B. Rajarathinam vs B. Venkatesan and Others

M. Thanikachalam, J.—The plaintiff, though succeeded in his claim before the trial Court, failed to sustain the decree before the first

appellate Court and therefore, he is before this Court, as appellant.

The plaintiff/appellant has filed the suit for declaration of his title to the suit property, viz., ''B'' schedule, for mandatory injunction directing the

first defendant, to remove the fence put up in the said property, and for permanent injunction, contending that he had purchased the suit property

from its original owner under registered sale deed, but the defendants, who are the neighbours, encroached upon the ''B'' schedule property and

put up a fence, thereby not only casting cloud over his title, but also put up a fence, compelling the plaintiff to file the suit, as said above, for the

reliefs.

The defendants opposed the claim of the plaintiff contending, that even as per the description of property, ''B'' schedule property could not be in

existence, that the defendants never trespassed into the plaintiff''s property, in order to interfere with the plaintiff''s peaceful possession and

enjoyment of the same, and therefore, the plaintiff is not entitled to any relief. In the additional written statements also, the defendants have

questioned the right of the plaintiff, disputing the entire averments.

The trial Court recording the evidence of the plaintiff and the first defendant, as well as marking nine documents, on the side of the plaintiff and

three documents on the side of the defendants, in addition Exs.C1 to C3, evaluated the same, on the basis of the plea and counter plea. The

documents and the Commissioner''s Report indicated that the parties, are fighting for the known property, though in the documents, survey

numbers are not properly given, that the defendants had trespassed into the property of the plaintiff, to an extent of 190 sq.ft. and had also put up

fence, which they are not entitled to do so. In this view of the matter, the trial Court has granted a decree as prayed for without cost, thereby

causing dissatisfaction to the defendants.

The first defendant aggrieved by the decree and judgment of the trial Court, preferred an appeal before the IV Additional Judge, City Civil

Court in A.S.No.68/91. The learned VI Additional Judge after considering the case of the parties, came to the conclusion, that the trial Court had

committed an error in accepting the Commissioner''s Report, which has been superseded, in view of the appointment of the subsequent

Commissioner and that the sale deed of the first defendant is anterior in point of time, which would follow, the subsequent purchaser viz., the

plaintiff cannot have better title. In this view, he reversed the finding of the trial Court, thereby ordering to dismiss the suit.

The plaintiff, questioning the first appellate Court''s judgment, has filed this second appeal, which was admitted on the following substantial

questions of law.

Whether the lower appellate Court was right in the view it took that the appellant has not established the title to the B schedule properties.

Whether Ex.C2 would supersede Ex.C1?

Heard the learned counsel, Mr. C.L. Vijayaraghavan, appearing for the appellant.

The subject matter of the suit is an extent of 38 feet, on the north, 40 feet on the south, 5 ft on the east and on the west 11/2 ft., which is

indicated in red colour, in the plaint plan. According to the plaintiff, the suit property is in new T.S.No.151 and its old Survey Number is 112. The

''B'' schedule property, forms part of ''A'' schedule property. The plaintiff claims title to the above said property, under Exs.A1, A2, A5, A6. The

first defendant/1st respondent is the owner of northern side property. The suit property and the adjacent properties measuring an extent of 63

cents originally belonged to defendants (2) & (3). It seems they have plotted out the vacant site, numbering 12. In this area, plot No.12 was

purchased by defendants 4 & 5, and plot No.11 was purchased by the first defendant, in the year 1978 from defendants 2 & 3. The fact that

defendants 4 & 5 had purchased plot No.12 is evidenced by Exs.A5 & A6, and the fact the first defendant purchased plot No.11 is evidenced by

Exs.B5 and B6. In these documents, the survey numbers are not correctly described; or old survey number alone are given.

A Deputy Inspector of Surveyor, was appointed as Commissioner and the Commissioner on verification of the field maps, and relevant revenue

records, identified the property of the plaintiff, the first defendant and he came to the conclusion, that the lands are at present in Survey No.150/3.

It seems, the first defendant''s property is sub divided as 150/4. As seen from the records, for the Commissioner''s Report, no objection is filed,

though the first appellate Court has said as if, objections were filed. It is not the case of either the plaintiff or the first defendant, that their properties

are not in Survey No.150/3 or 150/4, respectively as indicated by the Commissioner, in Exs.C1 and C2, whereas it is only in the Survey

Numbers, as indicted in their title deeds. When the original numbers were resurveyed, it appears, different survey numbers are given and that is

why the Deputy Inspector of Surveyor has stated that the plaintiff''s property viz., Plot No.12 is in survey No.150/3. It is the further observation of

the Commissioner in Ex.C1, that the plaintiff applied for separate patta, for the property purchased by him and the same was sub divided and

noted as 150/3. In the same manner, on verification of the records, the Deputy Inspector of Surveyor had observed that the defendant also applied

for separate patta, in pursuance of the purchase and the land was sub divided, noted as T.S.No.150/4. The above facts narrated by the

Commissioner viz., the Deputy Inspector of Surveyor, was not challenged by filing any detailed objection as seen from the records. Though the

parties have sub divided the survey numbers, and obtained patta that numbers have not been described in the plaint. Probably to suit the

description given in the sale deed, it seems the plaintiff had described the property as per the schedule in the sale deed. But on ground, the survey

number is different. When the parties were fully aware of the fact, that for which property they are fighting, even ignoring the wrong survey number,

remedy should have been granted, instead of driving the parties from pillar to post, since already 19 years have lapsed.

