IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.2.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.347 of 2007 Mrs.Anusuya ... Appellant/Appellant/Defendant vs. 1.Mrs.Shanthi Sivasami 2.Mrs.R.Sivasakthi ... Respondents/Respondents/Plaintiffs This second appeal is filed against the judgement and decree dated 21.12.2006 passed by the Additional District and Sessions Judge, Fast Track Court-V, Chennai, in A.S.No.565 of 2005 confirming the judgement and decree dated 27.6.2005 passed by the XI Assistant Judge, City Civil Court, in O.S.No.603 of 1996. For Appellant : Mr.S.V.Jeyaraman,Sr.counsel for Mr.L.N.Pragasham For Respondents : Mr.K.Lakshmikumaran JUDGMENT This second appeal is filed by the defendant, inveighing the judgement and decree dated 21.12.2006 passed by the Additional District and Sessions Judge, Fast Track Court-V, Chennai, in A.S.No.565 of 2005 confirming the judgement and decree dated 27.6.2005 passed by the XI Assistant Judge, City Civil Court, in O.S.No.603 of 1996, which was filed for declaration and delivery of vacant possession of the suit property. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: The respondents herein, as plaintiffs, filed the suit seeking the following reliefs: https://hcservices.ecourts.gov.in/hcservices/ "to pass a judgement and decree a)directing the plaintiff is absolute owner of the suit property more particularly described in the schedule hereunder. b.directing the defendant to remove the hut and delivery vacant possession of the suit property. c. for cost of the suit." (extracted as such) (b) The appellant/defendant resisted the suit by filing written statement. (c) Whereupon the trial Court framed the issues. The plaintiffs on their side examined one Sathyanarayanan as P.W.1 and marked Ex.A1 to A4. On the defendant's side, the defendant examined herself as D.W.1 and marked Exs.B1 to B6. (d) Ultimately, the trial Court decreed the suit, as against which, the appeal was filed for nothing but to be dismissed by the appellate Court, confirming the judgement and decree of the trial Court. 4. Challenging and impugning the judgements and decrees of the Courts below, this second appeal has been filed on various grounds, inter alia, thus: (i) The Courts below fell into error in understanding the proper dispute involved in this case. (ii) The suit property was not located properly and there are discrepancies in the schedule of property as found set out in the plaint and the Courts below also failed to take into account Ex.B3- the rectification deed dated 10.11.1981, and absolutely there was no admission made by the defendant, even then the Courts below erroneously decided as though the plaintiffs are the owners of the suit property and that the defendant should vacate and hand over the possession of the same. 5. Accordingly the following substantial questions of laws are found suggested in the second appeal. "1) Whether the courts below erred in discountenancing the plea of the appellant herein that the appellant had prescribed title to the suit property by adverse possession as the appellant's possession of the suit property was open, continuous, hostile, and adverse to the interest of the respondents herein for well over the statutory period. 2) Whether the Courts below should have recorded a https://hcservices.ecourts.gov.in/hcservices/ finding to the effect that the Deed of Rectification (Exhibit B3 dated 10.11.1981) which vindicated the appellant's title to the suit schedule property had not been assailed in the suit in a manner known to law and as such the suit was not maintainable in law. 3) Whether the Courts below should have reached the conclusion that in terms of Exhibit A2 (Deed of sale dated 26.8.1987) the purported purchase of land holdings by the (original) plaintiff related to Survey No.161 but since the claim made in the suit related to Survey No.161/1 the suit was not maintainable in law. 4) Whether the Courts below should have held that though the suit claim related to Survey No.161/1 the oral evidence of P.W.1 and the documentary evidence (Ex.A4) relate to Survey No.161/1A1 and sincere there is no evidence on record correlating the Survey Number found in the plaint schedule (S.No.161/1) with the said oral and documentary evidence the plaintiff's claim could not be buttressed in law. 5) Whether the Courts below were correct in eschewing the relevant documentary evidence (Exhibits B1 to B6) tendered on behalf of the appellant herein and relying on the documentary evidence of the respondents herein (Exhibits A3 and A4) to grant the relief claimed in the suit. 6) Whether the Courts below should have dismissed the suit holding that the plaintiffs did not prove their title to the suit property in the form of a document of title and the documents relied on by the plaintiff viz., Extract from the Town Survey land Register Ex.A3, and the plan Ex.A4, will not prove the purported title of the plaintiffs in the suit property. 