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Subhaga & Ors vs Shobha & Ors on 7 July, 2006

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Madras High Court
Sundaram vs Selvan Alias Selvam on 31 January, 2012
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:   31 .01.2012

CORAM

THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH

Second Appeal No.213 of 2004


Sundaram							..Appellant
			
			-Vs-

1. Selvan alias Selvam
2. Krishnaveni						..Respondents


	Appeal filed under Section 100 of C.P.C. against the judgment and decree  dated 20.10.2003 in A.S.No.30 of 2003 on the file of the learned Subordinate Judge, Mettur  reversing the judgment and decree of the learned District Munsif, Mettur dated 10.3.2003 in O.S.No.476 of 1998

		For Appellant		: Mr.Sanjay Baba
						  for Mr.V.Nicolas

		For Respondents		: Mrs.Hemalatha

J U D G M E N T

This Appeal is directed against the judgment and decree passed by the First Appellate Court in A.S.No.30 of 2003 dated 20.10.2003 in reversing the judgment of the trial Court in decreeing the suit in favour of the plaintiff in O.S.No.476 of 1996 dated 10.03.2003.

2. The appellant was the plaintiff and the respondents were the defendants before the trial Court.

3. The brief facts of the plaintiff's case before the trial Court would be thus:

The plaintiff is in possession of the suit property by virtue of house site patta given to him on 20.12.1992 by the Tahsildar, Mettur. The defendants are husband and wife. The defendants demanded the plaintiff to sell the suit property to them but the plaintiff refused to sell the same. Due to which, there arose enmity between them. The defendants came to the suit property on 30.11.1998 and tried to dig foundation in the suit property but the same was prevented. Hence, the suit was filed for permanent injunction restraining the defendants and their men from in any way unlawfully digging the foundation in the suit property and for costs.

4. The contentions of the 2nd defendant raised in the written statement filed by him and adopted by the 1st defendant are as follows:

It is false to state that the suit property belongs to the plaintiff by way of house site patta given to him on 20.12.1992 by the Tahsildar, Mettur. The property in village natham survey No.136/B to the extent of 2805 sq.ft. belonged to one Parvathiammal and she executed a registered settlement deed dated 15.12.1980 to her daughter-in-law namely Seethalakshmi and handed over possession. From the date of settlement, the said Seethalakshmi was the absolute owner and was in possession of the above property. The 2nd defendant purchased the above property from the said Seethalakshmi on 30.1.1993 under a registered sale deed to an extent of 2805 sq.ft. (about 6 = cents) in village natham S.No.193 for valuable consideration and obtained possession. From the date of purchase, the defendants are in possession and enjoyment of the above property. The thatched house with pulakkadai, thalakkadai is in exclusive possession and enjoyment of the 2nd defendant. The 2nd defendant has planted coconut sapling in her portion. The plaintiff asked the 2nd defendant to sell her property to them for which she refused. So there is an enmity between the plaintiff and the defendants. The plaintiff unlawfully tried to pull away the coconut saplings planted by the 2nd defendant. It is false to say that the defendants are making construction work in the suit property. Actually, there is no new construction work made by the 2nd defendant. On misrepresentation and fraud, the plaintiff obtained some documents from the Revenue Officials. The 2nd defendant is the owner and in possession of the portion of the alleged suit property. The extent, measurement and boundary mentioned in the suit property are not correct. There is no cause of action for the suit. The alleged attempt of encroachment on 30.11.1998 is false. The suit is not valued properly for the purpose of court fee and jurisdiction. Bare injunction suit is not maintainable against the real owner. The suit may be dismissed with costs.

5. On the pleadings of both sides, the trial Court had framed necessary issues and entered trial. After appraising the evidence adduced before it on either side, it had decreed the suit and granted a decree for permanent injunction in favour of the plaintiff as prayed for. Aggrieved defendants filed an appeal before the First Appellate Court. The first appellate Court heard the arguments of both parties and had come to the conclusion of allowing the appeal and thereby dismissed the suit filed by the plaintiff before the lower Court.