The learned counsel for the appellant also submits, that when the property could be easily identified, this Court is having ample power, to give

the relief, which is acceptable to me. Therefore, considering Ex.C1, it should be held that the subject matter of the suit is in Survey No.150/3,

though the plaint description says that the survey number is in T.S.No.151. By boundaries as well as by plot number, the property is easily

identifiable and that is why, the Commissioner - Deputy Inspector of Surveyor has identified the property, measured the same, noted the alleged

encroachment also. If the report C1 & C2 are legally acceptable, then there is nothing wrong in deciding the case on that basis.

The first appellate Court has taken the view, that the first Commissioner''s Report and plan viz., Exs.C1 & C2 were superseded and therefore,

that could not be the evidence, to decide the case. Considering the position of law as well as the so called second Commissioner''s Report viz.,

Ex.C3, I am of the opinion that the first appellate Court had committed an error without understanding, under what circumstances, the previous

report could be said as superseded or it could not be relied on as evidence. In this context, we have to see certain provisions under Order XXVI,

seeking some guideline from the previous decisions also.

Order XXVI Rule 9 C.P.C. contemplates appointment of Commissioner to make local investigation. Only on the strength of the power vested

under this rule, on application, the Deputy Inspector of Surveyor was appointed as Commissioner, with a direction to make local investigation of

the disputed properties. As said above, the Deputy Inspector of Surveyor measured the suit lands, checking with revenue block map and other

necessary documents, verifying whether they are in conformity with the revenue records. After adopting all the precautions, he localised the

property and found that the plaintiff''s property is in Survey No.150/3, whereas the defendant''s property is in Survey T.S.No.150/4.

Order XXVI Rule 10(2) C.P.C. contemplates that the report of the Commissioner and the evidence taken by him shall be evidence in the suit

and shall form part of the record, thereby empowering the Court to assess the report in order to decide the dispute. At the same time, it also gives

power to the parties, to examine the Commissioner, in order to have some clarification, if any doubt had arisen, or if it is felt that the Commissioner

had erred in his report. When the Court has not satisfied with the report and the proceedings of the Commissioner, then as contemplated under

Order XXVI Rule 10(3), the Commissioner may be directed to make further enquiry under the facts and circumstances of the case.

In this case, for the reasons best known to the parties, which is not disclosed by the records, there was an attempt by the first defendant, to

have a second commissioner. Unfortunately, the trial Court, without giving any finding, whether the previous report could be accepted or not,

appears to have appointed a second Commissioner, to measure the suit property. As said above, the suit property is in Survey No.151, as per the

schedule in the plaint. Therefore, a warrant was prepared giving the same description of property, indicating the Survey Number as 151. When the

second Commissioner, with the help of the Deputy Inspector of Surveyor, attempted to locate the suit property, it was noticed that T.S.No.151 is

adjacent to the suit property. Therefore, the second Commissioner, without measuring the property, submitted a report, that the survey Number

mentioned in the Commissioner''s warrant and the record shown by the parties did not correspond with actual survey number, in which the suit

property situate and therefore, the Deputy Inspector of Surveyor could not measure the suit property. It is not the case of the parties, that the

disputed properties are in Survey No.151. Therefore, the second commissioner, at least ought to have sought the clarification of the Court,

irrespective of the incorrect survey number in the warrant, whether the suit property could be identified independently and measured. But

unfortunately, the Court Officer, who was appointed to assist the Court failed in his duty and filed an incohate report, which in my opinion, is not at

all a Commissioner''s Report and the same will not have the strength or power of superseding the earlier Commissioner''s Report, which had

localised the suit property, with reference to the boundaries, survey numbers, pattas, field maps, etc. Unfortunately, the first appellate Court

depending upon the technicalities, failed in its duty to do justice, and came to an erroneous conclusion, as if the previous report was superseded,

by mere appointment of the second Commissioner, which is not acceptable, could not be law. If the second Commissioner had measured the suit

property, identifying the same with reference to the boundaries, etc. filed the report, then it would amount to, superseding the first report and in that

case alone, it could be said that the superseded Commissioner''s report cannot have any evidentiary value, and it shall not form part of the record

as per Order XXVI Rule 10(2).