7) Whether the lower appellate Court was right in non-suiting the appellant herein on the plea of the appellant's prescriptive title to the suit property by adverse possession on the premise that the appellant's possession of the suit property was interrupted which was evidence from the institution of the suit for permanent injunction by the appellant in O.S.No.572/1983 qua the (original) plaintiff, little realizing that concedingly the appellant was in possession of the suit property for well over the statutory period without any interruption." (extracted as such) 6. Based on the available materials, my learned predecessor framed the following substantial questions of law: 1) Whether the Courts below should have reached the conclusion that in terms of Exhibit A2 (Deed of sale dated 26.8.1987) the purported purchase of land holdings by the (original) plaintiff related to Survey No.161 but https://hcservices.ecourts.gov.in/hcservices/ since the claim made in the suit related to Survey No.161/1 the suit was not maintainable in law. 2) Whether the Courts below were correct in eschewing the relevant documentary evidence (Exhibits B1 to B6) tendered on behalf of the appellant herein and relying on the documentary evidence of the respondents herein (Exhibits A3 and A4) to grant the relief claimed in the suit. 3) Whether the Courts below should have dismissed the suit holding that the plaintiffs did not prove their title to the suit property in the form of a document of title and the documents relied on by the plaintiff viz., Extract from the Town Survey land Register Ex.A3, and the plan Ex.A4, will not prove the purported title of the plaintiffs in the suit property." (extracted as such) 7. Heard both. 9. Substantial Questions of law (1) to (3): All these substantial questions of law are taken together for discussion, as they are interwoven and interlinked, interconnected and entwined with one another. 10. The learned counsel for the appellant/defendant would advance his arguments, which could pithily and precisely be set out thus: (a) The boundaries as found set out in the schedule of property do not tally with the boundaries as found set out in Ex.A2-the Sale Deed dated 26.8.1967. (b) The plaintiffs being dominus litis, should have proved the case and they were not justified in picking holes in the case of the defendant. (c) Unless the property is located with reference to the documents of both sides, and also the physical features are taken note of, the lis cannot be decided finally and legally. Accordingly, the learned counsel for the appellant/defendant would pray for remitting the matter back to the lower Court with suitable directions. 11. Whereas, in an attempt to pulverise and torpedo the arguments as put forth on the side of the appellant/defendant, the learned counsel for the respondents/plaintiffs would advance his arguments, which could pithily and precisely be set out thus: https://hcservices.ecourts.gov.in/hcservices/ (i) The defendant is having ownership right even in a bit land bearing S.No.161/1; however, a self-serving document Ex.B3-the Rectification Deed dated 10.11.1981 emerged so as to justify the defendant's unjustifiable possession over the suit property. (ii) In paragraph No.6 of the written statement there is a clear admission by the defendant that she is squatting on the plaintiffs' property and during cross-examination also, the defendant candidly and categorically, without mincing words, admitted that she is having no objection for the plaintiffs to take their land as per their document and in such a case, ignoring all these documents, the defendant is not justified in prosecuting the second appeal and there is no question of law much less substantial question of law involved in this matter. Accordingly, the learned counsel for the plaintiffs prays for the dismissal of the second appeal. 12. At the first instance itself I would like to fumigate my mind with the following decisions of the Honourable Apex Court. (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL; (ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYA: A plain reading of the above precedents would reveal and demonstrate that under Section 100 of the Code of Civil Procedure, Second Appeal cannot be entertained, unless a substantial question of law is involved. If there is any perversity in the findings given, certainly interference by the High Court is warranted in second appeal. 13. I would like to point that in this case, no attempt was made for getting an Advocate Commissioner appointed so as to visit the suit property and locate the same with reference to the title deeds of respective parties and also to note the physical features of the same. Had the Commissioner visited the property and located it, as visualised supra, then the whole truth would have come to the lime light. It is totally impossible to catch a black cat in a dark room. The Court may not be knowing as to what is actually existing at the spot. 14. In order to highlight certain defects in the judgements, I would like to extract hereunder the schedule of property as contained in Ex.A2-the Sale Deed dated 26.8.1967. “. . . . . All that piece of land contained in the attached plan in Koyambedu Village, Saidapet Taluk, Chingleput District covered by Survey No.87, bounded on https://hcservices.ecourts.gov.in/hcservices/ the North by proposed 24 feet road, South by Plot No.2, East by Plot No.89, and West by Jayakanthammal's land (Plot No.88A & 88) measuring on the Northern side 40 feet – Southern side 49 feet, Eastern side 103 feet and 6 inches and Western side 121 feet and in Plot No.2 on the Western portion bounded on the North by 9 feet, South by 12 feet, East by 60 feet and West by 60 feet measuring on the Southern side of the Western portion 12 feet on the Northern side of the Western portion 9 feet o the Eastern side . . . D.S.S.Manian . . . 