Madras High Court
A.R.Mohamed Hanifa vs Abdul Rahim ... 1St on 21 September, 2012
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.09.2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.542 of 2001 A.R.Mohamed Hanifa ... Appellant/2nd Respondent/2nd Defendant Vs. 1.Abdul Rahim ... 1st Respondent/Appellant/Plaintiff 2.Parasakthi Ammal ... 2nd Respondent/1st Respondent/1st Defendant Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 08.01.2001 in A.S.No.51 of 1998 on the file of the Learned Additional Subordinate Judge, Tiruvannamalai, in reversing the Judgment and Decree dated 09.02.1998 in O.S.No.623 of 1985 on the file of the Learned District Munsif, Tiruvannamalai. For Appellant : Mr.K.Srinivasan Senior Counsel For M/s.A.Venkatesan For 1st Respondents : Mr.A.Venkatachalapathy Senior Counsel For M/s.Sriram For 2nd Respondent : No appearance J U D G M E N T
The Appellant/2nd Defendant has focussed the present Second Appeal before this Court as against the Judgment and Decree dated 08.01.2001 in A.S.No.51 of 1998 passed by the Learned Additional Subordinate Judge, Tiruvannamalai in reversing the Judgment and Decree of the Learned District Munsif, Tiruvannamalai dated 09.02.1998 in O.S.No.623 of 1985 and allowing the Appeal with costs.
2.Earlier, before the trial Court in the main suit filed by the 1st Respondent/Plaintiff, during trial, 1 to 10 issues have been framed. On the side of the 1st Respondent/Plaintiff, witnesses P.W.1 and P.W.2 have been examined and Exs.A.1 to A.9 have been marked. On the side of the Defendants, witnesses D.W.1 to D.W.5 have been examined and Exs.B.1 to B.19 have been marked. Also, on behalf of the Court, Ex.C.1-Commissioner's Report and Ex.C.2-Plan have been marked.
3.On a careful analysis of the entire gamut of then oral and documentary evidence available on record, the trial Court has come to a consequent conclusion that there is no proof to show that Syed Rahim has enjoyed the suit property in Town Survey No.1625. Further, it observed that it is not evident from the witnesses produced that Syed Shami has been allotted a suit site in oral partition and moreover, after purchasing the suit site, it is not to be inferred from the evidence of witnesses that the suit property has been handed over to him. Added further, prior to the Plaintiff purchasing the suit property in that place one Hussain Sheik has resided in the house constructed before 15 years and later he sold the same to the 1st Defendant (2nd Respondent in this Second Appeal) as seen from Exs.C.1-Report and C.2-Plan and also handed over possession and after taking into consideration of Ex.B.8-Receipts and also on the basis of Exs.A.1 to A.12 documents, the Plaintiff in the present suit is not entitled to any of the reliefs as prayed for by him and ultimately, dismissed the suit with costs of the Defendants.
4.The First Appellate Court viz., the Learned Additional Subordinate Judge, Tiruvannamalai, while passing the Judgment in A.S.No.51 of 1998 on 08.01.2001, has, among other things, observed that 'in any event, the trial Court ought to have found out that the suit property mentioned by the Appellant/Plaintiff and the Defendants are different ones by scrutinising the documents and further that the trial Court has assigned some small reasons without bestowing to the documents and resultantly, dismissed the suit filed by the Appellant/ Plaintiff that he has not established his right over the suit property and consequently, allowed the Appeal by setting aside the Judgment and Decree of the trial Court and granted the decree as prayed for by the Plaintiff. Further, the Appellant/Plaintiff has been granted the liberty to initiate separate proceedings for mense profits as per Order 20 Rule 12 of the Civil Procedure Code.
5.The Plaint Facts (filed by the 1st Respondent/Plaintiff):
(i)The suit property originally belonged to one Syed Rahim son of Syed Hussain of Kalkuthirai Tharka Street now known as Kayedhae Millath Street, Tiruvannamalai. His forefathers and himself were in open continuous and uninterrupted possession of the entire 13 acres 68 cents in T.S.No.1625 in Tiruvannamalai Town for more than 300 years. In O.S.No.387 of 1965 decree, their title and possession were recognised [suit filed for declaration and injunction between Syed Rahim, the then plaintiff and Abdul Sheriff and others]. In A.S.No.154 of 1971, the trial Court Judgment and Decree in O.S.No.387 of 1965 dated 28.09.1967 was confirmed by the Learned Subordinate Judge, Tiruvannamalai. The suit register copy of O.S.No.387/65 with a certified copy of the Plaint plan and decree were filed.
(ii)The said Syed Rahim alone was the owner and possessor of entire 13 acres and 68 cents in T.S.No.1625 till his death about two years ago. Four months after the demise of Syed Rahim, his heirs at law orally divided the entire 13 acres 68 cents among themselves. The suit property fell to the share of Syed Shami, one of the sons of Syed Rahim. Syed Rahim was in open continuous and uninterrupted possession of the suit property, since the date of partition.
(iii)The 1st Respondent/Plaintiff purchased the suit property for Rs.1750/- through a registered Sale Deed dated 04.04.1985 from Syed Shami. One of these sons of Syed Rahim viz., Sadullah attested the said Sale Deed and the same is filed. Originally, there was a thatched house therein and a few months ago, in due course it got withered. From that time onwards, it was a vacant site. The 1st Respondent/Plaintiff spent about Rs.250/- after his purchase and constructed a small thatched house. Ever since his purchase and construction of a house, the 1st Respondent/Plaintiff with his family was residing there. The 2nd Respondent/1st Defendant had no right of title over the suit property nor does she possess thereof. In fact, she never lived therein nor let others live therein. She purchased some other property in some other place and in some other street. A registration copy of her Sale Deed had been filed. She wanted to grab at the property. Therefore, the suit was laid, as an indigent person, mainly for the relief of declaring the title of the suit property in favour of the 1st Respondent/Plaintiff and for directing the Defendants to deliver vacant possession of the suit property to him etc.
6.The Written Statement Pleas of the 2nd Respondent/1st Defendant:
(i)The averments of the 1st Respondent/Plaintiff that the suit property belonged to Syed Rahim Sahib Son of Syed Hussain Sahib and further that it belonged to him ancestrally, it was in their enjoyment for well over 300 years and as per decree in O.S.No.387/ 65 passed by the Learned District Munsif, Tiruvannamalai, his right was accepted and further, in A.S.No.154 of 1971 it was decided in favour of Syed Rahim were all wrong and those details were not concerned with the suit property. Likewise, it was wrong to state that the suit properties and connected 13 acres and 68 cents of property in Town Survey No.1925 belonged to Syed Rahim absolutely and further it was in his enjoyment. It was false and contrary to truth that Syed Rahim had expired and that his heirs had divided the properties orally and in the said partition, this property was allotted to Syed Shami @ late Syed Rahim's one of the sons and as such, he enjoyed the property.
(ii)The averment that the site was purchased for a sale consideration of Rs.1750/- on 04.04.1985 from Syed Shami and that the same was in enjoyment and after purchasing the said vacant site in the suit property at an expense of Rs.250/- a small hut house was constructed in which the 1st Respondent/Plaintiff was residing, were all contrary to facts.
(iii)The suit filed by the 1st Respondent/Plaintiff praying for the relief of declaration of his right in the suit property and for permanent injunction was an illegal one.
(iv)There was no cause of action for filing of the suit. It was false to state that in the vacant site during the month of April 1985, the 1st Respondent/Plaintiff constructed a hut house. The property evaluation detail mentioned in paragraph 8 of the plaint was not true. To award payment of necessary Court fee, the valuation for the suit was wrongly valued. The 1st Respondent/Plaintiff was not entitled to claim the reliefs prayed for by him in the plaint. He was not entitled to claim the relief of declaration of his right as well as the relief of permanent injunction in respect of the suit property against the 1st Respondent/ 2nd Defendant.
(v)The true fact was that originally the place of the suit property in Survey No.1625 and the connected Survey No.1760 were all vacant sites when Tiruvannamalai City remain undeveloped. Further, it remained as places of ups and downs, playgrounds wherein thorny bushes were in abundance like forest. Various persons as per their desire had encroached upon the places and constructed houses.
(vi)Likewise, one Hussain Sheik Sahib son of Ismail Sahib had encroached upon the vacant site of the suit property wherein he constructed a house approximately 60 years ago. The said Hussain Sahib in the said place constructed a house and was residing there by obtaining Electricity Service Connection No.41034. He paid the electricity consumption charges besides paying house taxes and was in enjoyment of the suit property without anybody's disturbance and interruption. He also raised strong walls and laid deep foundation and dug a deep well and was in enjoyment of the property for 60 years.
(vii)The 1st Respondent/Plaintiff or his vendors and predecessors had not claimed any right in the suit property from Hussain Sahib and also not raised any dispute. In the Munsif Court and Sub Court cases, Hussain Sheik Sahib or herself (2nd Respondent) was not added as defendants. Therefore, the Judgments of the aforesaid Courts would not bind these persons. The aforesaid Judments were related to different cases between Rahim Sahib and other Muslim persons. The aforesaid suits were not connected with the present suit in any manner.
(viii)The case relating to District Munsif Court and the case pertaining to Sub Court as mentioned by the 1st Respondent/Plaintiff was not concerned with the suit property. As such, it was false to state that Abdul Rahim, based on the aforesaid suit, had acquired property right and only under that right the 1st Respondent/Plaintiff purchased the property.
(ix)Hussain Sheik Sahib mortgaged the house through registered Mortgage Deed on 04.07.1979 with Basha Sheriff Sahib and also discharged the same. Likewise, Hussain Sheik Sahib had executed a registered settlement Deed dated 22.03.1982 in favour of his wife Fatimabee @ Unnamalai and paid the house tax. Though the said Hussain Sheik Sahib had executed settlement in favour of his wife Fathimabee @ Unnamalai, both of them was in enjoyment and resided in the same house. From the said Hussain Sheik Sahib and his wife Unnamalai, the 2nd Respondent/1st Defendant had purchased the said property for a sale consideration of Rs.17,000/- by means of registered Sale Deed dated 03.01.1983 and handed over the possession on the same and also changed house tax and was residing and in enjoyment of the same. The 1st Respondent/Plaintiff asked the 2nd Respondent/1st Defendant to reside in the house for rent and through next door person Sampooranam he became a tenant on a monthly rent of Rs.25/-. Immediately after creating fake records, he filed a suit before the Tiruvannamalai District Munsif Court against the 1st Respondent/Plaintiff and 2nd Respondent/1st Defendant. The 1st Respondent/Plaintiff who became a tenant in the property belonging to the 2nd Respondent/1st Defendant had planned a scheme to own the property for himself. Immediately, in the Panchayat held, the 1st Respondent/Plaintiff agreed to vacate the house and handed over the same to the 2nd Respondent/1st Defendant and vacated the house on 23.08.1985 for which the 1st Respondent/ Plaintiff issued a receipt in favour of the 2nd Respondent/1st Defendant. The same 1st Respondent/Plaintiff against the 2nd Respondent/1st Defendant filed a suit. When the 1st Respondent/Plaintiff had openly and directly accepted that the 2nd Respondent/1st Defendant was the owner of the property he was estopped to seek a relief that the suit property belonged to him. Therefore, the suit was liable to be dismissed.