In Kuthiravattath Kongasseri Mokshath Thottamma alias Amma Neithiyar Vs. C.S. Subramaniyya and Another, a Division Bench of this Court

had held, a superseded report cannot be used as basis for valuation. In the case involved in the above decision, actually there was a second report

in its real sense, assessing the property, while the first report is also available. Therefore, their Lordships were of the opinion, that the first report

was superseded and therefore, the superseded report cannot be used as basis, for valuation. In our case, this position is not available, for the

reasons given by me supra.

In R. Viswanathan v. P. Shanmugam 1985 (1) MLJ 254 this Court has held:-

that until the Court is dissatisfied with the proceedings and report of the Commissioner earlier appointed, it will not be proper to ignore the same

and direct even further enquiry, much less the scrapping of the earlier report as a whole and appoint a fresh Commissioner. The power is

circumscribed by the principles under Order 26, rule 10(3). The power can be exercised only after the Court below renders a finding that the

proceedings and the report of the earlier Commissioner are not satisfactory and there is need for a further enquiry.

As seen from the records, in our case, there is no finding of the trial Court or any opinion expressed, that the proceedings and the report of the

first Commissioner are not satisfactory, though a second Commissioner was appointed. Appointment of the second Commissioner, without giving a

finding, regarding the correctness of the earlier Commissioner''s Report, will not automatically lead us to the conclusion, that the first report was

scraped or superseded and therefore, it has no evidentiary value. As observed in the above decision, here the first report was not found to be

incorrect and there is no finding also that the report of the Commissioner is not satisfactory.

As seen from the provisions of Order XXVI, I do not find any provision of law, enabling the Court to appoint a second Commissioner, with

the consent of the parties and if at all, Order XXVI Rule 10(3) has to be invoked for further enquiry. The position being so, it is not known, under

what circumstances, a second Commissioner was appointed in this case, who had not done the duty properly. In fact, I should say, Ex.C3 is not a

Commissioner Report, and it is after all an information to the Court, expressing the inability of the Commissioner, to measure the property or

localise the property, in view of the differences in Survey number. In this view of the matter, in my opinion, Ex.C3 is not at all the Commissioner''s

Report and it would not have the power of superseding the earlier report and therefore, Exs.C1 and C2 remain as such and it should have its

evidentiary value, as per Order XXVI Rule 10(2) C.P.C. In this view of the matter, the Court is bound to look into the Commissioner''s Report, to

decide the dispute between the parties.

For the foregoing reasons, the observation of the first appellate Court, misconstruing the above decision as if the first report was superseded

by Ex.C3, is unacceptable, either on facts or on law. In my opinion, the judgment rendered by the first appellate Court appears to be perverse in

nature, against the evidence, warranting interference by this Court. Exs.C1 & C2 positively indicate that the defendant had encroached upon the

land of the plaintiff, to an extent of 16 sq. meter or 190 sq.ft., for which the plaintiff is entitled to a declaration for mandatory injunction, in addition

to permanent injunction also. The perverse nature of the first appellate Court''s judgment, is further seen from the observation that the first

defendant''s sale is anterior in point of time and therefore, the first defendant should have preference. The first appellate Court has failed to note

that the original owners of the suit property viz., the defendants 2 & 3 have sold the property to defendants 4 & 5 under Exs.A5 & A6 on

13.8.1975. Only from these defendants under Exs.A1 & A2, the plaintiff had purchased the property. The first defendant had purchased his

property from D2 & D3 on 17.8.1975 i.e. after the sale by D2 & D3 in favour of D4 & D5 on 13.8.1975. Therefore, it at all, the first defendant

should have purchased the property, what remained with defendants 2 & 3, after the sale in favour of D4 & D5 under Exs.A5 & A6. The plaintiff

is claiming title under Exs.A5 and A6 also, which are the basic documents, or the source of title to the plaintiff''s vendor and that date should be

reckoned. Forgetting this basic principle, taking the date of sale, in favour of the plaintiff alone, the first appellate Court has observed, as if the

plaintiff had purchased the property from the original owners, after they have sold the property in favour of the first defendant, which is factually

incorrect. The first appellate Court misdirecting itself, not properly understanding the documents and their effect, in my opinion rendered an

incorrect judgment, reversing the well reasoned correct judgment. In this view of the matter also, the finding of the first appellate court is liable to

be set aside as rightly urged on behalf of the appellant.

For the foregoing reasons, I conclude that the appellant/plaintiff had established his title to the B schedule property, though survey number

alone is mistakenly given and Ex.C3 has not superseded Exs.C1 & C2, answering the points accordingly.

The result, therefore is, the appeal is allowed setting aside the decree and judgment of the first appellate Court and restoring the decree and

judgment of the trial Court. No order as to co sts.