5. . . . of the Western portion 60 ft., and on the Western side of the Western portion 60 feet with a total extent of 2 (two) grounds and 128 sq.feet only. . . . . . (emphasis supplied) However, in the plaint, only the following schedule of property is found set out: Schedule of property Plot of land bearing No.87 to an extent of 1 ground and 300 sq.ft.in Survey No.161/1 in Koyambedu Village, Saidapet Taluk, Chengai M.G.R.District bounded on the North by Road, South by land of the plaintiff, East by Rajendran's property and West by land of Jayakanthamma. (emphasis supplied) 15. In paragraph No.6 of the written statement, the defendant would claim that the plaintiffs purchased plot No.2 and plot No.87. However, the learned counsel for the plaintiffs would submit that now the property described in the schedule of the plaint would refer to Plot No.87. In fact, in the course of argument, the learned counsel for the plaintiff would highlight that one Venkatarama Naidu was the original owner of an extensive property in that area and he had two wives, namely, Chengammal and Jayakanthammal and during the life time of Venkatarama Naidu, he separately settled the properties in favour of his two wives. 16. According to the learned counsel for the plaintiffs his clients purchased the property from Chengammal. While Chengammal selling the properties, she retained certain portions on the Western portion of the property and sold the Eastern portion. He would also orally refer to the antecedent Sale Deed dated 14.6.1962, which stood in the name of Chengammal. 17. When this Court raised the point as to how Jayakanthammal's property all in a sudden, holus-bolus is found specified as the Western boundary in Ex.A2-the Sale Deed, the learned counsel for the plaintiffs might submit that it might be a mistake to that much extent. However, he would point out that the boundaries would change every now and then because of transfer of ownership and the entire property settled in favour of Chengammal was not purchased by the plaintiffs and only a moiety portion was https://hcservices.ecourts.gov.in/hcservices/ purchased and hence, the alleged discrepancy in specifying the boundaries do not affect the title of the plaintiffs. 18. Whereas the learned counsel for the appellant/defendant would submit that his client-the defendant purchased the property from Jeyakanthammal, as per Ex.B1-the sale deed dated 23.7.1979 and the schedule of property found set out therein is extracted here under for ready reference: ". . . .In the Registration District of Madras – Sub-Registration District of Kodambakkam, No.106, Koyambedu Village, Saidapet Taluk, Survey No.162 (Part) Plot No.54A, measuring East to West on the Northern Side 45 feet, on the Southern Side 45 feet, North to South on the Eastern Side 60 feet and on the Western Side 60 feet, total extent of one ground (1 Ground) and Three hundred Square feet (1 ground 300 sqft) (2700 sq.ft) Bonded on the North by : Proposed Road, South By: Vacant Plot in Survey No.162, East by Vacant Plot, West By: Plot No.54, belongs to Kannan son of Vallur Narayanaswamy Pillai; . . . . . . . . . . 19. The learned counsel for the defendant would assert that in fact, his client is only occupying the said area and Ex.B1 was followed by Ex.B3, the Rectification Deed dated 10.11.1981, rectifying the Survey Number from 162(Part) into 161/1. 20. Responding to the above submission made by the learned counsel for the defendant, this Court raised the query as to how the defendant was justified in effecting such rectification deed when the said Jeyakanthammal the vendor's title deed itself was not referring to Survey No.161/1, as highlighted by the learned counsel for the plaintiffs. 21. It is therefore clear that both the parties should be bound by their respective vendors' titles and they cannot, so far this case is concerned, set up a new case for themselves. 22. Curiously enough both sides have not filed their respective vendors' settlement deeds and they should have necessarily filed, at least, a certified copy of those settlement documents. 23. In my opinion, unless, the Commissioner goes and locates the suit property and measures it by having the assistance of a qualified surveyor with reference to the documents on both sides, including their antecedent title deeds, the problem cannot be adjudicated to the satisfaction of the Court legally and then only substantial justice would be rendered. Both the Courts below actually misled themselves by sticking on to technicalities and oral evidence. I am of the considered view that the available https://hcservices.ecourts.gov.in/hcservices/ evidence is totally patchy and insufficient to arrive at a comprehensive and firm conclusion. 24. In view of the above, I would like to set aside the judgement and decree of the first appellate Court and remit the matter back to it with a direction that the first appellate Court shall appoint an advocate Commissioner, at the cost of the plaintiffs, with a mission to visit the suit property and locate the same with the assistance of a qualified Surveyor and after measuring the area with reference to the documents of both sides, submit a report with Survey sketch. Whereupon both sides are at liberty to file objections and adduce also further evidence. Even before the Commissioner's visit, both sides are enjoined to file the certified copies of their respective antecedent title deeds, so to say, the settlement deeds in favour of Chengammal and Jeyakanthammal, so as to enable the Commissioner to execute the mission properly. Accordingly, the substantial questions of law are answered and the matter is remitted back to the first appellate Court, which shall dispose of the matter within a period of four months from the date of receipt of a copy of this judgement. Both sides shall appear before the first appellate Court on 1.3.2011. The second appeal is disposed of accordingly. However, there is no order as to costs. Msk Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Additional District and Sessions Judge, Fast Track Court-V, Chennai. 2. The XI Assistant Judge, City Civil Court. + 1 cc to Mr. S. Balasubramanian, Advocate SR No.11251 + 1 cc to Mr. L.N. Pragasham, Advocate SR No.10587 KJ(CO) SR/23.2.2011 S.A.No.347 of 2007 https://hcservices.ecourts.gov.in/hcservices/