(x)The Town Survey No.1760 and Town Survey No.1625 were situated as if they remained joint. To put it shortly, the western side boundary line of Survey No.1760 was proceeding upto the entrance of the suit property of the 2nd Respondent/1st Defendant. Before 60 years ago, in the vacant place were Hussain Sheik Sahib and other persons like him viz., Hindus and Muslims constructed their houses and without knowing the Survey Number and which Survey Number they were enjoying, they were created Sale Deeds, Mortgage Deeds and Bogiyams, by putting the survey numbers incorrectly. The general public, who were residing in Town Survey No.1760 and 1625, presently also committing the same mistake. A confused state of affairs was prevailing in the said area. Similarly, the same street was called as Mariamman Koil Street, Kalkuthirai Thakka, Kayidae Millath Street and different names were given. It was the normal practice in that area to assign one name for half street and to assign another name to the remaining street.
(xi)In this circumstance, the suit property wherein Hussain Sheik Sahib constructed a house was in fact situated in Town Survey No.1625. Without knowing the fact that in the settlement document in favour of his wife and in mortgage deeds, the said Hussain Sheik Sahib had executed a settlement and mortgage deed in Survey No.1760. Similarly, at the time of sale of the suit property, the survey number was wrongly mentioned as '1760'. Further, the western side boundary of Survey No.1760 was proceeding upto the entrance of the suit property purchased by the 2nd Respondent/1st Defendant alongside boundary line. Since the individuals had constructed houses as per their likings by encroaching upon the places, the fixed survey stones were all buried in the houses. Therefore, by ignorance, the survey numbers were wrongly written. Only in that manner, the said Hussain Sheik Sahib had encroached upon and constructed house and paid the house tax and electricity tax and was in enjoyment of the suit property which in fact was in Survey No.1625. Inasmuch as for the past 60 years Hussain Sheik Sahib was in enjoyment continuously, without any disturbance and interruption for long period of time and he became the owner of the property since he was in enjoyment of the property against those persons, she sold to the 1st Respondent/Plaintiff and his predecessors in title.
(xii)Therefore, the suit property, by means of his enjoyment right, belonged to Hussain Sheik Sahib and his wife Unnamalai Ammal for a valuable sale consideration and was in their enjoyment and this property belonged to her absolutely, in which the 1st Respondent/ Plaintiff could not claim any right. The decree obtained by late Rahim Sahib was only a paper Decree. Even before that, for 60 years, various persons among the general public had encroached upon these places and had constructed houses according to their convenience and was in enjoyment of the same by payment of house tax etc. The late Rahim had not taken any further proceedings after obtaining the decree. Even after obtaining a decree and although 22 years had elapsed the properties mentioned in the decree were not taken delivery of either by Rahim or his heirs and also they had not enjoyed the same in those places. The general public were enjoying the properties by constructing houses presently also. Without knowing the survey number properly at the time of sale to the 2nd Respondent/1st Defendant, the said Sheik Sahib and his wife had mentioned the survey number as '1670'. But they had furnished the four boundaries, length and breadth of the details properly and sold it to the 2nd Respondent/1st Defendant. This 2nd Respondent/1st Defendant had purchased the vacant site measuring an extent of 1,400 square feet. East-west 50 feet, north-south 28 feet, ad-measuring in all 1,400 square feet together with a hut house constructed 60 years ago, together with vacant site of the back portion of the house with garden and a well with a pulley, bearing old Door No.74/82 New Door No.22. In this area, this street was called as 'Mariamman Koil Street and Kayidae Millath Street and Kalkuthirai Takka Street' and other names were also given. In the sale deed, it was mentioned as Mariamman Koil Street which was agreed one. The survey number was wrongly mentioned as 1760, instead of S.No.1625 within the stated boundaries. The 2nd Respondent/1st Defendant had taken the delivery of the house and was in enjoyment of the same.
(xiii)At a time when Commissioner inspected the property, the correct Survey number was known to this 2nd Respondent/1st Defendant. Later a rectification deed dated 05.02.1986 was registered and only in that manner, the suit property belonged to the 2nd Respondent/1st Defendant and she was in enjoyment of the same. The house in the vacant site was suppressed and the 1st Respondent/ Plaintiff deliberately stated that he purchased only the vacant site. The suit house was in existence for 60 years and it was purchased by the 2nd Respondent/1st Defendant during the year 1983 for a sum of Rs.17,000/-. He had renovated the mud wall house and raised new rooms by raising walls made of bricks and was in enjoyment of the same by decorating the same. The suit property now was valued at more than Rs.40,000/-. The suit property was wrongly mentioned as value of Rs.2,000/- by the Plaintiff at the time of filing of the suit. Therefore, the valuation made by the 2nd Respondent/1st Defendant was an incorrect one. Over and above, the property suits Rs.15,000/- value and above were to be filed before the appropriate Court.
(xiv)The suit property was inspected by the Commissioner appointed by Court along with Surveyor who had submitted their detailed reports. In that, the house was mentioned as an old one constructed not less than 15, 16 years before and that a mention was made about the features of the walls, features of the rooms etc.
7.The Written Statement averments of the Appellant/2nd Defendant:
(i)During the pendency of suit, the Appellant/2nd Defendant had purchased the suit property from the 2nd Respondent/1st Defendant (Parasakthi Ammal) by means of Sale Deed dated 16.04.1986. Even before that in favour of 2nd Respondent/1st Defendant, a rectification deed was executed by Hussain Sait and Unnamalai. After purchase, a petition was filed for sub dividing the property and accordingly, an order was passed in R.T.R.No.506/94-95 dated 27.10.94 and accordingly, it sub divided. The Appellant/2nd Defendant, after purchase, had transferred patta in his name and was in enjoyment of the property continuously and as such, the suit property belonged to him absolutely.
(ii)Syed Rahim (the Decree Holder-in O.S.No.387/65), had no heirs. Syed Shami was not the heir of Syed Rahim. Before the purchase made on 04.04.1985, in that place, there was a house with electricity connection. But, in the Plaint, it was mentioned as vacant site by the 1st Respondent/Plaintiff.
8.At the time of admission of the Second Appeal, this Court had formulated the following Substantial Questions of Law Nos.1 to 3 for determination:
"1.Whether the Lower Appellate Court is right in its conclusion that the property claimed by the Plaintiff and the property claimed by the Defendants are two different properties and not one and the same property?
2.Whether the Lower Appellate Court is right in coming to such a conclusion on the basis of inadmissible documents and evidence, namely, judgments not inter parties and boundary recitals in documents which are not between inter parties?
3.Whether the Lower Court has not committed serious error of law and procedure in not adverting to the recitals in Ex.B.1 to B.12 and also the oral evidence on the side of the Defendants?"
The Contentions, Discussions and Findings on Substantial Question of Law Nos.1 to 3:
9.The Learned Senior Counsel for the Appellant/2nd Defendant urges before this Court that the Learned Additional Subordinate Judge, Tiruvannamalai failed to appreciate that no document of title was produced either in the name of 1st Respondent/Plaintiff or his predecessor to prove his title. Further, it is the contention of the Learned Senior Counsel for the Appellant/2nd Defendant that the earlier Court proceedings between the predecessor in title of the 1st Respondent/Plaintiff and some third parties was not conclusive to establish title to a property.
10.The Learned Senior Counsel for the Appellant/2nd Defendant submits that the First Appellate Authority - Additional Subordinate Judge, Tiruvannamalai should have seen that sufficient and convincing explanation was offered in the written statement in regard to the discrepancies in the name of streets and survey number and therefore, the subsequent rectification could not be ignored based on the reason that the same was subsequent to suit.
11.Continuing further, the Learned Senior Counsel for the Appellant/2nd Defendant projects a plea that the First Appellate Authority wrongly placed reliance on Ex.A.7-certified copy of Sale Deed dated 04.04.85 executed by Syed Shami to and in favour of Ibrahim and Ex.A.8-certified copy of Sale Deed dated 04.02.73 executed by Syed Jaffar Sahib to and in favour of Anwarudin Sahib, which were not between inter parties and came to an erroneous conclusion that the suit property being a portion of a larger extent of property originally belonged to Syed Rahim as contended by the 1st Respondent/ Plaintiff.
12.Yet another submission made by the Learned Senior Counsel for the Appellant/2nd Defendant is that the First Appellate Authority Learned Additional Subordinate Judge ought to have seen that the boundary recitals in third party documents were totally inadmissible in evidence.
13.The Learned Senior Counsel for the Appellant/2nd Defendant contends that the First Appellate Authority committed an error in brushing aside and not referring to the evidence of D.W.4 and D.W.5 that the suit property and neighbouring properties were mentioned in different names and survey numbers.
14.Expatiating his submissions, the Learned Senior Counsel for the Appellant/2nd Defendant submits that the First Appellate Authority had ignored a vital fact that the 1st Respondent/Plaintiff was a tenant under the 2nd Respondent/1st Defendant of the suit property and that he vacated the property and subsequently came forward with a false claim to the property itself.
15.The prime plea taken on behalf of the Appellant/2nd Defendant is that the First Appellate Authority in one portion of the Judgment in Appeal Suit mentioned that the property purchased by the 1st Respondent/Plaintiff was different from the property purchased by the 2nd Respondent/1st Defendant and in another portion of the Judgment, he came to the conclusion that the 1st Respondent/Plaintiff was forcibly evicted after obtaining Ex.B.8-Receipt dated 01.08.84 meaning thereby that the property claimed by the 1st Respondent/ Plaintiff and the 2nd Respondent/1st Defendant were one and the same.
16.Added further, it is contented that the 2nd Respondent/1st Defendant was forced to sell her property for her urgent necessities pending suit and there was no legal bar for such a sale, except that the title of the Appellant/2nd Defendant would be subject to the result of the suit filed by the 1st Respondent/Plaintiff.
17.Lastly, it is the submission of the Learned Senior Counsel for the Appellant/2nd Defendant that the First Appellate Authority had not considered Exs.B.1 to B.12 documents filed by the Defendants in a proper perspective and further had not adverted to the oral evidence tendered before the trial Court and thereby committed a substantial error of procedure to be followed by a Court of Law.
