In the High Court of Judicature at Madras Dated : 13.08.2010 Coram The Honourable Mr.Justice R.SUBBIAH Second AppealNo.99 of 2002 1.Sumathi 2.Minor Mala rep. By mother guardian Sumathi ... Appellants ..vs.. ... Respondent Unnamalai Second Appeal is filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 16.11.2001 made in A.S.No.128 of 2000 on the file of the Additional District Judge, Thiruvannamalai, reversing the judgment and decree dated 04.09.2000 made in O.S.No.281 of 1996 on the file of the District Munsif-Cum- Judicial Magistrate, Chengam. For Appellant : Mr.G.Rajan For Respondents : Mr.R.Bharanidharan JUDGMENT This appeal is filed as against the decree and judgment dated 16.11.2001 made in A.S.No.128 of 2000 on the file of the Additional District Judge, Thiruvannamalai, reversing the judgment and decree dated 04.09.2000 made in O.S.No.281 of 1996 on the file of the District Munsif-Cum-Judicial Magistrate, Chengam. 2. The plaintiffs are the appellants and the defendant is the respondent herein. 3. The appellants have filed the suit in O.S.No.281 of 1996 before the District Munsif-Cum-Judicial Magistrate's Court, Chengam for declaration declaring the plaintiff's title to the suit property and for permanent injunction restraining the respondent herein from interfering with the plaintiffs possession and enjoyment of the suit property. The said suit was decreed by the Trial Court, but the lower appellate Court has set aside the decree and judgment of the trial Court and dismissed the suit. https://hcservices.ecourts.gov.in/hcservices/ 4. The facts, which are narrated by the appellants in the plaint, are as follows:- Originally the suit scheduled property and other sites belonged to one Kannaiya Naidu son of Permal Naidu of Thanipadi Village. The said Kannaiya Naidu purchased the same from the previous owners viz., Poongavana Chettiyar and Periyapappammal respectively. The said Kannaiya Naidu, subsequently sold the property in favour of one Chandran and his first wife viz., Malarkodi. The first appellant is the second wife of the said Chandran and the second appellant is the minor daughter. The suit property along with other site was purchased by Chandran and Malarkodi, for a sale consideration of Rs.3,200/- under a registered sale deed dated 25.07.1979. The said Chandran and his wife were each entitled to a half share in the said property. Subsequently, the said Chandran sold his undivided half share in the said site for Rs.1,750/- in favour of his brother viz., Veerabathiran under a registered sale deed dated 12.11.1979. The said Veerabathiran and Malarkodi had been jointly enjoying the said property. Subsequently, the said Chandran had divorced his wife Malarkodi and thereafter he had purchased the undivided half share in the said site from the said Malarkodi for a sum of Rs.2,100/-. That apart, the said Chandran had also purchased the undivided half share in the said site from his brother Veerabathiran for a sum of Rs.2,000/- under a Registered sale deed dated 19.07.1985. Thus the said Chandran became the absolute owner of the suit scheduled properties and other properties totally measuring east to west 38 feet on the southern side, 28 feet on the northern side and north south 53 feet on the eastern side and 43 feet on the western side. Subsequently, the said Chandran married the first appellant/first plaintiff in the year 1984 and out of the lawful wed-lock the first appellant/first plaintiff gave birth to the second appellant/second plaintiff. The said Chandran by way of a settlement deed dated 11.11.1986 settled the schedule mentioned property and other sites in favour of the appellants/plaintiffs. By virtue of the said settlement deed, the appellants/plaintiffs are the absolute owner of the suit property along with other site. Out of the said site, the said Chandran leased out 450 sq.ft. in favour of one Jayaraman for a period of five years. The leased out portion of 450 sq.ft. is in the northern portion of the suit scheduled property. As per the condition of the said lease deed, the lessees had to construct a tiled building on the demised site from out of their own funds and carry on his commission mundy business there and after the expiry of the lease period, they must remove the super structure and hand over the vacant possession of the demised site to the owner. The lessees constructed a tiled building on the northern portion of the demised site, leaving the northern portion, measuring to an extent of 4 feet north to south and 28 feet east to west as vacant site, totalling to an extent of 1584 sq.ft. It is the further case of the appellants/ plaintiffs that the entire suit scheduled property comprised in survey No.190/1. The respondent/defendant's mother Parvathi Ammal was https://hcservices.ecourts.gov.in/hcservices/ owning a site measuring about 0.04acres in S.No.191/3 which is situated on the northern side of the said property. The respondent/defendant, was residing on the northern portion in Survey No.191/3. In the said situation, the respondent/defendant, who had no manner of right over the suit property which is situated in Survey No.191/1, as a matter of fact, when the plaintiff's lessee Jayaraman Plastered the northern wall of the tiled building which they constructed, the respondent/defendant attempted to obstruct them from plastering the wall by laying a false claim over the suit property. Hence, the appellants/ plaintiffs issued a lawyer's notice dated 18.12.1986 to the respondent/defendant, setting out the above facts and calling upon the respondent/defendant not to lay any false claim over the suit property and other properties. The respondent/defendant had also sent a reply notice dated 29.12.1986 by making false allegations stating that the plaintiff's lessee viz., Jayaraman encroached upon one feet over her area and constructed the tiled building on the northern portion of the scheduled property, which portion she had been using as a lane for taking her cattle. Further, in the said notice, it has been stated by the respondent/defendant that she had been in possession and enjoyment of the suit property for more then the statutory period and perfected title by adverse possession. Moreover the respondent/defendant made an attempt to trespass into the suit property and the same was thwarted by the appellants/plaintiffs with great difficulty. Hence, the appellants/plaintiffs have filed the suit for the prayer cited supra. 