6. The plaintiff, aggrieved by the judgment and decree by the first Appellate Court, had filed the present appeal before this Court.

7. At the time of admission of this appeal, the following substantial questions of law were formulated for disposal in this appeal.

"i) If there is variance between the extent and measurement of the property, the extent with boundaries only would prevail over the measurement whether the Lower Appellate Court is correct in rejecting the claim of the plaintiff on the ground that in the patta under the plaintiff claims his right the measure and the extent are given differently?

ii) When the report and the plan of the Commissioner given the extent of S.No.525/9 as 8 < cents and the defendants claim an extent of 6 = cents only and that the plaintiff claims 2 cents under the patta, whether the Lower Appellate Court is correct in declining to grant the relief to the plaintiff in respect of 2 cents out of 8 < cents?"

8. Heard, Mr.Sanjay Baba, learned counsel represented for Mr.V.Nicolas, learned counsel appearing for the appellant/plaintiff and Mrs.Hemalatha, learned counsel for the respondents/defendants.

9. Learned counsel for the appellant would submit in his arguments that the reversal of the judgment and decree passed by the trial Court was palpably wrong since the learned trial Court had considered the oral evidence after recording the said evidence and had come to the conclusion of decreeing the suit. He would further submit in his argument that the plaintiff was granted patta in respect of 2 cents with specific boundaries in S.No.193 and a measurement was also given at 25 feet x 30 feet. The boundaries given in the said property shall prevail when there was a conflict in between the extent or measurement. He would further submit that the First Appellate Court did not look into the Commissioner's report which would show a temporary thatched sheet covered on all sides with bamboo thatti and the same was also included in the description of the property. He would also submit that the plaintiff was seeking the relief in respect of 2 cents on the basis of patta issued to him. He would further submit that the defendants admitted to be in possession of a specific extent of property which is lesser in total extent of the entire property and if such admission of the defendants have been taken note of, the plaintiff could be found to have entitled to 2 cents as sought for by him. He would also submit that the Commissioner's report and sketch were not considered for the purpose of ascertaining the truth. He would further submit that the defendants claimed their rights in an extent of 6 = cents in new S.No.525/9 and however, the total extent according to the report of the Commissioner was 8 < cents and therefore, the defendants have no right in the 2 cents as asked for by the plaintiff in the suit survey number and the defendants are thus, not entitled to claim more than 6 = cents. He would further submit that the lower Appellate Court had grossly erred in not decreeing the suit for 2 cents belonging to the plaintiff based on the patta Ex.A1. He would therefore, he request the Court that the judgment and decree passed by the First Appellate Court are not in consonance with law but are against the principles that boundaries will prevail over the extent or measurement and also against the case of both parties. Therefore, the said judgment may be interfered and set aside and the well considered judgment and decree of the trial Court may be restored and thus, the second appeal may be allowed.