18.In response, the Learned Senior Counsel for the 1st Respondent/Plaintiff submits that the First Appellate Authority had rightly concluded that the trial Court had not bestowed its serious attention to the documents filed in order to find out whether the suit property mentioned by the 1st Respondent/Plaintiff and the property mentioned by the Defendants were different ones and therefore, the dismissal of suit filed by the 1st Respondent/Plaintiff by the trial Court was based on a wrong approach by ascribing superficial reasons and consequently, allowed the Appeal filed by the 1st Respondent/Plaintiff by setting aside the Judgment and Decree dated 09.02.1998 in O.S.No.623 of 1985 passed by the trial Court which at this stage of the Second Appeal may not be interfered by this Court nearly after lapse of 14 years.
19.In support of the proposition that when identity of the property is in doubt, then, it is the duty of a Court of Law to work to identify the same when there is a mis-description by looking into the evidence supplied by boundaries, extent, survey numbers etc., the Learned Senior Counsel for the Appellant/2nd Defendant cites the decision of this Court in Roohnisha Beevi and 15 others V. A.M.M.Mahudu Mohamed and 29 others, 1998 1 LW 244 at page 250 wherein at paragraph 17, it is observed and held as follows:
"17.Ex.B-13 is a sale deed in respect of Kallappoo Magan thottam taken in the name of the third defendant's father. The Commissioner has also noted a row of trees, which is like a boundary on NSRQ line and all these trees are more than 40 years old. Kallappoo Magan Thottam is described under Ex.B.13 as having an area of more than 40 years old. Kallappoo Magan Thottam is described under Ex.B-13 as having an area of more than 5 acres. In fact, the area covers the yellow marked portion (3 acres and 46 cents) and OPQRSN plot. Third defendant also has no case that under Ex.B.13, any portion of Pattanathu Maraikkar Thottam is included therein, even though he has a case that the properties are covered in S.No.256 also. So, the identification made by the Commissioner that the plaint property is ABTGHPOA plot is to be accepted. Courts below, for dismissing the suit, have said that the plaintiffs have title only for 3 acres 15 cents, and they cannot claim anything more. That is not the way to identify a property when the same is also covered by boundaries. In 1955 K.L.T. 647 (Devan Krishnan Kartha V. Kochu Mohamed Pariathu), a question came as to how to identify a property when there is a misdescription. A learned Judge of the Kerala High Court said thus:-
".... The evidence supplied by boundaries, extent, survey numbers and lekhoms* forms the determining factors when the identity of the property is put in issue. If all these factors harmonise there is little difficulty to identify the property in dispute. But when some of them are in conflict with the rest as when the extent and survey numbers do not agree with the boundaries usually the boundaries predominate, and the rest is regarded as erroneous or inaccurate descriptions...".
20.He also relies on the Division Bench Judgment of this Court in V.A.Amiappa Nainar (died) and others V. V.Annamalai Chettiar (died) and others, 1972 (1) MLJ 317 (DB), wherein, in paragraph 16, it is held as under:
"Recitals as to boundaries in documents not inter parties are inadmissible in evidence under sections II, 13(a), 32(3) and 32(7) of the Act. The only method by which recitals in a document not inter parties could be admitted in evidence is by examination of the executant of the document in which such recitals as to boundaries are found."
21.He also draws the attention of this Court to the decision in Sadhurajan V. Sriramulu Naidu and others, AIR 1999 Madras 377 at page 382 wherein in paragraph 28, it is held as follows:
"28.In the decision reported in Amiappa Nainar V. Annamalai Chettiar, 1972 (1) MLJ 317 : (AIR 1972 Mad 154) it was laid down as follows:-
"Recitals as to boundaries in documents not inter partes are inadmissible in evidence under Sections 11, 13(a), 32(3) and 32(7) of the Act. The only method by which recitals in a document not inter partes could be admitted in evidence is by examination of the executant of the document in which such recitals as to boundaries are found."
In the present case the executants of Exs.A9 to A11 were not examined. Hence I hold that the recitals as to the boundaries in the documents marked as Exs.A9 to A11 not inter parties to the present suit are not admissible in evidence without examining the executants of the sale deeds marked as Exs.A9 to A11, and I answer this point also in favour of the appellant/1st defendant and as against the respondent 1 to 7/plaintiffs."
22.To appreciate the merits of the controversies between the parties in threadbare, this Court makes a pertinent reference to the oral evidence of P.W.1, P.W.2 and D.W.1 to D.W.5.
The Deposition of Plaintiff's side witnesses:
23.P.W.1 (1st Respondent/Plaintiff), in his evidence, had deposed that the suit house was situated in Tiruvannamalai at Kayidae Millath Street T.S.No.1625, 4th Ward at 25th Block bearing Old Door No.22 (New Door No.27), and the total extent in T.S.No.1625 was 13 acres and odd and initially it belonged to Syed Rahim of Kalkuthirai Takka Street and the said Rahim had four sons viz., 1.Syed Shafi, 2.Syed Shami, 3.Syed Sadullah, 4.Syed Nazir, who orally divided the said land among themselves and concerning the said land suits were filed and in regard to the land surveyor in this number Syed Rahim had filed a case against Abdulla Sheriff and O.S.No.387/65 and Ex.A.1 is the certified copy of decree dated 28.09.1967 and Ex.A.2 is the suit register copy of the purchased the property from Syed Shami, Son of Syed Rahim on 04.04.1985 as per Ex.A.3-Sale Deed and Ex.A.4 is the Decree copy in O.S.No.827 of 1982 filed by Syed Rahim legal heirs against Abdul Rahuman and others in regard to the properties in T.S.No.1625 and Ex.A.5 is the copy of the Judgment (certified) dated 28.06.1993 and Ex.A.6 is the certified copy of the Judgment in O.S.No.387/1965 and as per the aforesaid Judgments, Syed Rahim and others were held to be the owners of the 13 acres and 68 cents of land and that Syed Shami had executed the Sale Deed-Ex.A.7 dated 04.04.1985 to and in favour of nearby one Rahim in the same survey number and that the Syed Rahim's adopted son Syed Shaffier had sold one portion of Survey No.1625 upper portion to Syed Anwar Sahib on 04.02.1973 by means of Ex.A.8-Sale Deed and by the said sale deed in the vacant site, he purchased an extent of north south 28 feet and east-west 50 feet in which there was a dilapidated house in which, no one is resided and after making improvements and putting up the floor he resided in the house during January 1984 by spending Rs.2,500/- and his son got married in September 1984.
24.P.W.1, in his further evidence had stated that the 2nd Respondent/1st Defendant on 03.08.1985 lodged a police complaint against him for evicting him from the house and he obtained an stay in the present suit and after serving the stay order in the morning when they went for out station for attending a function another lock was affixed his house on 21.08.85 and after obtaining information, when he reached his house and at that time in the house, the 2nd Respondent/Plaintiff (Parasakthi) and some other persons were sat inside the house and informed him that he should not enter into the house and next day he gave a police complaint and that police had not enquired into the matter properly and because of the compulsion of the 2nd Respondent/1st Defendant and also of police, in order to protect his properties, he had no alternative but to admit that he would vacate the house and hand over the same. He executed a receipt as if he was a tenant because they informed him to do like that and only because of their coercion he executed the same and that he had not resided in the house based on rental agreement and it was wrong to state that there was a Panchayat in which he had agreed to vacate.
25.P.W.1 proceeds to add in his evidence that prior to his purchase the said place belong to Syed Rahim Sahib and Hussain Sheik Sahib had no right and that his wife Unnamalai Ammal had no right and Survey No.1760 was situated on west-east side, which had no connection with the suit property and on the eastern side of his property there was a road and on the southern side the house of Dhafan Sahib was situated and that the suit property belong to him absolutely and during the pendency of the suit, the 2nd Respondent/1st Defendant had purchased the property from the 1st Respondent/ Plaintiff and therefore he added him as a party and therefore pray for delivery of possession in respect of the suit property to him.
26.P.W.1 (in his cross examination) had categorically stated that he had not filed the receipt for vacating from the land, but the same was in possession and in the said receipt, Sampoornam Ammal and Srinivasan had affixed their signatures and he had affixed his signature by affixing a revenue stamp in the receipt and at the time of vacating from the property he had taken his belongings and he was forced to vacate from the suit land for which he had not issued any notice through an Advocate and from January 1984 till August 1985 he resided in the property and he was forced by Parasakthiammal (2nd Respondent/1st Defendant) to vacate from the property and when the land remained vacant at that time itself he had occupied the same for his residence after obtaining permission from Syed Sadullah and he had not paid any rent to them and he had not written receipt that was shown to him and in the suit O.S.No.387/65 and O.S.No.827/82 either himself or the Defendants were not party and the suit filed by him related to an extent of east-west 58 feet north-south 28 feet etc. and in the suit survey number, 200 persons had approximately resided and he had not known the detail as to how those persons came and resided or from home they purchased and till the time of his eviction from the suit property, there was no electricity connection or well and presently the house in the suit property was built by him and that he had purchased the suit property from one Syed Shami who got the property from his ancestor as gift.
27.The evidence of P.W.1 is to the effect that the suit property is situated within the city of Tiruvannamalai and to show whether the house was situated within the limits of Municipality or to identify the concerned owner of vacant site there was a field register extract and he had not seen the name of the owner of suit property and Ex.A.9 is the certified copy of Municipality Field Register Extract and Ex.A.10 is the petition dated 24.03.1987 presented by him before the Municipal Commissioner for name transfer in his name and Ex.A.11 is the reply of the Municipal Commissioner mentioning that in view of the pendency of the case, no sub division could be effected and Ex.A.12 is the returned notice (unserved) sent to Town Surveyor citing the reason that Surveyor was not in that office. Furthermore, it is the evidence that he had not known to Sampoornam Ammal and it was not correct to state that he had taken Sampoornam Ammal along with him to Bangalore and kept her at Bangalore and he was only preventing her from to attend the Court.
28.P.W.2 in his evidence had stated that suit property in T.S.No.1625 measures an extent of 13 acres and 68 cents and that the suit property and the total extent therein belong to his grandfather Syed Hussain Sahib and after him, his father enjoyed the same and during his father's period of enjoyment in Town Survey No.1625 some persons had encroached and constructed houses and therefore, his father filed O.S.No.387/65 and in the said suit, a judgment was delivered to the effect that in Town Survey No.1625, 13 acres and 68 cents was held to be in enjoyment of his father and further, the tanks, ponds and mosques, vacant sites were held to be in his father's enjoyment and his father was held to be the owner and his father had four sons and that he was the lost son of his father and his father expired on 12.01.1984 and therefore, orally he and his father separately partitioned the property in Town Survey No.1625 as house sites and the suit property was allotted under the partition to his brother Syed Shamirulla and the plot situated on the northern side of the suit property was allotted to his brother Samirulla and persons work in their land had put up huts and resided therein and the workers after vacating the houses had left the place and that the hut house was in dilapidated condition and the suit property was sold by his brother Syed Shami to the 1st Respondent/Plaintiff.
