Madras High Court
S. Palanisamy Gounder vs N. Palanisamy on 18 December, 2006
Equivalent citations: AIR 2007 (NOC) 811 (MAD.), 2007 (3) AKAR (NOC) 401 (MAD.)
Author: V. Dhanapalan
Bench: V. Dhanapalan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/12/2006 CORAM: THE HONOURABLE MR. JUSTICE V. DHANAPALAN S.A. No.376 of 1995 S. Palanisamy Gounder .. Appellant Versus 1. N. Palanisamy 2. Nachimuthu Gounder 3. Muthammal 4. Karupathal .. Respondents Second Appeal filed under Section 100 of Code of Civil Procedure against the judgment and decree dated 23.12.1994 made in A.S. No.153 of 1993 on the file of the District Court, Dindigul Anna District at Dindigul reversing the judgment and decree dated 26.08.1993 passed in O.S. No.712 of 1986 on the file of the District Munsif, Palani !For appellant ... Mr. R. Vijayakumar for Mr. N. Damodaran ^For respondents ... Mr. Hemakarthikeyan for M/s. P. Bagyalakshmi :JUDGMENT
This Second Appeal is directed against the judgment and decree of the District Court at Dindigul-Anna District reversing the judgment and decree of the District Munsif Court at Dindigul.
2. The Original Suit was filed by the first respondent herein in respect of his 50 cents of agricultural land situate at R.S. No.209/C in Ellapatti Village, Palani Taluk for the relief of declaration of title, recovery of possession and mandatory injunction directing the defendants to form an odai in their land in Survey No.204.
3. The plaintiff's case is that the suit property was inherited by him and his brothers from their ancestors. The property of the defendants is located in the south of the plaintiff's property in Survey No.204. There was an odai running through the defendants' land and six years prior to the filing of the suit, due to heavy floods, the said odai pushed into plaintiff's property and consequently, the boundaries of the plaintiff's property got changed and defendants encroached 50 cents of the suit property and therefore, he filed the suit for the reliefs as stated above. In support of the plaintiff's case, seven documents were marked and two witnesses were examined.
4. Resisting the case of the plaintiff, the third defendant filed a written statement which was adopted by the other defendants too. In the said written statement, it was contended that there was no flood as such six years prior to filing of the suit and further, the defendants' land was 3 ft. higher than that of the plaintiff's land and that being the case, there was no possibility for encroachment by the defendants and hence, the suit had to be dismissed. On the side of the defendants, nineteen documents were marked and three witnesses were examined.
5. The Trial Court, on consideration of the oral and documentary evidence, rejected the claim of the plaintiff that there was heavy flood and came to the conclusion that since the defendants' land was 3 ft. higher than the plaintiff's land, there is no possibility for encroachment by the defendants and holding so, the Trial Court dismissed the suit.
6. On appeal, the first appellate court, differed with the view of the Trial Judge and presumed that the floods would have pushed inside the plaintiff's land and placing reliance on the report of the Advocate Commissioner, it was of the opinion that 33 cents of land in Survey No.209/2C is located beyond the odai and the same is in possession of the defendant and decreed the suit in respect of entire 50 cents of the suit property. As against that judgment and decree of the lower appellate court, the present Second Appeal.
7. On 20.03.1995, this Court admitted the appeal on the substantial question of law as to whether the Commissioner's Report was the proper document to be read by the Court below, when especially the Commissioner did not identify the exact extent which the plaintiff owns in S.No.209/2C.
8. Mr. R. Vijayakumar, learned counsel appearing for the appellants has strenuously contended that the mere consideration of a portion of the report of the Advocate Commissioner for deciding the main issue between the parties is not proper, more particularly when the Commissioner has failed to identify the exact extent of the suit property. He has further contended that the appellate court has not considered Ex.B.1, the partition deed and also Ex.A.4, the partition deed subsequently entered into between the first respondent and his brother in its true perspective and it has failed to note that the first respondent and his family members were allotted an extent of 3.20 acres in Survey No.209/2C out of a total extent of 6.43 acres and in the subsequent partition deed under Ex.A.4, the extent of the property is mentioned as 3.90 acres and the first respondent has miserably failed to prove the acquisition of excess of 70 cents of land in the said survey number and therefore, the appellate court's decision in not considering the above facts has vitiated the entire findings.