10. Learned counsel for the respondents/defendants would submit in her argument that the plaintiff has based his claim on the basis of Ex.A1 patta which he had clandestinely obtained and the said patta will not give him any right, title to the suit property in 2 cents within the said survey number. She would further submit that the defendants are entitled to the suit property within the definite boundaries by virtue of the sale deed Ex.B1 executed in the year 1995 and the vendor of the defendants, Seethalakshmi was the owner of the property by virtue of the settlement deed executed in the year 1960 through Ex.B2 and therefore, the defendants have got prior title to the suit property even from the year 1960. She would further submit in her argument that the suit property, admittedly, a grama nathan, cannot be assigned with patta to the plaintiff nor the plaintiff was found in possession of the said property. She would further submit in her argument that even though the extent of the property comprised in Exs.B1 and B2 was to an extent of 6 = cents and the extent of the said property was described as 2805 sq.ft., specific boundaries have been given in both the documents in Exs.B1 and B2. She would further submit in her argument that the alleged admission given by the defendant-DW1 in respect of her claim over the suit property at 6 = cents will not in any way give title to the plaintiff. She would further submit that the defendant can take inconsistent stand in order to defend her case and the plaintiff must prove his case by adducing cogent oral and documentary evidence which was not fulfilled by the plaintiff. She would further submit that the patta produced in Ex.A1 was of the year 1992 but the defendants' predecessor in title namely Parvathiammal was in possession and enjoyment of the suit property with specific boundaries even in the year 1960 onwards. She would also submit that the description of boundaries in the suit property in Ex.A1 is contrary to the extent of the property allotted and this would show that it was a collusive document obtained for the purpose of filing the suit. She would also submit that the plaintiff has no right to get title to the description under Ex.A1 as there was no property available for the grant of patta by the Government. She would also submit that the property being a grama natham, cannot be assigned to any party since such category of landed properties are meant for occupation of houses for the people and therefore, there is no title vested with the government. She would further submit that the boundaries as described in the documents Exs.B1 and B2 will prevail over the measurement made therein and any amount of admission as to the lesser extent of the property within the said boundaries would not affect the right of the defendants. She would also submit that the boundaries described and the extent stated in Ex.A1 are mutually contradictory to each other and therefore, the plaintiff cannot get any title to the said property. She would also submit that admittedly the suit property is lying vacant except the thatched shed put by the defendants and therefore, the defendants cannot lay any claim over the said property. She would therefore, submit in her argument to confirm the judgment of the First Appellate Court and thus, to dismiss the second appeal.

11. I have given anxious thoughts to the arguments advanced on either side.

12. The plaintiff claimed the suit property for an extent of 2 cents in S.No.193 in Vellar Village as belonging to him and he had sought for permanent injunction against the defendants restraining them from interfering with the peaceful possession and enjoyment. The plaintiff had examined P.Ws. 1 and 2 and had produced Ex.A1 settlement patta in order to prove the legal possession in respect of the property. However, the defendants have produced the sale deed in Ex.B1 and the prior document of title, settlement deed in Ex.B2, in order to disprove the case of the plaintiff. However, the trial court had considered the evidence of the defendant and the Commissioner's report and plan in respect of the suit property and had come to the conclusion of decreeing the suit as prayed for. Learned First Appellate Judge, on the appeal preferred by the defendants, had reversed the same and found that the plaintiff did not prove his case. The First Appellate Court had found that the plaintiff admitted that the defendants were in possession and enjoyment of 6 = cents on the northern side of 2 cents of the suit property, however the northern boundary of the suit property was not given as defendants properties but was given as Pachaiammal's property which is not proving the case of plaintiff. Whether the finding of the First Appellate Court in respect of the fact has to be interfered, is the question.

13. The description of the suit property as per Ex.A1 patta stands in the name of the plaintiff. The boundary recitals would be, on the north - Pachaiammal's property; on the south- Muthuchamy Pillai's property; on the east - Dharmapuri Main Road; on the west- Subramaniam and others' property. It is further described that the 2 cents of land is located within the said boundary. The Commissioner's report and sketch are produced as Exs.C1 and C2 and the Commissioner's sketch would go to show that the two cents of land was described as 'IJGH' and the boundaries would be on the southern side of Muthuchamy Pillai's property, on the eastern side - Dharmpuri Main road, on the western side - 'AMBI' portion of land and the north by 4 = cents in S.No.525/9. When it is compared with the boundary recitals in the suit property in the schedule of the plaint and Ex.A1 patta, boundary description on the northern side and the western side are differing. However, the entire property shown in the sketch described as 'AMBCEFGHI' would be covered by the description of boundaries as mentioned in the suit schedule as well as the patta Ex.A1. According to the Commissioner's report, the total extent of the said property described as 'AMBCEFGHI' would be 10 cents. It comprises a well also on the north eastern corner. We cannot find any well in Ex.A1, and the extent of the land in Ex.A1 was only 2 cents. Therefore, I could see a serious contradiction in between the total extent within the boundaries described in the suit schedule. Whether the boundaries described in Ex.A1 could be taken as prevailed over the extent of property mentioned in Ex.A1 since it is contradictory to the actual extent as mentioned in the Commissioner's sketch?. We could see that the defendants have produced Exs. B1 and B2 in respect of their right over the suit property. The description of 4 boundaries in Exs. B1 and B2 would go to show the four boundaries mentioned in the plaint schedule. The evidence of plaintiff would go to show that he is only entitled to 2 cents and on its north, defendants 6 = cents was located. This piece of admission of P.W.1 was the reason for deciding the appeal preferred before the First Appellate Court against the plaintiff. The said evidence of P.W.1 would go to show that he is not claiming the northern portion of the property except the 2 cents on the southern side described as 'IJGH'. When the plaintiff was not found entitled to the entire extent of the property within the four boundaries as detailed in the plaint schedule, the claim of the plaintiff for 2 cents which are not in consonance with different boundaries, cannot be accepted.