29.Also, P.W.2 had further deposed that prior to the purchase, the 1st Respondent/Plaintiff was residing in the said place by putting a thatched hut and in Ex.A.3-Sale Deed, he had affixed his signature as a witness and he does not remember about the land situated on the north of suit property which was sold by his brother to one Ibrahim Sahib and also when it was sold, in Ex.A.7-Sale Deed, he had affixed his signature as a witness and in the property sold by his brother to the 1st Respondent/Plaintiff at any point of time no one person by name Parasakthiammal resided and further, in the said place Unnamalai also had not resided at any point of time and even after purchase of house in the suit property by the 1st Respondent/ Plaintiff, the Plaintiff continue to be in enjoyment of the same and that at the instance of Parasakthiammal (2nd Respondent/ 1st Defendant), the 1st Respondent/Plaintiff was forced to be evicted and further, the Plaintiff had no other alternative but had vacated from the said place and he does not no whether on 23.08.1985 the 1st Respondent/ Plaintiff had executed a receipt to and in favour of Parasakthiammal for vacating from the house.
30.P.W.2 adds in his evidence that during the period of stay, the 1st Respondent/Plaintiff was residing in the suit property and thereafter, he was forcibly evicted and at that time, he was the Municipal Councillor for Ward No.27. Moreover, it is the evidence of P.W.2 that they had not partitioned the suit property in entirety. But in the suit property, they partitioned among themselves each one plot and for Syed Shami two plots had been allotted and that the suit property viz., vacant site was at a length of 50' and breadth of 20' and another plot was given to ... Ibrahim, but he does not remember the extent and that they had not sub divided the plots allotted to them and only persons who purchased the properties had got sub divided.
31.P.W.2 proceeds in his evidence that it was not correct to state that suit property initially belonged to Hussain Sait and thereafte, it belonged to Parasakthi Ammal and later, after purchase from her it belong to Mohamed Hanifa (Appellant/ 2nd Defendant) The Deposition of Defendants' side witnesses:
32.The evidence of D.W.1 (1st Defendant) is to the effect that she had sold the suit house to the Appellant/ 2nd Defendant and that she purchased the suit house from Hussain Sait and Unnamalai for Rs.17,000/- and Ex.B.1 is the Sale Deed dated 03.01.1983 and that the said Hussain had mortgaged the suit property as per Ex.B.2-Mortgage Deed dated 04.07.1979 [which were not discharged] and the said Hussain had sold half portion of the property to his wife Unnamalai but later stated that the settlement was executed and that Ex.B.3 was the settlement deed dated 22.03.1983 which was handed over to her and that the total extent of the hut house was 1400 square feet measuring a length of 74 feet [which she does not remember correctly] and for the said house already there was an electricity connection and there was a well and a combined wall and that her husband served as a driver and her husband was acquainted with Hussain and in that place for 50 years Hussain resided along with his family, but she does not know how the said Hussain got the property and house tax demand notice-Ex.B.4 was in the name of Hussain Sait Sahib and house tax was not changed in her name, but she does not remember when it was changed. But the E.B. Connection was changed in her name and Ex.B.5 was the E.B. Card and at that time of purchase, Hussain Sait sold the property by worngly mentioning the survey number and because of the error under found out and correct survey number was put and a rectification deed-Ex.B.6 was written and registered and she hold the property of Mohamed Ali by virtue of Ex.B.7-Sale Deed dated 16.04.1986 and those persons in that area had wrongly mentioned the survey number.
33.D.W.1 had also deposed that Hussain Sait sold the suit property after along with the E.B. Service Connection and before the pendency of the suit, rectification deed was written and that after inspection of the Commissioner, rectification deed was obtained and she does not know that the suit survey number 1625 originally belonged to Rahim Sahib and it was not correct to state that in the suit property, she had no right whatsoever.
34.D.W.2 in her evidence had stated that the suit property house comprised of three rooms, one hall with a compound wall and a well and 30 years before for the said house, there was no E.B. Service connection and they obtained service connection for the house when they occupied the same and that her husband belong to Muslim community and she belong to Hindu and she and her husband resided in that house for nearly 30 years and a prior to her marriage, her husband resided for approximately 20 years and in that house No.22 at Mariamman Koil Street. Now called as Kayidae Millath Street and her husband had given half right in her favour to sell the house in the suit property as per Ex.B.3-Settlement dated 22.03.1982 and later they obtained a loan of Rs.3,000/- by executing a document and after discharging the loan, they got back the document and Ex.B.2 was the Mortgage Deed executed by them and Ex.B.4-House tax demand notice for the year 1974-75 from the Municipality was registered in her husband's name and Ex.B.9 was the House tax receipt to show from 1975 the suit property was in her husband's name and Ex.B.10 (series)-E.B. receipts from the year 1982 paid in her name (10 receipts) and they sold the suit house to Parasakthiammal (2nd Respondent - 1st Defendant) for Rs.15,000/- and handed over the possession and for the past 20 years the suit house had not remained vacant at any point of time and it was not also in a dilapidated condition.
35.Also, it is the evidence of D.W.2 that at the time when sold the property [mentioned as 1760 and later Parasakthiammal (2nd Respondent/ 1st Defendant) informed that survey number was wrongly mentioned and therefore, they executed a rectification deed-Ex.B.6 dated 31.01.1986 by mentioning the survey number 1625 at they only sold the suit house.
36.That apart, it is the evidence of D.W.2 that she knew about the detail of the Plaintiff resided in the suit property as a tenant and Parasakthiammal (2nd Respondent/1st Defendant) informed Sampoornam to let out the house on rent and hand over the key and Sampoornam had let out the suit house for rent to the Plaintiff and later Parasakthi informed the Plaintiff that she would come and occupy the suit house and therefore, requested him to vacate, which was refused by the Plaintiff and trouble arose and in her presence, the key was not handed over to Sampoornam and she does not know personally about Sampoornam letting out the house to the Plaintiff directly.
37.D.W.3 (Appellant/2nd Defendant), in his evidence, had deposed that he had been residing in the suit house bearing Door No.22, measuring an east-west extent of 50 feet and north-south 28 feet and that he purchased the suit property as per Ex.B.7-Sale Deed dated 16.04.1986 from Parasakthi Ammal and at the time of his purchase, Ex.B.6-Rectification Deed dated 31.01.1986 was handed over to him along with parent documents and that the document executed by Hussain Sahib to and in favour of Unnamalai and Bogiyam deed were handed over to him (later mentioned as Mortgage Deed) and that he had changed the house tax receipts in his name in respect of the suit property and the two house tax receipts were purchased by him viz., Ex.B.11 and B.12 and Ex.B.11-House tax receipt was paid through bank and Ex.B.13 was the passbook for payment of municipal tax and Ex.B.14 was the demand notice issued in his name and Ex.B.15 was the house tax issued in his name (after transfer) and Ex.B.16 was the Municipal Field Extract Registration Copy and Ex.B.17 was the encumbrance certificate obtained prior to his purchase and he does not know at the time of his purchase that a suit was pending in respect of the suit property.
38.D.W.3 had also deposed that it was wrong to state that a vacant site was purchased and later the Plaintiff had constructed a house therein and that the suit property belong to him and Ex.C.1 was the Commissioner's Report (after inspecting the suit property) and Ex.C.2 was the Plan.
39.The evidence of D.W.4 was to the effect that he knew the details about the suit property and the land situated on north of the suit property belonged to Allah Basha and the said land was purchased approximately 17 years ago by his mother-in-law in her name and at that time of his purchase in the said house Hussain Sahib was residing along with his wife who sold the said house to Parasakthi and the said Parasakthi had sold the house to the Defendant (later mentioned that he does not know the name of the Defendant) and that presently the Defendant was residing and in the suit property the Plaintiff through Sampoornathammal came as a tenant and resided there for 7 to 8 months on rent and now had filed the case and in the suit property, the Plaintiff had no house.
40.D.W.5, in his evidence, had stated that in the suit property Sait Sahib had constructed a house and along with him his wife Unnamalai resided therein and that Sait Sahib had constructed a house 45 years ago and after his house construction, he constructed his house and that Hussain Sait Sahib had sold the property to Parasakthiammal and Parasakthi resided in that property for 5 years and in the suit property, the house was built 45 years ago and that through Sampoornam he came to know that the suit property was let out to the Plaintiff and that the Plaintiff conducted his son's marriage in the suit property and it was not correct to state that in the suit property, after Plaintiff's purchase, the Plaintiff has constructed the house therein and that house was constructed by Sait Sahib and it was wrong to state that the suit property belong to Shami and it was also not correct to state that the Appellant/Plaintiff had purchased from him.
Contents of 1st Advocate Commissioner's Report:
41.The Advocate Commissioner in his Ex.C.1-Report, had, among other things, stated that finally on 04.01.1986 at about 10.00 a.m. he visited the suit house property at Mariamman Koil Street along with Plaintiff and Defendant Advocates and further, on that day, City Land Surveyor has come to the suit place with necessary instruments and municipal men and that the Mariamman Koil Street mentioned in the suit is situated on north-south direction and the suit house bearing Door No.22 is situated on the western side of the street and on the southern side of the suit house bearing door number next to third house, there is one electric pole and when he enquired about the name of the said street with some residence, who are residing there, they informed him that as shown in Ex.C.2-Plan, the northern street is described as Mariamman Koil Street No.I and the southern side of the electric pole is called as Kayidae Millath Street. However, in the same street, some of the residence informed him that the street situated on the northern side of the electric pole is described as Mariamman Koil Street and therefore, he is not in a position to state conclusively whether the suit house bearing door No.22 is situated at Mariamman Koil Street or Kayidae Millath Street, for the reason that there is confusion prevailing among the persons residing in that area in regard to the name of the street and there is major contradiction is seen.
42.Apart from the above, the Advocate Commissioner had proceeded to state that in his report that when he measured the house bearing Door No.22 situated at so-called Mariamman Koil Street (in order to find out in which survey number, house is situated) along with City Land Surveyor and with the assistance of municipal records, it is found that the entire suit property has been situated in T.S.No.1625, 4th Ward of 25th Block and therefore, he opined that in the so-called Mariamman Koil Street, the house bearing Door No.22 in Survey No.1625 at 4th Ward of 25th Block within the boundaries the same is situated.
43.Furthermore, the Commissioner, in his report, added that the entire eastern side next to that of house Door No.22 described as in Mariamman Koil Street was described as Mariamman Koil Street and that the disputed so-called Kayidae Millath Street including Town Survey No.1760, 28th Block, 4th Ward was situated within the stated boundaries and these facts he had come to know with the help of City Land Surveyor.
44.The Advocate Commissioner, proceeding further, in his report, had observed that in the front entrance of the house bearing Door No.22, the same was situated phasing the street on eastern side and on northern and at the entrance of the house on two sides approximately viz., on northern and southern side, there were pials constructed with cement at approximately a height of 2 = feet and inside the house on east-west direction, a long sloping roof (at the entrance of a building) is seen etc. Further, at the centre of the two rooms on the southern side wall portion, house electricity connection board and meter were fixed and the service connection No.T.041034 was written on the board and that E.B. Charges paid and card was placed there and in the card, it was written as Tiruvannamalai City/West, 22/1, Mariamman Koil Street, Parasakthi Ammal and that for September 1985, the electricity charges have been paid etc.
