Madras High Court
M.Rajadurai vs P.Sundarapandi ... 1St on 10 November, 2021
S.A(MD)No.13 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.11.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.13 of 2014
and
M.P(MD)No.1 of 2014
1.M.Rajadurai
2.P.Ganesan
3.P.Ramalingam
4.R.Paulrajpandi ... Appellants/Respondents 1 to 4/
Defendants 1 to 4
(Appellants for themselves and on behalf
of Hindu Community people of
Salaipudur and Nambiyanvilai in a
representative capacity)
.Vs.
1.P.Sundarapandi ... 1st Respondent/Appellant/Plaintiff
2.S.Subramanian ... 2nd Respondent/5th Respondent/
5th Defendant
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 26.07.2012 passed in
A.S.No.82 of 2008, on the file of the Subordinate Court, Valliyoor, reversing
the judgment and decree, dated 25.11.2004, passed in O.S.No.183 of 2001
on the file of the Principal District Munsif Court, Valliyoor.
1/12
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S.A(MD)No.13 of 2014
For Appellants : Mr.V.Meenakshi Sundaram
for Mr.D.Nallathambi
For Respondent-1 : Mr.David Ganesan
for M/s.Jeyapaul Associates
JUDGMENT
This second appeal has been directed against the Judgment and
decree, 26.07.2012 passed in A.S.No.82 of 2008, by the Subordinate Court,
Valliyoor, wherein, the judgment and decree, dated 25.11.2004, passed in
O.S.No.183 of 2001 by the Principal District Munsif Court, Valliyoor, are
reversed.
2.The first respondent herein as plaintiff, has instituted a suit in
O.S.No.183 of 2001, on the file of the trial Court for the relief of declaration
and permanent injunction, wherein, the appellants 1 to 4 and the second
respondent have been shown as defendants 1 to 5.
3.In the plaint, it is averred that the suit property was purchased by the
plaintiff's father on 09.08.1974 and after his demise, the suit property and
other properties were allotted to the share of the plaintiff on 17.08.1986, in
particular, the land in Survey No.1329 measuring a total extent of 1.77 cents
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S.A(MD)No.13 of 2014
and in that, 3 cents were allotted in common to all the three brothers
totalling 6 cents, was allotted for the pathway and out of the remaining 1.68
cents, the middle portion of 56 cents was allotted to the plaintiff and one-
third share in the Well and pump-set and the common pathway was also
allotted to the plaintiff and this property is shown as plaint first schedule
property. The defendants does not have any right over the same and they are
the executive committee members of Pathirakali Amman kovil of
Salaiputhur and Nambiyanvilai. The Pathirakaliamman Kovil situated South
of the suit property and during March, the defendants built a compound wall
on the Northern side of the Temple and while doing so, they encroached
upon the Southern most portion on the eastern side and built a compound
wall running East-West. The defendants encroached an extent of 123 feet
East-West Southern most portion on the Eastern side about 8 feet width and
2 feet width on the Western side and built a compound wall and this is
shown as the second schedule property. The defendants initially agreed to
remove the encroachment in the second schedule property and subsequently
refused. Hence, the plaintiff has filed a suit for declaration declaring that the
plaint schedule property belongs to the plaintiff and for recovery of
possession of the plaint second schedule property. The second schedule
property is the part of the first schedule property.
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S.A(MD)No.13 of 2014
4.In the written statement filed on the side of the defendants, it is
averred that the suit is not maintainable either in law or on facts and the
same is liable to be dismissed. There is no pathway on the North of the
Temple as alleged by the plaintiff. The Temple is 100 years old and the
compound wall is aged about 45 years. The defendants have not encroached
into the plaintiff's property and built a compound wall. Though the
defendants have been added in their representative capacity, their right has
not been properly mentioned in the suit. The plaintiff's father did not
purchase the plaint schedule property, but on the other hand, the plaintiff's
father purchased only 1.77 cents and no pathway was also stated in the
partition deed of the year 1986. Assuming that the defendants have
encroached into the plaintiff's property, the plaintiff has not added other
co-owners in the suit as party and the plaintiff also not stated in the plaint
that he has filed the suit on behalf of the other co-owners also and the
second schedule property is not a part of the first schedule property. Hence,
the suit has to be dismissed.