5. The case of the appellants/plaintiffs was resisted by the respondent/defendant stating that the suit property does not lie in Survey No.191/1 but only in Survey No.191/3, which survey number belongs to the respondent/ defendant. Out of the total extent of 0.16 acres in Survey No.191/3, by and through the settlement deed dated 22.07.1978, the respondent/defendant is entitled to 147 links east to west on the southern side, 127 links on the northern side and 30 links south to north on the western side and 35 links on the eastern side, covering an extent of 0.4 acres. The same is a patta land. The lessees of Chandran had encroached upon the respondent's property and raised the building construction to a breadth of one foot south to north and a length of 28 feet east to west on the northern portion of the suit property. The portion which was encroached by the lessees Jayaraman was in the possession of the respondent/defendant for more then statutory period and they had been using the said portion for convenient passage for taking her cattle. By long and continuous possession and enjoyment, the respondent/ defendant had also perfected her title by adverse possession in respect of the suit property. Thus the respondent/ defendant prays for dismissal of the suit. 6. In order to prove the case, on the side of the appellants/plaintiffs, the husband of the first appellant was https://hcservices.ecourts.gov.in/hcservices/ examined as P.W.1 and the erstwhile owner of the suit property viz., Poongavana Chetty was examined as P.W.2 and 10 documents were marked as Exs.A1 to Ex.A10. On the side of the respondent/defendant, the husband of the defendant was examined as D.W.1 and 4 documents were marked as Exs.B1 to Ex.B4. The trial Court by considering the evidence, has decreed the suit. But on appeal by the respondent/ defendant, the lower appellate Court has set aside the judgment and decree of the trial Court. Aggrieved over the same, the present second appeal has been filed by the plaintiffs by raising the following substantial questions of law:- (i) When neither the plaintiffs nor the defendant projected a case of a common lane is the learned Additional District Judge right in relying upon the report of the surveyor in holding that the disputed suit property is a common lane? (ii) When the documentary evidence coupled with the report of the Commissioner squarely establish that the plaintiffs are entitled to the disputed suit property and are in possession still is the learned Additional District Judge right in dismissing the suit holding that it is a common lane? 7. The learned counsel appearing for the appellants submitted that it is an admitted case, that the suit property is a 'gramanatham' comprised in Survey No.191/1. The respondent's property is situated on the northern side of appellants property comprised in Survey No.191/3 and it is the patta land. The total extent of the appellants property is 1584 sq.ft., measuring east to west 38 feet on the southern side, 28 feet on the northern side and north south 53 feet on the eastern side and 43 feet on the western side. The Advocate Commissioner appointed by the trial Court, has filed a report stating that the appellants property is situated in survey No.191/1 and the respondent's property is situated in survey No.191/3. When it is an admitted case, even according to the appellants the respondent's property is situated in survey No.191/3 and the appellant's property situated in 191/1, the lower appellate Court ought to have confirmed the judgment and decree passed by the trial Court. Further, the learned counsel appearing for the appellants submitted that the surveyor's report was also would show that the appellants property is situated in survey No.191/1 which is a 'gramanatham' and the respondent's property is situated in a patta land comprised in survey No.191/3. The Advocate Commissioner's report and the Surveyor's report strongly support the case of the appellants. Therefore, there is no need for setting aside the judgment and decree passed by the trial Court. By considering the recital in Ex.B1, the settlement deed executed by one Parvathi Ammal in favour of the respondent, the trial Court has come to the conclusion that the disputed portion of the suit scheduled property https://hcservices.ecourts.gov.in/hcservices/ was not in possession of the respondent. But the lower appellate Court by totally neglecting all these aspects reversed the Judgment and the finding of the trial Court. Under such circumstances, the judgment and decree of the lower appellate Court is perverse and therefore by setting aside the judgment and decree of the lower appellate Court the second appeal has to be allowed. 