IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.2.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1173 of 2009 and M.P.No.1 of 2009 Munusamy .. Appellant/Plaintiff vs. 1.James Vincent 2.Maria Joseph 3.Arockiadoss ... Respondents/Defendants Second appeal is filed against the judgment and decree dated 24.6.2009 passed by the Additional Sub Court, Thiruvannamalai, in A.S.No.1 of 2006 reversing the decree and judgment dated 31.10.2005 passed by the Additional District Munsif, Thiruvannamalai, in O.S.No.960 of 2004. For Appellant : Mr.G.Rajan For Respondents : Mr.T.Arulraj JUDGMENT This second appeal is filed by the plaintiff, inveighing the judgment and decree dated 24.6.2009 passed by the Additional Sub Court, Thiruvannamalai, in A.S.No.1 of 2006 reversing the decree and judgment dated 31.10.2005 passed by the Additional District Munsif, Thiruvannamalai, in O.S.No.960 of 2004, which was filed for permanent injunction. 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: The appellant herein, as plaintiff, filed the suit seeking the following reliefs: "To pass a decree and judgment: i) granting a permanent injunction against the defendant his men, agents and servants from in any manner interfere with the plaintiff's possession and enjoyment of the suit property; https://hcservices.ecourts.gov.in/hcservices/ ii) directing the defendant to pay the plaintiff the cost of the suit." (extracted as such) (b) Resisting the said suit, the first defendant filed the written statement. (c) Whereupon issues were framed by the trial Court. The plaintiff on his side examined himself as P.W.1 and marked Exs.A1 to A5. On the defendants' side the first defendant examined himself as D.W.1 and Exs.B1 to B4 were marked. (d) Ultimately, the trial Court decreed the suit, as against which, the appeal was filed by the defendants. Whereupon, the first appellate Court reversed the judgment and decree of the trial Court, after getting appointed an Advocate Commissioner and obtaining report from him. 4. Being aggrieved by and dissatisfied with the judgment and decree of the first appellate Court, the second appeal has been filed by the plaintiff on various grounds, inter alia to the effect that the first appellate Court, without considering the real issues involved in the matter and also the inequities found set out in the Commissioner's report and ignoring the objections filed by the plaintiff to the Advocate Commissioner's report, decided the lis, warranting interference in second appeal. 5. Accordingly, the following alleged substantial questions of law are found set out in the memorandum of grounds of second appeal. "1. Is not the appellate Court wrong in law by reversing the judgment and decree of the trial Court and dismissing the suit in view of the admission on the part of the defendant for having no objection to decree the suit as prayed for in the plaint? 2. Is not the appellate Court wrong in dismissing the suit for permanent injunction ignoring the axiomatic principle that the possession follows title and when the plaintiff has established the title to the suit property by virtue of Ex.A1? 3. Whether the appellate Court is correct in accepting the advocate commissioner's report and plan marked as Ex.C1 and C2 to dismiss the suit without giving due consideration to the objections made by the plaintiff and due opportunity to the plaintiff to check the correctness of the advocate commissioner's report by putting the advocate commissioner into box?" (extracted as such) 6. My learned predecessor framed the following substantial questions of law. https://hcservices.ecourts.gov.in/hcservices/ "1. Is not the appellate Court wrong in law by reversing the judgment and decree of the trial Court and dismissing the suit despite the admission on the part of the defendant that the property purchased by the plaintiff under EX.A1 is the suit property and that they does not have objection for decreeing the suit in respect of the said property? 2. Is not the appellate Court wrong in dismissing the suit for permanent injunction ignoring the axiomatic principle that the possession follows title and when the plaintiff's title to the suit property by virtue of Ex.A1 is admitted by D.W.1? 3. Whether the appellate Court is correct in accepting the advocate commissioner's report and plan marked as Ex.C1 and C2 to dismiss the suit without giving due consideration to the objections made by the plaintiff? (extracted as such) 7. Heard both. 8. The gist and kernal of the arguments as put forth and set forth on the side of the plaintiff would run thus: (i) The defendants candidly and categorically, without mincing words admitted that the land bearing Survey No.111/2B1 belonged to the plaintiff. Whereupon, the trial Court appropriately and appositely, correctly and legally decreed the suit, but the first appellate Court, without considering these facts, simply reversed the reasoned finding of the trial Court. (ii) The Advocate Commissioner was not at all competent to give any finding relating to the possession of a land by a party. He could only locate the property and give the description about the physical features and nothing more. But in this case, the Advocate Commissioner over reached himself and went to the extent of pointing out that the plaintiff was not in possession of the suit property and as such, this Court has to interfere in second appeal. 