1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20.04.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL No.160 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 Gopal Asari .. Appellant/Plaintiff Vs. R.Selvam .. Respondent/Defendant Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 10.12.2010 passed in Appeal Suit No.128 of 2007 by the Additional Sub Court, Kumbakonam reversing the Judgment and decree dated 06.08.2007 passed in Original Suit No.134 of 2006 by the Additional District Munsif Court, Valangaiman at Kumbakonam. For Appellant : Mr.G.Gomathisankar For Respondent : Mr.B.Prasana Vinoth JUDGMENT The Judgment and decree passed in Appeal Suit No.128 of 2007 by the Additional Sub Court, Kumbakonam are being challenged in the present second appeal. 2. The appellant herein as plaintiff has instituted Original Suit No.134 of 2006 on the file of the Additional District Munsif Court, Valangaiman at Kumbakonam for the relief of perpetual injunction, wherein the present respondent has been shown as sole defendant. 3. It is averred in the plaint that the father of the plaintiff has enjoyed the suit property. The father of the plaintiff is a blacksmith and he has put up a shed and also a house in the suit property. After the demise of the father of the plaintiff, the plaintiff has been enjoying the same. The defendant is not having any manner of right, title and interest over the suit property and now the defendant has been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff. Under the said circumstances, the present suit has been instituted for the relief sought for in the plaint. 4. In the written statement filed on the side of the defendant, it is averred that the suit property is originally belonged to one Sethurama Iyer and the defendant has agreed to purchase the same and to that extent an agreement has come into existence and there is no merit in the suit and the same deserves to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 2 5. In the additional written statement filed on the side of the defendant, it is averred that the plaintiff has encroached the property of temple. There is no merit in the suit and the same deserves to be dismissed 6. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after evaluating both the oral and documentary evidence has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal Suit No.128 of 2007 on the file of the first appellate Court. 7. 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. 8. As agreed by the learned counsels appearing for both sides, the present second appeal is disposed of on merits at the stage of admission. 9. On the side of the appellant/plaintiff, the following substantial questions of law have been raised for consideration: a) Whether the appellant/plaintiff is proved his possession by way of Exs.A1 to A7? b) Whether the trial appellate Court dismissed the suit is correct when the respondent/defendant admitted the possession of suit property? c) Whether the trial appellate Court dismissed the suit only on ground four boundaries are not given by appellant/plaintiff is a mandatory? d) Whether the appellant/ plaintiff identified the suit property by given Survey Number and extent correctly? e) Whether the trial appellate Court is correctly dismissed the suit on the ground four boundaries not given when the advocate commissioner clearly mentioned the four boundaries of the suit property in his report after inspecting the suit property? 10. It is an admitted fact that the suit property is comprised in Survey No.95/11 measuring 20 cents of land. The plaintiff has instituted the present suit only on the basis that he has been enjoying the suit property. The defendant has put up his defence stating that the suit property belongs to one Sethurama Iyer and he has agreed to sell the same in favour of the defendant and now the defendant is in possession and enjoyment of the same. 11. The trial Court has decreed the suit as prayed for. But the first appellate Court has dismissed the suit simply on the ground that no four boundaries have been given to the suit property. https://hcservices.ecourts.gov.in/hcservices/ 3 12. The learned counsel appearing for the appellant/plaintiff has contended that on the side of the appellant/plaintiff various documents have been filed so as to prove his effective possession of the suit property, but on the side of the defendant nothing has been marked and inspite of the fact that no document has been marked on the side of the defendant, the first appellate Court has erroneously dismissed the suit and therefore the Judgment and decree passed by the first appellate Court are liable to be set aside. 13. As pointed out earlier, the suit property is comprised in Survey No.95/11 admeasuring 20 cents of land. The consistent case of the plaintiff is that in the suit property, a shed and also a residential house are situate. For the purpose of proving the effective and also actual possession of the plaintiff, Exs.A1 to A9 have been marked. Exs.A1 to A9 are nothing but house tax receipts. 14. In the trial Court an Advocate Commissioner has been appointed and he inspected the suit property and its adjoining property and filed his Report and Plan. In the Commissioner's Plan, it has been clearly stated that the suit property has been described as 'A J K G H I'. In the middle portion of the suit property, a shed and also a house are situate. 15. The learned counsel appearing for the respondent/defendant has contended that immediately on the southern as well as eastern sides of the suit property, a gravel road is situate and the portion, which has been described as 'C D E F' is in possession and enjoyment of the defendant Since a gravel road is situate immediately on the southern and eastern sides of the suit property, the Court can very well come to a conclusion that the suit property is in possession and enjoyment of the plaintiff. 16. As stated earlier, the first appellate Court has dismissed the suit simply on technical ground that four boundaries have not been given to the suit property. But the first appellate court has failed to look into the materials found in the Commissioner's Report and Plan. Only on the basis of Commissioner's Report and Plan, the Court can come to a conclusion that the plaintiff is in possession and enjoyment of the suit property, which has been described as 'A J K G H I' in the Commissioner's Plan Therefore, it is needless to say that the Judgment and decree passed by the first appellate Court are totally erroneous and the same are liable to be set aside. Since the Judgment and decree passed by the first appellate Court are liable to be set aside, the substantial questions of law raised in the present second appeal on the side of the appellant/plaintiff are really having substance and altogether the present second appeal can be allowed. 17. In fine, this second appeal is allowed without costs at the stage of admission and the Judgment and decree passed in Appeal Suit No.128 of 2007 by the Additional Sub Court, Kumbakonam are set aside and the Judgment and decree passed in Original Suit No.134 of 2006 by the Additional District Munsif Court, Valangaiman at Kumbakonam are restored. However it is made clear that on the basis of the decree granted in the favour of the appellant/plaintiff, the appellant/plaintiff should not make any claim in respect of the portion, which has been described as 'C D E F' in the Commissioner's Plan. Since the Commissioner's Plan plays a pivotal role in https://hcservices.ecourts.gov.in/hcservices/ 4 the Judgment, the same is ordered to be annexed with the decree Consequently, connected Miscellaneous Petition is closed. Sd/- Deputy Registrar(LA) /TRUE COPY / Assistant Registrar To 1.The Additional Subordinate Judge, Kumbakonam. 2.The Additional District Munsif, Valangaiman at Kumbakonam. +1cc to Mr.B.Prasanna Vinoth, Advocate SR.No.14573 +1cc to MR.G.Gomathi Sankar, Advocate SR.No.14659 S.A(MD)No.160 of 2011 and M.P(MD)No.1 of 2011 20.04.2011 smn PA/27.05.2011/3P/5C https://hcservices.ecourts.gov.in/hcservices/