1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 28.03.2011 C o r a m The HONOURABLE MR.JUSTICE A.SELVAM S.A.(md).No.103 of 2011 Mohammed Ismail ... Appellant/Respondent/Plaintiff Vs. 1.Muthar Mydeen 2.Mydeen Meeran .. Respondents/Appellants/Defendants Prayer:This second appeal has been filed under Section 100 of C.P.C, against the judgment and decree dated 19.04.2010 made in A.S.No.59 of 2005 on the file of the learned Subordinate Judge, Sankarankovil, reversing the judgment and decree dated 09.12.2004 passed in O.S.No.329 of 2000 on the file of the Additional District Munsif Court, Sankarankoil. For appellant : Mr.M.P.Senthil For respondents: Mr.F.X.Eugene JUDGMENT The judgment and decree dated 19.04.2010 passed in A.S.No.59 of 2005 by the Sub-Court, Sankarankovil are being challenged in the present second appeal. 2.The appellant herein as plaintiff has instituted O.S.No.329 of 2000 on the file of the Additional District Munsif Court, Sankarankovil for the reliefs of declaration, permanent and mandatory injunctions, wherein, the present respondents have been shown as defendants. 3.It is averred in the plaint that the house of the plaintiff is described as ABCD in the plaint plan and the same has been shown as the suit first schedule. The plaintiff is having 28¾ feet on east-west. The AB portion is measuring 30¼ feet. On 15.09.2000, the first defendant has encroached the portion which has been described as A A1 and B B1 and put up some construction. Since the plaintiff is the owner of ABCD, the defendants are not having any manner of right, title and interest in the disputed portion, which has been described as AA1 and BB1. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 4.In the written statement filed on the side of the defendants, it is averred that it is false to contend that the portion which has been described as ABCD in the plaint plan is the absolute property of the plaintiff. It is also equally false to say that the plaintiff is having title to 28¾ feet on east-west and 30¼ feet on north-south. From point A-1, a mud wall is in existence towards southern side and the same belongs to the second defendant and further the second defendant has put up bore well and toilet in the disputed area long before and there is no merit in the suit and the same deserves to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 2 5.On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence, has decreed the suit as prayed for. Against the judgment and decree passed by the trial Court, the plaintiff as appellant has preferred A.S.No.59 of 2005 on the file of the first appellate Court. 6.The first appellate court, after hearing both sides and upon reappraising the evidence available on record, has allowed the appeal and thereby set aside the judgment and decree passed by the trial court and ultimately dismissed the suit. Against the judgment and decree passed by the first appellate court, the present second appeal has been preferred at the instance of the plaintiff as appellant. 7.As agreed by the learned counsel appearing on either side, the present second appeal is disposed of on merits at the stage of admission. 8.on the side of the appellant/plaintiff, the following substantial questions of law have been raised for consideration: "1.Whether the lower appellate court is right in not considering the judgment passed in the prior proceeding under Exs.A.4 and A.5 in which the 1st respondent is also party to the proceedings as such the respondent is estopped from claiming any right in respect of the property covered under Ex.A.2? 2.Whether the lower appellate court is right in not considering the commissioner's report and plan under Exs.C.1 to C.4? 3.Whether the findings of the lower appellate court are vitiated to failure to consider the evidence of P.W.1 corroborated by Exs.A.2 to A.5 and the very admission of D.W.1?" 9.The present suit has been instituted for the reliefs of declaration, permanent and mandatory injunctions. For better appreciation, the court has to look into the material averments mentioned in the plaint plaint. In the plaint plan, it has been stated that the portion which has been described as ABCD is the absolute property of the plaintiff. The house of the first defendant is situate immediately on the western side of points AB. The disputed portion has been described as A A1 and B B1. 