Madras High Court
Muthuvel vs Arumugam on 6 December, 2021
S.A.No.502 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 06.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.No.502 of 2021
and
C.M.P.No10026 of 2021
1. Muthuvel
2. Thirugnanam ... Appellants
Vs.
Arumugam ... Respondent
PRAYER: Second Appeal is filed under Section 100 of CPC to set aside the
judgment and decree dated 31.03.2021 passed in A.S.No.13 of 2019, on the
file of the Subordinate Judge, Paruti, confirming the judgment and decree
dated 18.02.2019 passed in O.S.No.139 of 2014, on the file of District Munsif,
Panruti.
For Appellants : Mr.P.Dinesh Kumar
For Respondent : No Appearance
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S.A.No.502 of 2021
JUDGMENT
This Second Appeal is directed against the judgment of the learned
Sub-oridnate Judge, Panruti, dated 31.03.2021 in A.S.No.13 of 2019
confirming the judgement of the learned District Munsif, Panruit, dated
18.02.2019 in O.S.No.139 of 2014.
2. The respondent filed the suit against the appellants seeking:
i) the relief of declaring his title over B Schedule property and for
mandatory injunction, restraining appellants from interfering with the
possession and enjoyment of the B Schedule property.
ii) for mandatory injunction seeking the removal of pillars constructed
by the appellants, after the institution of the suit and for costs.
3. The case of the respondent, in brief, is as follows: A Schedule
property was purchased by respondent's father on 20.12.1961. A schedule
property consist of three properties measuring to an extent of 17 cents. An oil
mill is being run in the suit property. The northern portion of A Schedule
property was leased out for installing a Cell phone tower. Present Survey of A
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S.A.No.502 of 2021
schedule property is No. 30/1 . After the death of respondent's father, his
brother Mr. Rajendiran left the family and later he died. Thus respondent is
entitled to the suit property. Appellants are residing on the western side of the
A schedule property. They are influential persons. In 2007, appellants
encroached respondent's property to an extent of 2.5 feet and constructed
toilet. There was a panchayat and appellants promised not to encroach the
respondent's property and therefore no action was taken. On 22.06.2014.
Appellants tried to encroach the suit property and put up construction. That
was prevented by the respondent. Again on 25.06.2014 they made another
attempt and that was also prevented. Appellants are repeatedly making
attempts to encroach the respondent's property, which is described as B
schedule property. After filing of the suit, appellants entered appearance and
prayed time for filing the counter in the injunction application in I.A.No.624
of 2014. The case was adjourned to 24.07.2004. Meanwhile appellants with
the help of their henchmen, put up seven pillars. Therefore, this suit was filed
for the aforesaid reliefs.
4. The appellants filed written statement denying the allegations made
against them. It is admitted that A schedule property belongs to respondent. A
schedule property is grama natham and its survey number is Survey.No.30/1.
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S.A.No.502 of 2021
Immediately on the west of A schedule property, appellants' property in
Survey Nos.29/14 and 29/15 are situated. Appellants and respondent are
neighbours and their properties situate in different survey numbers.
Respondent is entitled to 00750 sq. meters. Appellants never disputed the
possession and enjoyment of the respondent in respect of A schedule
property. Survey No.30/1 measures 2.2 meters in the northern side and 14.4
meters on the southern side. Advocate Commissioner inspected the suit
property on 19.07.2014 with the help of Surveyor and it was found that the
respondent had put up brick compound wall on eastern side, on southern side
and barbed wire fencing on the western side and live fence in a portion on the
northern side. After measuring appellants property in Survey Nos.29/14 and
29/15, appellants arranged to raise brick construction and started to dig
pillars in their property. Then respondent claimed that he has 3.2 meters on
the northern side of Survey No.30/1. Respondent has no property to an extent
of 3.2 meters on the northern side of Survey No.30/1. It was found that
northern measurement is only 2.2 meter and not 3.2 meter. On mistake
impression that respondent is entitled to 3.2 meter on the North, he filed the
suit. Therefore, the suit is liable to be dismissed.
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S.A.No.502 of 2021
5. On the basis of above said pleadings, Trial Court framed the
following issues:
1. Whether plaintiff is entitled for the relief of declaration in respect of
B schedule property?
2. Whether plaintiff is entitled for the relief of permanent injunction in
respect of B schedule property?
3. To what relief, if any the plaintiff is entitled?
The Trial Court has also framed following additional issues.:
i) whether the plaintiff is entitled for the relief of mandatory injunction
in respect of B schedule property.
6. During the trial, PW1 to Pw3 were examined on the side of
respondent/plaintiff and Exs.A1 to A29 were marked. DW1 to DW3 were
examined on the side of the appellants/defendants and Exs.B1 to B10 were
marked. Apart from these documents Exs.C1 to C3 and Exs.X1 to X6 were
marked.
7. On considering oral and documentary evidences, the learned Trial
Judge found that appellants encroached B schedule property, which is a part
of the A schedule property and decreed the suit as prayed for by the
respondent. Then appeal is filed by the appellants in A.S.No.13 of 2019. The
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S.A.No.502 of 2021
learned Appellate Judge also found that there is no reason to take a different
view. In this view of the matter, the learned Appellate Judge confirmed the
judgment of the Trial Court and dismissed the appeal. Challenging the
judgment of the First Appellate Court this second appeal is filed by the
appellants.
