THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No. 295 of 1999. JUDGEMENT: This second appeal is preferred by the defendant aggrieved by the Judgement and Decree dt. 11.12.1998 in A.S.No. 115 of 1991 on the file of the District Judge, Ananthapur whereby the learned District Judge reversed judgement and decree dt. 30.9.1991 in O.S.No. 147 of 1985 on the file of the Prl. District Munsif, Ananthapur. The respondent herein filed the above suit for injunction alleging that he is the owner and possessor of the suit schedule property by virtue of sale deed Ex:A.2 dt. 3.8.1982 executed in his favour. It is the admitted case of both parties that the respondent/plaintiff as well as the appellant herein have purchased properties from the same vendor. The plaintiff’s sale deed Ex:A.2 dt. 3.8.1982 refers to two different survey numbers i.e. 67/1/A/3 and 67/1/A/2. The plaintiff also pleads that there is a mistake in the sale deed with regard to the description of the property that is for plot A/2, A/3 is mentioned and for plot A/3, A/2 is mentioned but boundaries are described correctly. It is also stated that the appellant also purchased 0.06 cents in the same survey number under two sale deeds i.e. Exs: B.2 dt. 10.10.1973 and Ex: B.1 dt. 5.6.1989 and that on the plot purchased under Ex:B.1, the defendant also constructed a house. The plaintiff filed the suit alleging interference by the defendant. In the suit, an Advocate Commissioner was appointed who gave reports Exs:C.1 to C.3 and during the evidence of the said Advocate commissioner as DW.3, the Commissioner was of the opinion that the boundaries mentioned in the plaintiff’s sale deed in S.No. 67/1/A/2 are not tallied and that said plot is not identifiable on the ground and therefore, the trial court dismissed the suit. In appeal, the plaintiff contended that the suit ought to have been decreed as the mistake in the sale deed Ex:A.2 is not with reference to boundaries and even though there is mistake in mentioning the survey number, the boundaries in any case will prevail. The lower appellate court considered the said aspect in detail and in para 14 of its Judgement and held as under: “In the aforesaid circumstances, it is not proper to comment that the witness was not in a position to identify his own property with regard to survey numbers and other aspects. He was not residing locally even at the time of purchase of the property. He has been working at various places. He denied the suggestion that he could not locate the plot and shows the same to the commissioner…………On the other hand, the report of the commissioner shows that as the entire locality is being used for the housing colony, and as various plots have been put without the service of a recognized surveyor the plot in S.No. 67/1/A/2 could not be identified. The boundaries also do not tally. The court ought to have directed the court commissioner to take technical assistance to demarcate the survey number 67 as it has undergone various changes with sub-divisional letters, as could be seen from Ex:A.3 filed map of the said survey number.” The lower appellate court having observed as above, in para15 of its judgement, it proceeded to consider the prima facie title of both parties and came to conclusion that since the plaintiff purchased the plot earlier to that of the defendant, the plaintiff’s possession cannot be brushed aside and proceeded to grant decree of injunction in his favour. The said decree of the appellate court is questioned in the present second appeal. This second appeal was admitted on 31.3.1999 on the following substantial questions of law: “8(1) Whether the suit filed by plaintiff for permanent injunction is maintainable in law when the survey number is wrongly mentioned in his title deed and defendant is disputing plaintiff’s title to the suit land. 8(2) Whether the Judgement of the learned District Judge is correct in law, when the report and sketch prepared viz Exs: C2 and C.3 by Advocate Commissioner, support defendant’s case.” Mr.Prasad, learned Counsel for the appellant contended that there is absolutely no evidence or basis for the conclusions of the lower appellate court as recorded in para-15 of the impugned judgement. The learned Counsel further submits that admittedly, the plaintiff’s sale deed has defective description of property sold and as such unless the sale deeds is rectified, the plaintiff cannot seek any relief by merely instituting a suit by saying correct boundaries. The learned Counsel also submits that since the plaintiff is unable to localise the suit plot on the ground as found by the Advocate Commissioner, the said aspect assumes importance in a suit for injunction and therefore the decree of the lower appellate court may be set aside. The learned Counsel for the respondent on the contrary contends that the boundaries in both the sale deeds are correctly described and that mis-description of the survey number of the property sold to the plaintiff does not make any difference. The learned Counsel for the respondent however was fair enough to point out that the lower appellate court in its judgement in para-14 noticed that various changes with regard to location of suit plot has occurred over the years and a housing colony has now come up as is evident from Ex:A.3, field map and that the location of the plot claimed by the plaintiff is required to be done on the ground as on today. He however supports the appellate court’s judgement by contending that the plaintiff being a prior purchaser, the judgement of the lower appellate court does not warrant interference. In the light of the substantial questions of law formulated at the time of admission of the appeal and on considering the contentions of either side, I am of the view that the respondent/plaintiff being the prior purchaser of the plot is not such a vital circumstance and it is necessary for the respondent/plaintiff to establish that he is in possession of the plot with reference to which he holds a document of purchase in his favour. The plaintiff must establish his possession over the suit plot and also localise the same on the ground after satisfying various changes in the sub-divisional letters as noticed from Ex:A.3 field map. The trial court rightly dismissed the suit on the ground that the plaintiff was unable to substantiate the same and that the lower appellate court also rightly came to the conclusion that in view of subsequent changes, the Commissioner ought to have been directed to take technical assistance of a surveyor to localise the suit plot. However, the observations of the lower appellate Court in para- 14 as extracted above though justified, the lower appellate went further and granted decree for injunction without there being any basis or evidence in support of the said conclusions. At best, the lower appellate court could have directed the trial court or it could have appointed an Advocate Commissioner to take the help of a surveyor to localise the plot in view of subsequent local changes and only thereafter it could have considered the appeal. Therefore, I am not satisfied with the finding of the lower appellate court in para-15 of the impugned judgement that the plaintiff has established his possession over the suit schedule property is not based on any evidence and as such to that extent the impugned judgement clearly appears to be perverse since it ignored to consider the reports of the Advocate Commissioner as well as Ex:A.3 field map. In those circumstances, the substantial questions of law particularly the second question is answered in favour of the appellant and the impugned judgement is set aside. The appeal is remitted back to the lower appellate court for fresh consideration enabling it to re-examine the matter by obtaining proper report from the Advocate Commissioner with the help of a surveyor as observed in para14 of its Judgement. The lower appellate court may allow both the parties to file objections if any and reconsider the matter afresh. With the above direction, the second appeal is allowed. The lower appellate court is directed to re-determine the matter afresh within three months from the date of receipt of a copy of this Judgement. There shall be no order as to costs. ________________________________ VILAS V. AFZULPURKAR,J 23.09.2010. issue c.c. in one week. B/o. Krb. THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No. 295 of 1999. JUDGEMENT: Dt. 23.09.2010.