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S.A(MD)No.13 of 2014
5.Before the trial Court, on the side of the plaintiff, the plaintiff was
examined as P.W.1 and one Subbiah Nadar was examined as P.W.2 and
Exs.A.1 to A.3 were marked. On the side of the defendants, D.W.1 and
D.W.2 were examined and no documents were marked. On the side of the
Court, Ex.C.1-Commissioner's report and Ex.C.2-Commissioner's plan were
marked.
6.On the basis of the rival pleadings raised on either side, the trial
Court has framed necessary issues and after analysing both the oral and
documentary evidence, had dismissed the suit. Against the Judgment and
decree passed by the trial Court, the plaintiff as appellant, has preferred an
Appeal Suit in A.S.No.82 of 2008, on the file of the first appellate Court.
7.The first appellate Court, after hearing both sides and upon
re-appraising the evidence available on record, has allowed the appeal and
thereby set aside the Judgment and decree passed by the trial Court. Against
the Judgment and decree passed by the first appellate Court, the present
second appeal has been preferred at the instance of the defendants 1 to 4 as
appellants.
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S.A(MD)No.13 of 2014
8.At the time of admission, the following substantial questions of law
were framed for consideration:
“(a)When it very clear from the documentary evidence
Ex.A1 and Ex.A2 that the plaintiff / respondent No.1 is only
entitled to 1/3 share in the suit second schedule property and
the same was established before the trial Court, the approach
of the lower Appellate Court granting a decree for declaration
and recovery of possession in favour of the plaintiff / first
respondent in respect of suit second schedule is totally against
the documentary evidence Ex.A1 and Ex.A2 and the same goes
to the root of the matter and thus the judgment and decree of
the lower Appellate Court warrants interference under Section
100 of C.P.C.?
(b)It is a settled proposition of law that an Advocate
Commissioner cannot be appointed to collect evidence and
cannot be allowed to give report having findings on the point
involved on the suit and Ex.C.1 and Ex.C.2 (Commissioner
report and plan) in the present suit have a finding that the
appellants encroached the suit second schedule property,
whether the lower Appellate Court is correct in granting a
decree for declaration and recovery of possession based on
Ex.C.1 and Ex.C2 (Commissioner report and plan) which is
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S.A(MD)No.13 of 2014
against the spirit of Order 26 of Civil Procedure Code and
hence the judgment and decree of the lower Appellate Court
warrants interference under Section 100 of C.P.C?
(c)Whether the lower Appellate Court is correct in
granting a decree for declaration and recovery of possession
reversing the judgment of the trial Court, when the evidence of
P.W.2 clearly states that there is no pathway (suit schedule
property) as on field and hence the judgment and decree of
lower Appellate Court overlooking the oral evidence more
particularly P.W.2 on record warrants interference under
Section 100 of Civil Procedure Code?"
9.Heard the learned counsel appearing for the appellants and the
learned counsel appearing for the first respondent and perused the records
carefully.
