IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.2.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.459 of 2010 and M.P.No.1 of 2010 C.A.Ramasamy ... Appellant/Appellant/Plaintiff vs. 1.Karuppana Gounder, 2.Kandasamy ... Respondents/Respondents/Defendants This second appeal is filed against the judgement and decree dated 30.11.2009 passed by the Principal Sub Court, Gobichettipalayam, in A.S.No.34 of 2009 confirming the judgement and decree dated 3.2.2009 passed by the District Munsif Court, Sathyamangalam, in O.S.No.368 of 1998. For Appellant : Mr.S.Parthasarathy,Sr.counsel for Mr.I.C.Vasudevan For Respondents : Mr.N.Manokaran JUDGMENT This second appeal is filed by the plaintiff, inveighing the judgement and decree dated 30.11.2009 passed by the Principal Sub Court, Gobichettipalayam, in A.S.No.34 of 2009 confirming the judgement and decree dated 3.2.2009 passed by the District Munsif Court, Sathyamangalam, in O.S.No.368 of 1998, which was filed for declaration and permanent injunction. 2. The merits relating to the factual matrix lie within a narrow campus, which could succinctly and precisely be set out thus: The appellant herein, as plaintiff, filed the suit seeking the following reliefs: "to pass a judgement and decree a) granting a permanent injunction against the defendants, their men and agents restraining them from interfering with the plaintiff's peaceful possession and enjoyment of the suit property in any manner. https://hcservices.ecourts.gov.in/hcservices/ b) awarding costs." (extracted as such) (b) The respondents/defendants resisted the suit by filing written statement. (c) Whereupon the trial Court framed the issues. The plaintiff on his side examined himself as P.W.1 along with P.W.2 to P.W.4 and marked Ex.A1 to A8. On the defendants' side, no one was examined, however Ex.B1 was marked. Exs.X1 to X11 were marked as 3rd party documents. Exs.C1 and C2 were marked as Court documents. (d) Ultimately, the trial Court dismissed the suit, as against which, the appeal was filed for nothing but to be dismissed by the appellate Court, confirming the judgement and decree of the trial Court. 3. Challenging and impugning the judgements and decrees of the Courts below, this second appeal has been filed on various grounds, inter alia to the effect that without considering the well settled principles of law and the oral and documentary evidence on record, the Courts below simply dismissed the suit of the plaintiff. 4.Accordingly the following substantial questions of law are found suggested in the second appeal. "1) Whether the court below is correct in holding that the appellant was not entitled to rely on the document Ex.B1, which is the parent document relating to the suit property, since it was not pleaded by the appellant especially when the appellant pleaded that it was the self acquired property of his father. 2. Whether the boundaries will prevail over the extent especially when there is no specific measurement of the length and breadth of the suit property mentioned in the sale deed?" (extracted as such) 5. On hearing both sides, I am of the considered view that the following substantial question of law could be framed for consideration. 1. Whether the Court appointed Advocate Commissioner demarcated with reference to Ex.B1-the sale deed dated 28.10.1963, the old Survey No.237 from other survey numbers situated towards South of it. 2. Whether there is any perversity or illegality in the judgements and decrees of the Courts below? 6. Heard both. https://hcservices.ecourts.gov.in/hcservices/ 7. Substantial Questions of law (1) to (2): Both these substantial questions of law are taken together for discussion, as they are interwoven and interlinked, interconnected and entwined with each other. 8. The learned Senior counsel for the appellant/plaintiff would advance his arguments, the gist and kernal of them would run thus: The plaintiff claims right over the suit property based on Ex.B1-the Sale deed dated 28.10.1963 and he does not have any intention to claim any extent more than what is contemplated in Ex.B1, but the Courts below failed to get demarcated the line supporting the Old Survey No.237 from the rest of the Survey Numbers situated to the South of it. Had it been done, the matter would have been settled once and for all. Over and above that, the defendants also are not claiming any right over the land in Old Survey Number 237. Accordingly, the learned Senior counsel for the appellant/plaintiff prays for giving suitable direction to the lower Court to do the needful in the matter. 9. In an attempt to pulverise and torpedo the arguments as put forth and set forth on the side of the appellant/plaintiff, the learned counsel for the respondents/defendants would advance his arguments, which would run thus: (a) The Courts below gave concurrent findings adverting to the oral and documentary evidence, warranting no interference in second appeal, where only the question of law is required to be considered. So far, this case is concerned, no question of law much less substantial question of law is involved and as such, this Court might dismiss the second appeal in limini. (b) An error was committed on the plaintiff's side, because he thought as though his land in Survey Number 357 is equivalent to the land in Re-survey No.643 and accordingly, he wanted to lay claim over the entire land in Re.Survey No.643, which covers larger extent and it is correlated to three Old Survey Numbers 237, 235-A and 236-A. But this fact was not at all considered by the plaintiff, at the time of getting Ex.B1 written and registered. (c) The Courts below considered the possession as well as the title of the defendants and found that inasmuch as the plaintiff, on whom the burden of proof lies, failed to discharge his burden, he was not entitled to a decree, which adjudication warrants no interference in second appeal. