IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:3.01.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1564 of 2010 and M.P.No.1 of 2010 1.Dillibabu 2.S.Sagunthala 3.S.Mani @ Balasubramanian 4.S.Ganesan 5.K.Manila 6.S.Vetrivel 7.S.Ashok Kumar ... Appellants/ Defendants 2 to 5 & 7 vs. 1.V.Suryanarayanan 2.Vasudara 3.S.Arumugam ... Respondents/ Plaintiffs & 6th Defendant This second appeal is filed U/ Sec 100 of CPC against the judgement and decree dated 30.7.2010 passed by the Principal Sub Judge, Chengalpattu in A.S.No.25 of 2009 confirming the judment and decree dated 30.4.2009 passed by the District Munsif, Chengalpattu, in O.S.No.166 of 1992. For Appellants : Mr.S.Parthasarathy For Respondents : Mr.T.Viswanatha Rao for R2 and R3 JUDGMENT This second appeal is filed by D2 to D5, D7 to D9, inveighing the judgement and decree 30.7.2010 passed by the Principal Sub Judge, Chengalpattu in A.S.No.25 of 2009 confirming the judgement and decree dated 30.4.2009 passed by the District Munsif, Chengalpattu, in O.S.No.166 of 1992, which was filed for declaration of title of the plaintiffs to the suit property and for permanent injunction. https://hcservices.ecourts.gov.in/hcservices/ 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. Compendiously and concisely the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus: (a) The gist and kernel of the averments in the plaint would be to the effect that originally the suit property and other properties belonged to one Sahadeva Gramani and his brother Natesa Gramani and they got divided it into two equal parts. Sahadeva Gramani's paternal grandson is the first plaintiff, whose father Vasudevan settled the suit property described in the schedule of the plaint, which he inherited from Sahadeva Gramani in favour of the first plaintiff as per the registered Sale Deed dated 23.3.1992, who sold it in favour of second plaintiff. The said Natesa Gramani was allotted share to the South of the share of the Sahadeva Gramani- the patternal grandfather of the first plaintiff. While so, the defendants, without any manner of right attempted to trespass into the suit property. Whereupon the suit was filed, seeking the following reliefs: "(a) to pass a decree and judgement in their favour as against the defendants, declaring the title of the plaintiffs to the suit property and for permanent injunction restraining the defendants from in any way trespassing into the schedule mentioned property; (b) to award cost of the suit." (extracted as such) (b) The defendants contested the suit by filing written statement disputing the title of the plaintiffs as found narrated in the plaint. (c) On the other hand, the defendants have set up title on themselves and they even pleaded prescriptive title also over the suit property. (d) Whereupon issues were framed by the trial Court. The plaintiffs, on their side, examined the second plaintiff as P.W.1 along with P.W.2 to P.W.4 and marked Exs.A1 to A6. On the defendants' side, the second defendant examined himself as D.W.1 along with D.W.2 and marked Exs.B1 to B16. (e) Ultimately the trial Court decreed the suit. https://hcservices.ecourts.gov.in/hcservices/ (f) Being aggrieved by and dissatisfied with the judgement and decree of the trial Court, the appeal was filed for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial court. 4. Challenging and impugning the judgements and decrees of the Courts below, the second appeal has been filed on various grounds: 5. In the grounds of second appeal, the following proposed substantial questions of law are found set out: "1.Whether the Courts below is right in not giving importance to the Advocate's Commissioner Report who have clearly stated that the appellants are in possession of the suit property? 2. Whether the courts below is right in rejecting the document Ex.B16, which is a patta issued by the Government Department to show possession and title of the party? 3.Whether the Courts below right in rejected evidence of P.w.3, who is clearly stated that appellants is in possession of the suit property? 4.Whether the Courts below right in coming into an conclusion that the purchase of the suit property by the 2nd respondent pending suit and hit by lis pendens? 5.Whether the Courts below right in relying upon the respondent's document Ex.A5 and A6h in which the respondents are not a party but rejected the document Ex.B.16? 6. Whether the Courts below is right in rejecting the evidence of D.W.1 and D.W.2 when the same is cogent? (extracted as such) 6. On hearing both sides, I am of the considered view that the following substantial questions of law could be framed: "(i) Whether the Courts below took into account the actual area in dispute, so to say, 29 feet from North to South and 85 feet from East to West in Survey No.79/1 in Chengalpattu M.G.R.District, Thirupporur Sub-District, Kelambakkam Firka, No.33, Navalur Village, and also the Advocate Commissioner's report and sketch and accordingly rendered their judgements? https://hcservices.ecourts.gov.in/hcservices/ (ii) Whether there is any perversity or illegality in the judgements of the Courts below? 7. Both these substantial questions of law are taken together for discussion, as they are interwoven and interlinked, interconnected and entwined with each other. 