with regard to the charges for enjoying the said poromboke land. The defendants have also not filed any document for their enjoyment with regard to the entire extent of the poromboke land. The Court Commissioner has inspected the suit property and he has filed a report and a plan. In the said report, the Commissioner has marked the disputed survey number one as Karaai Poromboke and the said land lies in between the plaintiff and the defendant's land and there was also construction on the northern side of the said survey number and there are some constructions which the plaintiff claims that it belongs to him and there was also two bores and that was also claimed by the plaintiff himself. There was also a partition in the 'culcut' that was found in the said survey number. Objection to the Commissioner's report was filed by the defendants. In the said objection, he has stated that there is some identification with regard to the removal of culcut in one area. But, that was not noted by the Commissioner. The trial Court has also verified that the said point was raised by the defendants. But the http://www.judis.nic.in 8 Commissioner has not mentioned the same. Hence, the trial Court has observed that there is a culcut from the point of 'D' to 'A' and the defendant must be in possession of the said suit property at the western side of the culcut and the plaintiff is in enjoyment of the said survey number at the eastern side of the culcut. It is also the assumption made by the trial Court that the said culcut is dividing the property in enjoyment of both the defendants and the plaintiff. It is also observed by the trial Court from the Commissioner's report that two bores are at the eastern side of the culcut and two bores are at the western side of the culcut and hence, the property lies at the western side of the culcut is in possession and enjoyment of the defendants and the extent lying on the eastern side is under the enjoyment of the plaintiff. By way of analysing the fact as above and also the arguments made before the trial Court by the defendants that the plaintiff has not made specific measurement with necessary proof he cannot claim the relief. But the trial Court by observing that in the description of property, the plaintiff has stated that his enjoyment in the said property is lies at the western side of the defendant's property. Hence, by the said description as stated by the plaintiff that his property lies at the eastern side of the defendants' property and as per the Commissioner's report, the enjoyment of the property of the plaintiff lies at the eastern side of the culcut. The contention that the http://www.judis.nic.in 9 measurement of the said property is to be ascertained, need not be give much importance. The further evidence placed before the trial Court is that the said poromboke land is being enjoyed by some more persons apart from the plaintiff and the defendants. Since in the cross examination, PW2 has deposed that “ jhth g[wk;nghf;F epyj;ij thjp kw;Wk; 1k; gpujpthjp my;yhj ntW egh;fSk; mDgtpj;J tUfpwhh;fs; vd;W brhd;dhy; rhpjhd;/ mt;thW mDgtpf;Fk; ghfj;ij fuhh; ,y;yhky; mDgtpj;J tUfpwhh;fs; vd;W brhd;dy; mth;fs; Vw;fdnt vg;go mDgtpf;fpwhh;fnsh mg;go mDgtpf;fpwhh;fs; vd;W rhl;rpak; mspj;Js;shh;. Hence, the enjoyment of the said property in Survey No.237/3 exclusively by the defendants is contradicted. PW2, the Village Administrative Officer of the said village has deposed that there is no document regarding adangal or any other charges collected from the defendants for the enjoyment of the said suit property, i.e., the poromboke land. Hence, the trial Court based on the detailed evidence and documents had given a finding as per Ex.P3 Commissioner's report and in the report, it is stated that eastern side is being enjoyed by the plaintiff and the western side is enjoyed by the defendants i.e. at the western side of the culcut by the defendants and eastern side of the culcut by the plaintiff and also by verifying the documents filed on the side of the 1st defendant regarding the payment of charges to the property lies on the western side of the said survey http://www.judis.nic.in 10 number. Even without measuring the said survey number, the evidence of PW3 was taken into consideration by the trial Court based on the construction of culcut, the trial Court decreed the suit. The First Appellate Court has also stated that though the plaintiff is claiming right over 75 cents, out of the said survey number he has not proved the same. But, however, he is entitled for the possession and enjoyment of the property to the extent that lies at the eastern side of the culcut.
10. Hence, aggrieved against the said finding of the trial Court, the defendants preferred the appeal and when the plaintiff claims 75 cents the suit filed by the plaintiff cannot be decreed without ascertaining the exact extent in his possession and enjoyment. The first appellate Court has analysed the documents and evidence and has given a finding that when the suit is filed by the plaintiff over 75 cents and he is in enjoyment of the same, but there is no measurement or proof was placed by the plaintiff for his actual possession and enjoyment in the said suit property. Further, the finding of the First Appellate Court is that the purpose of appointment of Commissioner was not served by fixing the measurement at 75 cents in the said survey number with the help of a qualified surveyor to prove the possession of the plaintiff to the extent of 75 cents. It is also the http://www.judis.nic.in 11 finding of the trial Court that the plaintiff who claims right to the extent of 75 cents has not taken steps to measure the property and hence, the finding of the trial Court without ascertaining the enjoyment of the property by the plaintiff with the extent of 75 cents, no decree can be passed. Hence, the First Appellate Court is of the firm view that unless the suit property is measured, the suit cannot be decided. The defendants who are the appellants in the First Appellate Court had preferred the appeal aggrieved against the finding of the trial Court. On perusal of the judgement made by the First Appellate Court, it is observed that the appointment of Commissioner did not serve any purpose to ascertain the extent of the property under the enjoyment of the plaintiff. Hence, the First Appellate Court remanded the case to the trial Court to find out the fact of the exact extent of the land in possession and enjoyment of the plaintiff.
