Manthiri @ Nallava Naicker (died) and Others vs Ayyadurai Thevar

R. Mala, J.—The Second Appeal arises out of Judgment in A.S. No. 3 of 2002, dated 15.07.2002, on the file of the Sub-ordinate Judge,

Sivakasi, against the Decree and Judgment of the Court of the District Munsif, Sivakasi, made in O.S. No. 158 of 1996, dated 13.11.2001.

The Respondent as the plaintiff has filed a suit stating that he has purcahsed the property under a registered sale deed, dated 30.03.1990 and

the total extent is 5 cents that has been mentioned as ''B'' ''J'' ''K'' ''J'' in the plaint. He has constructed two houses in 1992, that portion is marked

as ''A'' ''B'' ''C'' ''D'', that too has been mentioned as first item of property. On the west of the first item has been shown as ''E'' ''F'' ''G'' ''H'' i.e.,

the second item of suit property. The third item of property is ''I'' ''J'' ''K'' ''L''. All the three items are in possession of the plaintiff. The third

schedule property has been retained by the plaintiff/the Respondent for maintaining the ''CD'' wall for white washing and draining rain water. There

is two window and sunshide in the CD wall, the Respondents/plaintiff in enjoying the same. Without any right and rhyme, the Defendant/Appellant

has attempted to interefered with his possession and hence, he has constrained to file a suit for declaration to the title to the third item of property

and also for injunction.

Repudiating the same, the Appellant/defendant has submitted that the plaintiff/Respondent is a mala fide intention, has mentioned third schedule

of the property. The plaintiff/Respondent has to prove his case. Northern wall of the plaintiff has not yet be plasted. The Defendant has issued a

notice and reply notice has also been received. The plaintiff has tresspassed upon the property and put up windows in this wall. Eventhough, the

Defendant has preferred a complaint, but no action has been taken by the police. Before the plaintiff purchased the property, the Defendants has

purchased the property and he is the possession and enjoyment of the same. Hence, he prayed for the dismissal of this case.

The Trial Court after considering the averments made both in the plaint and the written statement and framed necessary issues and also

considering the oral and documentary evidence, decreed the suit. Against that the Appellant, has preferred an appeal, which was dismissed by the

First Appellate Court, against which, the present Second Appeal has been preferred by the Appellant/defendant.

Substantial question of law is as follows:

(a) When the patta was issued to the land owner with specific measurements for which it was granted, without the non production of the patta, can

the Court be justified in declaring the title in favour of the plaintiff?

(b) When the entire subject matter of the dispute relates to the measurement between two adjoining owners, without measuring the property

belonging to both the parties, is it legal to uphold the right of the plaintiff only on the measurements found in the property belonging to the plaintiff?

(c) When the Defendant had first purchased the property and when the adjoining property was purchased by the plaintiff at a later point of time, is

not the property of the plaintiff to begin from the boundary line of the Defendant?

Learned Counsel appearing for the Appellants would submit that the plaintiff has laid his claim only on the basis of Exhibit A-3, dated 3.3.1990.

As per the document, he has purchased the property in Section No. 19/1, but as per Commissioner Report, C1 and C2, it was stated the S. No.

19/10, in Exhibit A-2 is title documents to A-3 and both the document no lien measurement has been given, but it has stated only 5 cents. At the

time of filing the suit, he has divided 5 cents in three schedules. First schedule in respect of house that has been mentioned as ''A'' ''B'' ''C'' ''D'' in

Exhibit A-1. The second item is the vacant site has been mentioned as ''E'' ''F'' ''G'' ''H'' and the third scheduled is mentioned as ''I'' ''J'' ''K'' ''L''.

Even though, the Defendant has raised a plea that no such property is situated and hence, the Commissioner has been appointed. In the

Commissioner''s report, the Commissioner has mentioned the properties only 19/10, so the plaintiff has failed to prove that he is the owner of the

property and hence, he culled at paragraph 12 of the Trial Court Judgment as well as paragraph 17 of the Lower Appellate Court Judgment and

sought for setting aside the Judgment and Decree passed by both the Courts below.

