S. Boopandy vs S. Subbaiah

Mr. Justice G. Raja Suria

This second appeal is focused by the defendant challenging the judgment and decree dated 31.01.2005 passed in A.S. No. 97 of 2004 on the file of the Subordinate Court, Thoothukudi, in confirming the judgment and decree dated 15.04.2004 passed in O.S. No. 215 of 2004 on the file of the District Munsif Court, Thoothukudi. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.

A recapitulation and ''resume'' of facts absolutely necessary for the disposal of this second appeal would run thus:

The plaintiff filed the suit seeking the following reliefs:

(a) declaring that the plaintiff is the absolute owner of the schedule property and consequently granting permanent injunction restraining the Defendant, his men, agents, or servants from interfering the Plaintiff''s peaceful possession and enjoyment of the schedule property or to put up any further construction in the schedule property;

(b) passing an order mandatorily directing the Defendant to remove the construction made in the plaint schedule property;

(c) awarding cost of the suit to the Plaintiff.

(extracted as such),

on the main ground that the plaintiff has been in possession and enjoyment of the property fully described in the schedule of the plaint, which he got in a partition, which emerged between himself and his brother. He has been in possession and enjoyment of the southern portion of the said larger extent of land. It so happened that after the partition, his brother sold a part of his property in favour of the defendant and yet one other portion in favour of another party. The defendant instead of enjoying the property which he got by way of sale deed from his vendor, did choose to encroach into the plaintiff''s area and start constructing the building; whereupon the plaintiff was driven to the extent of filing the suit.

Per contra, the defendant in a bid to challenge and impugn the averments in the plaint filed the written statement contending that the defendant did not encroach into the plaintiff''s property and in fact, the plaintiff did attempt to grab the path of the defendant''s property.

Whereupon, the trial Court framed the relevant issues.

During trial, P.W.1 was examined and Exs. A.1 to A.6 were marked on the side of the plaintiff. D.W.1 was examined and Exs. B.1 to B.3 were marked on the side of the defendant. An Advocate Commissioner was also appointed by the trial Court and Exs. C.1 to C.4 were marked as Court documents.

Ultimately, the trial Court decreed the suit partly allotting a portion of the extent found specified in the schedule of the plaint in favour of the plaintiff, as against which the appeal was filed by the defendant for nothing but to be dismissed by the first appellate Court.

Being aggrieved by and dissatisfied with the judgments and decrees of both the Courts below, the present second appeal has been focussed by the defendant on various grounds and also suggesting the following substantial questions of law:

(a) Whether the Trial Court and the 1st Appellate Court are correct in not taking into consideration of the admission of the Plaintiff as to the bonafide purchaser of the appellant for valuable consideration?

(b) Whether the Trial Court and 1st Appellate Court are correct in not taking into consideration of the original and physical enjoyment of the land of the Plaintiff and his brother Kasirajan, the principal seller to the Appellant?

(c) Whether the Trial Court and 1st Appellate Court are correct in not taking into consideration of Ex. C-2 and C-3, the Commissioner sketch and the Government Sketch in so far as the physical enjoyment of the property by the Plaintiff?

(d) Whether the Trial Court and the 1st Appellate Court are correct in not taking into account Ex. B-3 the approved plan by the Panchayat Union in favour of the Appellant?

(extracted as such)

The dictum laid down by the Honourable Apex Court in the following decisions:

(i) Hero Vinoth (minor) Vs. Seshammal,

(ii) Kashmir Singh Vs. Harnam Singh and Another, and

(iii) State Bank of India and others v. S.N. Goya reported in 2009 1 L.W. 1; would be to the effect that u/s 100 of the Code of Civil Procedure, a Second Appeal cannot be entertained, unless a substantial question of law is involved.

The Honourable Apex Court, time and again, reiterated the point that in second appeal, as per Section 100 of the Civil Procedure Code, interference is possible if at all there is any perversity or illegality in the judgments of the Courts below or total absence in considering the evidence available on record or misreading of evidence on the part of the Courts below.

Keeping in mind the aforesaid dictum of the Honourable Apex Court, I would like to analyse the matter.

On hearing both sides, I have decided to frame the following substantial questions of law:

(i) Whether both the Courts below were justified in rendering the judgments without having before them a clear cut picture as to the extent physically available on land vis-a-vis the documents and in other words, whether the Advocate Commissioner appointed by the trial Court located the properties concerned with reference to the documents of title including the antecedent title of the respective parties?

(ii) Whether there is any perversity or illegality in the judgments and decrees of both the Courts below?

Both the substantial questions of law are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with each other.

Tersely and briefly, the arguments of the learned Counsel for the defendant would run thus:

As per the Advocate Commissioner''s report and the sketch filed by him, he located only the area allegedly available on ground and indubitably and unarguably that is not in commensurate with the documents of the respective parties. There is nothing to indicate and exemplify as to whether the remaining extent found in the documents are situated at all. Simply because a limited extent is available shorter than the extent available in the documents, both the Courts below were not justified in dividing the available extent between the two parties and thereby, partly decreeing the suit of the plaintiff. Accordingly, he would pray for setting aside the judgments and decrees of both the Courts below.

