Dhanukodi vs Saroja and Others

P.R. Shiva Kumar, J.—The Plaintiff in the original suit O.S. No. 7 of 2001 on the file of the District Munsif cum Judicial Magistrate,

Orathanadu is the Appellant in the Second Appeal. He had filed the suit for the following relief''s:

for a declaration of title in respect of item 1 of the suit properties;

for a mandatory injunction for the removal of the construction allegedly put up by the first Respondent/first Defendant in all the three items of

properties and

for the recovery of possession of all the three items of the suit properties.

An extent of 0.09.0 Hectares comprised in Survey No. 459/12B in Poiundarkottai Village, Orathanadu Taluk, Thanjavur District is shown as

item 1 of the suit properties. The constructions allegedly put up by the first Respondent/first Defendant therein consisting of a tiled structure and a

thatched structure have also been shown in the description of item 1 of the suit properties. Out of 0.07.5 Hectares comprised in S. No. 459/17 in

the said Village, 4 x 10 feet over which the first Defendant allegedly encroached upon and put up a portion of his septic tank is shown as item 2 of

the suit properties. In the very same village an extent of 5 x 22 feet out of 0.04.0 Hectares comprised in S. No. 459/18 over which the first

Respondent/first Defendant has allegedly put up a thatched shed is shown as item 3 of the suit properties.

The first Respondent/first Defendant filed a written statement and the same was adopted by the other Respondents/Defendants. It was

contented therein that no portion of the Appellant/Plaintiff was encroached upon and that hence, the Plaintiff was not entitled to any one of the

relief''s sought for in the plaint.

Necessary issues were framed and the trial was conducted, in which three witnesses were examined as P. Ws.1 to 3 and eleven documents

were marked as Exs.A1 to A11 on the side of the Appellant herein/Plaintiff. Four witnesses were examined as D. Ws.1 to 4 and three documents

were marked as Ex.B.1 to 3 on the side of the Defendants. Report of the Advocate commissioner, the rough sketch prepared and filed by him and

''A'' Register Extract submitted by the Taluk Surveyor to the Advocate Commissioner were marked as Exs.C1, C2 and C3 series respectively.

The learned trial Judge, on appreciation of the evidence, came to the conclusion that the Plaintiff had not proved his case in respect of the prayer

for declaration of title in respect of item 1 of the suit properties. It also came to the conclusion that no portion of item 2 of the suit properties was

proved to be encroached upon by any one of the Defendants and hence, the relief of mandatory injunction and recovery of possession claimed in

respect of item 2 of the suit properties was also declined. So far as item 3 of the suit properties is concerned, the learned trial Judge came to the

conclusion that there was encroachment as contended by the Appellant/Plaintiff and hence a decree for mandatory injunction and recovery of

possession was granted in respect of item 3 of the suit properties alone as prayed for by the Plaintiff. The suit was dismissed in respect of items

Nos. 1 and 2 of the plaint schedule.

Aggrieved by the dismissal of the suit in respect of items 1 and 2 of the plaint schedule properties, the Appellant herein/Plaintiff preferred an

appeal on the file of Sub Court, Pattukkottai in A.S. No. 4 of 2009. The learned Subordinate Judge also, after hearing the appeal, concurred with

the findings of the trial Court and dismissed the appeal by a judgment dated 26.08.2009, thereby confirming the judgment and decree of the trial

Court.

Questioning the correctness of the said judgment of the lower appellate Court dated 26.08.2009 and the decree drawn thereon, the present

Second Appeal has been preferred.

The arguments advanced by Mr. R. Vijayakumar, the learned Counsel for the Appellant were heard. The memorandum of grounds of appeal

and other documents filed along with the Memorandum, including the judgments of the Courts below, were also perused.

The Plaintiff in the Original Suit is the Appellant in the Second Appeal. The suit was filed in respect of three items of suit properties. All the three

items are different properties. Items 2 and 3 do not form part of item 1 of the suit properties and they are distinct and different properties, even

though comprised in the very same survey number but in different sub divisions. That being so, the Appellant herein/Plaintiff had chosen to seek

declaration of his title in respect of first item alone. So far as items 2 and 3 of the suit properties are concerned, it is the contention of the

Appellant/Plaintiff that his title in respect of the properties comprised in the concerned survey numbers was not disputed by any of the

Respondents/ Defendants and hence, he had chosen to seek the other relief alone, namely mandatory injunction and recovery of possession in

respect of the alleged encroached portions, without seeking the relief of declaration of title. So far as item 3 of the suit properties is concerned,

namely, an extent of 22 feet x 5 feet, over which the thatched shed was put up, out of 0.04.0 hectares comprised in S. No. 459/18, the trial Court

found the issue in favor of the Appellant/Plaintiff and decreed the suit by granting the relief of mandatory injunction for the removal of the said

thatched shed and for the recovery of vacant possession of the said area from the Defendants. As against the said decree, none of the

Respondents/Defendants chose to prefer any appeal or cross objection. Therefore, the decree for mandatory injunction and recovery of

possession in respect of item 3 of the suit properties has become final.

