Madras High Court
A.Ramalingam vs M.Kamala Ammal on 17 November, 2021
S.A.(MD).No.859 of 2005
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 14.12.2021
JUDGMENT PRONOUNDED ON : 07.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.(MD).No.859 of 2005
1.A.Ramalingam
2.A.Subbaian (died)
3.A.Krishnan ...Appellants/Respondents
/Defendants
4.Santhi
5.Krishnapriya
6.Dhivya ...Proposed Appellants
(Appellants 4 to 6 are brought on record
as legal heirs of the deceased 2nd
appellant vide order dated 17.11.2021)
Vs.
1.M.Kamala Ammal ...Respondent/Appellant
/Plaintiff
2.Velayudham ...Respondent/1st Respondent
/1st Defendant
1/18
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.859 of 2005
PRAYER : Second Appeal is filed under Section 100 of
C.P.C, against the judgment and decree made in A.S.No.
162 of 2000 on the file of the II Additional District
Court, Tiruchirappalli dated 27.06.2001 reversing the
judgement dismissing the suit filed in O.S.No.5 of 1982
on the file of District Munsif Court, Tiruchirappalli
dated 28.04.2000.
For Appellants : Mr.P.Thirumahilmaran
Advocate
For Mr.V.Chandrasekar
For R1 : Mr.Raguvaran Gopalan
Advocate
For Mr.K.Prabhakar
For R2 : No appearance
JUDGMENT
The defendants are the appellants.
2.The plaintiff filed O.S.No.5 of 1982 before the
District Munsif Court, Tiruchirappalli for declaration
of title over B and C schedule properties and
consequential relief of recovery of possession over B
schedule property after removal of offending
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S.A.(MD).No.859 of 2005
construction put up by the defendants. The plaintiff
further prayed for a decree of permanent injunction
restraining the defendants from putting up any
construction in the C schedule property above
plaintiff's cornice in any manner and for other
reliefs. The suit was dismissed by the trial Court. The
plaintiff filed A.S.No.162 of 2000 before the II
Additional District Court, Tiruchirappalli. The first
appeal was allowed granting a decree in favour of the
plaintiff as prayed for. As against the same, the
present second appeal has been filed by the defendants.
3.The plaintiff's case is as follows:
3.1.The suit schedule property is located in
T.S.No.768/2 having a total extent of east-west 30 ½
feet and north-south 17 feet. This entire property is
shown as A schedule property. According to the
plaintiff, the construction is for an extent of just 15
feet in the north-south direction and hence, 2 feet
lane is left out in the southern most portion of A
schedule property for the whole length of east-west of
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S.A.(MD).No.859 of 2005
30 ½ feet. The plaintiff further contended that she is
the owner of the said 2 feet lane which is shown as B
schedule property. The plaintiff further contended that
the defendants had put up a construction over B
schedule property and the said construction is shown as
C schedule property.
3.2.The plaintiff further contended that
originally the suit schedule property belonged to one
Seshachala Naidu and the said property was brought to
Court auction sale in O.S.No.484 of 1942 before the
District Munsif Court, Trichy. The Court auction sale
was confirmed in favour of one muniasamy Naidu on
09.09.1942 and the sale certificate was issued in his
favour on 16.10.1942. The plaintiff further contended
that the said muniasamy Naidu has taken delivery of the
suit schedule property on 08.01.1944. Thereafter, the
said muniasamy Naidu has sold away the suit schedule
property in favour of one Venkatakrishna Naidu on
05.08.1943 who is in turn had sold the property in
favour of one Ambujam Ammal on 12.10.1945. The
plaintiff further contended that the said Ambujam Ammal
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S.A.(MD).No.859 of 2005
has sold the property in favour of the plaintiff on
23.06.1975. According to the plaintiff, the 2nd schedule
property is a 2 feet lane located on the southern most
portion of A schedule property. The plaintiff further
contended that the total east-west measurement is 30 ½
feet out of which for eastern half of 18 feet, the said
2 feet lane is located without any disturbance. But
only in the western portion of 11 feet, 2 feet lane has
been encroached upon by the defendants and the house
property of the defendants is located just south of 2
feet lane. The plaintiff further contended that after
encroaching over 2 feet lane, the defendants have also
raised construction over 2 feet lane which is shown as
C schedule property in the suit. According to the
plaintiff, B and C schedule properties belonging to the
plaintiff and the land covered under B schedule
property has to be recovered from the encroachment of
the defendants and the walls put up in B schedule
property have to be removed. Thus, the plaintiff prayed
for declaration, permanent injunction and recovery of
possession.
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S.A.(MD).No.859 of 2005
4.The defendants filed a written statement
disputing north-south measurement of 17 feet. The
defendants further contended that they have not
encroached into any portion belonging to the plaintiff.
