IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.09.2008 CORAM THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH Second Appeal No. 302 of 2007 Mathi @ Varadharajulu ... Appellant/Appellant/ 1st Defendant Vs. 1.Varadharajan ... Respondent/Respondent/ Plaintiff 2.R.Senguttuvel ... Respondent/Respondent/ 2nd Defendant This second appeal is filed against the judgment and decree dated 27.06.2005 made in A.S.No.235 of 2002 on the file of the learned Principal District Judge, Namakkal, confirming the judgment and decree dated 28.03.2002 made in O.S.No.206 of 1999 on the file of the District Munsif, Rasipuram. For Appellant : Mr.G.Arul Murugan For Respondent No.1 : Mr.S.Muthukumar For Respondent No.2 : No appearance JUDGMENT The unsuccessful 1st defendant is the appellant. 2. The suit in O.S.No. 206 of 1991 was filed for recovery of possession of the suit property described in Red and Blue in the rough sketch appended to the plaint which has been allegedly encroached by the defendants. 3. The suit in O.S.No.206 of 1991 was filed by the 1st respondent/plaintiff against the appellant herein and the second respondent for recovery of possession of the property encroached by the defendants out of Ac.2.05 cents belonging to the plaintiff comprised in S.No.204/2 of Pudupalayam Village. https://hcservices.ecourts.gov.in/hcservices/ 4. The appellant being the 1st defendant had pleaded that the plaintiff and the defendants' father had settled the dispute in between them regarding the boundaries separating the suit property and the properties belonging to the defendants' father in S.No.63/5 in the year 1966 itself in the presence of Ramasamy and others numbering about 22 persons as stated in the written statement. Accordingly the border in between those properties were fixed in a straight line on both sides and the first defendant's father put up a granite construction on the line and enjoyed the properties and ever since the property belonging to the first defendant was at a height of two feet above the plaintiff's land and that would show that the first defendant was in possession of the suit property for over a statutory period and he was in continuous possession for more than 34 years and therefore, the suit is barred by limitation. 5. Both the Courts below have found that the plaintiff had proved his title to the suit property and the defendants had not proved their case of compromise following the mediation in the year 1962 and the defendants were found to have encroached upon the property in question as found in the Advocate Commissioner's report and rough sketch; that the defendants were also not entitled to the said property through prescriptive title by adverse possession and that the trial court passed the decree for recovery of possession in favour of the plaintiff which was subsequently confirmed by the first appellate Court also. 6. The learned counsel for the Appellant would submit that both the Courts below were legally not correct in decreeing the suit after the period of limitation and that the claim for the adverse possession of the suit property made by the appellant/1st defendant was not answered by the Courts below in accordance with law. He would further submit that the Courts below had wrongly decreed the suit in favour of the plaintiff without resorting to amendment of the plaint schedule as per the observations of the learned Advocate Commissioner, which denotes lesser extent than the extent alleged in the plaint schedule. He would therefore submit that the following questions of law would arise in the second appeal :- (1) Whether the appellant had perfected title to the suit property by doctrine of adverse possession, when he is in continuous possession and enjoyment of the property in question for more than 34 years with the knowledge of the plaintiff? (2) Whether the Courts below are right in decreeing the suit when the plaintiff not instituted the suit within the period of limitation for recovering the possession? https://hcservices.ecourts.gov.in/hcservices/ (3) Whether the Courts below are right in granting the decree for delivery of possession , when the plaintiff has not amended the plaint suitably in pursuant to the report of the Advocate Commissioner? (4) Whether the Courts below passed the decree merely on assumptions, when the plaintiff failed to prove his case? and would urge this Court to admit the second appeal. 7. The learned counsel for the first respondent/plaintiff would, on the other hand, submit that the Courts below have found concurrently that the defendants had encroached the suit property on considering through the Advocate Commissioner's report and rough sketch and had decreed the suit in consonance with the observations of the learned Advocate Commissioner which denotes the lesser extent and that the report and sketch of the Advocate Commissioner were ordered to remain part and parcel of the decree. Therefore, no question of amendment of plaint schedule would arise and the finding of the issue is that the defendants are not entitled to prescription of title by adverse possession and the suit filed by the first respondent/plaintiff was within the period of limitation were on the basis of the evidence adduced on either side and it is purely a question of fact. He would further submit that when the Courts below have concurrently found that the defendants have not established their plea of adverse possession and consequently held that the suit was within the time on the basis of facts supported by evidence. Therefore, there is no question of law arisen in the second appeal as suggested by the learned counsel for the appellant and prayed for rejection of the second appeal. 8. This Court has given its anxious consideration to the arguments advanced on either side and also carefully perused the judgments of both the Courts below. On perusal of the same, this Court could see that the issue as decided by both the Courts below that the defendants had encroached upon the suit property belonging to the plaintiff as per the Commissioner's report and sketch and the defendants were not in a possession of such encroached portion for over the statutory period so as to prescribing the title by way of adverse possession and the suit was not barred by limitation, were all considered and found on the basis of the evidence produced by both parties. Both the Courts below concurrently found the fact against the appellant/first defendant. The Advocate Commissioner's Report and Sketch indicate lesser extent of property than that of the suit property was encroached by the defendants and the plaintiff was found to be entitled to recover the possession of the encroached https://hcservices.ecourts.gov.in/hcservices/ property. Consequently the defendants were directed to deliver the possession of the same. There is no dispute that the Court can always grant lesser relief when larger relief is sought for. Similarly, both the Courts have granted the relief for lesser extent when the relief relates to larger extent and therefore, there is no necessity of amending the plaint schedule in the plaint. The trial Court had in fact ordered that the Advocate Commissioner's Report and Rough Sketch, to form part and be parcel of the decree. This would also go to show that there will not be any miscarriage of justice and that the extent of the property mentioned by the Advocate Commissioner in his report and rough sketch alone can be recovered by the plaintiff and not entire plaint schedule mentioned property. Therefore, this court is of the firm view that the question of law as suggested by the learned counsel for the appellant would again lead this Court only to decide on the question of fact. Therefore, this Court finds that there is no substantial question of law involved to be decided in the second appeal. 9. In the light of the discussions made above, the second appeal deserves no admission for want of substantial question of law. Accordingly, the second appeal is dismissed confirming the decree and judgments of both the Courts below. Consequently, connected Misc. Petition is also dismissed. No cost. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. kmk To 1. The Principal District Judge, Namakkal. 2.The District Munsif, Rasipuram. + 1 CC To Mr.P.Saravana Sowmiyan, Advocate SR NO.50696 + 1 CC To Mr.S.Muthukumar, Advocate SR NO.50947 S.A.No. 302 of 2007 NM {CO} TP/21.10.08 https://hcservices.ecourts.gov.in/hcservices/