1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.06.2011 CORAM: THE HONOURABLE MR.JUSTICE A.SELVAM S.A.(MD).No.165 of 2011 Papanasa Konar ... Appellant/Defendant Vs. Rengasami ... Respondent/Plaintiff Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree made in A.S.No.36 of 2003 dated 23.12.2010 by the Sub-Court, Ambasamudram, confirming the judgment and decree of the Principal District Munsif Court, Ambasamudram made in O.S.No.114 of 1996 dated 23.07.2003. For Appellant :Mr.D.Nallathambi For Respondent :Mr.A.Arumugam J U D G M E N T This second appeal has been preferred against the concurrent judgments and decrees passed in O.S.No.114 of 1996 by the Principal District Munsif Court, Ambasamudram and in A.S.No.36 of 2003 by the Sub-Court, Ambasamudram. 2.The respondent herein as plaintiff has instituted O.S.No.114 of 1996 on the file of the trial Court for the reliefs of declaration and mandatory injunction and also for recovery of possession, wherein, the present appellant has been shown as sole defendant. 3.The averments made in the plaint are that the suit property is situate in Vikramasingapuram village. The suit property and its adjoining properties have been shown as 'A.B.C.D' in the plaint plan. The common pathway has been shown as 'G.P.E.F'. In between the houses which situate on the northern side as well as on the southern side, a common space is situate. The suit properties and some other properties are originally belonged to the sons of Narambu Konar viz., Sankara Konar and Shanmuga Konar. The said Sankara Konar and Shanmuga Konar have mortgaged the same under a mortgage deed dated 23.01.1959 in favour of the father of the plaintiff and subsequently they sold the same in his favour under a registered sale deed dated 26.03.1967. The house which situates in the first schedule is having door numbers 55 and 56. In the sale deed dated 26.03.1967, the suit properties have been shown as single property. The father of the plaintiff has executed a Will dated 27.05.1992 in favour of the plaintiff and he passed away on 30.10.1993 and therefore the same has come into effect. The defendant has requested the father of the plaintiff so as to have water connection through the suit second schedule and accordingly a permission has been given. As per the permission, the defendant has put up pipeline. After the demise of father of the plaintiff, the permission given in favour of the defendant has become ceased. The https://hcservices.ecourts.gov.in/hcservices/ 2 house of the plaintiff is in existence for a period of 100 years. The plaintiff has cancelled the permission given in favour of the defendant on 01.03.1996. Since the defendant has denied the title of the plaintiff to the suit property, the present suit has been instituted for the reliefs sought for in the plaint. 4.In the written statement filed on the side of the defendant, it is averred that the plaint plan is not correct. The 'A.B.C.D' compound wall which has been shown in the plaint as well as the common pathway which has been shown as 'G.P.E.F' in the plaint plan are correct. It is false to say that the suit second schedule forms part of the suit first schedule. The suit second schedule is not originally belonged to two brothers namely Sankara Konar and Shanmuga Konar. The said Sankara Konar and Shanmuga Konar have enjoyed the property which situates immediately on the western side of the suit second schedule. The defendant has not known about the mortgage deed mentioned in the plaint. The suit second schedule is originally belonged to the father of the defendant by name N.Seenivasa Konar. Under the said circumstances, in the sale deed mentioned in the plaint, the father of the plaintiff is mentioned as eastern boundary owner. It is false to say that the suit second schedule has been enjoyed as part of the suit first schedule. The father of the plaintiff has erroneously purchased the suit second schedule under two sale deeds. The suit second schedule is the absolute property of the father of the defendant. The father of the defendant has had enjoyed the suit second schedule. The suit second schedule is being enjoyed for more than a period of 40 years and thereby the defendant has perfected title by adverse possession. It is false to say that the walls of the house of the plaintiff are in dilapidated condition due to pipe connection made in the suit second schedule. In the suit second schedule, the plaintiff is not having any manner of right, title and interest. The plaintiff is not entitled to get the reliefs sought for in the plaint. There is no merit in the suit and the same deserves to be dismissed. 5.On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing 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 A.S.No.36 of 2003 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 defendant as appellant. 7.As agreed by the learned counsel appearing on either side, the present second appeal is disposed of on merits at the stage of admission. 8.On the side of the appellant/defendant, the following substantial questions of law have been raised for consideration: https://hcservices.ecourts.gov.in/hcservices/ 3 “1.The present suit by the respondent/plaintiff for declaration and mandatory injunction in respect of suit 2nd schedule property was decreed by the Courts below only on the mis- reading and mis-interpretation of the boundaries in Ex.A-2 dated 26.03.1967 and thereby confirmed the title of the plaintiff to the suit 2nd schedule property which goes to the root of the case and warrants interference under Section 100 of CPC as per the judgment reported in 2007 (5) SCC 669? 