Per contra, the learned Counsel appearing for the Respondent would submit that his predecessors had purchased the property under Exhibit A-

2, from whom, he purchased the property under Exhibit A-3, but even though survey number has been mentioned as 19/1. As per the

Commissioner''s report, it was mentioned as 19/10, but identiy the property is not disputed. The Defendant/Appellant is owned the property in S.

No. 19/9. Even in Exhibit A-2 and A-3, S. No. 19/1 has been mentioned that after sub-division it was mentioned as 19/10. He further submitted

that the third scheduled property has been retainted by the plaintiff/Respondent to maintain the northern wall of his house for white washing. He

further submitted that there is two windows in the northern wall and pipe lilne for draining rain water. It was admitted by DW-1 in his evidence and

hence, the Trial Court and the First Appellate Court considered all the document and oral evidence and come to the correct conlusion that the

plaintiff is entitled a decree as prayed in the plaint. Hence, it does not warranted any interference and hence, prays for dismissal of the appeal.

It is true that the Respondent/plaintiff has to prove his case. The plaintiff/Respondent has laid his claim on the basis of Exhibit A-3 and the parent

document has been marked as Exhibit A-2. Both in Exhibit A-2 and A-3, the survey number has been mentioned as 19/1, 5 cents out of 1 acre 7

cents, wherein stated 4 boundaries. It is also true that no lien measurement has been given in both the documents. Likewise, the Defendants/the

Appellants herein has laid his claim only on basis of Exhibit B-1. In that also the survey number has been mentioned as 19/1, he has purchased 4

cents in the stated boundaries, but no lien measurement has been given. At this juncture, it is appropriate to consider the Commissioner report and

plan. During pendency of the suit, the Commissioner was appointed and inspected the property and filed the report, which was marked as Exhibit

C-1, C-2 and C-3. It contains Field Measurement Plan which shows S. No. 19, one has been sub-divided. Admittedly, S. No. 19/9 is belonging

to this Appellant/defendant and S. No. 19/10 is belonging to this Respondent/plaintiff. Even though, in Exhibit A-2 and A-3 has mentioned suit

properties situated in 19/1, B-1 which was mentioned as 19/1 after the purchase the property has been sub-divided. The survey number has been

mentioned as 19/10 for the property purchased by the plaintiff/Respondent and S. No. 19/9 related to the property purchased by this

Appellant/defendant. Besides this during the Commissioner inspection, identification of the properties not disputed. So the plaintiff/Respondent is

owner of 19/10 and the Defendant/Appellant is owner of S. No. 19/9. In such circumstances, the argument advanced by the learned Counsel for

the Appellant that the properties mentioned in A-2 and A-3 is only related to 19/1, but the Commissioner has mentioned as 19/10, so the both

Court decree and Judgment in respect of the suit property is against law, does not merit acceptance.

It is pertinent to note that admittedly, the property purchased by the Respondent was accepted by way of put up two constructed house sites,

first scheduled property and northern house property as he kept vacant site that as mentioned as II scheduled property. But to maintain the wall, at

the time of construction, he has left three feet lane ie., mentioned as third scheduled property. The case of the Appellant is that he has put up stone

pillar in the III scheduled property that plaintiff/Respondent herein has accepted his evidence and hence, the property is belonging to him. But,

absolutely, there is no evidence that who put up the stone pillar. At this juncture, it is appropriate to consider the Commissioner Report.

Admittedly, the three feet lane has been on the north side of this Respondent/plaintiff house. There is two window with sunshade and also he put up

pipe line to drain the rain water which has clearly proved that the lane was in possession of this Respondent/plaintiff and it is owned by him. Further

more, the Appellant/defendant house is situated at the north of the suit property. The Commissioner Report has clearly proved the existence of

sunshade rain water and drainage pipe line and three feet lane. At this juncture, it is appropriate to consider the argument of the learned Counsel

appearing for the Appellant that since the Respondent has put up sunshade and pipe line that he has given a complaint before the concerned police

to prove the same and he has filed Exhibit B-2 and acknowledgement given by the Alangulam SI of Police.