11. Before this Forum, aggrieved against the said remand, the defendants/appellants have preferred this Civil Miscellaneous Appeal by stating that when the trial Court has given a finding, aggrieved against the finding with regard to the extent of the property enjoyed by the plaintiff was not ascertained, but a decree has been passed, against which when an appeal is preferred, the First Appellate Court itself has to decide the same instead of remanding back the matter to http://www.judis.nic.in 12 the trial Court to arrive a fresh finding.
12. Further, it is argued by the learned counsel for the appellants that instead of remanding the matter, the First Appellate Court itself can analyse the evidence and documents placed before the same and give a finding. But, if the matter is remanded back to the trial Court, it will definitely cause delay in granting relief to the parties and it will also cause much inconvenience to the parties. Based on the above said reason, the appellants' counsel has argued that the First Appellate Court itself has to decide the issue and it cannot remand the same for the said purpose.
13. In view of the findings given by the trial Court in the absence of the exact measurement of the claim made by the plaintiff with regard to 75 cents, the particular issue has not been clearly clarified by the trial Court. Based on the constructions made in the said suit property and also from the evidence of the plaintiff and the defendants, the trial Court has fixed the possession and enjoyment of the suit property to the extent of his construction made at the culcut. In view of the evidence placed before the trial Court, the said Survey No.237/3 is being enjoyed by other people, apart from the plaintiff and the defendants and there is also a dispute with regard to the http://www.judis.nic.in 13 enjoyment of particular extent by both the plaintiff and the defendants. It is very much necessary to measure the said survey number to limit the enjoyment of the plaintiff to the extent of 75 cents is proper. But, for the purpose of ascertaining the enjoyment of the said property to the extent as prayed by the plaintiff and his enjoyment and the construction of the property lies within 75 cents as per the construction of the culcut has also to be proved.
14. The only issue to be decided is as to whether the plaintiff is in enjoyment of 75 cents of the said survey number and his construction is within 75 cents. Hence, it is for the First Appellate Court to appoint a Commissioner for the purpose of measuring the said survey number and fixing the extent as claimed by the plaintiff. Since it is a poromboke land, the Revenue authority can also be made as a party to confirm the enjoyment of the property by the parties and by proving the same with regard to the revenue charges.
15. In order to avoid further complications, while considering the order of the trial Court that the plaintiff is entitled for the enjoyment of the property at the western side of the culcut, I am of the view that without the measurement of the said property and ascertaining the exact possession and enjoyment of the property in http://www.judis.nic.in 14 the presence of revenue officials and the qualified surveyor, either party may claim different extent. To avoid multiplicity of the proceedings when the evidence of parties before the trial Court that the suit property is being enjoyed by other persons also apart from the plaintiff and the defendants, the entire extent in Survey No.237/7 is to be measured. The First Appellate Court is directed to decide the issue by itself. The suit is of the year 2007 and the first appeal is of the year 2012.
16. Considering the pendency of the suit and the appeal and the CMA is of the year 2013, this Court is inclined to remand the matter to First Appellate Court to decide the issue by itself. In view of the representation made by both sides, a Commissioner can be appointed by the First Appellate Court itself at the expenses of the plaintiff to measure the property along with a qualified surveyor and the revenue officials. Hence, in view of the said finding, the Civil Miscellaneous Appeal is remanded back to the First Appellate Court to dispose the case within a period of six months and report the same. http://www.judis.nic.in 15
17. With these observations, this Civil Miscellaneous Appeal is disposed of. Consequently, the connected miscellaneous petition is closed.
24.10.2018
Index : Yes/No
Internet : Yes/No
uma
1. The Sub Judge, Thiruchengode
2. The Additional District Munsif, Thiruchengode http://www.judis.nic.in 16 S.RAMATHILAGAM,J.
uma Pre delivery order in C.M.A.No.2467 of 2013 and M.P.No.1 of 2013 24.10.2018 http://www.judis.nic.in 17 Pre delivery order in C.M.A.No.2467 of 2013 To:
THE HONOURABLE MRS.JUSTICE S.RAMATHILAGAM http://www.judis.nic.in