2.When the plaintiff/respondent relied upon Ex.A-2 to prove his title over the suit 2nd schedule property, and failed to explain about the execution of Ex.A-3 even after Ex.A-2 was overlooked by the courts below and thus the judgment and decree of the courts below warrants interference under Section 100 of CPC? 3.Whether the lower appellate court is justified in rejecting the application filed under Order 41 Rule 27 CPC without deciding the importance of the additional evidence sought to be marked by this appellant/defendant and hence warrants interference under Section 100 of CPC? 4.Whether the judgment of the lower appellate court warrants interference, since it failed to receive the additional document in the interest of justice as per the provision under Order 41 Rule 27 of CPC?” 9.The crux of the case of the plaintiff is that the suit first and schedule of properties are originally belonged to two brothers namely Sankara Konar and Shanmuga Konar and both of them have mortgaged the same in favour of the father of the plaintiff by name Ramaiya Konar under a mortgage deed dated 23.01.1959 and subsequently they sold the same under a registered sale deed dated 26.03.1967 and thereafter one of them has sold the suit second schedule on the same date in favour of the father of the plaintiff and thus, the father of the plaintiff has become absolute owner of the suit properties and out of his own volition, he has executed a Will dated 27.05.1992 in favour of the plaintiff and he passed away on 30.10.1993 and therefore the same has come into effect and prior to his demise, a permission has been granted in favour of the defendant so as to embed a pipeline through the suit second schedule and accordingly, he embedded the same and the walls of the house which situate in the suit first schedule are more than 100 years old and due to existence of pipeline, the walls of the house which situates in the suit first schedule have become dilapidated and the permission given to the defendant has been cancelled and now, the defendant has acted against the interest of the plaintiff by way of denying his title to the suit property. Under the said https://hcservices.ecourts.gov.in/hcservices/ 4 circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 10.The defence taken on the side of the defendant is that the predecessor in title of the plaintiff have had no right over the suit second schedule and the suit second schedule is the absolute property of the father of the defendant and he has enjoyed the same and after his demise, the defendant has been enjoying the same by way of embeding a pipeline and no permission has been sought for from the father of the plaintiff so as to embed a pipeline. Under the said circumstances, the claim made on the side of the plaintiff is totally erroneous and further the father of the defendant and the defendant have had enjoyed the suit property for more than a statutory period and thereby perfected title to the same by adverse possession and altogether the present suit deserves to be dismissed. 11.The courts below have concurrently rejected the defence put forth on the side of the defendant. Under the said circumstances, apart from the substantial questions of law raised on the side of the appellant/defendant, the court has to analyse the following points: “a)Whether the plaintiff is having title to the suit second schedule? b)Whether the defendant has perfected title to the suit property by adverse possession? c)Whether the plaintiff is entitled to get the reliefs sought for in the plaint?” 12.The consistent case of the plaintiff is that the suit properties are originally belonged to two brothers namely Sankara Konar and Shanmuga Konar, sons of Narambu Konar. Both of them have executed a mortgage deed dated 23.01.1959 in favour of the father of the plaintiff viz., Ramaiya Konar and subsequently both of them have executed a sale deed dated 26.03.1967 in respect of both the items of suit properties and subsequently one of them has executed a separate sale deed in respect of the suit second schedule and thus, the father of the plaintiff has become absolute owner of the suit properties and he executed a Will dated 27.05.1992 in favour of the plaintiff and he passed away and subsequently the Will dated 27.05.1992 has come into effect. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 13.The main defence taken on the side of the defendant is that the suit property is the absolute property of the father of the defendant and the father of the defendant and the defendant have had enjoyed the suit property for more than a statutory period and thereby perfected title to the same by adverse possession. 