45.Finally, the Advocate Commissioner in his Report-Ex.C.1 had concluded that the two places mentioned by Plaintiff and Defendants are different ones and in Plan-1, the length and breadth of the construction of the suit house was mentioned clearly by the Land City Surveyor.
46.Before this Court, the 1st Respondent/Plaintiff filed C.M.P.No.701 of 2011 (as Petitioner) praying for the issuance of an order to appoint an Advocate Commissioner to inspect the suit property with the help of a Town Surveyor and Municipal Authority to localise and to identify the property in Survey Nos.1625 and 1760 and the extent in possession of the Appellant/2nd Defendant and the 2nd Respondent/1st Defendant with boundaries as on date of the Plaint and to submit a report.
47.This Court, on 03.08.2011, passed an order, inter alia, observing that there was no dispute in respect of the measurement of these two properties with reference to the survey records and the documents of the respective parties. The earlier Commissioner's Report does not satisfy the above requirements etc., and in the interest of justice, appointed Mr.V.Muthiayan, a member of the Tiruvannamali Bar Association, as Advocate Commissioner and directed him to measure the lands in Survey Nos.1625 and 1760 at Tiruvannamalai Town with the help of Town Surveyor, by correlating the properties with the documents to be produced by the parties [already exhibited documents alone) and localise the said properties including the suit property and then submit a report by measuring the physical features and further to submit a sketch drawn on scales by the Surveyor. Further, the Commissioner, Tiruvannamalai Town was directed to depute a Town Surveyor for the purpose of measurement to accompany the Advocate Commissioner.
The 2nd Advocate Commissioner's Report:
48.The Advocate Commissioner, in his Report, on 27.10.2011, had stated that the suit property was identified by the parties to the suit and further, he measured the Survey Nos.1625 and 1760 and locate the suit property and further that the property was a house situated on western side of the municipal street viz., Kayidae Millath Street measuring east-west 28 feet and north-south 50 feet bearing the new door number of the house was 30 (old No.27) and that the house was roofed with asbestus sheet for about 30 feet and that the back yard of the house was about 20 feet with open space. Further, it was also mentioned that toilet was on the southern side of the space and that the electricity service connection of the house stood in the name of Parasakthi bearing S.C.02-204-003-372 and that on the northern side of the house, one Sampoornam Ammal's vacant site was situated and on the southern side of the house, one Subhan Bai's house was situated and on the eastern side of the house, Kayidae Millath Street was situated and on the western side of the house, one Makka Bi's house was situated. Moreover, the Commissioner also added that it was submitted before him that the suit property was in possession of the Appellant/2nd Defendant, who was living in the said house named as "I.F.F.FIZZA MEENU MANZIL".
49.Continuing further, it was also stated by the Commissioner that as per the measurement of the Town Surveyor, the house was situated in both the Survey Nos.1625 and 1760 and that in the surveyor sketch red mark portion was in Survey No.1760 and the green mark portion was in Survey No.1625.
50.In the Objections to the Commissioner Report filed by the 1st Respondent/Plaintiff, it was mentioned that at the time of inspection, the Advocate Commissioner measured the Survey Nos.1625 and 1760 and the suit property viz., house was situated in Survey No.1625 and also extended in Survey No.1760. Further, it was also stated [according to 1st Respondent/Plaintiff) that the suit property was situated in Survey No.1625 and not in Survey No.1760 and the Advocate Commissioner during his inspection found that the house was situated in Survey No.1625 as well as in Survey No.1760.
51.Added further, in the Objections by the Commissioner's Report filed by the 1st Respondent/Plaintiff, it was stated that the Survey No.1760 was situated on the western side of the suit property and there was also a municipal road in existence in Survey No.1760 and that the Advocate Commissioner found that the house was situated in both the Survey Numbers was not a correct one and that the Appellant/2nd Defendant had encroached into the municipal street viz., Kayidae Millath street and extended the construction by extent of 3 feet pending the Second Appeal in the year 2009. Moreover, in the earlier Advocate Commissioner's Report before the trial Court [at the instance of the Defendant in the suit and Appellant], it was mentioned that the superstructure which was in existence at the time of filing of the suit was in Survey No.1625 and Survey No.1760 which was entirely different and that the municipal road viz., Kayidae Milllath Street was in between the suit property and in Survey No.1760. In short, the main objection taken by the 1st Respondent/Plaintiff was that the Commissioner's Report (2nd Report) filed before this Court in Second Appeal was contra to the 1st Commissioner's Report viz., Ex.C.1 dated 13.01.1986 and as such, the Advocate Commissioner appointed by this Court had not properly measured the property with the help of Surveyor etc.
52.Yet another objection taken on behalf of the 1st Respondent/ Plaintiff that the Advocate Commissioner had not specifically mentioned anything about the inspection and the report submitted by the Town Surveyor and based on sketch submitted by the Town Surveyor, the Commissioner had filed his report. Before that, according to the 1st Respondent/Plaintiff, the Advocate Commissioner as well as the Surveyor had not verified the earlier report filed by the Advocate Commissioner which was measured with the assistance of Town Surveyor inspected the property without reference to the earlier sketch report filed was without measuring both survey number and giving correct existence of the suit property and also survey number in which the suit property was situated. In short, the plea of the 1st Respondent/Plaintiff was that the report filed by the Advocate Commissioner before the trial Court was correct and the present report of Advocate Commissioner filed before this Court with the help of Town Surveyor was without particulars and therefore, his report could not be relied upon for the purpose of disposal of the Second Appeal.
53.Ex.A.1-certified copy of Decree dated 28.09.1967 in O.S.No.387 of 1965 on the file of District Munsif Court, Tiruvannamalai, was bewteen Syed Rahim as Plaintiff Vs. 1.Abdulla Sheriff and 8 others relating to a suit filed for declaration of the Plaintiff's title to the suit property i.e. The blue marked portion in the sketch and for the relief of permanent injunction restraining the Defendants, their men or agents from trespassing upon the suit site and disturbing the Plaintiff's possession and enjoyment in any manner. In the said suit, a decree was passed holding that the Plaintiff's title to the suit property viz., the blue marked portion in the sketch was established and also the relief of permanent injunction was also granted.
54.It was found in Ex.A.2-certified copy of Suit Extract Register in O.S.No.387 of 1965 (between Syed Rahim V. Abdulla Sheriff and 8 others on the file of Learned District Munsif Court, Tiruvannamalai), that the Plaintiff's title to the suit property was established in regard to the portion marked blue on the sketch and also that the relief of injunction was also granted.
55.In Ex.A.3-Original Sale Deed dated 04.04.1985 executed by Syed Shami for a sale consideration of Rs.1750/- to and in favour of Abdul Rahim, the schedule of the property was related to T.S.No.1625 in Tiruvannamalai-1 sub division Tiruvannamalai, 4th Ward of 25th Block, Kalkuthirai Takka ad-measuring an extent of east-west 50 feet north-south 28 feet, totalling an extent of 1,400 square feet out of an extent of 13.29418.
56.It transpires from Ex.A.4-certified copy of Decree in O.S.No.827 of 1982 dated 28.06.1993 on the file of District Munsif Court, Tiruvannamalai (between Syed Rahim (deceased) and later through his L.Rs. as Plaintiffs Vs. Baba Sheriff and 17 others, a suit was filed seeking the relief of injunction against the Defendants, their men, agents etc., and a decree for permanent injunction was granted).
57.Ex.A.5 was the certified copy of Judgment in O.S.No.827 of 1982 dated 28.06.1993. Ex.A.6 was the certified copy of Judgment in O.S.No.387 of 1965. Ex.A.7 was the certified copy of Sale Deed dated 04.04.1985 for a sale consideration of Rs.1,500/- executed by Syed Shami to and in favour of Ibrahim in respect of an extent of 34 feet on east-western direction and 44 feet on west-southern direction and an extent of 22 feet of north-south side, totalling an extent of 858 square feet of vacant land.
58.Ex.A.8 was the certified copy of Sale Deed dated 04.02.1973 for a sale consideration of Rs.500/- executed by Syed Gaffar to and in favour of Anwarudheen Sahib in respect of T.S.No.1625 Tiruvannamalai Registration District, Tiruvannamalai-I Sub Division, Tiruvannamalai, Ward No.IV, Block No.28 in Kalkuthirai Takka Street measuring an extent of east-west 27 feet, north-south an extent of 55 feet, totalling in all 1485 square feet of vacant land.
59.Ex.A.9 was the certified copy of Exhibit B4/DW1 dated 13.10.1997 marked in O.S.No.930 of 1992 on the file of District Munsif Court, Tiruvannamalai viz., the Extract from Town Survey Field Register of Ward No.IV Block No.25 Tiruvannamalai, North Arcot District. As seen from this document, for the survey field 162.5, the old survey number was mentioned as 367 Part and classified as 'Natham Private' ad-measuring 13 acres and 29418 square feet. The Adangal description showed as 'Natham' and the holding was utilised as thatched as per R.Dis.2.47.21 dated 28.02.1925. On top of Ex.A.9-Field Register Extract on left hand side, it was mentioned as 'Form II Survey 164 and on right hand side top, it was mentioned as 'Survey 164-17000 6.11.50.
60.Ex.A.10 was the letter dated 24.03.1987 issued by 1st Respondent/Plaintiff addressed to the Commissioner, Municipality of Tiruvannamalai praying for the change of name in respect of Door No.22 in T.S.No.1625, 25th Ward, Kayidae Millath Street, Tiruvannamalai City. The 1st Respondent/Plaintiff was informed in the said letter that he filed a suit O.S.No.623 of 1985 against Parasakthi Ammal (2nd Respondent/1st Defendant) for the relief of injunction and also that he obtained the order of injunction in I.A.No.908 of 1985 on 19.08.1985 and further, informed the Commissioner, Municipality of Tiruvannamalai that I.A.No.371 of 1986 etc. in O.S.No.623 of 1985 was coming up for enquiry and therefore, name transfer/tax demand proceedings should not be undertaken and if at all name transfer was to be effected that it should be made in his name and also it should be done even in respect of tax demand. As a matter of fact, the 1st Respondent/Plaintiff informed the Commissioner that on 26.04.1985 for effecting the name transfer, already he had presented a petition.
61.Ex.A.11 was the reply dated 20.06.1986 issued by the Commissioner of Municipal Office, Tiruvannamalai addressed to the 1st Respondent/Plaintiff wherein it is intimated that sub division in respect of the place sought for could not be effected in view of the pendency of the suit. In Ex.A.12 was the returned cover dated 30.05.1990 (in respect of the petition submitted by the 1st Respondent/Plaintiff addressed to the Land Field Surveyor, Tiruvannamalai).