14. No doubt the boundaries will prevail over the dimensions when there is a conflict in between them. Similarly, the boundaries will also prevail over the survey numbers when there is a conflict in between the two. As regards the boundaries, the plaintiff did not prove that the said 2 cents of the property stated to have been assigned to him through Ex.A1 was a bonafide mistake and there was no move to amend the northern and western boundaries so as to claim 2 cents lying on the southern end. There is a thatched shed at the southern end of the property and the plaintiff did not produce any tax receipt to show his possession. Per contra, the defendants have produced Exs.B6 to B8 which are found to be subsequent to the suit. However, the plaintiff has to succeed or fail only on the strength of his case and he was not entitled to rely upon the weakness of the defendants. The plaintiff's case that he is entitled to 2 cents within four boundaries as described in the plaint and he was in possession and enjoyment of the said property on the date of the suit, was not substantiated through acceptable evidence. On the other hand, the defendant had come forward with a specific case that she was entitled to the suit property with specific boundaries as per the sale deed Ex.B1 supported by the prior document Ex.B2 settlement deed. In both the documents, the four boundaries are tallying with the suit property. However, the extent is said to have been 6 = cents as per the evidence of D.W.1.

15. It is no doubt true, as per the principle, the boundaries would prevail over the measurement and it would be helpful to the defendants only. In the judgment of the Honourable Apex Court reported in 2006(5) SCC 466 (Subhaga v. Shobha), it is held as follows:

"That a property can be identified either by boundary or by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail. There was no occasion to spin a theory that it was necessary in this suit to survey all the adjacent lands to find out whether an encroachment was made in the land belonging to the plaintiff."

16. As per the said judgment, when the area within the four boundaries is conflicting with the extent measured in the document, the boundaries will prevail over the said measurement and therefore, the documents produced by the defendants in Exs.B1 and B2 would show that the defendants are entitled to 'AMBCEFGHI' property as described in Commissioner's sketch. Consequently, the defendants are found to be in possession of the said properties. However, the plaintiffs had miserably failed to show that the 2 cents claimed by him as covered under the specific boundaries with all probabilites that he was entitled to the well and other area and also to show the extent given in Ex.A1 was purely a mistake. He did not allege so and claim for the entire extent. He has restricted to only 2 cents and it was not proved by the plaintiff with cogent and acceptable evidence. Therefore, the finding reached by the First Appellate Court on the factual aspect that the plaintiff was not in possession of the suit property and he had not proved his lawful possession by proving Ex.A1, cannot be interfered. The substantial questions of law formulated in the appeal would therefore, end against the appellant, but in favour of the respondents. Therefore, there is no option for this Court to confirm the judgment and decree passed by the First Appellate Court in reversing the judgment and decree of the trial Court.

17. For the foregoing discussions, I am of the considered view that the appeal is liable to be dismissed, accordingly, the second appeal is dismissed and the judgment and decree passed by the First Appellate Court in reversing the judgment and decree of the trial Court are confirmed. No costs.

vsi To

1. The Sub-Judge, Mettur

2. The District Munsif, Mettur