10.The consistent case of the plaintiff is that the disputed portion which has been described as A A1 and B B1 also forms part of the portion which has been described as A1 B1 C. 11.The learned counsel appearing for the appellant/plaintiff has repeatedly contended that the father of the plaintiff has executed a gift deed in favour of the plaintiff on 27.06.1970 and thereby settled the suit property and its adjoining eastern property and the plaintiff is entitled to get 28¾ feet. The trial court on the basis of the gift deed produced on the side of the plaintiff has rightly decreed the suit. But the first appellate court has erroneously dismissed the same and therefore, the judgment and decree passed by the first appellate court are liable to be interfered with. https://hcservices.ecourts.gov.in/hcservices/ 3 12.The learned counsel appearing for the respondents/defendants has contended that from point A1, a mud wall is in existence upto point B1 and upto point A1 and B1, the second defendant is having right and the trial court without considering the nature of the documents filed on the side of the defendants, has erroneously decreed the suit. But the first appellate court has rightly dismissed the same and therefore the judgment and decree passed by the first appellate court do not warrant interference. 13.The plaintiff has claimed right, title and interest over the disputed property on the basis of Ex.A.2. Ex.A.2 is a copy of gift deed dated 27.06.1970. The second defendant has claimed right, title and interest over the disputed property on the basis of a sale deed dated 28.09.1994 which has been marked as Ex.B.1. In Ex.A.2, east-west measurement is mentioned as 12½ C.C feet which is equivalent to 28¾ feet. Under Ex.B.1, the second defendant has purchased a property measuring east-west 20 feet on the northern side and 18½ feet on the southern side. 14.It is an admitted fact that in the trial court, an advocate commissioner has been appointed and he inspected the properties of the plaintiff and defendants and ultimately filed his report and plan. In the Commissioner's plan, the house of the plaintiff has been shown as ABCD. From point A upto point C, it comes to 23 feet 8 inches. The disputed portion has been shown as BECF and it measures 5 feet 4 inches on east-west. The house of the defendant has been shown as GHEF and its east-west measurement is only 12 feet 4 inches. As stated earlier, under Ex.B.1, the second defendant has purchased a property measuring east-west 20 feet on the northern side and 18½ feet on the southern side. But the second defendant is having only 12 feet 4 inches on east-west. 15.In the instant case, both the plaintiff and defendants have not filed their anterior documents. Except Exs.A.2 and B.1, no anterior documents have ben filed. Unless both the plaintiff and defendants file anterior documents, the court cannot settle the present dispute and further an attempt has been made on the side of the appellant/plaintiff that the second defendant is dearth of 6 feet something and the same is in existence on the western side of his property i.e beyond point GH in the Commissioner's plan and with regard to the said aspect, there is no evidence. Therefore it is needless to say, as pointed out earlier, that anterior documents of both sides are very much essential so as to resolve the dispute between the parties. The trial court has decreed the suit on the basis of Ex.A.2 as well as Commissioner's plan and report. But the first appellate court has dismissed the suit mainly on the ground that Ex.A.2 is nothing but a registration copy. 16.Considering the fact that for the purpose of deciding the real dispute that exists between the parties their anterior documents are very much essential, it is needless to say that the judgments rendered by the courts below are liable to be set aside and the matter is liable to be remitted to the file of the court below and in the court below, both parties should file their anterior documents as well as revenue documents for the purpose of deciding the real dispute that exists between them. Since the matter is liable to be remitted to the file of the trial court, the substantial questions of law raised on the side of the appellant/plaintiff need not be decided. https://hcservices.ecourts.gov.in/hcservices/ 4 17.In fine, this second appeal is allowed without costs at the stage of admission. Consequently, connected M.P.No.1 of 2011 is closed and the judgments and decrees passed by the courts below are set aside and O.S.No.329 of 2000 is remitted to the file of the District Munsif Court, Sankarankovil. Both the plaintiff and defendants are strictly directed to produce their anterior documents of title and also relevant revenue records. The trial court is directed to dispose of O.S.No.329 of 2000 before the end of July 2011 and report the same to the Registry without fail. The court fee paid on the appeal memorandum is ordered to be refunded forthwith. Sd/- Deputy Registrar (LA) /True copy/ Assistant Registrar To 1.The Sub-Judge, Sankarankovil 2.The Additional District Munsif, Sankarankoil. +1CC TO MR.F.X.EUGENE, ADVOCATE SR.11808 +1CC TO MR.M.P.SENTHIL, ADVOCATE SR.8418 VS SR : 31.05.2011 : 4p/5c S.A.(MD).No.103 of 2011 https://hcservices.ecourts.gov.in/hcservices/