It is true that the complaint has been given on 29.04.1995 does not mentioning in what purpose that the complaint has been given. In Exhibit

B-2, the gist of the complaint has not been mentioned in the same. In such circumstances, Exhibit B-2 will not help the case of the

Appellant/defendant. But before filing the suit, the Appellant herein has issued notice to the Respondent/plaintiff. The copy has been marked as

Exhibit B-3 and the acknowledgment has been marked as Exhibit B-4 and the reply has been marked as Exhibit B-5. In that, he has stated that 1

1/2 feet of his property was encroached by the plaintiff/Respondent and also put up by window and sunshade. After that only, he has given a reply

and he has put up stone pillars and he also directed to remove the same. While considering Exhibit B-5 in pursuance of Exhibit B-2, there was a

compromise and both parties were directed by the police to measure the property in accordance with the properties mentioned in the respective

sale deeds and enjoyed the property. At this juncture, it is appropriate to consider the Commissioner Plan. FM Book shows that East West at the

northern side 16.4 meter and southern side 15.4 meter and north south at the eastern side 12.6 meter and western side 12.2 meter. In pursuance

of the document, the surveyor has measured the property and sub-divided the property. So the First Appellate Court has correctly come to the

conclusion that the measurement given in the FM Plan is acceptable. Hence, the First Appellate Court has considered this aspect and come to the

correct conclusion that the Respondent/plaintiff is the owner of third scheduled property and he is in possession by way of enjoying the lane for

maintaining his northern wall and draining the rain water. In such circumstances, the First Appellate Court and the Trial Court has considered all the

aspect in proper perspective and come to the correct conclusion.

It is true that the patta has not been filed by the Petitioner and the patta is not title to the document. Even though, the patta has mentioned the

measurements, but FM plan has mentioned measurement. In such circumstances, both the Court below has not committed any error in declaring

the title in favour of the plaintiff without considering the patta issued in favour of the plaintiff/Respondent herein.

As per the Field Measurement Plan, measurement of both S. Nos. 19/9 and 19/10 has been given when the revenue people has measrued the

property then only sub-divided the property and FM Plan has been prepared. The Commissioner has also inspected the property and measure the

property and filed plan with report along with FM Plan. In such circumstances, both the Court below has come to the correct conclusion that the

plaintiff/Respondent has proved his case. It is true that the Respondent herein has purchased the property under Exhibit A-3 on 30.03.1990, but

whereas, the Defendant/Appellant herein has purchased the property under Exhibit B-1 on 03.02.1986 and the plaintiff/Respondent herein has

purchased under Exhibit A-3, the parent document is Exhibit A-2, dated 25.04.1983 which is much earlier than Exhibit B-1. The suit property

mentioned in Exhibit A-2 and A-3 are one and the same.

In the abvoe stated circumstances, the Trial Court and the First Appellate Court has considered the same in proper perspective and came to

the correct conclusion that the Appellant/plaintiff has purchased the property under Exhibit A-3 and he is in possession and enjoyment of the same,

hence, the plaintiff/Respondent is entitled to the declaration of title and injunction as prayed for in the plaint. So, the substantial question of law 1 to

3 were answered accordingly.

As narrated above, the Trial Court and the First Appellate Court has considered all the aspect in proper perspective and come to the correct

conclusion that the Respondent is the owner of the III schedule property and he is in possession and enjoyment of the same, hence, the suit was

decreed by the Trial Court, which was confirmed by the First Appellate Court, does not warrant any interference.

I do not find any irregularity and infirmity in the decree and Judgment passed by both the Court below and hence, the Decree and Judgment

passed by both the Court below are liable to be confirmed. Accordingly, it is confirmed. The Appeal is liable to be dismissed and accordingly

dismissed. No costs.