Thimman, Santhamani and Subbulakshmi vs Easwaran and Others

M. Jaichandren, J.—No representation for the respondents.

The Second Appeal has been filed against the judgment and decree, dated 7.7.2006, made in A.S. No. 31 of 2006, on the file of the

Subordinate Court, Coimbatore, reversing the judgment and decree, dated 2.12.2005, in O.S. No. 58 of 2004, on the file of the District Munsif

Court, Mettupalayam.

The defendants 1, 3 and 4 in the suit, in O.S. No. 58 of 2004, have filed the present second appeal. The suit in O.S. No. 58 of 2004, had been

filed praying for a decree directing the demarcation of the suit property, as per the title deeds of the parties, with reference to metes and bounds,

by appointing an Advocate Commissioner and for costs.

In the plaint filed in the said suit, it had been stated that the plaintiffs 1 to 3 and one Sundaram are the sons of late Rangaiah Gowder. Sundaram

had died, on 21.8.2002, leaving behind the plaintiffs 4 to 6 as his legal heirs. The defendants 2 to 4 are the children of the first defendant.

It had also been stated that even though several documents, including certain partition and settlement deeds, had been executed, in respect of

the suit schedule land, the plaintiffs and the defendants have been carrying on cultivation in the land without actual demarcation of their respective

portions. In spite of several demands made by the plaintiffs for demarcation of the land, the defendants were not agreeing for the same. In such

circumstances, the plaintiffs had filed the suit, in O.S. No. 58 of 2004, on the file of the District Munsif Court, Mettupalayam.

The trial Court had framed the following issues for consideration:

Are the plaintiffs entitled for the relief of demarcation of the boundaries, as prayed for?

What other reliefs the plaintiffs are entitled to?

In view of the averments made in the plaint, as well as in the written statement filed in the suit and on considering the evidence available on

record, the trial Court, by its judgment and decree, dated 2.12.2005, had dismissed the suit stating that the real intention of the plaintiffs in filing the

suit is to recover 40 cents of land, which is in the hands of the first defendant, without paying the requisite court fee for seeking the said relief.

The plaintiffs had filed an appeal before the IInd Additional Subordinate Court, Coimbatore, in A.S. No. 31 of 2006, challenging the judgment

and decree of the trial Court, dated 2.12.2005.

The appellants had stated in the grounds of appeal that the lower Court had not correctly appreciated the oral and documentary evidence

adduced before the trial Court. The trial Court ought to have taken adverse inference against the defendants for non-production of the necessary

documents. The plaintiffs had filed sufficient documentary evidence to show the exact extent of the suit property. The trial Court ought to have seen

that the defendants were in possession and enjoyment of an extent of land larger than what they were entitled to. Further, the trial Court ought to

have held that the plaintiffs were entitled to approach the civil Court even before adopting the procedures provided under the provisions of the

Tamil Nadu Survey and boundaries Act, 1923.

The first appellate Court had considered the question as to whether the appellants/plaintiffs were having the right to file a civil suit, even without

adhering to the procedures provided under the Tamil Nadu Survey and boundaries Act, 1923. On considering the averments of the parties and the

evidence available on record, the first appellate Court had come to the conclusion that the findings of the trial Court were erroneous. The first

appellate Court had stated that the trial Court ought not to have held that the plaintiffs/appellants had failed to pay the court fee for recovery of

possession and that they had also failed to ask for a prayer of recovery of possession and therefore, the suit was not maintainable.

It was further held that unless the actual extent of the land in question lying on the side of the defendants/respondents is clearly found out, the

plaintiffs/appellants cannot ask for delivery of possession of the property concerned. Even after the disposal of the suit, if the land is surveyed and

the boundaries are demarcated and if an excess extent of land lies on the side of the defendants/respondents, the plaintiffs/appellants have to take

necessary civil action for taking delivery of the possession of the said land. Accordingly, the first appellate Court reversed the findings of the trial

Court, by its judgment and decree, dated 7.7.2006, made in A.S. No. 31 of 2006.

The present second appeal has been filed before this Court by the defendants 1, 3 and 4 in the suit, in O.S. No. 58 of 2004, on the file of the

Subordinate Court, Coimbatore. The appellants have raised the following questions, as substantial questions of law:

i) Whether the lower appellate Court is correct in decreeing the suit, when the property in question has already been demarcated by the survey

department?

ii) Whether the lower appellate Court is correct in decreeing the suit, when there is an appeal provided under the survey and boundaries Act

regarding the demarcation of the property?

iii) Whether the lower appellate Court is correct in decreeing the suit, when the plaintiffs/respondents have not proved their case by examining the

survey department?

iv) Whether the lower appellate Court is correct in decreeing the suit when the plaintiffs/respondents estopped from filing the civil suit especially

when they have taken steps to demarcate the property under the Survey and Boundaries Act?

v) Whether the Judgment and decree of the lower appellate Court is vitiated for falling to consider the entire evidence on record and to apply the

correct principles of law?

vi) Whether the lower appellate Court is correct in deciding the issue with regard to the non-payment of court fee for taking delivery of

possession?

The learned Counsel for the appellants herein had submitted that the lower appellate Court ought to have seen that the evidence adduced on

behalf of the plaintiffs would show that the respondents are in enjoyment of the suit property for more than 30 years. The lower appellate Court

ought to have held that the application should have been submitted before the survey department for the measurement of the land in question and

for its demarcation. Therefore, the suit filed by the plaintiffs is not maintainable.

The learned Counsel for the appellants herein had submitted that the lower appellate Court ought to have seen that, as per Exhibit A.6, the

property in question had already been demarcated. Further, demarcation of the property would not arise. If the parties concerned had any

grievance in respect of the demarcation of the property concerned, they should have filed an appeal under the provisions of the Survey and

Boundaries Act, 1923. Further, the lower appellate Court ought to have seen that the patta had been granted in respect of an extent of 5.33 acres,

in survey No. 516/1, after the sub division of the property and that the appellants are in occupation of the property in question, for more than 30

years.

In view of the submissions made by the learned Counsel appearing for the appellants and on a perusal of the records available, this Court finds

that the appellants in the present second appeal have not been in a position to show that substantial questions of law had arisen for the

consideration of this Court in the present second appeal.

It cannot be said that the demarcation of the suit schedule property, as directed by the trial Court, would be prejudicial to the defendants in the

suit. Even if the first appellate Court had arrived at its conclusions based on a wrong appreciation of the evidence available on record relating to the

facts and circumstances of the case, it would not amount to a substantial question of law, as claimed by the learned Counsel for the appellants.

The contentions raised on behalf of the appellants, with regard to the merits of the case, cannot be countenanced. This Court does not find that

substantial questions of law have arisen for its consideration in the present second appeal. Hence, it stands dismissed. No costs. Consequently,

connected M.P. No. 1 of 2010 is closed.