8. The gist and kernel of the arguments of the learned counsel for the appellants/defendants would run thus: (i) Only a few days anterior to the filing of the suit, the settlement deed-Ex.A1 dated 23.3.1992 emerged, which was to some extent correctly not relied on, by the Courts below, however, they by a surprise twist jumped to the conclusion as though the suit property belonged to the first plaintiff originally, by placing reliance on Exs.A5 and A6, which are not at all in any way pointing out that the first plaintiff acquired any title over the suit property. (ii) The Advocate Commissioner's report and sketch was not taken into account by the Courts below and the suit property was not demarcated. Accordingly, the learned counsel for the appellants/defendants would pray for setting aside the judgements and decrees of the Courts below and for dismissing the suit in toto. 9. By way of torpedoing and pulverising the arguments as put forth and set forth on the side of the appellants/defendants, the learned counsel for the respondents/plaintiffs would advance his arguments, which could briefly and tersely be set out thus: Ex.A5 is the Sale Deed dated 20.03.1979, which clearly contemplates the property of Sahadeva Gramani, as referred to in the plaint as one of the boundaries to the property referred to in Ex.A5. Ex.A6 the sale deed dated 06.05.2002 is also one other document which would similarly support the contention of the plaintiffs. The Courts below appropriately and appositely, convincingly and correctly, placing reliance on Exs.A5 and A6, rendered the judgements, warranting no interference in the second appeal. Furthermore, no question of law much less substantial question of law is involved in this second appeal. As against the finding of facts, the High Court will not interfere with the judgments of the Courts below. Accordingly, the learned counsel would pray for the dismissal of the second appeal. 10. The learned counsel for the respondents/plaintiffs advanced his arguement that the Commissioner's Report and sketch were not at https://hcservices.ecourts.gov.in/hcservices/ all marked and hence, no reliance can be placed on them by the learned counsel for the appellants/defendants, at this stage of second appeal. 11. Whereas, the learned counsel for the appellants/defendants would correctly highlight the legal position that the Commissioner's Report and Sketch would form part and parcel of the court record and formal marking of them is not required. 12. I would like to accept the view put forth by the learned counsel for the appellants/defendants because it has become a trite proposition of law that the Commissioner's Report and Sketch could be taken as part of the Court records, as the Commissioner happens to be a Court officer and his Report is deemed to be forming part of the record. 13. At this juncture, I would like to extract hereunder the actual schedule of property as found detailed in the plaint. SCHEDULE OF PROPERTY Chengalpattu M.G.R.District, Thirupporur Sub- District, Kelambakkam Firka, No.33, Navalur Village, Gramanatham S.No.79/1 measuring North to South 29 feet and East West 85 feet situated at Pillayarkoil Street, Bounded on the West by Pillayarkoil Street on the East by Pazhani Chettiyar's vacant site with compound, on the North by deendants' house site and on the South by Natesa Gramani's House site. Vacant site 2465 sq.ft." (emphasis supplied) 14. Keeping the aforesaid description of the suit property in mind, if the Commissioner's Report with sketch is perused, it is glaringly and clearly, pellucidly and palpably understandable that the Commissioner visited the suit property and gave the entire tophography and the physical features of the entire land in Survey No.79/1 in Chengalpattu M.G.R.District, Thirupporur Sub-District, Kelambakkam Firka, No.33, Navalur Village. It is quite obvious and axiomatic that the entire land in Survey No.79/1 is not the subject matter of controversy here, but the suit property measuring an extent of 29 feet North to South and 85 feet from East to West in Survey No.79/1 happens to be the subject matter of the dispute. 15. It would not be out of place to point out that the Courts below, in my considered view, correctly, after analysing the documentary and oral evidence, arrived at the conclusion that the defendants' plea that the entire property situated in S.No.79/1 belonged to them was not tenable. It is a finding of fact, with which this Court is not expected to interfere. The Courts below placed reliance on the defendants' documents, namely, Exs.B1 to https://hcservices.ecourts.gov.in/hcservices/ B11, which are the House Tax receipts covering the period between 1961 and 1991 in respect of the residential hut only. 16. The learned counsel for the respondents/plaintiffs would correctly comment upon it by pointing out that mere marking of those house Tax receipts would in no way establish and prove that the entire land in Survey No.79/1 belonged to the defendants. The Commissioner's Report would clearly evince and portray that Survey No.79/1 measures an extent of 70 ½ feet from North to South and 72 ½ feet from East to West. In that area only an extent of 29 feet from North to South and 85 feet from East to West is claimed as the suit property belonging to the plaintiffs. But the Commissioner failed to demarcate that suit property area in the said bigger area. In my opinion that defect alone could be taken cognizance of in the second appeal and not the findings rendered by the Courts below that the plaintiffs are entitled to the suit property and that the defendants are not entitled to the suit property. However, the Commissioner's sketch would establish and highlight as though D3's dwelling hut is situated at the extreme Southern side of the entire extent of the land bearing Survey No.79/1 and there is no clarity as to whether D3's hut is situated in the suit property. If it is so, then the plaintiffs would not be justified in praying for bare injunction in respect of that portion, instead of asking for eviction of D3 from the said area in the suit property. 17. The learned counsel for the appellants/defendants would submit that the Courts below did not refer to the Commissioner's Report and sketch in proper perspective and simply relied on Exs.A5 and A6 alone. 