8. Per contra, the learned counsel appearing for the respondent submitted that the trial Court had decreed the suit by totally relying upon the Advocate Commissioner's report and Surveyor's report, because the measurement of the Advocate Commissioner's report with regard to the suit scheduled property tallies with the suit scheduled property. But neither the Advocate Commissioner nor the surveyor had not measured the disputed portion i.e., the construction made by the lessees of the appellants to find out whether there was an encroachment in the respondent's property. Similarly the measurement with regard to the respondent's property was also not taken specifically. The Trial Court by solely relying upon the survey numbers of the properties, decreed the suit, but the same was correctly set aside by the lower appellate Court. There was no tangible evidence before this Court to show that the disputed portion of the property belonged to the appellants/plaintiffs so as to grant the relief of declaration and the consequential prayer. Therefore, there is no need to interfere with the Judgment passed by the lower appellate Court. Thus the learned counsel appearing for the respondent submitted that by confirming the judgment and decree of the lower appellate Court the second appeal may be dismissed. 9. Heard the learned counsel on either side and perused the materials available on record. 10. It is the case of the appellants/plaintiffs that the property measuring to an extent of 1584 sq.ft., in survey No.191/1 was owned by them. The appellants/plaintiffs was permitted one Jayaraman to put up a construction by way of lease on the northern side of the suit scheduled property to an extent of 450 sq.ft., Out of 450 sq.ft., he had put up a construction only 338 sq.ft., leaving a space of 112 sq.ft. When the respondent/defendant had interfered with the portion leased out to said Jayaraman, the present suit was filed by the appellants/plaintiffs to declare their title over the suit property and also for an injunction for preventing the respondent/defendant from interfering with the peaceful possession and enjoyment of the appellants/plaintiffs. But, according to the respondent/ defendant, the appellants/ plaintiffs have encroached upon an extent of 0.04 acres of land into the respondent's property situated on the northern side of appellants property. Thus the respondent had disputed the portion leased out to the lessee Jayaraman which comes within the portion of their property. But it is the case of the appellants/plaintiffs that their property was situated in Survey No.191/1, whereas the respondent/defendant's https://hcservices.ecourts.gov.in/hcservices/ property was situated in survey No.191/3 and the appellants property is a 'gramanatham' and the respondent's property is a patta land. It is no doubt the Advocate Commissioner's report and the Surveyor's report would show that the appellants property was situated in Survey No.191/1 and the respondent's property was situated in Survey No.191/3. The trial Court had also decreed the suit based on the commissioner's report. But it is the specific case of the respondent/defendant that she had been using the southern portion of the property measuring to an extent of 147 links east to west on the southern side, 127 links on the northern side and 30 links south to north on the western side and 35 links on the eastern side covering an extent of 0.4 acres and she had been using it is aconvenient passage for many long years for taking her cattle and was in long continuous possession and enjoyment. When this being the case of the appellants/plaintiffs, the Advocate Commissioner ought to have measured the property of the respondent and also the portion constructed by the lessees specifically. Neither the Advocate Commissioner nor the Surveyor measured the respondent's portion on the portion constructed by the lessee. But the Trial Court by merely saying that the measurement mentioned in the plaint schedule tallies with the Advocate Commissioner's report, had decreed the suit. But the Trial Court has come to the specific conclusion by dealing with the Advocate Commissioner's report and the Surveyor's report. In the absence of any specific measurement or extents, whether the suit vacant site falls within the extent of the appellants cannot be decided. By coming to such a conclusion, the lower appellate Court has set aside the decree and judgment granted in respect of the prayer for declaration, but however, modified the prayer of injunction holding that the respondent/defendant and his men are prevented and prohibited not to interfere with the appellants/plaintiffs in their use and utilization of the suit vacant space as a lane. Hence, I find that the lower appellate Court has deeply gone into the factual aspects and set aside the judgment and decree of the trial Court in respect of the prayer of declaration by modifying the prayer of injunction. In my considered opinion, the lower appellate Court, which is a final Court of facts, had properly evaluated and rendered the findings which cannot be said to be perverse. Hence, I do not find any question of law much less the substantial question of law that arises for consideration in this second appeal. 11. In the result, the second appeal is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rrg https://hcservices.ecourts.gov.in/hcservices/ To 1.The Additional District Judge, Thiruvannamalai. 2.The District Munsif-Cum-Judicial Magistrate, Chengam. 1 cc To Mr.G.Rajan , Advocate, SR.59859 1 cc To Mr.R.Karthikeyan, Advocate, SR.59653 Second Appeal No.99 of 2002 ssk(co)] pmk.18.10.2010 https://hcservices.ecourts.gov.in/hcservices/