So far as item 1 of the suit properties is concerned, though the Appellant/Plaintiff had prayed for a declaration that the same belonged to him,

the said claim was made only based on the U.D.R. proceedings, whereas the Defendants claimed to have purchased the same under a sale deed

dated 21.09.1998, from one Sethu solagar and his legal heirs. It was also contended by the Defendants that originally patta stood in the name of

their vendors, but in the U.D.R., it was wrongly transferred to the name of Plaintiff. The patta issued in the year 1976 itself in the name of Sethu

Solagar, the vendor of the first Defendant has been produced and marked on the side of the Defendants as Ex.B1. The Appellant/ Plaintiff was not

able to produce any document to show that patta in respect of item 1 of the suit properties was subsequently changed in his name pursuant to his

derivation of title from any body. The trial Court came to the conclusion that pursuant to a mistake that crept in the U.D.R. by which wrongly the

patta was issued in favor of the Appellant/ Plaintiff, the Plaintiff wanted to stake claim in respect of the first item and thus non suited the Plaintiff for

any one of the reliefs sought for in respect of item 1 of the suit properties. The lower appellate Court also concurred with the said finding of the trial

Court in respect of item 1 of the suit properties.

The Second Appeal is sought to be preferred against the denial of the relief''s sought for in respect of item 1 of the suit properties also. The

learned Counsel for the Appellant would submit that since the revenue record after U.D.R. stands in the name of the Appellant/ Plaintiff, the Courts

below should not have rejected the claim of the Appellant/Plaintiff. It is trite law that patta is not a document of title. It is also pertinent to note that

patta in respect of item 1 of the suit properties was proved to be in the name of the vendors of the first Respondent in the year 1976 itself.

Thereafter, under what circumstances and on what basis patta was changed in the name of the Plaintiff, has not been either pleaded or proved by

the Appellant/Plaintiff. There is no infirmity or defect in the concurrent findings of the Courts below that the Plaintiff failed to prove his title to the

first item of the suit properties. So far as first item of the suit properties is concerned, the findings of the Court below cannot be said to be

perverse. The principles of law have also been correctly applied and therefore, this Court is of the considered view that no question of law, in

respect of the dismissal of the suit in so far as item 1 of the suit properties is concerned, is proved to have arisen in the Second Appeal.

So far as item 2 of the suit properties is concerned, it is the contention of the Appellant/ Plaintiff that he is entitled to 18.5 cents comprised in S.

No. 459/17 as he had purchased the same under Ex.A.1 on 13.09.1976 and that out of the said extent, 40 square feet area had been encroached

upon by the first Respondent/first Defendant by locating a portion of his septic tank over the said encroached portion. The learned Counsel for the

Appellant, drawing the attention of the Court to the pleadings made by the Defendants in the written statement incorporating an admission that the

Plaintiff was entitled to an extent of 18 cents in the above said survey number, argued that if the said admission was considered in conjunction with

Exs.C1 to C3, then the Courts below ought to have arrived at the conclusion that a portion of the septic tank was located within the area belonging

to Appellant/ Plaintiff; that a portion of the said septic tank had been put up in an extent of 40 square feet in Survey No. 459/17 and that hence,

the relief of mandatory injunction and recovery of possession of that 40 square feet ought to have been granted.

The learned Counsel for the Appellant/ Plaintiff mainly relies on the Commissioner''s Report, marked as Ex.C1. It is the contention of the

learned Counsel for the Appellant that the Commissioner has found that a portion of the septic tank of the first Respondent had been located over

the area coming within the boundaries of Survey No. 459/17 and that the lower Courts'' failure to rely on the Commissioner''s Report and the

consequential dismissal of the prayers of mandatory injunction and recovery of possession in respect of the second item of the suit properties is

against law and hence finding of the Courts below in this regard deserves reversal in the Second Appeal.

Copies of Exs.C1 to C3 have been produced by the learned Counsel for the Appellant in the form of typed set of papers. This Court had the

benefit of going through the contents of the said documents. After going through the said documents, the reasoning assigned by the Courts below

for rejecting the prayer made by the Appellant/Plaintiff in respect of the second item of the suit properties were considered by this Court. Upon

such a consideration, this Court is of the view that the finding arrived at by the Courts below in this regard is only a finding of fact and such a

finding cannot be termed either defective or infirm, much less perverse.

