IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.6.2010 CORAM: THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.NO.482 OF 2008 1. Thimman 2. Santhamani 3. Subbulakshmi .. Appellants/Defendants 1,3 & 4 vs. 1. Easwaran 2. Kandasamy 3. Varatharaj 4. Dhanalakshmi 5. Komathi 6. Nithya 7. Palanisamy .. Respondents/Plaintiffs & 2nd Defendants The Second Appeal has been filed under Section 100 of C.P.C against the judgment and decree, passed in A.S.No.31 of 2006, on the file of the Subordinate Judge, Coimbatore, dated 7.7.2006, by reversing the judgment and decree passed in O.S.No.58 of 2004 on the file of the District Munsif, Mettupalayam, dated 2.12.2005. For Appellants : Mr.S.Kadarkarai For Respondents : No Appearance J U D G E M E N T No representation for the respondents. 2. The Second Appeal has been filed against the judgment and decree, dated 7.7.2006, made in A.S.No.31 of 2006, on the file of the Subordinate Court, Coimbatore, reversing the judgment and decree, dated 2.12.2005, in O.S.No.58 of 2004, on the file of the District Munsif Court, Mettupalayam. 3. The defendants 1, 3 and 4 in the suit, in O.S.No.58 of 2004, have filed the present second appeal. The suit in O.S.No.58 of 2004, had been filed praying for a decree directing the demarcation of the suit property, as per the title deeds of the parties, with reference to metes and bounds, by appointing an Advocate Commissioner and for costs. 4. In the plaint filed in the said suit, it had been stated that the plaintiffs 1 to 3 and one Sundaram are the sons of late Rangaiah https://hcservices.ecourts.gov.in/hcservices/ Gowder. Sundaram had died, on 21.8.2002, leaving behind the plaintiffs 4 to 6 as his legal heirs. The defendants 2 to 4 are the children of the first defendant. 5. It had also been stated that even though several documents, including certain partition and settlement deeds, had been executed, in respect of the suit schedule land, the plaintiffs and the defendants have been carrying on cultivation in the land without actual demarcation of their respective portions. In spite of several demands made by the plaintiffs for demarcation of the land, the defendants were not agreeing for the same. In such circumstances, the plaintiffs had filed the suit, in O.S.No.58 of 2004, on the file of the District Munsif Court, Mettupalayam. 6. The trial Court had framed the following issues for consideration: 1. Are the plaintiffs entitled for the relief of demarcation of the boundaries, as prayed for? 2. What other reliefs the plaintiffs are entitled to? 7. In view of the averments made in the plaint, as well as in the written statement filed in the suit and on considering the evidence available on record, the trial Court, by its judgment and decree, dated 2.12.2005, had dismissed the suit stating that the real intention of the plaintiffs in filing the suit is to recover 40 cents of land, which is in the hands of the first defendant, without paying the requisite court fee for seeking the said relief. 8. The plaintiffs had filed an appeal before the IInd Additional Subordinate Court, Coimbatore, in A.S.No.31 of 2006, challenging the judgment and decree of the trial Court, dated 2.12.2005. 9. The appellants had stated in the grounds of appeal that the lower Court had not correctly appreciated the oral and documentary evidence adduced before the trial Court. The trial Court ought to have taken adverse inference against the defendants for non- production of the necessary documents. The plaintiffs had filed sufficient documentary evidence to show the exact extent of the suit property. The trial Court ought to have seen that the defendants were in possession and enjoyment of an extent of land larger than what they were entitled to. Further, the trial Court ought to have held that the plaintiffs were entitled to approach the civil Court even before adopting the procedures provided under the provisions of the Tamil Nadu Survey and boundaries Act, 1923. 10. The first appellate Court had considered the question as to whether the appellants/plaintiffs were having the right to file a civil suit, even without adhering to the procedures provided under the Tamil Nadu Survey and boundaries Act, 1923. On considering the averments of the parties and the evidence available on record, the https://hcservices.ecourts.gov.in/hcservices/ first appellate Court had come to the conclusion that the findings of the trial Court were erroneous. The first appellate Court had stated that the trial Court ought not to have held that the plaintiffs/appellants had failed to pay the court fee for recovery of possession and that they had also failed to ask for a prayer of recovery of possession and therefore, the suit was not maintainable. 