10.The learned counsel appearing for the appellants/defendants
1 to 4 would submit that the first Appellate Court has failed to note that
Exs.C.1 and C2, viz., Commissioner's report and plan, is only a supportive
piece of evidence and the same cannot be a basis for deciding the dispute
between the parties. The first Appellate Court has decreed the suit and
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S.A(MD)No.13 of 2014
granted a decree for declaration and recovery of possession based upon the
Commissioner's report and plan, in which, the Advocate Commissioner
recorded a finding that there is an encroachment by the appellants, which is
against the spirit of Order 26 of the code of Civil Procedure. It is a settled
proposition of law that an Advocate Commissioner cannot be appointed for
collecting evidence and he cannot file a report giving a finding on the point
involved in the suit, the approach of the first Appellate Court in granting a
decree for declaration and recovery of possession by reversing the judgment
of the trial Court may not be correct. When the trial Court found that the
plaintiff is not entitled for the entire suit second schedule property and he is
having only one third share, the approach of the first Appellate Court
granting a decree of declaration in respect of the suit second schedule
property, is without any evidence. From the evidence of P.W.2, it is very
clear that when there is no pathway in the field, the decree of the first
Appellate Court for declaration and for recovery of possession is against the
evidence of record and the Judgment and Decree passed by the first
Appellate Court are liable to be set aside.
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S.A(MD)No.13 of 2014
11.The learned counsel appearing for the first respondent / plaintiff
would submit that the first Appellate Court, after analysing the documents
available on record, has rightly allowed the Appeal in favour of the first
respondent / plaintiff and prayed for allowing the Second Appeal.
12.On going through the materials available on record and also the
points raised by the learned counsel for the appellants, it is seen that the
Advocate Commissioner in his report has stated that the defendants have
encroached about 50 feet on the Western side and 3.2 meters on the Eastern
side of the common pathway and in the map also, no proper measurement
has been given by the Advocate Commissioner to show the said
encroachment. Based on the Advocate Commissioner's report, the first
Appellate Court has reversed the Judgment and Decree of the trial Court and
rendered a judgment in favour of the first respondent / plaintiff, which has to
be looked into by the first Appellate Court once again. Therefore, the
Judgment and decree passed by the first appellate Court are liable to be set
aside and the matter is liable to be remanded back to the first appellate
Court. Since the matter is liable to be remanded back to the file of the first
appellate Court, the substantial questions of law formulated in the present
second appeal need not be decided.
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S.A(MD)No.13 of 2014
13.In the result, the Second Appeal is allowed and the Judgment and
decree passed by the first appellate Court are set aside and the matter is
remanded back to the first appellate Court for fresh consideration and the
first appellate Court shall appoint an Advocate Commissioner afresh and to
direct the Advocate Commissioner to measure the property, as per the
documents produced by the plaintiff and the defendants, with the help of the
Head Surveyor, the Revenue Inspector and the Village Administrative
Officer and the Revenue Officers are directed to be present in the said place
on the date of measuring the property and also to direct the Advocate
Commissioner to measure the property and to note down the physical
features with the help of a Surveyor and to issue a fresh sketch, after
marking the boundaries and the alleged pathway. The Commissioner has to
issue notice to all the parties concerned well in advance and to proceed only
in the presence of the parties, namely, the plaintiffs and defendants, who are
disputing the suit properties. The measurements of the disputed properties
have to be submitted as a report by appropriate map and sketch within a
period of two months.
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S.A(MD)No.13 of 2014
14.After receipt of the report of the Advocate Commissioner, the first
Appellate Court has to decide the Appeal Suit based on the Advocate
Commissioner's report, without taking into consideration of the report by the
earlier Advocate Commissioner, which has already been filed before the
Court in the Appeal suit, and decide the same on merits. No further evidence
to be let in by both parties. The first Appellate Court shall proceed further
only based on the fresh Advocate Commissioner's report and on the admitted
facts and evidence and pass a fresh Judgment within a period of four months
from the date of receipt of a copy of this Judgment. No costs. Consequently,
connected Miscellaneous Petition is closed.
10.11.2021
Index : Yes/No
Internet : Yes/No
ps
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but, ensuring
that the copy of the order that is
presented is the correct copy,
shall be the responsibility of the
advocate / litigant concerned.
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S.A(MD)No.13 of 2014
V.BHAVANI SUBBAROYAN, J.
ps
To
1.The Subordinate Court,
Valliyoor.
2.The Principal District Munsif Court,
Valliyoor.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A(MD)No.13 of 2014
10.11.2021
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