14.The learned counsel appearing for the appellant/defendant has strenuously contended that the suit property and some other properties are originally belonged to one Nallasivam and he passed away leaving behind him his three sons namely Narambu Konar, Seenivasa Konar and Kalyanasundara Konar and the said Narambu Konar https://hcservices.ecourts.gov.in/hcservices/ 5 has passed away leaving behind him his two sons namely Sankara Konar and Shanmuga Konar. Likewise, Seeniavasa Konar has passed away leaving behind him his son, Ramaiya born through his first wife, who is none other than the father of the plaintiff and four sons through his second wife namely Sankaran, Krishnan, Sylappan and Papanasam (present defendant) and the suit second schedule has been allotted to the share of the father of the defendant and he has had enjoyed the same and after his demise, the defendant has been enjoying the same and no permission has been granted in his favour as averred in the plaint and the courts below without considering the main defence put forth on the side of the defendant have erroneously rejected it and therefore the concurrent judgments and decrees passed by the courts below are liable to be interfered with. 15.In order to repel the main contention urged on the side of the appellant/defendant, the learned counsel appearing for the respondent/plaintiff has laconically contended that the suit properties are originally belonged to two brothers namely Sankara Konar and Shanmuga Konar and both of them have sold both items of properties under a registered sale deed dated 26.03.1967 in favour of the father of the plaintiff and thus, the father of the plaintiff has become absolute owner. 16.The sheet-anchor of the case of the plaintiff is nothing but the sale deed dated 26.03.1967 which has been marked as Ex.A.2. In Ex.A.2, it has been clearly mentioned that the property covered under Ex.A.2 is situate immediately on the western side of the properties of eh.Seenivasa Konar and gh.Seeniavasa Konar. Apart from Ex.A.2, the said Shanmuga Konar has executed an another sale deed dated 27.03.1967 in favour of the father of the plaintiff which has been marked as Ex.A.3. Ex.A.3 is related to the suit second schedule. It has already been pointed out that the vendors of the father of the plaintiff are the sons of one of the sons of Nallasivam. Considering the fact that the vendors of the father of the plaintiff are the sons of one of the sons of Nallasivam, it is needless to say that both Exs.A.2 and A.3 are valid documents. 17.The main attack made on the side of the appellant/defendant is that the suit second schedule has been allotted to the share of the father of the defendant by name Seenivasan. Seenivasan is one of the brothers of Narambu Konar, who is none other than the father of the vendors of the father of the plaintiff. 18.Even though an attempt has been made to the effect that the suit second schedule has been allotted to the share of the father of the defendant by name Seenivasan, no clinching document has been forthcoming on the side of the defendant and further along with the plaint, a plan has been annexed with, wherein, it has been clearly stated that the defendant is residing in door No.53 and the same is situate immediately on the southern side of common space. From the juxta-position of the suit properties as well as the house of the defendant, the court can easily discern that the entire properties https://hcservices.ecourts.gov.in/hcservices/ 6 are originally belonged to Nallasivam and subsequently divided between his sons. Since the defendant is residing in the house bearing door No.53, the theory of allotment of the suit second schedule to the father of the defendant cannot be accepted. Under the said circumstances, as per Exs.A.2 and A.3, the plaintiff is having unfettered right, title and interest over the suit properties. 19.The learned counsel appearing for the appellant/defendant has attacked the concurrent judgments and decrees by arguing that the measurements given in Exs.A.2 and A.4 are incorrect. Under the said circumstances, the principle that boundary prevails over area cannot be invoked in the present case and therefore, the court can very well come to a conclusion that the suit second schedule has been allotted to the share of the father of the defendant. 20.In fact, this Court has scanned the entire averments made in the written statement. Nowhere, it has been specifically stated that the boundaries given in the documents referred to in the plaint are erroneous. But it is an everlasting principle of law that if there is any discrepancy with regard to extent, boundaries will prevail over area. Since no specific plea has been taken with regard to boundaries mentioned in the documents and since boundaries will always prevail over area, the attack made on the side of the appellant/defendant cannot be accepted. 21.The learned counsel appearing for the appellant/defendant has also attacked the Commissioner's report and plan by saying that the Commissioner has measured only the suit properties and he has not measured its adjacent properties and therefore no credence could be attached to it. 22.It is an admitted fact that in the trial court, an advocate Commissioner has been appointed and he filed his report and plan. As rightly pointed out by the learned counsel appearing for the appellant/defendant, the learned Commissioner has measured only the suit properties and he has not measured the adjacent properties. Since the learned Commissioner has been directed to measure only the suit properties, he has done his duty properly and further measuring the adjacent properties is totally unwarranted in the present case. The only point which involves in the present case is as to whether the plaintiff is having title to the suit second schedule or the defendant is having title to the same. Since the theory of allotment to the share of the father of the defendant has not at all been established and since the father of the plaintiff has purchased both items of suit properties from the sons of one of a co-owner, it is needless to say that the plaintiff is having title to the suit properties and it is totally unwarranted on the part of the Commissioner to measure the adjacent properties. 