1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 24.03.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL No.46 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 1.Syed Meeran 2.Fathima Beevi 3.Fathima Behum 4.Jameela Behum 5.Khaja Mohideen 6.Mohammed Iqbal 7.Fasila Begum .. Appellants/Respondents/Defendants 1,5 to 9 & 11 Vs. 1.A.Ayubkhan 2.A.Sheik Abdullah .. Respondents/Appellants/Plaintiffs 2 & 3 Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 27.04.2009 passed in Appeal Suit No.17 of 2008 by the Principal Sub Judge, Nagercoil reversing the Judgment and decree dated 20.11.2007 passed in Original Suit No.122 of 1983 by the First Additional District Munsif Court, Nagercoil. For Appellants : Mr.H.Thayumanasamy For Respondents : Mr.C.T.Perumal JUDGMENT The Judgment and decree passed in Original Suit No.122 of 1983 by the First Additional District Munsif Court, Nagercoil modified in Appeal Suit No.17 of 2008 by the Principal Sub Court, Nagercoil are being challenged in the present second appeal. 2. The respondents herein as plaintiffs have instituted Original Suit No.122 of 1983 on the file of the trial Court for the reliefs of declaration and mandatory injunction and also for recovery of possession, wherein the present appellants have been shown as defendants 1, 5 to 9 and 11. 3. It is averred in the plaint that the suit property is comprised in R.S.No.7/10. The defendants are the owners of the property comprised in R.S.No.7/11. The plaintiff for the past ten years is living in Nagercoil. Taking advantage of her absence, the defendants have encroached a portion of the suit property, which is comprised in R.S.No.7/10. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. https://hcservices.ecourts.gov.in/hcservices/ 2 4. In the written statement filed on the side of the first defendant, it is averred that the first defendant has had no right whatsoever in R.S.No.7/11 and the same is the absolute property of the second defendant and there is no merit in the suit and the same deserves to be dismissed. 5. In the written statement filed on the side of the defendants 3 to 11, it is averred that the defendants 3 to 11 are not having any manner of right, title and interest in R.S.No.7/11 and there is no merit in the suit and the same deserves to be dismissed. 6. In the additional written statement filed on the side of the first defendant, it is stated that the second defendant has constructed a house in R.S.No.7/11 in the year 1966. At the time of putting up construction, the plaintiff has created tussle. Under the said circumstances, the plaintiff has filed the present suit unnecessarily and therefore the same deserves to be dismissed. 7. In the written statement filed on the side of the third defendant, it is averred that the plaintiff is not entitled to get 5 3/8 cents of land and the same is not in existence in suit survey number. R.S.No.7/11 is the absolute property of the second defendant and there is no merit in the suit and the same deserves to be dismissed. 8. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after evaluating both the oral and documentary evidence has decreed the suit in respect of the relief of declaration and dismissed the suit in respect of the reliefs of mandatory injunction and also recovery of possession. Against the disallowed portion, the plaintiffs as appellants have preferred Appeal Suit No.17 of 2008 and against the allowed portion, the defendants 1, 5 to 9 and 11 as appellants have filed Cross Appeal on the file of the first appellate Court. 9. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed Appeal Suit No.17 of 2008 and thereby set aside the Judgment and decree passed by the trial Court and ultimately decreed the suit as prayed for and dismissed the cross appeal. Against the Judgment and decree passed by the trial Court modified by the first appellate Court, the present second appeal has been preferred at the instance of the defendants 1, 5 to 9 and 11 as appellants. 10. On the side of the appellants/ defendants 1, 5 to 9 and 11, the following substantial questions of law have been raised for consideration: a) Whether the first appellate Court right in granting mandatory injunction without following the provisions contemplated under Section 135 of Limitation Act, 1963? https://hcservices.ecourts.gov.in/hcservices/ 3 b) Is the first appellate Court right in reversing the well consider Judgment is against the law? c) Whether the first appellate Court right in decreeing the suit without following the procedure contemplated under Limitation Act? 11. Before analysing the rival submissions made on either side, it would be more useful to look into the property description given in the plaint. It is an admitted fact that the suit property is comprised in R.S.No.7/10 admeasuring 5 3/8 cents. On the eastern side of the suit property, the house of the defendants is situate. 12. The present suit has been instituted only on the basis that there is a dispute between the plaintiff and defendants in respect of western wall of the house of the defendants. 13. The consistent case of the plaintiff is that the defendants have encroached a portion of R.S.No.7/10 and put up construction by way of denying the title of the plaintiff in respect of the entire extent of the suit property. 