11. It was further held that unless the actual extent of the land in question lying on the side of the defendants/respondents is clearly found out, the plaintiffs/appellants cannot ask for delivery of possession of the property concerned. Even after the disposal of the suit, if the land is surveyed and the boundaries are demarcated and if an excess extent of land lies on the side of the defendants/respondents, the plaintiffs/appellants have to take necessary civil action for taking delivery of the possession of the said land. Accordingly, the first appellate Court reversed the findings of the trial Court, by its judgment and decree, dated 7.7.2006, made in A.S.No.31 of 2006. 12. The present second appeal has been filed before this Court by the defendants 1, 3 and 4 in the suit, in O.S.No.58 of 2004, on the file of the Subordinate Court, Coimbatore. The appellants have raised the following questions, as substantial questions of law:- "i) Whether the lower appellate Court is correct in decreeing the suit, when the property in question has already been demarcated by the survey department? ii) Whether the lower appellate Court is correct in decreeing the suit, when there is an appeal provided under the survey and boundaries Act regarding the demarcation of the property? iii) Whether the lower appellate Court is correct in decreeing the suit, when the plaintiffs/respondents have not proved their case by examining the survey department? iv) Whether the lower appellate Court is correct in decreeing the suit when the plaintiffs/respondents estopped from filing the civil suit especially when they have taken steps to demarcate the property under the Survey and Boundaries Act? v) Whether the Judgment and decree of the lower appellate Court is vitiated for falling to consider the entire evidence on record and to apply the correct principles of law? vi) Whether the lower appellate Court is correct in deciding the issue with regard to the non-payment of court fee for taking delivery of possession?" 13. The learned counsel for the appellants herein had submitted that the lower appellate Court ought to have seen that the evidence https://hcservices.ecourts.gov.in/hcservices/ adduced on behalf of the plaintiffs would show that the respondents are in enjoyment of the suit property for more than 30 years. The lower appellate Court ought to have held that the application should have been submitted before the survey department for the measurement of the land in question and for its demarcation. Therefore, the suit filed by the plaintiffs is not maintainable. 14. The learned counsel for the appellants herein had submitted that the lower appellate Court ought to have seen that, as per Exhibit A.6, the property in question had already been demarcated. Further, demarcation of the property would not arise. If the parties concerned had any grievance in respect of the demarcation of the property concerned, they should have filed an appeal under the provisions of the Survey and Boundaries Act,1923. Further, the lower appellate Court ought to have seen that the patta had been granted in respect of an extent of 5.33 acres, in survey No.516/1, after the sub division of the property and that the appellants are in occupation of the property in question, for more than 30 years. 15. In view of the submissions made by the learned counsel appearing for the appellants and on a perusal of the records available, this Court finds that the appellants in the present second appeal have not been in a position to show that substantial questions of law had arisen for the consideration of this Court in the present second appeal. 16. It cannot be said that the demarcation of the suit schedule property, as directed by the trial Court, would be prejudicial to the defendants in the suit. Even if the first appellate Court had arrived at its conclusions based on a wrong appreciation of the evidence available on record relating to the facts and circumstances of the case, it would not amount to a substantial question of law, as claimed by the learned counsel for the appellants. 17. The contentions raised on behalf of the appellants, with regard to the merits of the case, cannot be countenanced. This Court does not find that substantial questions of law have arisen for its consideration in the present second appeal. Hence, it stands dismissed. No costs. Consequently, connected M.P.No.1 of 2010 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ lan To: 1. The II Additional Subordinate Judge, Coimbatore. 2. The District Munsif, Mettupalayam. 1 cc To Mr.S.Kadarkarai, Advocate, SR.42370. S.A.No.482 of 2008 CK(CO) RVL 06.07.2010 https://hcservices.ecourts.gov.in/hcservices/