IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:19.01.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1400 of 2010 and M.P.No.1 of 2008 1.B.Ravikumar 2.M/s.Le Royal Construction Pvt Ltd., rep.by its Managing Director, Smt.Le Josephine Consal ... Appellants/ Plaintiffs vs. Augustin Babu ... Respondent/ Defendant This second appeal is filed u/s 100 of CPC against the judgement and decree dated 8.3.2010 passed by the Principal First Additional Judge, City Civil Court, Chennai, in A.S.No.382 of 2008 confirming the judment and decree dated 12.12.2007 passed by the 11th Assistant Judge, City Civil Court, Chennai, in O.S.No.5548 of 2004. For Appellants : Mr.Adinarayana Rao For Respondent : Mr.P.Gokulaney JUDGMENT This second appeal is filed by the plaintiffs, inveighing the judgement and decree dated dated 8.3.2010 passed by the Principal First Additional Sessions Judge, City Civil Court, Chennai, in A.S.No.382 of 2008 confirming the judgement and decree dated 12.12.2007 passed by the 11th Assistant City Civil Court Judge, Chennai, in O.S.No.5548 of 2004, which was filed for permanent injunction. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 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 plaintiffs, who are the appellants herein, filed the suit seeking the following relief: "a) to pass a judgement and decree against the defendant for a permanent injunction restraining the defendant, his men, servants, agents or an any other person or persons claiming through him from in any manner interfering with the peaceful possession of the plaintiff at Old Door No.79, New Door No.10, Basha Sahib Street, Choolaimedu, Chennai-600 094 more fully described in the schedule hereunder. b) to pay the cost of the suit." (extracted as such) (b) The defendant resisted the suit by filing written statement. (c) The trial Court framed the issues. The plaintiffs, on their side, examined one Le Prince Consal as P.W.1 and marked Exs.A1 to A11. On the defendant's side, the defendant examined himself as D.W.1 and marked Exs.B11 to B25. (d) Ultimately the trial Court dismissed the suit. (e) Being aggrieved by and dissatisfied with the judgement and decree of the trial Court, the appeal was filed for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial court. 4. Challenging and impugning the judgements and decrees of the Courts below, the second appeal has been filed on various grounds inter alia to the effect that the Courts below failed to take into consideration the fact that the plaintiffs are entitled to the extent as contemplated in T.S.No.138 over which the defendant is not claiming any right and a part of the disputed land lies only in T.S.No.138. 5. In the memorandum of grounds of appeal, the following proposed substantial questions of law are suggested: (1) Whether the Courts below were right in dismissing the suit on the only ground that the appeal filed by the respondent against the order passed by the District Revenue Officer in his proceedings dated 18.5.2006 was appealed and appeal was pending before the Commissioner of land reforms and Land Administration without considering the fact that there was no stay in the appeal and moreover the appeal has https://hcservices.ecourts.gov.in/hcservices/ reached finality and the order of District Revenue Officer has been confirmed by the Special Commissioner of land reforms and appeal filed by respondent is dismissed. 2. Whether the courts below were right in dismissing the suit for permanent injunction on the round that the plaintiff has not pursued for appointment of Advocate Commissioner in I.A.No.18601/2004 and I.A.No.5879/2004. The purpose of I.A.No.5879/2004 and 18601/2004 was satisfied by the proceedings of District Revenue Officer dated 18.5.2006 who set aside the false revenue records produced by respondent and when admittedly the vendor to respondent owned and possessed only 3600 sq.ft not owned by them. 3. Whether the Courts below were right in rejecting the orders passed by D.R.O.without framing an issue to that effect and without subjecting the authority who passed the order an opportunity to defend his order. 4. Whether the Courts below were right in considering the police report namely exhibit B22 and rejecting exhibit A7 being the DRO's order dated 18.5.2006 who was the supreme authority regarding revenue records of a district and whose finding has also been confirmed by the Special Commissioner of land administration and the appeal filed by the respondent was also dismissed by special Commissioner. 5. Whether the courts below were right in exercising their jurisdiction on the orders passed by District Revenue Officer without the same being challenged in the suit and in first appeal and when the same was not subject matter of suit and the suit was for bare injunction." (extracted as such) 6. On hearing both sides, I am of the considered view that the following substantial questions of law could be framed: (i) Whether the Courts below failed to get the disputed property located physically on ground by appointing an Advocate Commissioner with reference to the documents of the respective parties? (ii) Whether there is any perversity or illegality in the judgments passed by the Courts below? 7. The pith and marrow, the gist and kernal of the arguments as put forth and set forth on the side of the appellants/plaintiffs would run thus: (a) Even though an application was filed for getting the Advocate Commissioner appointed for visiting the suit property and locating the same with reference to the documents and maps, yet that was not pursued unwittingly and the trial Court also had not appointed any Advocate Commissioner. https://hcservices.ecourts.gov.in/hcservices/ (b) Pedente lite there were survey proceedings and ultimately the plaintiffs succeeded in the survey proceedings, but the Courts below failed to take note of the same. (c) Artificially, the defendant cannot claim a triangular shaped land, which is the suit property, as his own property over and above the extent referred to in his title deeds-Exs.B1 and B2. (d) Part of the disputed property measuring an extent of 249 sq.feet falls within the coverage of the plaintiffs' sale deed Ex.A4. Accordingly, the learned counsel would pray for setting aside the judgements of the Courts below and for decreeing the suit. 8. On the contrary, the learned counsel for the respondent/defendant would advance and project his arguments, which could tersely and briefly be set out thus: (i) Inasmuch as the plaintiffs failed to pursue their application for getting the Commissioner appointed, they cannot capitalise their own fault and pray for appointment of Advocate Commissioner now and get the suit property located at the state of second appeal. (ii) There is nothing to indicate that the area of 4794 sq.ft found specified in the plaintiffs' document-Ex.A9 in fact existed on ground. (iii) By virtue of enjoyment as well as title deed, the defendant is entitled to the disputed property, over which, the plaintiffs cannot claim any right. (iv) There is no question of law much less substantial question of law involved in this matter. Accordingly, the learned counsel for the defendant prays for the dismissal of the second appeal on the ground that the Courts below based their judgements on finding of facts, warranting no interference in second appeal. 