Madras High Court
Saidhan Beevi vs Hawla Beevi on 30 November, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 30.11.2021
CORAM
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
S.A.(MD) No.145 of 2011
Saidhan Beevi Appellant
vs.
Hawla Beevi Respondent
Second Appeal filed under Section 100 of CPC against the
Judgment and Decree dated 24.07.2009 made in Appeal Suit No.166
of 2007 on the file of the Additional Subordinate Judge, Kumbakonam
reversing the judgment and decree dated 28.09.2006 passed in
Original Suit No.98 of 2005 on the file of the Additional District Munsif
at Valangaiman at Kumbakonam.
For Appellant : Mr.Gomathi Sankar
For Respondent : Mr. H.Lakshmi Sankar
for Mr.T.V.Sivakumar
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2
JUDGMENT
This Second Appeal is directed against the Judgment and Decree
dated 24.07.2009 made in Appeal Suit No.166 of 2007 on the file of
the Additional Subordinate Judge, Kumbakonam reversing the
judgment and decree dated 28.09.2006 passed in Original Suit No.98
of 2005 on the file of the Additional District Munsif at Valangaiman at
Kumbakonam.
2. For the sake of convenience, the parties are referred to as, as
described before the trial Court.
3. The plaintiff, who succeeded before the Trial Court, but failed
before the first appellate court, has filed the present Second Appeal.
4. The case of the plaintiff, in brief, as per the averments made
in the plaint, reads as follows:-
(i) The plaintiff is the absolute owner of the suit property. The
suit property was purchased by the mother of the plaintiff namely,
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Hathoon Beevi, under a registered deed, dated 19.10.1956. The
plaintiff's father Abdul Kareem Rowther also purchased the property
and both Abdul Kareem Rowther and his wife Hathoon Beevi settled
the properties owned by them under a registered settlement deed,
dated 19.05.1989 in favour of the plaintiff. Item No.2 in the settlement
deed, is originally measuring 150 feet east to west and 24 feet north
to south. Out of which, a portion of the property viz., 8-1/2 x 150
feet has been taken by the Government for the purpose laying a road.
Therefore, the remaining property viz., 150 x 16-1/2 feet was settled
on the plaintiff under the settlement deed, dated 19.05.1986 and the
plaintiff is enjoying the same till date.
(ii) The defendant is the adjacent southern side owner and she
has nothing to do with the suit property. The defendant is trying to
encroach a portion of the suit property viz., 40 feet x 16-1/2 feet, by
construction a compound wall at a height of 6 feet blocking the way of
the plaintiff. The husband of the plaintiff gave a police complaint
against the defendant. Hence, the plaintiff filed the suit for mandatory
injunction directing the defendant to remove the offending
construction.
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5. The defendant had filed a written statement interalia
contending that the suit is not maintainable both under law and on
facts. The plaintiff's property covered in R.S.No.76/6, which has been
reclassified as 662/8. The defendant's property covered in R.S.No.
79/4 has been reclassified as R.S.No.662/7. From the survey plan it
has been seen that the western boundary of the eastern side owners
of 662/8,9,10, 11 and 12 formed a straight line wherein all the
respective eastern side owners have put up their respective compound
wall. The defendant's property lies on the west of compound wall of
R.S.No.662/8,9,10,1212 and 12. The plaintiff's alleged possession of
16-1/2 and 40 feet over the property is in the possession of the
defendant, which is covered in R.S.No.662/7 is not all correct. The
defendant did not raise any wall after filing of the suit. The wall is in
existence for the past more than 30 years. The said wall form a
straight line along with the existence of other adjacent owners western
boundary walls. The will be evidence from the report of the Advocate
Commissioner and the Survey Plan Field. The plaintiff after suit has
constructed a RCC building in his backyard within the eastern
compound wall of the defendant. So, the plaintiff cannot claim any
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right either over the place where the wall exists nor beyond the said
wall. The suit is false, frivolous and vexatious.
6. During the trial, on Abdulkadar, the plaintiff's husband, was
examined as PW1 and 3 documents were marked as Exs.A1 to A3, on
the side of the plaintiff. The defendant examined one Mukthar Neeza,
son and power agent of the defendant as DW1 and no documents were
marked on the side of the defendant. Advocate Commissioner's Report
marked as Exs.C1 to C4.
7. On analysis of the oral and documentary evidence, the trial
Court has allowed the suit. Aggrieved by the same, the defendant has
preferred an appeal in A.S. No.166 of 2007, on the file of the learned
Additional Sub Judge, Kumbakonam.
8. The first appellate court, upon considering the oral and
documentary evidence of the parties, had reversed the findings of the
trial Court. Aggrieved by the Judgment and decree passed by the first
appellate Court, the present Second Appeal has been filed the plaintiff.
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9. At the time of admission, this Court has formulated the
following substantial questions of law, for determining the issues.
(i) Whether the recitals in the registered documents Exhibits A1
to A3 cannot be controvented by oral evidence under Section 92 of the
Evidence Act?
(ii) Whether on the finding that the defendant put up the wall on
the suit property after the suit, the learned Subordinate Judge ought to
have confirmed the decree for mandatory injunction granted by the
Trial Court?
(iii) Whether having rightly rejected the application for additional
evidence in appeal and adversely commenting on the defendants
attempt to blame the trial judge, the learned Subordinate Judge ought
to have rejected the defendant's contentions as untenable and
baseless?