62.In Ex.B.1-Sale Deed dated 03.01.1983 executed by Hussain Sait and Fatima Bi (alias) Unnamalai to and in favour of Parasakthi Ammal for a sale consideration of Rs.17,000/-. The schedule of the property relates to an extent of 1400 square feet of vacant land at Mariamman Koil Street, T.S.No.1760 situated within the municipal limits of Tiruvannamalai, Tiruvannamalai Town, Ward No.IV, Block No.28, in which there was a thatched house of 60 years old, together with the vacant site on the backside and well with a pulley in the garden.
63.Ex.B.2 was the Registered Mortgage Deed dated 04.07.1979 executed by Hussain Sait to and in favour of Basha Sheriff for Rs.3,000/-. As per this document, Hussain Sait agreed to pay interest for Rs.3,000/- at 12% per annum till the date of discharge of the land. In Ex.B.2-Mortgage Deed dated 04.07.1979 an endorsement of discharge of mortgage was seen to the effect that one Parasakthi Ammal wife of V.S.Murugesa Mudaliar had discharged the principal and interest towards the mortgage loan and settled the loan account in full. The schedule of the property in the mortgage deed related to an extent of 1500 square feet together with land and thatched house [thatched house constructed with mud wall] at Mariamman Koil Street in Tiruvannamalai Sub Division-I, Tiruvannamalai Town, Ward No.IV, 28th Block.
64.Ex.B.3 was the settlement deed executed by Hussain Sait to his wife Fathima Bi @ Unnamalai in respect of 700 square feet of land along with constructed mud wall thatched house measuring an extent of 200 square feet in T.S.No.1760 Tiruvannamalai Sub Division No.I, Tiruvannamalai Town, 4th Ward, 28th Block at Mariamman Koil Street.
65.Ex.B.4 was the House Tax Demand Notice dated 11.02.1980 issued by the Commissioner Tiruvannamalai Municipality addressed to Hussain Sait. Ex.B.5 was the Electricity Card in favour of Unnamalai Ammal. Ex.B.6 was the registered Rectification Deed dated 31.01.1986 executed by Hussain Sait and his wife Fatima Bi @ Unnamalai, in and by which, it was mentioned that in the Sale Deed executed on 03.01.1983 for Rs.17,000/- in the description of property detail, it was stated that instead of mentioning 4th Ward, 25th Block T.S.No.1625 out of 13.29418, 1400 square feet mistakenly and wrongly it was mentioned as 4th Ward, 28th Block, T.S.No.1760 an extent of 1400 square feet.
66.Ex.B.7 was the Sale Deed dated 16.04.1986 executed by M.Parasakthi Ammal to and in favour of A.R.Mohamed Hanifa (Appellant/2nd Defendant), it was mentioned that the sale consideration is Rs.25,000/- and the schedule of the property therein pertained to Tiruvannamalai Registration District, Tiruvannamalai Sub Division No.I, Tiruvannamalai Town, Ward No.IV, 25th Block at Mariamman Koil Street, T.S.No.1625 out of an extent of 13.29418, an extent of 1400 square feet of vacant land in which the mud wall house with mud wall has been constructed in an extent of 400 square feet, along with one well with pulley in the garden, old Door No.174/87, bearing new Door No.22.
67.Ex.B.8 was the Receipt dated 01.08.1984 executed by the 1st Respondent/Plaintiff (M.A.Rahim) on 23.08.1985 wherein he stated that from 01.08.1984 till 23.08.1985 he was a tenant of the Parasakthi Ammal's house at Door No.22 K.Mariamman Koil Street [Kayidae Millath Street] and he was vacating this day and removing his belongings and also that he handed over the possession of the vacated house to Parasakthi Ammal. It was also stated that there was no arrears of rent.
68.Ex.B.9 was the House Tax Demand Notice issued by the Tiruvannamalai Municipality to and in favour of Parasakthi Ammal. Ex.B.10 (series) were the payment of Electricity Charges in the name of Parasakthi Ammal. Ex.B.11 is the Property Tax dated 02.11.1989 paid in the name of Appellant/2nd Defendant. Ex.B.12 was the Property Tax paid in the name of Appellant/2nd Defendant. Ex.B.13 was the property tax payment book standing in the name of Appellant/2nd Defendant. Ex.B.14 was the Property Tax Demand Notice sent by the Tiruvannamalai Municipality addressed to the Appellant/2nd Defendant. Ex.B.15 was the Order dated 30.10.1986 sent by the Tiruvnnamalai Muncipality Office addressed to the Appellant/2nd Defendant. Ex.B.16 was the Tiruvannamalai Municipal Commissioner Plan dated 07.01.1994 (indicating the sub division). Ex.B.17 was the encumbrance certificate issued by the District Revenue Registrar of Tiruvannamalai.
69.The trial Court in its Judgment, had, among other things, observed that the suit property and other properties initially belonged to Syed Rahim which was correct as per Ex.A.6-Judgment in O.S.No.387 of 1965 dated 28.09.1967 on the file of Learned District Munsif, Tiruvannamalai. At this juncture, in the Judgment in O.S.No.387 of 1965 between Syed Rahim (Plaintiff) V. One Abdulla Sheriff and 7 others (in respect of a suit for declaration and permanent injunction), it was, among other things, averred by the Plaintiff therein in the Plaint as hereunder:
"The houses of the plaintiff are marked red in the plaint plan which bear T.S.Nos.162 and 1624. All these were originally included in Old.S.NO.367 measuring 16-83 acres. The portion on which houses were built were given separate resurvey numbers at the time of the settlement as 1623 and 1624 belonging to the plaintiff. The plaintiff and his family have been in possession and enjoyment of T.S.No.1625 for over 30 years and have perfected their title by adverse possession also. They have also effected division as stated above. From north of the tank described as Kuttai and to the south of the Gori the plaintiff has been in enjoyment upo to the portion sold by him to Khadar Khan to a length of 530 ft. North to south. North of the kuttai is also in the possession and enjoyment of plaintiff vagaira."
70.Further, it was also stated that the Defendants have no right whatsoever in T.S.No.1625 etc. However, Defendants 1 to 3 (in the said suit) denied the allegation in the Plaint, T.S.No.1625 belonged to the ancestors of the Plaintiff as inam and that they and their successors-in-title were in possession and enjoyment of the same and that the Plaintiff and his fore-fathers were enjoying the usufruct from the ponds and trees and that the Collector of North Arcot had recognised the right of his father under his order dated 30.06.1925 etc. They also stated that T.S.No.1623 and 1624 were appeared to had been assigned to the Plaintiff personally and as such, he could not claim any right to T.S.No.1625 where the suit property was situated.
71.The trial Court, after contest, in para 15 of the Judgment in O.S.No.387 of 1965 came to the conclusion that the documentary evidence, as well as the oral evidence placed in the case, supported the case of the title and possession of the Plaintiff not only to the suit property but also to T.S.No.1625 in which it was situated and also the trees and ponds situated therein etc. Finally, it came to the resultant conclusion that the witnesses examined on behalf of the Defendants had not stated that the Defendants were in possession and enjoyment of the suit property or T.S.No.1625 for more than 12 years prior to the suit and prescribed title, but they stated that the public were catching fish from the pond and enjoying the leaves from the trees and held that in any event, the Plaintiff had proved that he and his predecessors-in-title were in possession and enjoyment of T.S.No.1625 and perfected title by adverse possession also and that the Plaintiff had acquired title to the suit property and granted the relief of declaration and permanent injunction as prayed for.
72.The trial Court, in its Judgment in O.S.No.623 of 1985 on 09.02.1998, held that the Sale Deed dated 04.04.1985 in respect of the suit vacant site purchased by the 1st Respondent/Plaintiff was not a bona fide one and also not accepted the evidence of P.W.1 and P.W.2 that in pursuance of the aforesaid Sale Deed, the 1st Respondent/b Plaintiff had resided in the suit place by constructing a house. Conversely, it held that as per Defendant's side oral evidence and as per Ex.B.8 handing over possession of the house receipt executed by the 1st Respondent/Plaintiff, the Plaintiff had resided in the suit place as a tenant.
73.Not content with the above, the trial Court had observed in its Judgment in O.S.No.623 of 1985 that there was no evidence to establish that Syed Rahim after Ex.A.6-Judgment in O.S.No.387 of 1965 in respect of T.S.No.1625 and till his death, as spoken to P.W.2 dated 12.01.1984 there was no evidence to show that it was enjoyed by him. Even for the purported oral partition that took place between Syed Rahim's four sons and also in the said partition, the suit property was allotted to Syed Shami, there were no evidence. On the side of the 1st Respondent/Plaintiff, no evidence was adduced to establish as to whether the suit property was enjoyed by Syed Shami in his capacity as owner or in any other right or by means of an adverse possession. The said Syed Shami was not examined as a witness before the trial Court in O.S.No.623 of 1985.
74.That apart, the trial Court had also categorically mentioned that in Ex.A.3-Sale Deed dated 04.04.1985 as to how Syed Shami became the owner of the suit property. Ultimately, the trial Court took the view that it could not be held that neither the 1st Respondent/ Plaintiff or his vendors had the right of adverse possession.
75.Added further, the trial Court in its Judgment had opined that considering Ex.B.8-Receipt, it was not correct to state that the 2nd Respondent/1st Defendant had forcibly evicted the 1st Respondent/ Plaintiff from the suit property. Furthermore, had conclusively held that although it could not said that Hussain Sheik had encroached the suit property and residing in that place for the past 60 years, but it was true that as per Ex.B.4 before the year 1984, he had constructed a house and was residing there and in this regard, accepted the 1st Defendant's version as a true one.
76.The trial Court, in its Judgment, had held that after the Appellant/2nd Defendant had executed Ex.B.1-Sale Deed to the 2nd Respondent/1st Defendant and thereafter, the name transfer effected as per Ex.B.5 it could be seen that from 03.01.1983, the date of purchase of Sale Deed, the Parasakthi Ammal was in enjoyment of the suit property. The trial Court also held that the 2nd Respondent/1st Defendant had sold the property to the Appellant/2nd Defendant on 16.11.1986 which was a true one.
77.The First Appellate Court, in its Judgment in A.S.No.51 of 1998 dated 08.01.2001, (in the First Appeal filed by the 1st Respondent/Plaintiff) had framed 1 to 3 points for determination and resultantly, held that the property mentioned by the 1st Respondent/ Plaintiff and the property mentioned by the Defendants were different, this aspect ought to have been found out by the trial Court by bestowing its deep attention. However, in that angle, it was not looked into by the trial Court and therefore, the dismissal of suit to the effect that the 1st Respondent/Plaintiff had not established his right in the suit property was not a correct one.