The defendants relied upon the agreement said to have
been executed by the predecessor in title of the
plaintiff on 26.04.1942 granting permission to the
defendants' vendor for putting up construction in the B
schedule property. The defendants further contended
that neither B schedule property nor C schedule
property belongs to the plaintiff.
5.The trial court had rejected Exhibit B4
agreement on the ground that it is only a copy of
registered document and the original has not been
produced. The trial Court arrived at a conclusion that
the Commissioner's report cannot be relied upon in the
absence of any survey report. Since the Advocate
Commissioner was not accompanied with the surveyor and
the plan and sketch filed by the Advocate commissioner
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S.A.(MD).No.859 of 2005
is not exact in nature, the plaintiff has not proved
her title over B and C schedule properties. The
boundaries of the plaintiff and the defendants'
properties have not been established through a survey
report by the plaintiff. Hence, the trial Court held
that the plaintiff has not proved her case and
dismissed the suit.
6.The First Appellate court relied upon Exhibits
C1 and C2 commissioner's report and plan to arrive at a
finding that though the plaintiff is having north-south
measurement of 18 feet in the eastern side, the
plaintiff is having just 13.6 feet in the western most
room. The plaintiff has alleged encroachment of 2 feet
to the south of this western most room. As per Exhibits
A1 to A5, the plaintiff is entitled to north-south
measurement of 17 feet. The plaintiff is having just
13.6 feet in the western most area. Hence, the First
Appellate Court arrived at a conclusion that the 2 feet
on the south of the western most room ought to have
been encroached only by the defendants. Since the
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S.A.(MD).No.859 of 2005
encroachment of B schedule property and the wall put up
over the said encroachment is shown as C schedule
property, the First Appellate court granted a decree as
prayed for over B and C schedule properties. As against
the same, the present second appeal has been filed by
the defendants.
7.The second appeal has been admitted on the
following substantial questions of law:
“1.Whether the lower appellate Court has
properly considered the oral and documentary
evidence in its proper perspective that Ex.C
series, that too when the Advocate Commissioner
was not examined?
2.Whether the lower appellate Court was
right in shifting the burden of proof on the
shoulder of the appellant/defendant to prove a
negative aspect?”
8.The learned counsel for the appellants contended
that the plaintiff has not established her title or
possession in the north-south measurement of 17 feet
over the entire extent of 30 ½ east-west measurement.
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S.A.(MD).No.859 of 2005
The learned counsel further contended that the entire
burden is upon the plaintiff to establish that there
was a lane to the south of the construction on the
southern side and the plaintiff has miserably failed to
prove the existence such a lane. He further contended
that the First Appellate Court ought not to have relied
upon the Commissioner's report and plan when the
Commissioner has not been examined. The First Appellate
Court erred in shifting the burden of proof upon the
defendants when the plaintiff has miserably failed to
prove her case. The learned counsel further contended
that the findings of the First Appellate Court are
merely based upon presumption that a lane would have
been in existence to the south of the constructed
portion of the plaintiff when there is no such recital
in any one of the documents.
9.The learned counsel for the appellants further
contended that the First Appellate Court has allowed
the appeal and granted a decree in favour of the
plaintiff relying upon certain discrepancies on the
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S.A.(MD).No.859 of 2005
side of the defendants. Hence, the learned counsel
contended that the plaintiff has not proved her title
and possession over A schedule property, but the First
Appellate Court has granted a decree for B and C
schedule properties which are said to be a part of A
schedule property. Hence, he prayed for allowing the
second appeal.
10.Per contra, the learned counsel for the
respondents contended that there cannot be any dispute
over her title in A schedule property in view of
Exhibit A1 document. Exhibit A1 is a sale certificate
issued in favour one muniasamy on 10.06.1942. According
to the learned counsel for the respondents, north-south
measurement has been given as 17 feet in the said
document. The respondents further contended that in the
document of the plaintiff namely Exhibit A3 and A4,
north-south measurement has been mentioned as 17 feet
and the same has been carried forward in the document
under which the plaintiff has purchased namely Exhibit
A5. According to the learned counsel for the
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S.A.(MD).No.859 of 2005
respondents, there is no dispute that the plaintiff is
entitled to north-south measurement of 17 feet. The
learned counsel points out that the commissioner's
report and plan in Exhibits C1 and C2 will clearly
indicate that she is having an extent of 18 feet in the
eastern half of the property which includes the lane.
However, only in the eastern portion, north-south
measurement has got reduced into 13.6 feet and
naturally the shortage in the north-south measurement
has been encroached upon by the defendants who are
located immediately southern of the disputed lane.
Hence, he contended that the First Appellate Court
cannot be faulted with for presuming encroachment on
the side of the defendants based upon the
Commissioner's report and plan. The learned counsel for
the respondents further contended that Exhibit B4
document which is said to be an agreement between the
ancestor in title of the plaintiff and the ancestor in
title of the defendants is a mere agreement which does
not run with the land. That apart, there is no recital
in the said Exhibit B4 document that the clauses in the
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S.A.(MD).No.859 of 2005
document will be binding upon the subsequent purchaser.
