Madras High Court
Bhuvaneswari vs N.Anbalagan on 30 June, 2021
S.A. No.168 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.06.2021
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A. No.168 of 2007 &
M.P.No.1 of 2007
Bhuvaneswari ... Appellant
Vs
1.N.Anbalagan
2.N.Subash
3.N.Stalin
4.N.Kennedy
5.Vijaya
6.Usha
7.Sumathi
8.Indira
9.Anjalakshmi
10.Guha Namasivayam ... Respondents
(R10 is given as not necessary in this appeal)
PRAYER: Second Appeal filed under Section 100 C.P.C. against the
Judgement and Decree dated 27.04.2006 made in A.S.No.79/2003 passed by
the learned District Judge of Thiruvannamalai District at Thiruvannamalai
reversing the Judgment and Decree dated 05.09.2003 made in
O.S.No.292/2000 passed by Additional District Munsif at Thiruvannamalai.
1/12
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S.A. No.168 of 2007
For Appellant : Mr.M.Balasubramanian
For respondents 1 to 9 : No appearance
R10 – Given up
JUDGMENT
This Second Appeal has been filed challenging the reversal findings
of the lower Appellate Court in its judgment and decree dated 27.04.2006
passed in A.S.No.79 of 2003.
2. The Appellant is the first defendant in the suit. The suit
O.S.No.292 of 2002 was filed by the respondents 1 to 9 along with one
Gnanambal against the Appellant and the 10th respondent seeking for a
declaration that they are the absolute owners of the passage measuring two
feet between East-West at Pey Gopuram, 4th Street, Ward No.3, Block - 2
Town Survey No.38/1, hereinafter referred to as suit schedule property.
They have also sought for a permanent injunction restraining the defendants
from interfering with their exclusive possession of the suit schedule
property.
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S.A. No.168 of 2007
3. For the sake of convenience, henceforth the parties are referred to
as per their litigative status in the suit.
4. According to the plaintiffs, their vendors had sold the suit schedule
property to them under the sale deeds dated 27.01.1981, 11.06.1981 and
18.05.1983 which were marked as Exs.A5-A7 before the Trial Court.
5. However, it is the case of the defendants, as seen from the written
statement that the suit schedule property which is two feet passage belongs
to her absolutely having purchased the same under the sale deed dated
18.05.1983 which has been marked as Ex.B3. It is also their case that in the
previous suit filed by the plaintiffs in O.S.No.573 of 1985, the plaintiffs had
declared that they are owners of only 30 feet in the East-West Direction and
not 32 feet as alleged in the plaint in O.S.No.292 of 2000 which is the
subject matter of this second appeal.
6. The Trial Court framed the following issues:
(a) Whether the Plaintiffs are the owners and are in possession
of the suit schedule property?
(b) Whether the defendants were put in possession of the suit
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S.A. No.168 of 2007
schedule property under the sale deed dated 19.07.1985?
(c) Whether the plaintiffs are entitled for the relief of
declaration and permanent injunction?
(d) What relief are the plaintiffs entitled?
7. Before the Trial Court, 17 documents were filed on the side of the
plaintiffs which were marked as Ex.A1 to Ex.A17 and on the side of the
defendants, 13 documents were filed which were marked as Ex.B1 to
Ex.B13. On the side of the plaintiffs, one witness was examined namely,
Stalin, the fourth plaintiff as PW1 and on the side of the defendants, one
witness was examined namely Nataraj as DW1.
8. During the pendency of the suit, an Advocate Commissioner was
also appointed to note down the boundaries of the property and he had also
filed a report before the Trial Court along with a sketch. The Advocate
Commissioner's report was marked as Ex.C1 and sketch was marked as
Ex.C2 before the Trial Court.
9. The Trial Court in its Judgment and Decree dated 05.09.2003 in
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S.A. No.168 of 2007
O.S.No.292 of 2000, dismissed the suit, after giving due consideration to
Ex.A2, Ex.A4, Ex.A5, Ex.A7 and Ex.A8 and the certified copy of the plaint
in O.S.No.573 of 1985 as well as Ex.C1 and Ex.C2. Ex.A2, Ex.A4, Ex.A5,
Ex.A7 & Ex.A8 are the sale deeds under which the plaintiffs purchased the
property from their vendors. O.S.No.573 of 1995 was the previous suit filed
by the plaintiffs wherein they have disclosed that they are the owners of
only 30 feet in the East – West direction. Ex.C1 and Ex.C2 are the Advocate
Commissioner's report and the annexed sketch which were filed by the
Advocate Commissioner appointed by the Trial Court.
10. The Trial Court has given a finding that the plaintiffs under their
sale deeds which have been marked as exhibits are only entitled for 30 feet
in the East – West direction and not 32 feet as alleged by them and hence,
two feet disputed passage does not belong to the plaintiffs. On this ground,
the suit was dismissed. Aggrieved by the dismissal of O.S.No.292 of 2000
dated 05.03.2002, the plaintiffs preferred a first appeal before the District
Court, Thiruvannamalai in A.S.No.79 of 2003.
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S.A. No.168 of 2007
11. The lower Appellate Court reversed the findings of the Trial
Court by holding that the plaintiffs are entitled to 32 feet in the East – West
direction, based on the boundaries mentioned in the sale deeds standing in
the name of the plaintiffs. The lower Appellate Court held that the
boundaries will prevail over the extent and hence, granted the relief in
favour of the plaintiffs as sought for in the plaint and allowed the appeal
A.S.No.79 of 2003 by its judgment and decree dated 27.04.2006. Aggrieved
by the reversal findings of the lower appellate court in A.S.No.79 of 2003,
this Second Appeal has been filed.
