Madras High Court
Alagarsamy ? vs Sathayi on 31 October, 2017
Author: N.Seshasayee
Bench: N.Seshasayee
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.10.2017
Judgment Reserved on : 07.06.2017
Judgment Pronounced on : 31.10.2017
CORAM
THE HONOURABLE Mr. JUSTICE N.SESHASAYEE
S.A.(MD) No.177 of 2013
and MP (MD) Nos.1 &2 of 2013
and MP.(MD).No.1 of 2014
Alagarsamy ?. Appellant / Appellant / Defendant
Vs.
Sathayi ...Respondent / Respondent / Plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of the Civil
Procedure against the judgment and decree passed in A.S.No.23 of 2012 on the
file of the Sub Court, Devakottai dated 03.10.2012, confirming the judgment
and decree passed in O.S.No.42 of 2009 on the file of the Principal District
Munsif cum Judicial Magistrate Court, Karaikudi dated 24.11.2010.
!For Appellant : Mr.M.P.Senthil
^For Respondent : Mr.K.K.Baalasundaram
:JUDGMENT
The defendant who was successively unsuccessful before the Courts below in a suit filed by the plaintiff/respondent for declaration of latter's right over B-Schedule property and for mandatory injunction seeking to direct the defendant to remove the structures that the latter has put up in the disputed property, has preferred this appeal. Parties would be referred to by their rank before the trial Court.
2. The material facts on which the plaintiff rests the cause of action for the suit are :
The plaint A - Schedule property was purchased by the plaintiff from one Selvam and latter's wife Meenal on 15.11.2007. This property is comprised in Survey No.90/8. The property immediate to the east of the plaint A-Schedule property also falls within the same Survey field and to the further east of A-Schedule property lies a lane. To the east of the A- schedule property lies another plot of land. This plot also falls within the same survey field as the plaint A- schedule property is. In this eastern plot, defendant has his property on the north, leaving a strip of land on the south. Defendant's property measures 62 feet x 55 feet. The defendant has purchased his property from one Anjalai Ammal.
To the east of A- schedule property and to the south of defendant lies a small strip of land measuring 15 feet x 62 feet. This small strip of land is described in the B-Schedule of the plaint. It belonged to the plaintiff. The defendant has no manner of right over B-schedule property. While so, sometime in March, 2009, the defendant attempted to trespass into B-schedule property. Therefore, the plaintiff caused issuance of the suit notice dated 18-3-2009, but this was responded to by the defendant with her reply containing untenable contentions. Hence, the suit for declaration to declare plaintiff's title for B-Schedule property and for mandatory injunction was laid.
3. In the written statement, the defendant has pleaded that plaint B-Schedule property belongs to him and it is a part of the property that he has purchased. After purchase, he has put up a compound wall and he is in enjoyment of the property. However, the plaintiff has turned inimical to the defendant and has laid the suit with ulterior motives and the suit is liable to be dismissed with exemplary costs.
4.1 Before the trial Court, the plaintiff has examined herself as P.W1. P.W.2 is one Chandran, the son-in-law of the plaintiff. The defendant examined himself as D.W.1. Besides he had examined one Vadivel and another Boominathan as D.W.2 and D.W.3. The Court has also appointed a Commissioner whose plans and report are available on record as Exts. C-1 and C-2.
4.2 The entire Survey No. 90/8 has a total extent of 37 cents, of which the defendant has purchased 7 cents and the remaining 30 cents was purchased by the plaintiff and her husband. It is plaintiff's case that her husband had purchased 10 cents on the far west while the plaintiff had purchased 20 cents to the east of her husband's plot and to the west and south of defendant's property.
4.3 The trial Court has essentially relied on the boundary description of the property purchased by the defendant in his sale deed, a copy of which is marked Ext.A-7. In Ext.A7, the property that the defendant had purchased is the one that lies to the north of a plot measuring 15 x 62 feet and this is described as a common pathway. Accordingly, the Court applied the time tested principle that in case of any ambiguity, boundaries would prevail over the extent or the survey number.
5. The first appellate Court had adopted a similar line of reasoning and dismissed the appeal filed by the defendant.
6. This appeal was admitted on the following substantial questions of law framed :
1.Whether the Courts below are right in law in granting a decree for declaration merely relying on the boundary recitals by mechanically applying the principles ?boundary will prevail over extent when there is no dispute or discrepancy with regard to the extent purchased by the respondent under Ext.A7?
2.Whether the Lower Appellate Court committed an error in mechanically concurring with the findings of the trial Court without any independent consideration of the oral and documentary evidence as well as in the pleadings as contemplated under Order XXXI Rule 41 of C.P.C.
7. The learned counsel for the appellant contended that in a suit filed for declaration of title, the burden is entirely on the plaintiff to prove that she has entire title to the property litigated. Admittedly, the plaintiff has purchased only 30 cents in S.F.No:90/8 covered under Ext.A-3 in favour of her husband, and Ext.A-1 in her favour. She, neither had attempted to prove that in her sale deed (Ext.A-1) suit property is included, nor has she been able to show that the property covered under Ext.A-7 included B-schedule property.
8. Per contra, it was contended for the respondent/plaintiff, that the defendant cannot seek anything beyond what is described as his southern boundary and hence the approach of the Courts below in limiting defendant's property to his southern boundary. If at all any, he ought to show how is entitled to a strip of land which the plaintiff describes as the B-Schedule property, and that it is included within Ext.A-7 sale deed in his favour.