78.At the out set, this Court points out that on the basis of arguments advanced on either side, this Court is not inclined to deal with the merits of the case one way or the other because of the fact that if any Judgment is delivered by this Court in Second Appeal on basis of existing insufficient and incomplete oral and documentary evidence on record, it will affect the rights of parties one way or other besides creating prejudice. Also, there is no clarity of evidence available on record in the given case. However, this Court is inclined to allow the Second Appeal in view of the fact that both the trial Court as well as the First Appellate Court had not approached the disputes/ controversies between the parties in regard to the subject matter in issues in a proper and real perspective.
79.As a matter of fact, the First Appellate Court, in one portion of the Judgment in First Appeal A.S.No.51 of 1998, had observed that the property purchased by the 1st Respondent/Plaintiff was different from the property purchased by the 2nd Respondent/1st Defendant and in another portion, it came to the conclusion that the 1st Respondent/ Plaintiff was forcibly evicted after obtaining Ex.B.8-Receipt from him meaning thereby that the property claimed by the 1st Respondent/ Plaintiff and the 2nd Respondent/1st Defendant were one and the same. The First Appellate Court, in its Judgment in First Appeal, had not referred to and discussed the evidence of D.W.4 and D.W.5 to the effect that the suit property and neighbouring properties were described in different names and survey numbers.
80.In this connection, it is not out of place for this Court to make a significant mention that Order 41 Rule 31 of Civil Procedure Code enjoins as follows:
"Or.41, R.31.Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;
and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
81.From the aforesaid ingredients of Order 41 Rule 31 of Civil Procedure Code, this Court is of the considered opinion that it is essential on the part of Appellate Court to formulate points for consideration based on pleadings in a given case and draw the attention of the Court and the respective parties in regard to the categorical and contra contentions advanced by the parties. Indeed, on going through the ingredients of Order 41 Rule 31 of Civil Procedure Code, this Court comes to an inescapable conclusion that they are mandatory in character.
82.Furthermore, in law, the Appellate Court's Judgment should contain decision on each point arising for determination. It cannot be gainsaid that in case of reversal Judgment, the Appellate Court is required to refer all the evidence that have received better treatment by the trial Court and relied on by it as per decision in Bibi Riajan Khatoon and others V. Sadrul Alam and others, AIR 1996 Patna 156 at page 158.
83.It is to be borne in mind that a Jugdment of reversal by the Appellate Court must express opinion on all points on which the trial Court based its conclusion.
84.At this stage, this Court worth recalls the decision in Bogamal Gohain and others V. Lakhinath Kalita and others, AIR 1991 Gauhati at page 100 wherein it is held as under:
"It is abundantly clear that a judgment of the appellate Court should be self-contained. It should be a speaking judgment. It should contain decision on each and every point arising for consideration before the Court with reasons therefor. It may be observed that the requirement of giving reasons for the decision on each point is a salutary requirement. It is like the principle of audi alteram partem. It has to be observed in proper spirit. A mere pretence of compliance will not suffice. An appellate judgment, which does not comply with these requirements would be vitiated."
85.This Court aptly points out that in law, it must be evident from the Judgment of the First Appellate Court that it properly appreciated the case, applied its mind and decided the gamut of controversies/disputes by bestowing its attention to the available oral and documentary evidence on record.
86.It is the duty of the trial Court or even for that matter it is the duty of an Appellate Court to discern the truth from the pleadings, documents and arguments of respective parties.
87.Also, in the decision Narayana Prosad and another V. Gajo Mahton and others, AIR 1917 Patna 429, it is held as follows:
"The parties to an appeal are entitled to have a considered judgment upon the issues which were discussed in the Court of first instance."
88.In Ganthakoru Mangamma and others V. Dulla Paidayya and others, AIR 1941 Madras at page 393, this Court has held as follows:
"Where the judgment in appeal does not come to close quarters with the judgment which it reviews and never discusses or alludes to the reasoning of the trial Judge, such Judgment seriously invalidates its authority, and does not satisfy the requirements of the law and must therefore be deemed to be a judgment vitiated by an error in procedure: 16 MLJ 272 (PC), Rel. on."
89.This Court, in furtherance of substantial cause of justice, cites the following decisions:
(a)In Doodhnath V. Lakha, AIR 2006 All 3, it is held that 'Where the jdugment of the trial Court is reversed by the Appellate Court, the appellate judgment must clearly suggest application of judicial mind to appreciation of evidence and should convey manifestly the process of judicial thinking by which it differs from the conclusions of the court below'.
(b)In Gopendra Goswami V. Haradhan Das, AIR 2009 Gau. 41, it is held that 'it is not necessary for the Appellate Court to refer to each and every document or every piece of evidence on record while recording its findings. A substantial compliance with the Rule is enough'.
(c)In the decision of the Hon'ble Supreme Court in Lakshmi Ram Bhuyan V. Hari Prasad Bhuyan, AIR 2003 SC 351, it is observed that 'Order 41, Rule 31 of the Code of Civil Procedure casts an obligation on the author of the appellate judgment to state the points for determination, the decision thereon, the reasons for the decision, and when the decree appealed from is reversed or varied, the relief to which the appellant is entitled'.
(d)In the decision Dwarika Prasad Marwari V. Sudarshan Prasad Chaudhary and others, AIR 1984 Patna 274, it is held that 'If the lower Appellate Court does not consider oral evidence, it is non-observance of the mandatory provisions of Order 41, Rule 31. Such a judgment suffers from serious infirmity and is not binding on the High Court in second appeal'.
(e)In Krishna Ayyar V. Muthulakshmi Ammal, AIR 1934 Madras 169, it is held as under:
"A reversing judgment of the appellate Court should discuss the matters fully; but where it fails to do so but has taken into account all evidence in arriving at the conclusion the second appellate Court will not interfere: AIR 1929 P C 152, Ref."
(f)In Laxmi and another V. Krishna Bhatta and another, AIR 1968 Mysore 288, it is held that 'discussion of every part of evidence in appellate Court judgment as per Order 41 Rule 31 of Civil Procedure Code is imperative and the failure to do so and disposal in short paragraph affirming views of lower Court is grave misapplication of power'.
(g)In Samir Kumar Chatterjee V. Hirendra Nath Ghosh, AIR 1992 Calcutta 129 at page 135 in paragraph 17, it is observed and held hereunder:
"17.As already stated, the first court of appeal, also approached the whole case from a wrong angle misdirecting itself as that of the trial Court, in a way prejudicial to the interest of the defendant/ appellant. In short, the appellate Court's judgment is also based on surmise and conjectures, as that of the trial Court. He simply brushed aside the documentary evidence adduced by the defendant/ appellant as suspicious in nature and placed no reliance on the same without carefully examining the same and trying to arrive at a finding based on his independent judgment and reasoning. He simply dittoed and endorsed the finding of the trial Court that such documents were created for the purpose of this suit, without trying to weigh and assess the evidentiary value of the same. In that view of the matter, I am constrained to observe that the Court of appeal below failed altogether to comply with the statutory provisions of Order 41, Rule 31 of the Code of Civil Procedure. The judgment of the appeal Court should not be the mere endorsement of the findings of the trial Court, not containing the reasons for the decisions arrived at by him independently of that of the trial Court."
90.It is seen from the Judgment of the Appellate Court in First Appeal at paragraph 13, an observation has been made to the effect that there are no records to show that in respect of the property in Survey No.1625 and the property in Survey No.1720, as mentioned in the written statement of the Defendants that Mariamman Temple Street, Kayidae Millath Street and Kalkuthirai Thakka Street were confusingly described by the people for long number of years and registered the documents thereto and as such, it came to the conclusion that the right claimed by the 1st Respondent/Plaintiff in respect of the suit property and the property stated by the Defendant are different ones.
91.The First Appellate Court, in its Appeal Judgment, had made a superficial reference to the evidence of P.W.1 and P.W.2. In fact, it had not dealt with the reference/evidence of P.W.1, P.W.2, D.W.1 to D.W.5 in qualitative and quantitative fashion and as a matter of fact, the Judgment of the First Appellate Court had not come into close quarter with the Judgment of the trial Court in the main suit [against which the First Appeal A.S.No.51 of 1998 was filed by the 1st Respondent/Plaintiff]. To put it shortly, when the First Appellate Court, in its Judgment in A.S.No.51 of 1998 on 08.01.2001, had reversed the Judgment and Decree of the trial Court in O.S.No.623 of 1985 dated 09.02.1998, then, it ought to have expressed its opinion on all points, on which the trial Court had resisted its conclusion.
92.In the present case, before the trial Court, in main suit, the first Advocate Commissioner had submitted his Ex.C.1-Report and Ex.C.2-Plan [of course after inspecting two properties mentioned by the respective parties to find out whether it was one and the same place or different ones]. Also, the scope of the commission was to find out in which survey numbers two properties were situated, to project about the physical features and its surrounding circumstances. More specifically, the first Advocate Commissioner, in para 15 of his Ex.C.1-Report, had categorically stated that if the Town Survey Numbers, Wards and Blocks as seen with the help of City Land Surveyor and looked from that perspective, then, the two properties mentioned by Plaintiffs and Defendants were different properties and especially the length and breadth of the construction of a house in the suit property was clearly described by the City Land Surveyor in Plan No.1.
93.This Court in C.M.P.No.701 of 2011 appointed a second Advocate Commissioner as per order dated 03.08.2011 [different from the earlier Advocate who filed the first Commissioner's Report Ex.C.1] and directed him to measure the lands in Survey No.1625 and 1760 at Tiruvannamalai Town with the help of Town Surveyor to correlate the properties with the documents to be produced by the parties [already exhibited documents alone] and localise the said properties including the suit property and to submit a report.
94.Accordingly, the second Advocate Commissioner submitted his Report dated 27.10.2011, in and by which, in paragraph 3, he had stated that the suit property was in possession of the 1st Respondent [viz., the Appellant/2nd Defendant] etc. and that as per the measurement of the Town Surveyor, the house was situated in both the Survey Numbers i.e. 1625 and 1760.
95.At this stage, this Court opines that in the second Advocate Commissioner's Report dated 27.10.2011, there is no indication whatsoever that the Advocate Commissioner has correlated the lands in Survey Nos.1625 and 1760 at Tiruvannamalai Town with the aid of documents to be produced by the parties (already exhibited by them) etc. Pin-pointedly, the second Advocate Commissioner, in para 2 of his Report, has, among other things, stated that the parties to the suit identified the suit property to him and that he measured the Survey Nos.1625 and 1760 and located the suit property. He also stated that the property is a house situated on the western side of the Municipal Street viz., Kayidae Millath Street, measuring east to west 28 feet and north to south 50 feet and the door number of the house is 30 (New) and old No.27 etc.