12. This Court while admitting the second appeal formulated the
following substantial questions of law:
(a) Whether the First Appellate Court is correct in law in reversing
the well-founded observations and conclusions of the trial court in
O.S.No.292/2000?
(b) Whether the First Appellate Court is correct in law in ignoring the
report and sketch submitted by the Advocate Commissioner in this case,
which falsify the case of the plaintiffs, without assigning any reason, and
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S.A. No.168 of 2007
granting the reliefs of declaration and permanent injunction?
(c) Whether the findings and conclusions of the First Appellate Court
suffer from total misappreciation of the oral and documentary evidence that
are overwhelmingly available to the naked eyes?
13. The Trial Court after framing necessary issues, proceeded with
the trial of the suit.
14. In Ex.A4 sale deed dated 14.07.1973, the measurement of the
property was given as 30 feet East - West and 57 feet on the North – South.
In the Advocate Commissioner's report and sketch annexed with the report
which were marked as Ex.C1 and Ex.C2, it is stated that the plaintiffs
constructed the house including the compound wall on the 30 feet 8 inches
on the East - West only. In the certified copy of the plaint filed by the
plaintiffs in the previous suit O.S.No.573 of 1985 which has also been
marked as Ex.A3 before the Trial Court, the plaintiffs have disclosed that
their property measures only 30 feet in the East – West direction and 57 feet
in the North – South direction. In the same plaint, there is also not even a
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S.A. No.168 of 2007
whisper that Lalitha, their vendor was in possession and enjoyment of 32
feet on the East – West direction which is now claimed by the very same
plaintiffs in the present suit O.S.No.292 of 2000 which is the subject matter
of this Appeal. The Trial Court has rightly appreciated the evidence
available on record and only thereafter has dismissed the suit filed by the
plaintiffs.
15. Thereafter this Court perused and examined the Judgment and
decree of the lower Appellate Court dated 27.04.2006 passed in A.S.No.79
of 2003. The lower appellate court has given a finding, contrary to the
recitals in the registered sale deeds of the year 1973, 1981 and 1985 which
stood in the name of the plaintiffs which clearly discloses that the plaintiffs
are only entitled to 30 feet in the East-West direction and not 32 feet as
claimed by them. The Advocate Commissioner's report and sketch which
were marked as Ex.C1 & Ex.C2 respectively before the Trial Court also
confirms that the plaintiffs are only entitled for 30 feet in the east west
direction. Instead of giving due consideration to the sale deeds which stood
in the name of the plaintiffs as well as Advocate Commissioner's report
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S.A. No.168 of 2007
namely Ex.C1 & Ex.C2, the lower Appellate Court has completely ignored
the same. The Lower Appellate Court instead has relied upon the boundaries
mentioned in the schedule without any supporting documents for the
purpose of granting reliefs to the plaintiffs. The vendors of the plaintiffs
namely Lalithammal who was alleged to be in possession of the disputed
two feet, according to the plaintiffs, was also not examined as a witness
before the Trial Court. Even without any documentary evidence to show
that the plaintiffs are entitled for the disputed two feet passage, the Lower
Appellate Court based on the boundaries mentioned in the schedule to the
sale deeds erroneously reversed the findings of the Trial Court.
16. This Court is of the considered view that the Lower Appellate
Court completely based on surmises and conjunctures contrary to the
measurements given in the registered sale deeds as well as Advocate
Commissioner's report has erred in holding that the boundaries will prevail
over the survey number. On the face of the sale deeds which were marked as
exhibits by the plaintiffs themselves before the Trial Court and as seen from
the Advocate Commissioner's report marked as Ex.C1 and the attached
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sketch marked as Ex.C2, it is clear that the plaintiffs are not the owners of
the disputed two feet passage in the East – West direction. By total non
application of mind to the sale deeds of the year 1981, 1983, and 1985 and
to the Advocate Commissioner's report Ex.C1 and Sketch Ex.C2, the lower
appellate court has reversed the well considered findings of the Trial Court
by allowing the appeal filed by the plaintiffs.
17. The lower Appellate Court by total misappreciation of the oral
and documentary evidence that are overwhelmingly available to the naked
eyes, as seen from the sale deeds of the year 1973, 1981 and 1985 has
erroneously passed the Judgment and decree dated 27.04.2006 in A.S.No.79
of 2003 reversing the findings of the Trial Court. In view of the same, this
court is of the considered view that the substantial questions of law which
were formulated by this Court on 09.02.2007 at the time of admission of
this Appeal are answered in favour of the first defendant/Appellant and the
Second Appeal is allowed with costs and the judgment and decree of the
lower appellate court dated 27.04.2006 in A.S.No.79 of 2003 are set aside
and the findings of the Trial Court in the Judgment and Decree dated
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S.A. No.168 of 2007
05.09.2003 in O.S.No.292 of 2000 are confirmed. Consequently connected
miscellaneous petition is closed.
30.06.2021
nl
Index: Yes/ No
Internet: Yes/No
Speaking Order/Non-speaking Order
To
1. The District Judge of Thiruvannamalai District at Thiruvannamalai
2. The Additional District Munsif at Thiruvannamalai
ABDUL QUDDHOSE, J.
nl
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S.A. No.168 of 2007
S.A. No.168 of 2007
30.06.2021
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