Madras High Court
R. Nainar Pillai vs Subbiah Pillai on 16 May, 2007
Author: V. Dhanapalan
Bench: V. Dhanapalan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 16/05/2007 Coram: The Honourable Mr. Justice V. DHANAPALAN S.A. No.535 of 1995 1. R. Nainar Pillai 2. Sivanammal ... Appellants vs. Subbiah Pillai ... Respondent Second Appeal preferred under Section 100 of Civil Procedure Code against the judgment and decree dated 21.11.1994 made in A.S. No.37 of 1993 on the file of the Additional District Judge, Tirunelveli reversing the judgment and decree dated 15.03.1993 made in O.S. No.92 of 1992 on the file of the Sub-Court, Ambasamudram. !For appellants ... Mr. R.S. Ramanathan ^For respondent ... Mr. C. Vakeeswaran for Mr. A. Sankarasubramanian :JUDGMENT
This appeal is preferred by the defendants who succeeded in the Trial Court but lost in the lower appellate court, challenging the judgment and decree of the lower appellate court in A.S. No.37 of 1993 reversing the judgment and decree of the Trial Court in O.S. No.92 of 1992.
2. The case of the plaintiff, in short, is as under:
i. The first and second schedule properties which are adjacent to each other originally belonged to his parents namely Chockalingam Pillai and Muppidathiammal who bequeathed the same to him by way of a registered will dated 09.02.1964 and in the said will, the plaint schedule properties were described as fifth item to the second schedule. The northern boundary of the suit scheduled properties belongs to Chellammal and Madasamy Pillai who are the predecessors-in-title to the appellants and the southern boundary is a street.
The plaintiff's father dug a well in the first schedule property in the year 1965 and after his demise, the plaintiff enjoyed the same till 26.02.1961.
ii. The property in the third schedule to the plaint belongs to Madasamy Pillai whose properties were brought to sale in E.P. No.152 of 1964 and that was bought by Muppidathi Pillai, who in turn, gifted the property measuring 15 cc north-south and 8 cc east-west by way of a gift deed 13.01.1969 to the first defendant and in the middle of the said third schedule property, there is a lane measuring 1 cc east-west and 7 cc north-south and the defendants/appellants are not entitled to have more than what they were given under the gift deed. While so, the defendants/appellants trespassed into the plaint first schedule property and closed the well and also constructed a wall measuring 1' and hence, the plaintiff filed the suit for:
a. declaration that the plaint first schedule property is his absolute property;
b. recovery of possession of the same from the defendants/appellants and c. mandatory injunction directing the defendants/appellants to remove the debris dumped into the well which was thus closed by them.
3. Resisting the case of the plaintiff, the defendants filed a written statement and also a sketch of the suit properties. According to them, the sketch of the suit properties filed by the plaintiff is not correct; their predecessor-in-title Madasami Pillai purchased the suit properties under a Sale Deed dated 03.01.1952 marked as Ex.B.3 of which the plaint first schedule property is also a part and in that sale deed, there is a specific mention of the well. It is the specific case of the defendants that when the plaintiff had admitted their ownership on 25.09.1972, he cannot file a suit in respect of the same property claiming declaration of title. The defendants have also disputed the claim of the plaintiff that his father dug the well in the suit A schedule property. It is their contention that they are the owners of the plaint A schedule property as per Ex.B.3, sale deed and as such, the plaintiff cannot claim ownership of the same.
4. The Trial Court, on an analysis of the oral and documentary evidence, framed the following issues for consideration:
a. whether the plaintiff is entitled to declaration and recover of possession of plaint first schedule property?
b. whether the plaintiff is entitled to mandatory injunction as prayed for? and c. To what relief the plaintiff is entitled to?
and after answering the first two questions against the plaintiff, the Trial Court dismissed the suit. Against this judgment of the Trial Court, the plaintiff filed an appeal. In the appeal, the lower appellate court reversed the judgment of the Trial Court against which this appeal has been filed by the defendants.
5. On 27.04.1995, this Court admitted the Second Appeal on the following substantial questions of law:
a. Whether the lower appellate court erred in believing and acting Ex.A.2 when it was not proved in accordance with law?
b. Whether the lower appellate court erred in decreeing the suit for mandatory injunction without considering the question whether compensation would have been awarded instead of mandatory injunction?