9. Piloting the arguments on the side of the defendants and in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiff, the learned counsel for the defendants would submit thus: (a) The suit property refers to S.No.111/2B1, whereas, the Commissioner found that there was no hut or any residential structure found there in the said land and on that count itself, the first appellate Court was justified in non-suiting the plaintiff. (b) The Commissioner's report should be understood properly and it could not be interpreted in the manner the learned counsel https://hcservices.ecourts.gov.in/hcservices/ for the plaintiff has attempted to do so. © The Advocate Commissioner detailed and delineated, displayed and demonstrated, expressed and expatiated only the physical features. Moreover, the first appellate Court understood that in the relevant S.No.111/2B1 there is no hut and in such a case, even by phantasmegorical thoughts it cannot be said that the Commissioner over stretched his jurisdiction or over reached his mission. Accordingly, the learned counsel for the defendants prays for the dismissal of the second appeal. 10. Interlocutory application under Order 41 Rule 27 has been filed by the defendants by way of additional evidence relating to which, I would like to point out that from the above narration of facts and the arguments put forth on either side, the second appeal could be disposed of as such, without any more evidence. 11. I would like to extract hereunder the very schedule of property found set out in the plaint: "Schedule of property jpUtz;zhkiy hp/o/jpUtz;zhkiy rg;/o/1/ jpUtz;zhkiy lt[d; 4tJ thh;L. Mjp jpuhtplh; fhydp. fPH;ehj;Jhhpy; gs;spbfhz;lhg;gl;L nuhoy;. o/v!;/vz;/111-2gp=1y; rpd;dj;jhap ,lj;Jf;F (fpHf;F) gs;sp bfhz;lhg;gl;L rhiyf;F (bjw;F) Vhp fhy;tha;f;Fk;. muR g[uk;nghf;Ff;Fk; (nkw;F) Xil ej;jk; g[uk;nghf;Ff;F (tlf;F) ,jd; kj;jpapy; cs;s Kf;nfhz totkhd kidahdJ 51-2 brz;l; MFk;/ kid vz; 13 MFk;/ ,jpy; thjpapd; Xl;L tPLk;. njhl;lKk; mike;Js;sJ/@ 12. A bare perusal of the above would pellucidly and palpably, clearly and plainly make the point clear that the plaint was drafted having in mind only the land in Survey No.111/2B1 and in respect of that alone the bare injunction suit was filed. However, the first appellate Court, on seeing the Commissioner's Report clearly arrived at the factual finding to the effect that as narrated by the plaintiff, there was no hut in the said Survey No.111/2B1 at all. The Commissioner also pointed out that in S.No.111/2B1 there were no superstructure existing and in such a case, the first appellate Court was right in holding that due to some misconception alone the plaint was filed. In fact, the actual area of dispute is bordering S.No.111/4 and S.No.1917 and that alone has been highlighted in red colour in the Commissioner's report. Relating to which, the first appellate Court gave a finding that there can be no doubt. 13. It is not as though the Advocate Commissioner, with the help of a surveyor located some other area and filed the sketch along with his report. https://hcservices.ecourts.gov.in/hcservices/ 14. At this juncture, it has to be seen as to whether the arguments of the learned counsel for the plaintiff could be countenanced. 15. The learned counsel for the plaintiff would submit that even though there might not be any superstructure in Survey No.111/2B1, inasmuch as the defendants are having no right or claim over it and D1 would also in his deposition admitted supinely that he was having no objection for the Court decreeing the suit relating to such Survey number, the judgment and decree of the first appellate Court might be set aside, upholding and restoring the judgment and decree of the trial Court. 16. I recollect and call up the following legal maxim: 'Lex nil frustra jubet' – The law commands nothing vainly. 17. The Advocate Commissioner's report clearly exemplifies and demonstrates that the actual area of dispute between the plaintiff and the defendants exists somewhere else, as pointed out supra, and not in respect of Survey No.111/2B1. In such a case, the learned counsel for the plaintiff would not be justified in praying this Court to simply pass a decree in respect of Survey No.111/2B1. Furthermore, the boundaries in the suit schedule also are not found described properly. The Advocate Commissioner would point out that the area of dispute is triangular in shape, whereas, here an entirely different picture has been given. 18. The learned counsel for the defendants would submit that the original sale deed itself is found corrected etc, for which, the learned counsel for the plaintiff would point out that absolutely there are no pleadings to that effect in the written statement. 19. I recollect the maxim 'Judicis est judicare secundum allegata et probata' - It is the duty of a judge to decide according to facts alleged and proved. 20. Any amount of evidence without the backing of pleadings cannot be countenanced. As such, from the sum total of available evidence, what I could understand is that leaving the real dispute somewhere, the parties are litigating in this case vainly and I have to observe that if at all the parties are so advised, it is for them, with proper pleadings, documents and evidence, to seek their remedy before the appropriate forum in a fitting manner legally. 21. Accordingly, I could see no perversity or illegality in the judgment and decree of the first appellate Court, which discussed in detail the pros and cons of the matter and after considering the pro et contra, reversed the findings of the trial Court which was ex facie and prima facie not based the sound reasons. https://hcservices.ecourts.gov.in/hcservices/ 22. Accordingly, the substantial questions of law are answered in favour of the defendants and as against the plaintiff. 23. In the result, I could see no merit in the second appeal and accordingly the second appeal stands dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is dismissed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar Msk To 1.The Additional Subordinate Judge, Thiruvannamalai. 2.The Additional District Munsif, Thiruvannamalai. 1 cc to Mr.T.Arulraj, Advocate, Sr.No.12528 1 cc to Mr.G.Rajan, Advocate, Sr.No.12769 S.A.No.1173 of 2009 NG {CO} TP/21.3.2011. https://hcservices.ecourts.gov.in/hcservices/