9. It is the further argument of the counsel for the appellant that there is no evidence let in by the first respondent except his own oral evidence and that of P.W.2 to prove his contention that the odai which was running between his land and the appellant's land had changed the course of his portion of land in Survey No.209/2C and in that view of the matter, the appellate court has erred in relying on the contention of the first respondent without any clinching evidence. The learned counsel has also relied on the oral evidence of P.Ws.1 and 2 who have categorically admitted the existence of odai in S.No.209/2C for more than 15 years and even before the coming into existence of Exs.B.1 and A.4 .
10. Mr. Vijayakumar has further contended that the surplus water available in the pools situated in Survey No.204 is running further towards western end of the pool and the same has been entering into S.No.209/2C where there is an odai running in South-North direction and which is joining at point A and running further and joining East-West odai at point B in the Commissioner's Plan. Further, another odai is coming from the far western side and joining the odai at point XY line in the Commissioner's Plan which facts would disclose that the said East-West odai is existing for a long time at Survey No.209/2C and would also belie the contention of the first respondent as if the odai which was running through the Survey No.204 was shifted to Survey No.209/2C six years back due to floods.
11. Yet another submission made by Mr. Vijayakumar is that the finding of the appellate court in holding that the appellant has failed to plead adverse possession is erroneous when admittedly he had no occasion to plead the same as the first respondent had failed to come to the court with clean hands as found by the Trial Court. He has further submitted that the appellate court has failed to see that due to act of God, the odai has changed its course for more than 100 years back and is running in Survey No.209/2C and it is not an act of the appellant and hence, the discretionary relief of mandatory injunction shall not be granted to the first respondent.
12. Per contra, Mr. Hemakarthikeyan, learned counsel for the respondents has resisted the contentions put forth by Mr. Vijayakumar and has contended that the odai which was running in Survey No.204 in defendant's land, at some point of time, might have pushed inside the land of the first respondent/plaintiff and the appellate court has rightly relied on the report of the Advocate Commissioner which says that beyond the odai, 33 cents of land in Survey No.209/2C is located and the same is in possession of the defendant.
13. The learned counsel for the respondents has argued that the first respondent/plaintiff had inherited the ancestral suit property as also his brothers and vide Ex.A.4 dated 30.08.1980, the partition deed, the suit property in Survey No. 209/2C was allotted to the respondent/plaintiff and an odai which was running through the defendant's land had pushed inside the plaintiff's land due to heavy floods and thereby, the boundaries got changed and the defendant had encroached 50 cents of the suit property. Hence, the plaintiff prayed for declaration of possession and also for mandatory injunction and the well- considered and reasoned decision of the lower appellate court has to be confirmed by dismissing the appeal.
14. Having carefully considered the rival submissions made by the counsel on either side, let me proceed to deal with the substantial question of law involved in this appeal.
15. Admittedly, there are two partition deeds, viz., Ex.B.1 dated 08.03.1979 and Ex.A.4 dated 30.08.1980. It is seen that there is no explanation on the side of the plaintiff for the accretion of 70 cents and there is no proper evidence to prove the title over 50 cents of the suit property.
16. The plaintiff himself who was examined as P.W.1 has categorically admitted that only an extent of 33 cents of his property has been encroached. The Advocate Commissioner also has pointed out that only 33 cents of the land is located beyond the odai. Further, P.W.2, the plaintiff's vendor has also admitted that the said odai has been in existence for more than 15 years and the defendant's land is higher than the plaintiff's land by about 3 ft. This would only go to prove that the land of the plaintiff was not at all encroached. That apart, there was no oral or documentary evidence to show that there was heavy flood six years prior to the filing of the suit to prove the plaintiff's case. Even the Advocate Commissioner is not able to identify the extent of 33 cents of land. The defendants have categorically denied the title and possession of the plaintiffs in their written statement and therefore, the entire burden is upon the plaintiff to prove his case and he has not explained the discrepancy between the extent found in Ex.B.1 and Ex.A.4 i.e. the partition of the property is to the extent of 3.20 acres but the plaintiff's claim is that it is 3.90 acres. In the absence of any evidentiary value to prove the claim of the plaintiff, the claim for declaration of title and recovery of possession and also mandatory injunction cannot be sustained, especially when P.W.2 has stated that the odai has been in existence in the same position for the last 15 years and the possibility of shifting of boundaries due to floods also has not been proved by the plaintiff.