96.For the second Advocate Commissioner's Report, on behalf of the 1st Respondent/Plaintiff, objections were filed inter alia stating that the parties for which Advocate Commissioner was appointed by this Court is not fulfilled and that the Report of the Advocate Commissioner cannot be relied upon for the purpose of disposal of the Second Appeal. Per contra, the 1st Respondent/Plaintiff, in his objections, had specifically stated that the Report filed by the Advocate Commissioner along with the Town Surveyor before the trial Court is correct [first Commissioner's Report-Ex.C.1].
97.It is to be pointed out that the further enquiry visualised as per Order 26 Rule 10(3) of the Civil Procedure Code presupposes that an enquiry by the very same Commissioner is possible, if a Court of Law considers so in this regard. As a matter of fact, the Appellate Court is not devoid of the powers to call for a fresh report from the 1st Advocate Commissioner or to appoint another Advocate Commissioner, if it finds just and very much necessary for elucidating the matters in issue. If objections are raised by any of the parties to the Commissioner's Report, a Court of Law is to subjectively satisfy itself that the inspection and report submitted by the Commissioner are free from any defects/infirmities.
98.In law, the report of an Advocate Commissioner is part and parcel of the case records. When the parties to the litigation disputes the correctness/veracity of the Commissioner's Report, then, examination of Advocate Commissioner before the Court is very much essential so as to enable the Court to arrive at the truth of the matter. Also, it is to be taken into account by a Court of Law that the evidence of Commissioner is not binding on a Court of Law, which is to appreciate the same along with other evidence. A party can countermand the evidence of Commissioner's Report by giving other evidence as per the decision in Ankura and Akrura Charan Sahu and another V. Arjuna Charan Palei and others [1998 A.I.H.C. 1702 at page 1704 (Gujarat)].
99.In regard to the powers of the Appellate Court as per Order 41 Rule 33 of Civil Procedure Code, it is to be seen that the power is wide enough to decide any question not only between the Appellant and the Respondent, but also between Respondent and Co-respondents. However, by means of the wide power, the Appellate Court can pass any decree or order which should have been passed in the circumstance of the case.
100.To put it shortly, the Appellate Court can pass such Judgment/Order which would do complete justice to the parties as per Order 41 Rule 33 of Civil Procedure Code. No wonder, Order 41 Rule 33 of Civil Procedure Code read with Order 42 Rule (1) of Civil Procedure Code enjoins the Appellate Court to pass the appropriate Judgement/Order, in the considered opinion of this Court.
101.It cannot be gainsaid that the rules relating to the first appeal or to apply to second appeals to the extent of 'so far as may be', as per Order 41 Rule 1 of Civil Procedure Code. Therefore, it cannot be said that all rules under Order 41 are not made applicable to the second appeals, as per the decision in Parbanna V. Veershetty, AIR 2003 AP 191.
102.A survey measurement Commissioner can decide the boundaries in a dispute and there may not be anything wrong if a surveyor, commissioner determines the boundaries dispute, as opined by this Court. The well settled legal principle is that the evidence of an Advocate Commissioner is not binding on a Court of Law. In fact, a Court of Law is to appreciate the evidence of an Advocate Commissioner along with other evidence adduced in a given case.
103.This Court aptly points out the decision in Jyothiammal V. Jayapal, (2009) 4 MLJ 620 wherein it is held that 'Re-issue of a warrant to the same Commissioner does not warrant scrapping of the earlier report, especially when it is for getting better particulars.'
104.The aim of Order 41 Rule 33 of Civil Procedure Code is to prevent inconsistent and contradictory decisions on the same questions in the same suits. In genuine cases where the power is not exercised by an Appellate Court, it may even result in miscarriage of justice. The discretionary power of an Appellate Court under Order 41 Rule 33 of Civil Procedure Code ought not to be refused either on the ground of technicalities or hyper-technicalities.
105.As regards the boundary disputes/controversies, the dismissal of earlier petition for appointment of an Advocate Commissioner is not a bar for filing a new petition for appointment of an Advocate Commissioner and the second petition is per se maintainable in law and that the principles of 'Res judicata' will not apply in regard to the orders passed in interlocutory applications, as opined by this Court. Even a Commissioner's Report can be proved based on evidence.
106.According to the Learned Senior Counsel for the 1st Respondent/Plaintiff, a suit in O.S.No.908 of 1929 was filed by Inamdar Syed Hussain Sahib against the Secretary of State for India in Council represented by the Collector of North Arcot and 14 others as Defendants before the Learned District Munsif, Tiruvannamalai and on 17.10.1931, a decree was passed to the effect that the Plaintiff and the Defendants 9 to 14 were absolutely entitled to the plaint 'A' schedule items 4 and 5 and item 1 of the plaint 'B' schedule and also items 26, 27, 29, 30, 32, 34, 36, 37, 39, 40 and two third shares in items 41, 42, 43, 48, 49, 50 and 51 of the plaint D schedule etc. In the said suit in O.S.No.908 of 1929, Survey No.1760 was shown to with an extent of 19.56 (old Survey No.354, Ne.Ve.9,10 as Paiash No.391, 414.
107.It is also brought to the notice of this Court that the unsuccessful Defendants 1, 2 and 4 in O.S.No.877 of 1984 on the file of the Principal District Munsif, Tiruvannamalai had preferred Second Appeal No.192 of 2001 (as Appellants) as against the Judgment and Decree dated 27.09.2000 in A.S.No.145 of 1998 on the file of Additional District Court, Tiruvannamalai and this Court on 29.03.2001 ultimately dismissed the Second Appeal without costs, thereby confirming the Judgment and Decree of the First Appellate Court in A.S.No.145 of 1998 dated 27.09.2000 and that of the Judgment and Decree of the trial Court dated 09.11.1998 in O.S.No.877 of 1984. The Plaintiffs, in O.S.No.877 of 1984 on the file of the Learned District Munsif, Tiruvannamalai, in the Plaint, had, among other things, stated that 'the title to T.S.No.1625 had been recognised in O.S.No.385/65 on the file of District Munsif Court, Tiruvannamalai and subsequently confirmed in A.S.No.154/71 on the file of Sub Court, Tiruvannamalai'. Further, it was averred that 'Syed Rahim's family's title to the survey number was also recognised in other Court proceedings in O.S.No.332 /1971 on the file of Sub Court, Tiruvannamalai'. The Defendants 1 to 4 in O.S.No.877 of 1984, in their written statements, had denied that T.S.No.1625 was originally granted as Inam to the ancestors of Syed Rahim about 300 years back and that the various proceedings referred to in the Plaint had nothing to do with the suit properties etc.
108.The Learned Senior Counsel for the Appellant/2nd Defendant submits that for the period from 1967-68, no document was produced till the death of Syed Rahim and there was also no oral evidence. It is also the contention of the Learned Senior Counsel for the Appellant/ 2nd Defendant that Exs.B.1 to B.3-Sale Deeds were interior title deeds and that the boundary recitals could not be taken into account because the said documents were not between inter parties and therefore, it would not bind the Appellant/2nd Defendant. Further, it is the submission of the Learned Senior Counsel for the Appellant/2nd Defendant that Ex.A.2-certified copy of the Suit Extract Register in O.S.No.387 of 2005 does not relate to the suit property.
109.That apart, the Learned Senior Counsel for the Appellant/ 2nd Defendant submits that no single document was produced regarding the possession of the 1st Respondent/Plaintiff and therefore, the finding of the First Appellate Court was a perverse one. Also, it is the contention of the Learned Senior Counsel for the Appellant/2nd Defendant that the 1st Respondent/Plaintiff could not seek the relief of adverse possession because he was permitted to occupy the property.
110.The Learned Senior Counsel for the 1st Respondent/Plaintiff submits that the 2nd Respondent/1st Defendant (Parasakthiammal) never contested the Appeal before the First Appellate Court. But, she filed the written statement and was examined before the trial Court as D.W.1 and that the first Advocate Commissioner in his Ex.C.1-Report had clearly stated that the Survey Nos.1625 and 1760 were different ones and also that no objections were filed to Ex.C.1-Report and Ex.C.2-Plan and that Syed Rahim is the 1st Respondent's vendor's father and that no value could be attached to Ex.A.8-Receipt dated 01.08.1984.
111.According to the Learned Senior Counsel for the 1st Respondent/Plaintiff, the Judgments relied on by the Defendants would not help them because the survey numbers mentioned therein are different and since the encroachment was proved, the 1st Respondent/ Plaintiff was entitled to get the relief of recovery of possession.
112.On an overall assessment of the facts and circumstances of the case which float on the surface and in view of the fact that the first Advocate Commissioner Report-Ex.C.1 had clearly stated that the Town Survey Numbers found out with the help of City Land Surveyor, Wards and Blocks were different and that the two places mentioned by the Plaintiff and Defendants were different ones and keeping in mind that the second Advocate Commissioner, in his Report, dated 27.10.2011 had stated that as per the measurement of the Town Surveyor, the house was situated in both the Survey Nos.1625 and 1760 and also taking note of an important fact that an opportunity was to be provided to the respective parties to substantiate their points of view by adducing further oral and documentary evidence by examining additional witnesses and marking of documents, this Court, applying its judicial thinking mind dispassionately, to do complete justice between the parties and also with a view to put an end to the controversies/disputes between the parties once and for all, remands back the entire subject matter of issues before the trial Court for fresh determination. Viewed in that perspective, this Court, in the interest of justice, sets aside the Judgments and Decrees of the trial Court in O.S.No.623 of 1985 dated 09.02.1998 as well as the First Appellate Court in A.S.No.51 of 1998 dated 08.01.2001 and allows the Second Appeal in furtherance of substantial cause of justice, thereby leave open the Substantial Questions of Law Nos.1 to 3 unanswered.
113.In the result, the Second Appeal is allowed, leaving the parties to bear their own costs. The Judgments and Decrees of the trial Court in O.S.No.623 of 1985 dated 09.02.1998 as well as the First Appellate Court in A.S.No.51 of 1998 dated 08.01.2001 are set aside. The entire subject matter of the disputes/controversies in issue are remanded back to the trial Court for fresh determination in accordance with law. It is open to the respective parties to let in additional oral and documentary evidence before the trial Court by examining necessary witnesses including the Land Surveyor, who assisted the Advocate Commissioner and also the parties are necessarily hereby ordered to examine the two Advocate Commissioners [in view of the discrepancy in regard to the first Advocate Commissioner's Report and the second Advocate Commissioner's Report] and to find out the real truth of the matter. Liberty is granted to the respective parties to produce necessary prior title deeds which they rely upon. In this regard, the trial Court is directed to provide adequate opportunities to the parties. In any event, the trial Court is directed to dispose of the main Suit O.S.No.623 of 1985 (uninfluenced with any of the observations made by this Court) within a period of Six months from the date of receipt of copy of this Judgment. The parties are directed to co-operate and render their assistance and helping hand to the trial Court in regard to the completion of proceedings in the main suit within the time determined by this Court.
Sgl To
1.The Additional Subordinate Judge, Tiruvannamalai.
2.The District Munsif Court, Tiruvannamalai