1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29.06.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL No.131 of 2011 S.Senthilkumar .. Appellant/Plaintiff Vs. 1.Pechiammal 2.Devi .. Respondents/Defendants Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 28.09.2010 passed in Appeal Suit No.21 of 2009 by the Sub Court, Sivakasi confirming the Judgment and decree dated 31.03.2009 passed in Original Suit No.127 of 2002 by the District Munsif Court, Sivakasi. For Appellant : Mr.S.Subbiah For Respondents : Mr.G.Marimuthu JUDGMENT This second appeal has been directed against the concurrent Judgments and decrees passed in Original Suit No.127 of 2002 by the District Munsif Court and in Appeal Suit No.21 of 2009 by the Sub Court, Sivakasi respectively. 2. The appellant herein as plaintiff has instituted Original Suit No.127 of 2002 on the file of the trial Court for the reliefs of declaration, mandatory injunction and also for recovery of possession, wherein the present respondents have been shown as defendants. 3. In the plaint it is averred that the suit properties and some other properties are originally belonged to Govindan and his wife Avudaiyammal and both of them have purchased the same in the year 1995. The said Govindan and his wife Avudaiyammal have had four sons viz., Ramar, Lakshmanan, Ramasamy and Alagumalai and two daughters viz., Krishnammal and Rajammal. On 05.08.1977, a partition has been effected amongst Govindan and his sons, wherein the suit properties have been allotted to Lakshmanan and in the year 1992, the said Lakshmanan has passed away leaving behind him his only son viz., Prakash and the said Prakash has executed a general power of attorney deed dated 26.12.1996 in favour of Krishnammal and subsequently she sold the suit first item in favour of the plaintiff under a registered sale deed dated 19.05.2000 and thus the plaintiff is having absolute right, title and interest over the suit first item. The suit second item forms part of the suit first item. The defendants are having their property immediately on the western side of the suit second item and they encroached the same. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. https://hcservices.ecourts.gov.in/hcservices/ 2 4. In the written statement filed on the side of the defendants, it is averred that it is false to contend that the defendants have encroached the suit second item and put up wall. The house of defendants is originally belonged to one Karuppanan and he sold the same in favour of the first defendant and her husband under a registered sale deed dated 28.01.1974. After the demise of the husband of the first defendant, the defendants are enjoying the same. The second item is not available on ground. The plaintiff is not entitled to get the reliefs sought for in the plaint and therefore the present suit deserves to be dismissed. 5. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiff as appellant has preferred Appeal Suit No.21 of 2009 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 dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the plaintiff as appellant. 7. As agreed by the learned counsel appearing for both sides, 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: a) Whether the possessory title of a person is also a title for making a claim against third parties and as such whether a possessory title holder is competent to file a suit for declaration of his possessory title and for consequential reliefs? b) When the properties could not be identified with reference to the Survey Records in view of the situation when such survey could not be effected, whether the plaintiff could be non-suited for not identifying the suit property with reference to the Survey Records? c) When the evidence is available in the form of title deeds suggesting the dates from which the person claiming possessory title could be in possession of the property, whether the non- consideration of such an issue is fatal to the Judgments rendered by the Courts? 9. Before contemplating the rival submissions made on either side, it would be more useful to narrate the juxtaposition of the suit properties and the property of the defendants. The suit first item is situate on the eastern side and the suit second item is situate immediately on the western side of the suit first item. The property of the defendants is situate immediately on the western side of the suit second item. https://hcservices.ecourts.gov.in/hcservices/ 3 10. The consistent case of the plaintiff is that the plaintiff has purchased the suit properties under a registered sale deed dated 19.05.2000. The suit second item forms part of the suit first item and the defendants have encroached the suit second item and put up construction. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 11. The defence taken on the side of the defendants is that the property of the defendants is originally belonged to one Karuppanan and he sold the same in favour of the first defendant and her husband under a registered sale deed dated 28.01.1974 and after the demise of the husband of the first defendant, the defendants are enjoying the same and there is no suit second item and therefore question of encroaching the same does not arise and under the said circumstances the plaintiff is not entitled to get the reliefs sought for in the plaint. 