8. The learned counsel for the appellants submitted that as per Ex.A2
document relied by the respondent, the northern boundary of Survey No.30/1
measures only 2.2 meters. However, both the Courts below on the basis of the
Advocate Commissioner's report, found that northern boundary of A schedule
property is 3.2 meters and concluded that there was encroachment made by
the appellants. The reliance placed by the Courts below on Ex.A25 which
came into existence after filing of the suit is not correct. The measurement
especially the northern measurement in this document given as 3.2 meters is
contrary to the northern measurement given in Ex.A2 as 2.2 meters. Not only
that it is also submitted by the learned counsel for the appellants that even
assuming that respondent is entitled to 3.2 meters on the northern side,
Commissioner found that the northern measurement starts with 3.2 meters,
then broadens to 3.3 meters and then to 3.5 meters. Placing reliance mainly on
Commissioner's report, the suit was decreed and that is not correct. Therefore,
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S.A.No.502 of 2021
the learned counsel for the appellants prayed for setting aside the judgment of
the Courts below and for allowing this Second Appeal.
9. Considered the submissions of the learned counsel for the appellants
and pursued the records.
10. As narrated above, appellants have candidly and clearly admitted
that they never disputed respondent's possession and enjoyment of A schedule
property as per the measurement given in plaint document No.2. Document
No.2 is marked as Ex.A2 i.e., patta in respect of Survey No.30/1 in favour of
Rajendiran and Arumugam. Arumugam is the plaintiff/respondent in this case.
Rajendiran, according to the first respondent was dead and therefore
respondent is absolute owner of the suit property. There is no dispute in this
regard that respondent is absolute owner of A schedule property. The issue
here is whether there is an encroachment in A schedule property of
respondent. The alleged encroached portion is specifically shown as B
schedule property in the plaint.
11. As said earlier, apart from witnesses examined on the side
appellants and respondent as PWs and DWs, Exs.A1 to A29, B1 to B10, C1 to
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S.A.No.502 of 2021
C3 and X1 to X6 had also been marked. Important witness among them are,
PW2 Advocate Commissioner and PW3 the Assistant Surveyor. The evidence
of PW3 was extensively discussed by the learned Trial Judge. The issue is
with regard to the claim that whether the respondent is entitled to 3.2 meter or
2.2 meter on the North of Survey No.30/1 was discussed with the help of
evidence of PW3. It is seen from his evidence that he produced Exs.X2
certified copy of FMB book for Survey No.30/1. He claims that in Ex.X2,
northern measurement is given as 3.2 meters. He also produced certificate
copies of Adangal, Chitta for Survey No.30/1 as Exs.X3 and X4. Adangal and
Chitta extracts of Survey No.29 are produced as Exs.X5 and X6. It is evident
that there is an extent of 3.2 meters available on the north of Survey No.30/1
and 14.4 meter is available on south of Survey No.30/1. As per records 750
Sq. meter land available in Survey No.30/1. He confirms that exhibit A25
document, which is challenged by the appellants as after suit document also
confirms the measurements in the field measurement book. Copy of plan of
Survey No.30/1 is also produced as B4. On appreciating the revenue records
produced in the form of Adangal, Chitta and sketches of FMB book in respect
of Survey No.30/1, 29/14 and 29/15, the learned Trial judge found that the
appellants are in possession of extent allotted to them and confirmed by
revenue records.
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S.A.No.502 of 2021
12. When appreciating evidence of DW1, Trial Court found that DW1
has admitted that he has not measured his property before starting
construction. He also admitted he did not know as to the extent of property
belong to him. There is also admission that he has not measured his property
to find out whether the measurement confirm to his claim. On considering the
oral and documentary evidence, the learned Trial Judge found that appellants
encroached the suit property of the respondent and put up pillars.
13. The claim of the learned counsel for the appellants that
Commissioner's plans gives different measurements on northern side of the
respondent property that it starts with the measurement of 3.2 meter on the
north, then expands to 3.3 meter and to 3.5 meter at P,Q and R. Of-course, it
is so mentioned in the commissioner's plan. What we are concerned in this
case is whether there is encroachment in the property of the respondent. The
encroached portion i.e. B schedule property is shown as AIJK. There is no
issue with regard to the fact that, the southern extreme of respondent property
measures 14.4 meters. Only on the northern side extent of the northern
measurement varies from 3.2 meters to 3.5 meters. Encroachment starts only
after 3.5 meters i.e., within A schedule property. A to H measures 14.4 meters.
There is measurement given in the patta and other revenue records of
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S.A.No.502 of 2021
respondent. Thus not only from the advocate Commissioner's report, which
was filed with the assistance of Surveyor but also from the evidence of PW3,
it is clearly found that the appellants have encroached the respondent property
and put up 7 pillars.
14. Both the Courts below have considered the evidence available on
record and discussed the submissions of both the parties and finally
concluded that there is an encroachment in the B Schedule property by the
appellants and granted decree as prayed for by the respondent. For the
reasons above said, this court finds no reason to interfere with the views and
decision recorded by the Courts below. Accordingly, the judgment of the
learned Subordinate Judge, Panruti in A.S.No.13 of 2019 confirming
judgment of the learned District Munsif Court, Panruti in O.S.No.139 of 2014
is confirmed. There is no substantial question(s) of law involved in this
Second Appeal for consideration. Resultantly, this Second Appeal is
dismissed. No costs. Consequently connected miscellaneous petition is
closed.
06.12.2021
jai
Speaking Order/Non Speaking Order
Index : Yes
Internet : Yes
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S.A.No.502 of 2021
To
1. The Sub Judge
Panruti.
2. District Munsif
Panruti.
https://www.mhc.tn.gov.in/judis
S.A.No.502 of 2021
G.CHANDRASEKHARAN, J.
jai
S.A.No.502 of 2021
06.12.2021
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