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, the learned counsel for the respondents/defendants would pray for the dismissal of the second appeal. 10. A bare perusal of the Advocate Commissioner's report would convey and project that there is some lack of clarity in it. I would like to extract here under paragraph Nos.5 and 6 of the Advocate Commissioner's report. "5.hP rh;nt vz;/643 d; bjd;g[wj;jpy; 0/09 3-4 brz;oy; tz;og;ghij cs;s gFjpf;Fk; bjw;nf 0/37 brz;l; tp!;jPh;zk; cs;s g{kp cs;sJ/ nkw;go gFjpapy; Rkhh; 6 taJs;s 3 bjd;id ku';fs; cs;sJ/ nkw;go tz;og;ghijapid xl;o fpHnkyhf ,Ug[w';fspYk; gad;jUk; bjd;id ku';fs; cs;sJ. nkw;go tz;og;ghiuapd; tlg[wKs;s hP rh;nt vz;/643y; 28 bjd;id ku';fSk; 5 ntg;gku';fSk; tz;og;ghijia xl;o tlg[wj;jpy; fpHnkyhf cs;sd/ 6/ nkw;go hP rh;nt vz; 643 d; giHa f/r/vz;/236 kw;Wk; 235 MFk;/ nkw;go giHa rh;nt vz;fspd; mst[fs; go nkw;go brhj;Jf;fis mse;J/ nkw;go giHa f/r/vz;/236 kw;Wk; 235 d; mj;Jf;fs; eph;zak; bra;ag;gl;lJ/ nkw;go giHa rh;nt vz/235. 236 d; mj;Jf;fs; eph;zak; bra;ag;gl;l gFjpfis epy msitah; tiuglj;jpy; fhl;lg;gl;Ls;sJ/ hP rh;nt vz;/643 y; 2/89 1-2 brz;l; tp!;jPh;d g{kp giHa f/r/vz;/235 y; cs;sJ/ nkw;go 23 1-2 brz;l; g{kp kuf;fy; th;zkpl;L epy msitah; tiuglj;jpy; fhl;lg;gl;Ls;sJ/ nkw;go ePjpkd;w cj;jut[ go 643 d; bjd;g[w mj;Jk; giHa f/r/vz;/235 kw;Wk; 236 d; mst[fs; msf;fg;gl;L vy;iyfs; eph;zak; bra;ag;gl;lJ/ (emphasis supplied) 11. Both side advocates would agree that there is no clarity with regard to the area covered by Old Survey No.237. In paragraph No.6, the learned Advocate Commissioner pointed out that Re.Survey No.643 is equivallent to Old Survey Nos.235 and 236, however, the defendants even though succeeded in both the Courts below, would agree that the Survey No.643 comprises of three old Survey Numbers, so to say, Survey Nos.237, 235-A and 236-A, but the Commissioner erroneously failed to specify the same. 12.According to the learned counsel for the defendants, to the North of the yellow coloured portion in the map, Old Survey No.237 is situated and over which, the defendants are having no claim. Since the Commissioner accidentally failed to specify the same, now in the second appeal, the appellant/plaintiff is trying to make a mountain out of a molehill, however, this Court could look into the reality and confirm the judgements of the Courts below. https://hcservices.ecourts.gov.in/hcservices/ 13. However, the learned Senior counsel for the appellant/plaintiff would submit that instead of placing reliance on technicalities, if once again the Commissioner is directed to visit the suit property with the mission to demarcate the Old Survey No.237, as per Ex.B1, then the matter would come to an end. He would also categorically submit before this Court that the plaintiff is not laying claim over any extent more than the extent which is covered under Old Survey No.237, as per Ex.B1 14. I could see considerable force in the submission made by the learned Senior counsel for the plaintiff. Cutting across the punctilious of Court procedures and other hyper technicalities, I am of the view that the matter should necessarily be remitted back to the first appellate Court with a direction that the same Advocate Commissioner or some other Advocate Commissioner might be appointed with the mission to visit the suit property, and demarcate with the help of a qualified Surveyor, the Old Survey No.237 from other Survey Numbers situated to the South of it and also note down the physical features at the Southern boundary line of the Old Survey No.237 and submit a report. Whereupon, the parties are at liberty to file necessary objections , if any. Thereafter the first appellate Court shall decide relating to the validity of such measurement etc and the lis, as per law. In fact, if such an exercise is undertaken, then it will be no more open for either of the parties to lay claim over the property of the other. 15. I reiterate that the plaintiff is having no right in Old Survey Nos.235-A or 236-A. As such, the matter is remitted back to the first appellate Court with the above direction and it is expected to dispose of the matter within a period of four months from the date of receipt of a copy of this judgement. 16. Both the parties shall appear before the first appellate Court on 2.3.2011. 17. The second appeal is disposed of accordingly. However, the is no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar Msk https://hcservices.ecourts.gov.in/hcservices/ To 1. The Principal Sub Court, Gobichettipalayam 2. The District Munsif Court, Sathyamangalam 3. The Section Officer, V.R.Section, High Court, Madras. 1 cc to Mr.N.Manokaran, Advocate, Sr.No.10782 1 cc to Mr.I.C.Vasudevan, Advocate, Sr.No.10894 S.A.No.459 of 2010 BS {CO} TP/18.2.2011. https://hcservices.ecourts.gov.in/hcservices/