12. The Courts below have concurrently rejected the contention putforth on the side of the plaintiff. Under the said circumstances, apart from the substantial questions of law raised on the side of the appellant/plaintiff, the Court has to look into the following aspects: a) Whether the suit second item is in existence on ground? b) Whether the defendants have encroached the suit second item? 13. The learned counsel appearing for the appellant/plaintiff has strenuously contended that the predecessor in title of the plaintiff has derived title to the suit first item by virtue of the partition deed dated 20.10.1955, wherein proper measurements have been given to the suit first item and as per the measurements given to the suit first item, the plaintiff is having right, title and interest over 32¼ feet on east-west and the suit second item forms part of the suit first item and the defendants have encroached the same and the Courts below without considering the parent document filed on the side of the appellant/plaintiff have erroneously rejected the reliefs sought for in the plaint and therefore the concurrent Judgments and decrees passed by the Courts below are liable to be interfered with. 14. The learned counsel appearing for the respondents/defendants has also equally contended that in the present suit in the trial Court an Advocate Commissioner has been appointed and he inspected the alleged disputed property and its adjoining properties and he subsequently filed his Reports and Plans, wherein it has been clearly stated that in between the properties of the plaintiff and defendants a passage is situate on north-south and the Courts below after considering the existence of the said passage and also east-west measurements of the properties of the plaintiff have rightly rejected the reliefs sought for in the suit and therefore the concurrent Judgments and decrees passed by the Courts below do not warrant interference. 15. For considering the rival submissions made on either side, the Court has to look into the following documents. https://hcservices.ecourts.gov.in/hcservices/ 4 Ex.A.2 is a partition deed dated 20.10.1955, wherein the suit first item has been allotted to the share of Lakshmanan. The plaintiff has purchased the suit first item under a registered sale deed dated 19.05.2000 and the same has been marked as Ex.A.5. Both in Ex.A.2 and A.5 east-west measurement of the suit first item is mentioned as 10¾ yards, which is equivalent to 32¼ feet. Even in the plaint description, the east-west measurement of the suit first item is given as 32¼ feet. 16. In the present case, an Advocate Commissioner has been appointed and he inspected the disputed property and its adjoining properties and filed his Reports and Plans, wherein it has been clinchingly stated that in between the properties of the plaintiff and defendants a passage having a width of 4½ feet is situate and further it is mentioned in the Commissioner's Reports and Plans that original Survey No.1242/2 has been subsequently sub-divided as 1242/2A20 and 1242/2A21. The east- west measurement of the property, which is in actual possession of the plaintiff is 32 feet. Apart from 32 feet on east-west on the western side, the said passage is situate with a width of 4½ feet. Therefore it is needless to say that there is no encroachment by the defendants as alleged on the side of the plaintiff. 17. The learned counsel appearing for the appellant/plaintiff has made an inert attempt by way of putting forth an argument to the effect that the plaintiff has encroached a portion of the land, which belongs to Railway on the eastern side and under the said circumstances east-west measurement of his property comes to 32 feet and the measurements given in the Commissioner's Reports and Plans cannot be taken into consideration. 18. In the plaint no such averment is found place to the effect that the plaintiff has encroached a portion of the land, which belongs to Railway on the eastern side and forms part of the suit first item and further the property of the plaintiff has been sub-divided as Survey No.1242/2A20. Considering the fact that the property of the plaintiff has been sub-divided as mentioned supra and also considering that its east-west measurement is 32 feet, it is very clear that the attempt made on the side of the appellant/plaintiff is of no use. 19. The stand taken on the side of the plaintiff is that the suit second item forms part of the suit first item. But the Reports and Plans filed by Advocate Commissioner have completely belied the contention urged on the side of the plaintiff about the alleged encroachment of the suit second item. Since there is no encroachment on the part of the defendants and since a passage with a width of 4½ feet is situate in between the properties of the plaintiff and defendants, it is needless to say that the reliefs sought for in the present suit cannot be granted in favour of the plaintiff. 20. The Courts below after considering the documents filed on the side of the plaintiff and defendants and also on the basis of the Commissioner's Reports and Plan have rightly non-suited the plaintiff. In view of the discussion made earlier, this Court has not found any error in the concurrent Judgments and decrees passed by the Courts below and further the https://hcservices.ecourts.gov.in/hcservices/ 5 substantial questions of law raised on the side of the appellant/plaintiff are not having substance at all and altogether the present second appeal deserves to be dismissed. 21. In fine, this second appeal deserves dismissal and accordingly is dismissed without costs at the stage of admission and the concurrent Judgments and decrees passed by the Courts below are confirmed. Sad/- Assistant Registrar /True Copy/ Sub-Assistant Registrar To 1.The Sub Court, Sivakasi. 2.The District Munsif Court, Sivakasi. +One Cc to M/s.S.Subbiah, Advocate, SR.No.21026 +One cc to Mr.G.Marimuthu, Advocate, SR.No.20649 smn rl/5c – 13.7.2011 S.A(MD)No.131 of 2011 29.06.2011 https://hcservices.ecourts.gov.in/hcservices/