In a bid to shoot down and torpedo the arguments on the side of the defendant, the learned Counsel for the plaintiff would advance his arguments which could pithily and precisely be portrayed as under:

Both the Courts below after deeply analysing the facts and the evidence both oral and documentary, decreed the suit partly warranting no interference in second appeal. As against the concurrent findings of facts, it is a settled proposition of law that interference in second appeal, is not warranted. There is nothing to indicate that there is any perversity or illegality in the judgments and decrees of both the Courts below. The Courts took into account the available extent and accordingly, decided the lis. The suggestion made on the side of the defendant is utopian and it would lead to multiplicity of proceedings. Accordingly, he would pray for the dismissal of this second appeal.

I recall and recollect the maxim "Sic utere tuo ut alienum non laedas." [So use your own as not to injure another''s property].

The Court is expected to decide the lis strictly in accordance with the oral and documentary evidence. The concept ''mediation'' is entirely different. No doubt, equity can be applied considering the maxim "Equitas sequitur legem." [Equity follows the law.], but in all cases, when best evidence could be secured, the Courts are not justified in simply ignoring the said factor and place reliance on the available scanty and meagre dubious evidence and decide in one way or other the case. This is a typical example of a case where the Court instead of giving suitable direction to the Advocate Commissioner to locate the suit property with reference to the documents, simply accepted the physical features and decided the lis.

It is not a case where there are no documents. Indubitably and indisputably, unarguably and unassailably, a large extent of land was owned by the plaintiff and his brother as joint property and there emerged a partition between them and in that partition, the southern portion was allotted to the plaintiff and the northern portion was allotted to his brother who in turn sold the same in two parts to two parties, including the defendant. In such a case, the antecedent title deeds and the subsequent title deeds should have necessarily been taken into account by the Advocate Commissioner concerned for locating the property and see as to whether the missing extent is available and if so where, precisely the existing physical boundaries of both the parties.

The learned Counsel for the plaintiff would submit that it would lead to multiplicity of proceedings and involvement of third parties; however, such an argument does not hold water. The Court cannot refrain from delving deep into the matter and bring the best evidence on record.

A plain and bare perusal of the Advocate Commissioner''s report as well as the judgments of both the Courts below would leave no doubt in the mind of the Court that such an exercise in locating the property as per the documents was not undertaken, but only the physical features and the available extents under the possession of both sides were taken into consideration and accordingly, the case was adjudged.

To the risk of repetition and pleonasm, but without being tautologous, I would like to point out that in a mediation, that could be done, but once the Court is called upon to decide as per law, then certainly it has to be found as to which party lost a portion of its property in favour of a third party. But, without probing into all these aspects, the Advocate Commissioner filed the report with sketches and the Courts also proceeded to decide the same.

The learned Counsel for the plaintiff would vehemently argue that already on the one side, so to say, on the northern side of the defendant, there is a compound wall and on the plaintiff''s southern side, there is a building and in such a case, on the northern boundary of the defendant and the southern boundary of the plaintiff, there are fixations and in such a case, no more further probe is required. The problem with that view of the learned Counsel for the plaintiff, is that it is against the trite proposition that every trial is a voyage in quest of truth. Such an argument falls foul of non-sequitur and the Court cannot be made to get itself blind folder in viewing the matter as per the documents available on record.

It is obvious and axiomatic that such boundaries cannot be taken for gospel truth when trouble erupted in regard to the extent physically available at the spot. As such, I am of the considered view that the approach of both the Courts below was perverse and illegal, warranting interference in second appeal. A deep further probe is required and best evidence should be brought on record and accordingly, the matter au fait with law and au curante with facts has to be dealt with.

The learned Counsel for the plaintiff would make an extempore submission that his client is virtually on his death bed and if the matter is remanded to the lower Court and further probe, reappointing the Advocate Commissioner is ordered, that would take several months for completion and by that time, his client would not be alive to reap the fruit of the decree, for which the learned Counsel for the defendant would submit correctly and acceptably that justice has to be rendered at any cost and proper evidence should be brought on record.

Accordingly, the substantial question of law No. (i) is answered to the effect that both the Courts below were not justified in rendering the judgments without having before them a clear cut picture as to the extent physically available on land vis-a-vis the documents and the Advocate Commissioner appointed by the trial Court did not locate the properties concerned with reference to the documents of title including the antecedent title of the respective parties. The substantial question of law No. (ii) is answered to the effect that there is perversity and illegality in the judgments and decrees of both the Courts below. Considering pro et contra, the second appeal is allowed setting aside the judgment and decree of the first appellate Court and the matter is remanded to the first appellate Court with the following direction:

The same Advocate Commissioner preferably or some other Advocate Commissioner shall be appointed suo motu by the first appellate Court with a mission to visit the suit property with the assistance of a Government Surveyor preferably and locate the properties of both sides with reference to the antecedent title deeds of the respective parties, the documents of both sides, the F.M.B map and other revenue records in the presence of both sides and submit a report locating the actual areas irrespective of the fact as to whether the area contemplated in the deeds are in the physical occupation of the parties or third parties. Whereupon due opportunity shall be given to both parties to file their objections if any and they are also at liberty to adduce additional oral and documentary evidence. The first appellate Court shall fast track the matter and dispose of it as per law on or before 29.02.2012 by all means considering the peculiar circumstances of this case. The Court fee paid by the defendant is ordered to be refunded to him as the fault is not on the part of the defendant for remanding the matter to the first appellate Court. The parties shall appear before the first appellate Court on 03.01.2012. Consequently, the connected Miscellaneous Petition is closed. No costs.