10. The learned counsel appearing for the plaintiff / appellant
would submit that the defendant is the adjacent land owner and she
has nothing to do with the suit property. The defendant had not let in
any documentary evidence to show her claim to the suit property,
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whereas, when the plaintiff clearly proved his title to the suit property,
based on the recitals in the documentary evidence in Exs.A1 to A3,
which cannot be controverted by oral evidence under Section 92 of the
Indian Evidence Act. The first appellate Court failed to see that the
power agent was not competent to depose on facts of which he had no
personal knowledge.
11. Adding further, the learned counsel appearing for the
appellant / plaintiff would contend that to upturn a well considered
judgment of the trial court, the first appellate court, dealing with an
Appeal under Section 96 C.P.C., should assign reasons indicating as to
where the trial court has gone wrong and what should have been the
right approach. This exercise must be done by the first appellate court,
when it intends to upturn a well considered judgment. Suffice to state
that the first appellate has not done this important duty, keeping in
mind the rigor of Section 96 C.P.C. which is a statutory right available
to the aggrieved person. Hence, the learned counsel prayed for
setting aside the Judgment made by the first appellate Court and
allowing the Second Appeal.
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12. The learned Counsel appearing for the Respondent /
Defendant would submit that the first appellate court upon considering
the materials adduced on either side and after hearing the submissions
came to a right conclusion, by reversing the Decree and Judgment of
the trial Court. The well considered Judgment of the first appellate
court need not be interfered with and prayed for dismissal of the
second appeal.
13.This Court paid its anxious consideration to the rival
submissions made and also perused the materials placed on record.
14. It is seen from the records that Ex.A1 is the registered deed,
dated 19.10.1956, executed in favour of the plaintiff's mother Hathoon
Beevi, by one Abdulkadhar; Ex.A2, dated 19.05.1986 is the settlement
deed executed to the plaintiff by her parents and Ex.A3, dated
28.10.1987 is the House Tax receipts in the name of plaintiff. P.W.1
admitted that there is no survey number in Ex.A1. It is also admitted
by P.W.1 during cross examination that the boundary recital for the
western side of the suit property is stated to be Vannankulam, which is
situated on the further west of a school on the western side of the suit
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property and P.W.1 has not certainty with regard to the western
boundary of her alleged property, derived under the documents Ex.A1
and Ex.A2. According to the plaintiff, the suit property was situated in
the Old.S.No.79/4 and in the new Survey No.662/8. Though the
burden is upon the plaintiff that the property derived by the plaintiff
under Ex.A1 and Ex.A2 is coming within the measurement of the said
survey number. As per the Advocate Commissioner's Report and
Surveyor plan and report, the property in R.S.No.662/8 measures east
to west only 130 feet and north to sought 16-1/2 feet.
15. It could be further seen that the vendor of the plaintiff's
mother though sold some property in the said sale deed has not
mentioned the survey number of the property. The boundary recitals
on the western side is also uncertain, as which refers to Vannankulam,
which is far beyond the suit property. In order to substantiate her
case, the defendant taken Advocate Commissioner to note down the
physical features and the same was also corroborated through the
evidence of P.W.1 in teh cross-examination. Further, P.W.1 admitted
with respect to the existence of borewell, compound wall on the
northern side and absence of pending on the southern side, during his
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cross-examination, which are relied on by the defendant to
substantiate his case of actual possession in the property in R.S.No.
662/7.
16. It is a consistent case of the defendant that there exist a
compound wall for nearly 30 years. The facts and circumstances are
not giving any probabilities to show the defendant has raised
altogether new compound wall in that place. The plaintiff has not
taken an Advocate Commissioner to show that the new compound wall
is attempted to be put up by the defendant. On a reading of the report
of the Commissioner make it clear that the said compound was is old
with brick and lime and in a dilapidated stated. Though objections
were filed to the report of the Advocate Commissioner, this aspect was
not challenged. Admittedly, the plaintiff has not filed any reply to the
additional written statement denying the plaintiff's claim of existence
of the compound wall for more than 30 years. Hence, this Court has
no hesitation in agreeing with the clearl conclusion reached by the first
appellate Court that the plaintiff's claim is not consistent and therefore
this Court is not inclined to interfere with the findings of the first
appellate Court. Accordingly, the substantial questions of law are
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answered in favour of the defendant.
17.In fine, the Second Appeal is dismissed confirming the
Judgment and Decree dated 24.07.2009 passed in Appeal Suit No.166
of 2007, by the learned Additional Subordinate Judge, Kumbakonam,
in reversing the judgment and decree, dated 28.09.2006, passed in
Original Suit No.98 of 2005 by the Additional District Munsif at
Valangaiman at Kumbakonam. However, there shall be no order as to
costs.
30.11.2021
Index: Yes/No.
Internet: Yes/No.
aav
Note: In view of the present lock down owing to
COVID 19 pandemic, a web copy of the order
may be utilised 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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To
1. The Additional Subordinate Judge, Kumbakonam
2. The Additional District Munsif at Valangaiman at Kumbakonam.
3.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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V. BHAVANI SUBBAROYAN, J.
aav
S.A.(MD) No.145 of 2011
30.11.2021
https://www.mhc.tn.gov.in/judis