6. The main contentions of Mr. Ramanathan, learned counsel for the appellants are that:
a. the lower appellate court has gone wrong in placing reliance on Ex.A.2, Will dated 09.02.1964 which is alleged to have been executed by the parents of the respondent, to come to the conclusion particularly when it has not been proved according to law;
b. the lower appellate court has erred in holding that the features shown in the Commissioner's plan tally with Ex.A.2, Will, when the latter was not proved according to law;
c. the lower appellate court ought to have discussed the exhibits marked by the defendants particularly while reversing the judgment of the Trial Court;
d. instead of placing the burden of proof on the plaintiff, the lower appellate court has erroneously placed it on the defendants and reversed the findings of the Trial Court;
7. In support of his contention that the boundaries prevail over measurements, learned counsel for the appellants has relied on a judgment of this Court reported in (2004) 4 MLJ 677 in the case of Kuppuswami Naidu vs. Krishnasami Naidu (para 10) in which the decision reported in Ramaiya Assari v. Ramakrishna Naicker alias Kollimalai Naicker (2000) 3 MLJ 327 has been relied on and the relevant portion reads as under:
"Where the deed sets out the extent and measurements correctly, there can be no difficulty in determining the subject matter of the grant. But where no measurements are given or the extent mentioned in the deed is either vague or is only a rough and ready approximation one has to look to other indications in the deed in order to fix the identity of the property which is the subject of the grant. If the deed in question sets out the boundaries of the property conveyed, then these boundaries will have to be accepted as a clear reflection of the intention of the grantor and they will conclude not only the exact positioning of the property conveyed, but also its true extent. The boundaries given in the deed will also, in such cases, prevail over the measurements given in the deed, if these are given as approximations."
8. Per contra, Mr. C. Vakeeswaran, learned counsel appearing for the respondent has contended that the measurements of the properties claimed by both the parties were not elaborately discussed and did not find a predominant place and in the result, the judgments of the trial court and the lower appellate court were delivered with more reliance on the boundaries of the properties involved. In reply to the contention of the counsel for the appellants that the onus of proof lies on the plaintiff, counsel for the respondent has contended that the matter of leading evidence is always unstable and shifts constantly. It is his further argument that the bona fide mistake committed by counsel while drafting prayer should not prejudice the case of the plaintiff. In this context, he has placed reliance on a decision of this Court reported in 1997 (III) CTC 507 in the matter of Syndicate Bank, Salem Town, represented by its Sub-Manager vs. Salem Slate Forms, firm by partner Muthu Reddiar, Thadamapatty, Salem-14 and 5 others and the relevant para reads as under:
"Because of the bona fide mistake committed by a counsel while drafting the prayer, the plaintiff cannot be sent back without any relief, especially when the court below has found that the defendants are liable to pay the said amount, and decree having been granted on that basis. Even if the objection raised by the learned counsel appearing for the respondents that Sections 151, 152, 153 of the Code cannot be made applicable to the facts of the present case, this Court can exercise the power under Article 227 of the Constitution of India, in the interest of justice, to amend the decree. Though the same has to be invoked sparingly, in the present case, that power has to be exercised..."
9. To add strength to his argument that pleading should be read as a whole and not in isolation, reliance has been placed by the counsel for the respondent on a judgment of the Supreme Court reported in AIR 1987 SC 1242 in the case of Ram Sarup Gupta (dead) by LRs vs. Bishun Narain Inter College and others (para 6) ". . .It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial, it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised, the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. . ."
10. On his above contention, he has placed further reliance on yet another judgment of the Supreme Court reported in AIR 1976 SC 744 in the case of Udhav Singh vs. Madhav Rao Scindia (para 30) ". . . It is not permissible to cull out a sentence or a passage and to read it out of the context, in isolation. Although it is the substance and not merely the form that has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, primarily from the tenor and terms of his pleading taken as a whole."
11. Finally, the counsel for the respondent has contended that when attempt is made to identify property with reference to such boundaries, the High Court cannot interfere in Second appeal and in this regard, he has relied on a judgment of the Supreme Court reported in 2006 (5) CTC 180 in the case of Subhaga & others vs. Shobha & others:
". . . That a property can be identified either by boundary or by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail. There was no occasion to spin a theory that it was necessary in this suit to survey all the adjacent lands to find out whether an encroachment was made in the land belonging to the plaintiff. In this situation, we are satisfied that the judgment and decree of the High Court calls for interference. We are also satisfied that the lower appellate court was justified in affirming the decree granted in favour of the plaintiff on the pleadings and the evidence in the case."