9. The substantial questions of law (i) and (ii) are taken together for discussion, as they are interwoven and interlinked, interconnected and entwined with each other. 10. A summation and summarisation of the case of the plaintiffs is to the effect that by virtue of the sale deed Ex.A3 dated https://hcservices.ecourts.gov.in/hcservices/ 16.4.1941, Ellammal became the owner of an extent of 4794 sq.ft., in which there was an old house situated and subsequently it was demolished for reconstruction. While the plaintiffs were attempting to put a fresh fence around their property, there arose a dispute between the plaintiffs and the defendant, which resulted in the filing of the suit for injunction. 11. Whereas, the defendant's contention is to the effect that the defendant claims title over the disputed property by virtue of two sale deeds, namely, Exs.B1 and B2 dated 5.7.2001, so to say, one in favour of the defendant and another in favour of his wife. Pendente lite, it appears, one other sale deed Ex.B3 dated 19.1.2005 emerged in favour of the defendant's wife with regard to the disputed property measuring an extent of 468 sq.ft. As on the date of filing of the suit, it appears, the defendant claimed right over the said 468 sq.ft on the strength of enjoyment and the Revenue Records in the name the defendant's vendor, namely, Navaneethammal. 12. A perusal of the judgements of the Courts below would display and exemplify that the Courts below proceeded on the footing that the plaintiffs did not take steps to get the suit property located and also prove their case. I am of the considered view that in matters of this nature, when the Court feels that an Advocate Commissioner should visit the suit property and locate the same with reference to the available documents and maps, then the Court itself has got ample jurisdiction to pass suitable orders. But paragraph No.14 of the first appellate Court's judgment would be to the effect that the plaintiffs failed to get an Advocate Commissioner appointed, so as to locate the suit property with the help of a Surveyor. 13. I am of the view that the first appellate Court itself, instead of finding fault with the plaintiffs and simply throwing away the case, could have appointed an Advocate Commissioner with suitable directions to locate the suit property with the help of a Surveyor, but that was not done so. In my opinion such inaction really amounts to perversity, warranting interference in second appeal. 14. The learned counsel for the defendant would submit categorically and plainly that the defendant is not claiming any right in T.S.No.138. Whereas, the learned counsel for the plaintiffs would assert and clarify that the plaintiffs are not claiming any right over any other adjacent Survey number apart from the area in T.S.No.138. Ultimately without mincing words the learned counsel for the plaintiffs would submit that the plaintiffs are claiming right over T.S.No.138 and not relating to any other property. https://hcservices.ecourts.gov.in/hcservices/ 15. In such a case, I am of the considered view that the issue got boiled down and merely by locating and demarcating the Survey No.138 with reference to the Revenue Records and also the Sale Deeds the matter could be solved very easily, but somehow or other it got prolonged. Wherefore, the matter should necessarily be remitted back to the first appellate Court for appointing an Advocate Commissioner to carry out the aforesaid mission. 16. The learned counsel for the defendant would implore and entreat that this Court itself in such an event could appoint an Advocate Commissioner and get a report, for which, I would like to observe that this is virtually the work of the trial Court or at the most, the work of the first appellate Court, which happens to be the last Court of facts. After the Advocate Commissioner visiting the suit property and locating the same, he should file his report; wherefore both the parties should be given opportunity to file objections, if any, and thereafter, on further finding of facts the matter has to be decided and ultimately if either of the parties is aggrieved, they should be given an opportunity to prefer appeal. If the second appellate Court itself assumes the power of the first appellate Court naturally neither either of them might be losing the right of preferring one more appeal, which I do not want to make them to suffer. 17. In view of the above, the substantial question of laws are answered accordingly and the matter is remitted back to the first appellate Court for appointing an Advocate Commissioner at the cost of the appellants, with the mission to visit the suit property and demarcate the same, with the assistance of Surveyor, and with reference to the Revenue Records and the respective documents of the parties and to submit his report. On such report filed, both the parties should be given opportunity to file their objections, if any, and thereafter the matter shall be heard and decided as per law. The entire process shall be completed within a period of four months from the date of receipt of a copy of this order. Both parties shall appear before the first appellate Court on 10.2.2011. 18. The second appeal is disposed of accordingly. No 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 First Additional Judge, City Civil Court, Chennai. 2.The 11th Assistant Judge, City Civil Court Judge, Chennai. 1 cc to Mr.K. Sankar, Advocate, Sr. 4413 1 cc to Harshad P. Gokulaney, Advocate, Sr. 3918 S.A.No.1400 of 2010 CK (CO) kk 25/1 https://hcservices.ecourts.gov.in/hcservices/