The learned trial Judge has dealt with in extensor, the contention of the Appellant/Plaintiff that a portion of Survey No. 459/17 was encroached

upon and the septic tank was located in such a manner that a portion of it occupies 40 square feet in the said Survey number. It was clearly

observed by the trial Court in its judgment that even in the Commissioner''s Report, it was not stated that any part of the septic tank was found

within the boundaries of Survey No. 459/17, which admittedly belonged to the Appellant/Plaintiff. The Appellant/ Plaintiff by claiming title to item 1

of the suit properties comprised in Survey No. 459/12B having an extent of 0.09.0 Hectares has admitted that the sub-division in the Survey No.

459/12B has an extent of 22 cents. The other sub-division namely, 459/12A has an extent of 19 cents. The total extent of Survey No. 459/12

before its further sub-division into 12A and 12B was 41 cents. The said fact can be ascertained from the particulars found in Ex.C.3. Exs.B2 and

B3, Settlement Register and Adangal Extract would go to show that the said 41 cents of lands comprised in the undivided Survey No. 459/12 was

possessed and enjoyed by Sethu solagar, the vendor of the first Defendant and during Fasli 1386 itself, he was in enjoyment of the said property.

It can be also ascertained from the particulars found therein that the said Sethu solagar has been issued patta in patta No. 1509 under Ex.B.1.

It is also not in dispute that Survey No. 459/17 lies on the North and 459/12A lies on the South of Survey No. 459/17. Admittedly, the extent

purchased under Ex.A.1 in S. No. 459/17 was only 18 cents and the extent of second item was given only in cents and not in hectares in Ex.A.1.

But subsequently, in the U.D.R., while converting the same, a mistake was committed in noting the extent as 0.07.5 Hectares. The Courts below

have rightly observed that the said mistake is now sought to be capitalized by the Appellant/Plaintiff by staking claim to more extent than what he

has purchased under Ex.A.1.

The Courts below have rightly pointed out that a mistake that crept in while converting the extent in acres and cents into hectares and ares is

sought to be used by the Appellant/Plaintiff for claiming more extent than what he is entitled to. The Appellant/Plaintiff, having purchased only 18

cents, has chosen to file the suit claiming that he is entitled to 18.5 cents in Survey No. 459/17 and that only out of the above said 18.5 cents, 40

square feet area is alleged to have been encroached upon by the Defendants for putting up a portion of their septic tank. 40 square feet is less than

even 1/10th of a cent. Even if the claim of the Appellant /Plaintiff that he was in enjoyment of 18.5 cents and that out of cents, 40 cents have been

encroached upon is assumed to be true, it shall be inferred that the Appellant/Plaintiff is in possession of more extent than what he purchased under

Ex.A.1. Therefore, the case of the Appellant/Plaintiff that an extent of 40 square feet in his property was encroached upon and a portion of the

septic tank was located in that encroached portion stands disproved and the Courts below have rightly non-suited the Appellant/ Plaintiff for the

relief''s sought for in respect of item 2 also.

It should also be noticed that there is no evidence to the effect that the Defendants have put up a fence around their property, which cuts

across the septic tank. But the rough sketch prepared by the Commissioner shows the boundary cutting across the septic tank. It seems the

Commissioner has chosen to make the measurements based on the U.D.R. Survey in which alone the Appellant/Plaintiff was granted patta for

0.07.5 Hectares, which is 0.5 cents in excess of what he had purchased. The Commissioner has not chosen to demarcate the southern boundary

of 18 cents purchased by the Appellant/Plaintiff under Ex.A.1. Measurements have not been provided in the Commissioner''s plan. Therefore, the

Courts below have not committed any mistake in not relying upon the Commissioner''s report as as a document supporting the case of the Plaintiff

in respect of the suit second item.

For all the reasons stated above, this Court comes to the conclusion that there is no defect or infirmity in the concurrent findings of the Courts

below to the effect that no portion of the property purchased by the Appellant/Plaintiff under Ex.A.1 was proved to be encroached upon by the

defendants and that hence, the appellant/plaintiff was not entitled to the relief''s sought for in respect of item 2 of the suit properties. No substantial

question of law has arisen in respect of the second item also. Therefore, the Second Appeal deserves dismissal at the stage of admission itself.

In the result, the Second Appeal is dismissed. However there shall be no order as to costs as the Second Appeal is dismissed at the admission

stage itself.