17. In respect of plea of adverse possession, the finding of the appellate court in holding that the appellant has failed to plead adverse possession is erroneous when admittedly he had no occasion to plead the same as the first respondent had failed to come to the Court with true facts and acceptable evidence. This is because, the contention of the counsel for the appellant that due to the act of God, the odai has changed its course several decades back and is running in Survey No.209/2C and it is not because of the act of the appellant and therefore, there is no necessity to plead such adverse possession, is only justifiable and convincing. In that view of the matter, the finding of the Trial Court is acceptable especially when there was no occasion for the plaintiff to plead such adverse possession.
18. It is seen that the Commissioner, in his report, has pointed out that the ridges on either side of the odai have been made up of pucca wall and has further observed that 33 cents of land is beyond the odai in S. No.209/2C. The Commissioner, further went on to observe that he was not able to identify the location of 33 cents of land. What is to be seen is whether the report of the Advocate Commissioner gives the exact location of the extent of 33 cents to decide the case of the plaintiff.
19. It is to be noted here that Order 26, Rule 9, CPC empowers appointment of a Commissioner for local investigation, even if the prayer for such appointment has not come from the parties and in such a case, the Court itself can appoint a Commissioner. The Commissioner, so appointed, has to do local investigation at an early stage of litigation when the controversy is as to identification, location or measurement of the land or premises or object and his report would serve the Court merely for the appraisal of the situation and for a better understanding of the evidence of parties and it can be never be a basis of a judgment.
20. On the other hand, it would also be relevant in this context to discuss on the aspect as to whether the Commissioner's report can be interfered with. In the opinion of the Privy Council, in Chandan Mull vs. Chaimanlal reported in AIR 1940 PC 3, in paragraph 6, it was held as under:
"Interference with the result of a long and careful local investigation except upon clearly defined and sufficient grounds is to be deprecated. It is not safe for a Court to act as an expert and to overrule the elaborate report of a Commissioner whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report and who had not blindly adopted the assertions of either party."
21. As per the above ruling, where the Commissioner has taken careful and painstaking efforts to measure the metes and bounds and physical features of the disputed portion and is involved in a laborious task of preparing his report, the scope of interfering with his Report is limited. But, in the instant case, the Advocate Commissioner has not even been able to identify the location of 33 cents of land. Therefore, the finding of the lower appellate Court relying on his report, which is without identification, location and measurement of the metes and bounds and physical features of the 33 cents of the plaintiff's property, to interfere with the findings of the Trial Court, in my opinion, needs to be carefully looked into. This is because as per the settled law, the Commissioner's Report can be used only as a guiding factor in the process of decision-making and can never be used as the basis of decision- making. When the Trial Court has rightly taken into consideration the oral deposition of witnesses and other documentary evidence and the circumstances of the case, the lower appellate Court has held erroneously, by placing reliance on the report of the Advocate Commissioner, thus, interfering with the well- rendered findings of the Trial Court. When the primary object of appointing an Advocate Commissioner is to guide the Court in arriving at a proper conclusion and when that primary object remains unfulfilled, the lower appellate court should have certainly not relied on his report in coming to its conclusion and the substantial question of law as to whether the Commissioner's Report was a proper document to be read by the court below, is answered in negative.
22. In that view of the matter, I am of the firm view that the lower appellate court was totally unjustifiable in interfering with the decree of the trial court based on the report of the Advocate Commissioner and I would rather go to the extent of saying that it committed a serious error of law in that regard. As such, the judgment of the lower appellate court is set aside; the judgment and decree of the Trial Court in dismissing the suit is confirmed and as such, the appeal stands allowed. No costs.
cad To
1. The District Court, Dindigul
2. The District Munsif Court, Palani