23.The learned counsel appearing for the appellant/defendant has advanced his argument to the effect that during pendency of first https://hcservices.ecourts.gov.in/hcservices/ 7 appeal, an attempt has been made on the side of the appellant/defendant so as to get appointment of a fresh Commissioner by way of filing an appropriate petition and the same has been dismissed. Against the order passed by the first appellate court, a revision has been filed on the file of this court and this Court has specifically directed the first appellate court to consider the same at the time of hearing appeal. But the first appellate court has not at all considered the same. Under the said circumstances also, the concurrent judgments and decrees passed by the courts below are liable to be interfered with. 24.As stated earlier, in the trial court, an Advocate Commissioner has been appointed and he carried out his duties as per the direction given to him. In fact, in the trial court the appellant/defendant has not made any attempt so as to reissue the Commissioner's warrant to the same Commissioner with regard to the alleged lapses committed by him. 25.Of course, it is true that in civil revision petition, this Court has specifically directed the first appellate court to look into the Commission petition at the time of hearing appeal. The first appellate court has proceeded A.S.No.36 of 2003 on the basis of available evidence on record. Considering the fact that the first appellate court has proceeded on the basis of available evidence on record, appointment of fresh commissioner or reissuing the Commissioner's warrant to the same Commissioner does not arise and therefore the above limb of argument advanced on the side of the appellant/defendant also goes out without merit. 26.The learned counsel appearing for the appellant/defendant has also argued that as per the averments made in the plaint, the appellant/defendant has been given permission so as to embed a pipeline for the purpose of taking water to his house which situates in door No.53. Under the said circumstances, the relief of mandatory injunction cannot be granted. 27.In paragraph No.6 of the plaint, it has been specifically stated that during the life time of father of the plaintiff, the defendant has approached him for the purpose of embedding a pipeline through the suit second schedule and accordingly a permission has been granted and in pursuance of the same, he has embedded pipeline. 28.At this juncture, the learned counsel appearing for the respondent/plaintiff has contended that the permission given to the defendant is nothing but temporary and the pipeline put up by him is also temporary in nature. Under the said circumstances, the same can be easily removed by way of mandatory injunction and therefore the above limb of argument cannot be accepted. 29.As per the averments made in the plaint, it is easily discernible that a permission has been granted in favour of the https://hcservices.ecourts.gov.in/hcservices/ 8 defendant so as to embed pipeline through the suit second schedule and accordingly he has put up pipeline. Considering the nature of the permission given to him and also considering the pipeline put up by him, it is needless to say that the relief of mandatory injunction can very well be granted. 30.The last limb of argument advanced by the learned counsel appearing for the appellant/defendant is that the father of the defendant and the defendant have had enjoyed the suit property for more than a statutory period and thereby perfected title to the same by adverse possession. Except the averments made in the written statement, no document has been filed so as to prove the alleged independent possession of the defendant as well as his father and further as per the averments made in paragraph No.6 of the plaint, the court can easily come to a conclusion that the defendant has been permitted to enjoy the suit second schedule only on the basis of the permission given by the father of the plaintiff. Since the defendant has been permitted to enjoy the suit second schedule only on the basis of the permission given by the father of the plaintiff, it is needless to say that the defendant is totally debarred from claiming adverse possession against the plaintiff. Therefore the entire contention urged on the side of the appellant/defendant cannot be accepted. Since the entire contention urged on the side of the appellant/defendant cannot be accepted, the substantial questions of law raised in the present second appeal are not having substance at all and altogether the present second appeal deserves to be dismissed. 31.In fine, this second appeal deserves dismissal and accordingly, is dismissed with costs at the stage of admission. The judgment and decree passed in O.S.No.114 of 1996 by the Principal District Munsif Court, Ambasamudram, upheld in A.S.No.36 of 2003 by the Sub-Court, Ambasumudram are confirmed. Consequently, connected M.P.No.1 of 2011 is also dismissed. Time for removing the pipeline and also for handing over vacant possession of the suit second schedule is three months. Sd/- Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar To 1.The Subordinate Judge, Ambasumudram 2.The Principal District Munsif, Ambasamudram. +1cc to Mr.M.Vallinayagam, Advocate, Sr.No.17766 +1cc to Mr.A.Arumugam, Advocate, Sr.No.17584 SA.(MD).No.165 of 2011 VS SMA/08.7.2011/5c/8P https://hcservices.ecourts.gov.in/hcservices/