9. To bring the specific facts to focus, the 30 cents plot that the plaintiff and her husband jointly holds originally belonged to one Selvam and his wife Meenal. They, Selvam and Meenal purchased the same under Ext.A-2 sale deed dated 10-02-1994. Be that as it may, on 15-11-2007, Selvam and Meenal sold 10 cents to plaintiff's husband under Ext.A-3 and 20 cents to plaintiff under Ext.A-1 through their Power of Attorney. The defendant had purchased his property from one Anjalai under Ext.A-7 dated 19-11-2003. It is recited in Ext.A-7, that Anjalai had purchased the property that she sold to the defendant under a sale deed dated 07-09-2000. It can therefore be instantly gathered that plaintiff's vendors have purchased their property under Ext.A-2 earlier in point of time than Anjalai.
10. Ext.A-2 reveals that the aforesaid Selvam and Meenal had purchased the entire 37 cents in S.F.No: 90/8. In Ext.A-1, it is recited that the vendors had handed over the original of Ext.A-2 sale deed to one Azhagarsamy Chettiar, the purchaser of the eastern plot. Defendant's vendor Anjalai had purchased this eastern plot in 2000. Neither the document under which Selvam and Meenal had sold the eastern plot to Azhagarsamy Chettiar, nor the sale deed under which Anjalai obtained title were produced. Indeed, the defendant had not even produced his sale deed, and it was the plaintiff who marked a copy of his sale deed during the cross examination of defendant. Why the defendant strategised not to produce his title deeds including the one under which his vendor Anjalai purchased the plot may be his choice, but the legal consequence that follows from this strategy, this conduct, does not help him to sustain his defence. It's all too obvious that he has facts to hide and necessarily adverse inference requires to be drawn against him.
11. One aspect that Exts.A-2, A-1, A-3 and A-7 convey is that the title to the entire 37 cents in S.F.No:90/8 covered under Exts.A-1,A-3 and A-7 is traceable to Selvam and his wife. And Ext.A-2 describes this 37 cents property lies in between a road on the west and a street on the east. It in this background the boundary description in Ext.A-7 gains importance. It reads:
fhiuf;Fo hp/o/fhiuf;Fo 1k;eph;. $hapd;l; rg;/o/rhf;nfhl;il g";rhaj;J a{dpad;.gs;sj;Jh; g";rhaj;J. gs;sj;Jh; fpuhkj;jpy;. thh;L vz;/9. rhj;jg;gbrl;oahh; re;jpy; gl;lh vz;/950. rh;nt vz;/90-8 (bjhz;dqhhpy; vl;L) bcwf;. 0?15?0f;F brd;l;.37y; tlg[wj;jpy;. fPH;g[wkhf fpHnky; $hjpao 62 bjd;tly; $hjpao 55f;F rJuo 3410 (K:thapuj;jp ehDhj;jp gj;jp) tp!;jPh;zKs;s fhypkidaplKk; mijr;nrh;e;J rfy RthjPd';fSk; ,jw;F vy;if rhj;jg;g brl;oahh; re;Jf;Fk; nkw;F. ,e;j brhj;Jf;Fk;. ,jd; nkw;nf Mh;/bry;tk; iftrKs;s brhj;Jf;Fk; ngha; tUtjw;fhf tplg;gl;Ls;s 15 mo mfyk; 62 mo ePsKs;s bghJg;ghijf;Fk; tlf;F. eh/Kj;ja;ah brl;oahh; kidf;F bjw;F. ,e;J rh;nt ek;ghpd; Mh;/bry;tk; iftrKs;s fhypaplj;Jf;Fk; fpHf;F. ,jw;Fs;shdJ/
12. It is self-evident that the 7 cents lies only to the north of a strip of land that measures 15 feet x 62 feet. And it is described as B-schedule property. Now Commissioner finds that the defendant has put up constructions in B-schedule property. This report of the Commissioner was not sought to be discredited by the defendant in the manner known to law. The conclusion to be derived from the above discussion is to state the obvious: That this Court concurs with the decisions of the courts below.
13. Before parting with the case, it may be stated that primarily this case does not involve any conflict between survey number or extent on the one hand and boundaries on the other hand. The pleadings in this case do not indicate that a conflict of this nature is involved. To this extent the appellant is right. But still it is not adequate to tilt the fortune of the case in favour of the appellant/defendant. Secondly, merely because the first appellate court adopted the same set of reasoning of the trial court, that ipso facto does not indicate that the first appellate court did not apply its mind to the job at hand. In the context of the present case, the appellant can prove the contrary only if he can demonstrate to the satisfaction of this Court that the approach of the trial court in resolving the dispute before it was tangential to what he perceives as the correct approach. First, defendant does not claim any interest in the properties covered in Exts.A-3 and A-1 sale deeds in favour of the plaintiff's husband and herself. Nor the plaintiff claims any right to the property covered in Ext.A-7. The point is whether B-schedule property lies to the south of the property covered by Ext.A-7 or is it part of it? On this a decision is already made.
14. In the result, the appeal is dismissed, thereby confirming the judgment and decree passed by the Courts below. No costs. Consequently, connected miscellaneous petitions are closed.
To:
1.The Sub Court Devakkottai.
2.The Principal District Munsif cum Judicial Magistrate Karaikudi.
.