12. I have considered the rival submissions of the learned counsel on either side and the citations relied on by them in support of their contentions.
13. While the plaintiff claims title to the suit properties by way of a Ex.A.2, registered will dated 09.02.1964 in and by which his parents bequeathed the suit 1st and 2nd schedule properties to him, the defendants claim title by way of Ex.B.3 sale deed by which their predecessor-in-title Madasami Pillai purchased properties which include plaint 1st schedule property.
14. The point for consideration in this appeal is whether the Trial Court is correct in dismissing the suit holding that Ex.A.2, registered will is not proved in accordance with law.
15. It is seen that the plaintiff had come to the court with the specific case that the plaint 1st and 2nd schedule properties are the 5th item of 2nd schedule to the will dated 09.02.1964 and the encroached portion by the defendants/appellants is the plaint 1st schedule. In other words, it is seen that it is the case of the plaintiff that the north-south measurement of 5th item of 2nd schedule to the will which is equivalent to the plaint 1st and 2nd schedule is measuring 20 " cc north south. Thus, it is very clear that the plaintiff is estopped from claiming over and above 20 " cc north south and let me proceed to decide the case on this footing.
16. The north-south measurement of the plaint 1st schedule property is 5 cc and that of plaint 2nd schedule property is 20 cc and undisputedly, these two are adjacent properties and the total north-south measurement of plaint 1st and 2nd schedule properties is 25 cc. But, even according to the plaintiff, the north-south measurement of 5th item of 2nd schedule to the will i.e. Ex.A.2 is only 20 " cc. Thus, at the cost of repetition, when the plaintiff claims that the plaint 1st and 2nd schedule properties are the 5th item of 2nd schedule to the will marked as Ex.A.2 and when there is a variation of north-south measurement of the suit properties as mentioned in the plaint and will to the extent of 4 cc, the case of the plaintiff has to naturally fail.
17. Next, it is contended by the learned counsel for the respondents that the boundaries should prevail over measurements. Of course, there can be no dispute over that contention; but, it is to be seen as to when such a principle has to be accepted. It is trite law that boundaries prevail over measurements in the absence of any mention of the latter. In the instant case, the plaintiff has come out with specific measurements. That being so, it is not proper on the part of the plaintiff to contend that if the will in question sets out the boundaries of the property conveyed, then these boundaries will have to be accepted as a clear reflection of the intention of the grantor and they will conclude not only the exact positioning of the property conveyed, but also its true extent and to take shelter of the principle "boundaries prevail over measurements". Thus, when Ex.A.2, Will is not proved in the eye of law, the first substantial question of law is answered in favour of the appellants.
18. As regards the second substantial question of law, it is found that the first appellate court, opining that in the defendant's gift deed dated 13.12.1969, the well does not find a place and he was given only 15 cc north- south and 9 cc east-west and as such, he is not entitled to the plaint 1st schedule, decreed the suit. But, it is to be noted that even in Ex.A.2, will relied on by the plaintiff, the well does not find a place. As against the settled principle that the onus is on the plaintiff to prove his case, the lower appellate court has held no well is mentioned in the gift deed relied on by the defendant and as such, he cannot claim the property, taking a lenient view of the fact that the well does not find place in the will relied on by the plaintiff. Though the counsel for the respondent has contended that the onus of proof does not remain stable and it keeps shifting constantly, I am of the firm view that this argument is not tenable since the plaintiff is not able to prove his case by the document relied on by him and the conclusion arrived at by the lower appellate court based on the weakness in the documentary evidence of the defendant is also not sustainable. As such, the second substantial question of law also is decided in favour of the appellants.
19. Considering the facts and circumstances of the case, this Court holds that the lower appellate court has grossly erred in reversing the judgment of the Trial Court. Accordingly, the judgment of the Trial Court in dismissing the suit is confirmed and the judgment of the lower appellate court is dismissed.
In fine, the second appeal stands allowed without any order as to costs.
cad To
1. The Additional District Judge, Tirunelveli
2. The Sub-Judge, Ambasamudram