14. The consistent case of the defendants is that R.S.No.7/10 is not having 5 3/8 cents of land and the alleged construction portion is within the limit of R.S.No.7/11 and therefore the plaintiff is not entitled to get the reliefs sought for in the plaint. 15. As stated earlier, the trial Court has decreed the suit only in respect of the relief of declaration. But the first appellate Court has decreed the suit in respect of the entire reliefs sought for in the plaint. 16. The learned counsel appearing for the appellants/defendants 1, 5 to 9 and 11 has sparingly contended that in the trial Court an Advocate Commissioner has been appointed and he inspected the suit property and filed his Report and Plan and the same have been marked as Exs.C1 and C2 and the first appellate Court has simply relied upon the materials found in Exs.C1 and C2 and since the Advocate Commissioner has not measured R.S.No.7/10 and R.S.No.7/11 with the assistance of a Taluk Surveyor and also with the assistance of revenue records, Commissioner's Report and Plan cannot be a sole basis for granting the entire reliefs sought for in the plaint and therefore the Judgment and decree passed by the Courts below are liable to be interfered with. 17. The learned counsel appearing for the respondents/plaintiffs has contended that the Advocate Commissioner has measured the suit property with reference to Plan and also with the assistance of a licensed surveyor and ultimately found that the red marked portion mentioned in Ex.C2 is nothing, but an encroached portion and the first appellate Court after considering all the https://hcservices.ecourts.gov.in/hcservices/ 4 materials found in the Commissioner's Report and Plan has rightly decreed the suit in toto and therefore the Judgment and decree passed by the Courts below are not liable to be interfered with. 18. As stated earlier, the present suit has been instituted only in respect of R.S.No.7/10 and the suit property is measuring 5 3/8 cents of land. On the eastern side of the suit property, the house of defendants is situate. The consistent stand taken on the side of the defendants is that R.S.No.7/11 is the absolute property of the second defendant. 19. As rightly pointed out by the learned counsel appearing for the appellants/defendants 1, 5 to 9 and 11, the Advocate Commissioner has simply measured the suit R.S.No.7/10 and he has not measured R.S.No.7/11. 20. The trial Court has granted only the relief of declaration. But the first appellate Court on the basis of the materials found in Exs.C1 and C2 has decreed the suit in toto. Since the real dispute is nothing, but the western wall of the house of the defendants, it is needless to say that both R.S.Nos.7/10 and 7/11 should be measured with reference to revenue documents and also with the assistance of a Taluk Surveyor. Unless such kind of measurement is made, it is very difficult to give quietus to the parties. Since the Advocate Commissioner has not followed the aforesaid procedure, the Court cannot give much adherence to Exs.C1 and C2. 21. The first appellate Court has decreed the suit in toto only on the basis of the materials found in Exs.C1 and C2. Considering the aforesaid factual aspect to the effect that proper measurement should be made in respect of R.S.No.7/10 and 7/11 with reference to revenue documents and also with the aidance of a Taluk Surveyor, it is needless to say that the Judgments and decrees passed by the Courts below are liable to be set aside and the present suit is liable to be remitted to the file of the trial Court. Since the present suit is liable to be remitted to the file of the trial Court, the substantial questions of law raised on the side of the appellants/defendants 1, 5 to 9 and 11 need not be decided. 22. In fine, this second appeal is allowed without costs at the stage of admission and the Judgments and decrees passed by the Courts below are set aside and Original Suit No.122 of 1983 is remitted to the file of the First Additional District Munsif Court, Nagercoil. The appellants/defendants 1, 5 to 9 and 11 are directed to file a petition so as to re-issue the commission warrant to the same Commissioner. The trial Court is directed to re-issue the commission warrant on the basis of petition to be filed by the appellants/defendants 1, 5 to 9 and 11 and give necessary direction to the Commissioner to measure R.S.No.7/10 and 7/11 with the assistance of revenue records as well as with the aidance of a Taluk Surveyor. Further the trial Court is directed to dispose of Original Suit No.122 of 1983 before the end of July, 2011. The Registry is directed to send all the records forthwith. The Court https://hcservices.ecourts.gov.in/hcservices/ 5 fee paid on the appeal memorandum is ordered to be refunded forthwith to the appellants. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (P&A) /True Copy/ Sub Assistant Registrar To 1.The Principal Subordinate Judge, Nagercoil. 2.The First Additional District Munsif, Nagercoil. +1cc to Mr.H.Thayumanasamy, Advocate Sr.No.7914 +1c to Mr.C.T.Perumal, Advocate Sr.No.7831 Copy to the Section Officer (VR Section) Madurai Bench of Madras High Court, Madurai smn ssk/07.04.2011 /6c-5p/- S.A(MD)No.46 of 2011 and M.P(MD)No.1 of 2011 24.03.2011 https://hcservices.ecourts.gov.in/hcservices/