18. I could see considerable force in his submission. For the purpose of comprehensively deciding the matter, I would like to point out that the Courts below took into account Ex.A5-the Sale Deed dated 20.3.1979, which emerged between the third parties and in that it is found described that the property of Sahadeva Gramani-the grandfather of the first plaintiff situated to the North of the property covered under that Sale Deed. Similarly, in Ex.A6 the sale deed dated 06.05.2002, similar such description is found exemplified. As such, the Courts below justifiably and legally placed reliance on them and held that the plaintiffs were having title over the suit property, warranting no interference in second appeal. 19. I recollect and hark back to the following adage: "Preponderance of probabilities would govern the adjudication in civil cases." https://hcservices.ecourts.gov.in/hcservices/ 20. The learned counsel for the appellants/defendants would vehemently argue that the plaintiffs, who approached the Court should have proved the case. 21. At this juncture, I would like to quote the following maxims: (i) Affirmatis est probare – He who affirms must prove. (ii) Affirmanti, non neganti incumbit probatio – The burden of proof lies upon him who affirms, not upon one who denies. The above maxims would point out that the onus probandi is on the plaintiff to prove the case and it is not for the defendant to prove his case when the burden has not got shifted to his side. 22. No doubt, the burden of proof is ambulatory and not static. It has to be seen as to whether the Courts below, at the first instance, considered as to whether the plaintiffs established their case. 23. To the risk of repetition and pleonasm but without being tautalogous, I would like to point out that the Courts below correctly relied on Exs.A5 and A6 and also the document Ex.A1 and arrived at a reasonable conclusion that the plaintiffs established their right over the suit property in Survey No.79/1. Whereas, the defendants' contention as though the entire land in Survey No.79/1 belongs to them appears to be too big a pill to swallow. In civil maters, the evidence on either side, has to be weighed and by applying the comparative standard the case has to be adjudged, so to say, the more probable case of the party concerned has to be accepted and the less probable case of the party concerned has to be rejected. By just having some tax receipts relating to a small hut in a small area, the defendants were not at all justified in claiming as though the entire adjacent area in that Survey Number 79/1 belongs to them. However, in anti litem motam documents Ex.A5 and Ex.A6 of third parties, the suit property is referred to as one belonging to the first plaintiff's ancestor. 24. The learned counsel for the appellants/defendants would try to press into service Ex.B.16-the patta standing in the name of the defendants. 25. In my considered opinion Ex.B16 would not stand the scrutiny of this court even for a moment. Ex.B16 is nothing but a notice issued for conducting patta enquiry during the year 1995, i.e. pendente lite, the Revenue Officials such notice calling for the defendants to attend the said enquiry. Whereas, the suit itself had been filed in the year 1992. As such, Ex.B16 is not even https://hcservices.ecourts.gov.in/hcservices/ worth the paper on which it is found written, as it has no evidentiary value at all so far this case is concerned and it cannot be canvassed by the appellants/defendants that Ex.B16 should be taken as a patta and that it is allegedly having some probative value. The Courts below correctly discarded Ex.B16, warranting no interference in second appeal. 26. Resuming the discussion relating to the description of property, I would like to point out that the Courts below fell into error in actually getting the suit property situated in Survey No.79/1 demarcated and for that limited purpose alone, the matter has to be remitted back to the first appellate Court with the direction that the first appellate Court shall appoint a Commissioner with the mission to visit the suit property and locate the same and find out as to whether D3's hut or any other hut is situated in the suit property, which is measuring 29 feet and 85 feet as found set out in the schedule of the plaint and after getting the same demarcated and ascertained as to what is actually therein and after hearing both sides, it is for the appellate Court to decide the case only to the limited extent as to whether the plaintiffs were justified in praying for a blanket injunction or they should pray for recovery of possession from the person in occupation of that area concerned and accordingly a judgment has to be passed. In order to disambiguate any ambiguity, I would like to reiterate that regarding the finding of the Courts below relating to the title of the suit property in favour of the plaintiffs is concerned, and the granting of declaratory relief are concerned, they are confirmed and only relating to the limited extent as found set out supra, the matter shall stand remitted back to the first appellate Court, which shall deal with it as mandated supra, within a period of four months, preferably, from the date of receipt of a copy of this judgment. The parties shall appear before the first appellate Court on 2.2.2011. 27. The second appeal is disposed of accordingly. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. Msk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Principal Sub Judge, Chengalpattu 2.The District Munsif, Chengalpattu 3.The Section Officer VR Section, High Court, Madras 1 cc to Mr.T. Viswanatha Rao, Advocate, Sr. 471 1 cc to Mr.S. Parthasarathy, Advocate, Sr. 87 S.A.No.1564 of 2010 GV (CO) kk 20/1 https://hcservices.ecourts.gov.in/hcservices/