Hence, he contended that the First Appellate Court has
rightly decreed the suit as prayed for and the second
appeal may be dismissed.
11.I have considered the submissions on either
side.
12.Though the defendants had disputed north-south
measurement of the plaintiff's property, this Court can
easily come to a conclusion that a property with
east-west measurement of 30 ½ and north-south
measurement of 17 feet has been sold in Court auction
and the sale has been confirmed in favour of one
muniasamy under Exhibit A1 on 10.06.1942. The said
muniasamy has also taken delivery under Exhibit A2.
Exhibits A3 and A are the registered sale deeds by the
subsequent purchaser. In both these documents, north-
south measurement is mentioned as 17 feet. Exhibit A5
is a document in which the plaintiff has purchased the
suit schedule property. The said document also indicate
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S.A.(MD).No.859 of 2005
that north-south measurement is 17 feet. Hence, this
Court can safely come to a conclusion that the
plaintiff is entitled to north-south measurement of 17
feet in the A schedule property. But the issue that
arises for consideration is that whether the plaintiff
has put up construction to the whole of north-south 17
feet or she has put up construction only to the extent
of 15 feet north-south and left 2 feet on the southern
side.
13.A perusal of Exhibit A4 document indicate that
the southern boundary of plaintiff's property is shown
as house property of one Govindasamy Naidu. Exhibit A5
is the sale deed under which the plaintiff has
purchased A schedule property. The southern boundary
mentioned under Exhibit A5 is also the house property
of Govindasamy Naidu. Hence, it is evident that in
Exhibits A4 and A5 sale deeds, there is no reference
about any lane on the southern side of A schedule
property, but the southern boundary is the house
property of one Govindasamy Naidu.
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S.A.(MD).No.859 of 2005
14.A perusal of Exhibits A3, A4 and A5 will
clearly indicate that there is a lane on the western
side of A schedule property. In fact, if there was a
lane on the southern side of the A schedule property,
it would have been specifically mentioned in Exhibits
A4 and A5. The plaintiff who was examined as PW1 has
categorically admitted in his cross examination that
she has not put up any construction after her purchase
under Exhibit A5 on 23.06.1975. A perusal of Exhibit A5
also indicate that already a house property with first
floor was existing on the date of Exhibit A5 sale deed.
Hence, if at all a lane is located on the south of the
constructed portion, it would have been specifically
mentioned in Exhibit A5 sale deed.
15.The First Appellate Court has relied upon the
commissioner's report and plan to arrive at a finding
that the defendants would have encroached upon the
plaintiff's property. A perusal of Exhibits C1 and C2
plan clearly indicate that the western most portion of
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S.A.(MD).No.859 of 2005
A schedule property is having north-south measurement
of 13.6 feet and this 13.6 feet has been arrived at
without taking into consideration the width of the wall
on the northern side as well as on the southern side.
According to the commissioner's report, the width of
the wall on the rest of the sides of the construction
is 1.6 feet. Hence, this Court comes to a conclusion
that the northern and southern wall will have a
measurement of 1.6 feet each in width in the eastern
most and in the western most room also. Hence, this
13.6 feet is only the carpet area excluding the walls
on the north-south sides. If both the walls are
included, the total north-south measurement will come
to 16.6 feet which is almost equivalent to 17 feet
north-south measurement as claimed by the plaintiff.
Based upon Exhibits A1 to A5, the entire burden is upon
the plaintiff to establish that there is an
encroachment in the south-western part of A schedule
property for an extent of 2 feet. When there is no
reference about any lane either under Exhibits A4 and
A5, in the southern portion, this Court can safely come
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S.A.(MD).No.859 of 2005
to a conclusion that the plaintiff has not established
that B schedule property belongs to the plaintiff and
the construction over B schedule property is illegal.
The First Appellate Court without properly considering
the width of the northern and southern wall in the 3rd
room of the plaintiff, has arrived at a presumptive
finding that the defendants have encroached over 2 feet
lane on the southern side.
16.In view of the above said discussion, the
judgment and decree of the First Appellate Court are
liable to be set aside. All the substantial questions
of law are answered in favour of the appellants. The
second appeal is allowed. The suit filed in O.S.No.5 of
1982 on the file of District Munsif Court,
Tiruchirappalli is dismissed. No costs.
07.01.2022
Index : Yes / No
Internet : Yes / No
msa
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S.A.(MD).No.859 of 2005
To
1.The II Additional District Judge
Tiruchirappalli
2.The District Munsif
Tiruchirappalli
3.The Section Officer
V.R.Section
Madurai Bench of Madras High Court
Madurai
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S.A.(MD).No.859 of 2005
R.VIJAYAKUMAR,J.
msa
Pre-delivery Judgment made in
S.A(MD).No.859 of 2005
07.01.2022
https://www.mhc.tn.gov.in/judis
