Madras High Court
Purushothaman vs Vellai Maistry on 8 September, 2021
S.A.No.837 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.09.2021
CORAM:
THE HONOURABLE MR. JUSTICE M.GOVINDARAJ
S.A.No.837 of 2014
&
M.P.No.1 of 2014
Purushothaman ... Appellant
Vs.
Vellai Maistry ... Respondent
PRAYER: The Second Appeal has been filed under Section 100 of the Civil
Procedure Code, against the Judgment and decree dated 20.02.2013 passed
in A.S.No.10 of 2011 on the file of the Sub Court, Ranipet in reversing the
judgment and decree dated 28.07.2010 passed in O.S.No.204 of 2006 on
the file of the District Munsif Court, Ranipet.
For Appellant : Mr.P.Mani
For Respondents : Mr.T.P.Prabakaran
JUDGMENT
Aggrieved over the concurrent findings of the Court below, the
plaintiff has preferred the above Second Appeal.
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S.A.No.837 of 2014
2. For the sake of convenience, the parties are called as per their rank
in the suit.
3. The unsuccessful plaintiff is the appellant before this Court. The
plaintiff filed a suit for declaration of title over the B schedule property,
possession and for mandatory injunction to remove the encroachment and
the wall constructed on the B schedule property.
4. It is relevant to state that the B schedule property is an integral
part of the A schedule property. The A schedule property was purchased by
the brother of the plaintiff on 09.12.1987. There was an oral partition
between the plaintiff and his brother and the plaintiff had constructed the
house on the northern side and his brother constructed house on the
southern side of A schedule property. The plaintiff's share lies on the south
side of the defendant's property. According to him, he had left a lane with 5
feet breadth on the northern side. This was encroached by the defendant
and the lane was reduced to 2 feet from 5 feet breadth. Aggrieved over the
same, he issued notice and filed a suit for declaration and mandatory
injunction.
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S.A.No.837 of 2014
5. The defendant, denying the averments made in the plaint, would
contend that the property of the defendant is an ancestral one and it existed
even before the purchase of A schedule property by the defendant's brother.
There is no such 5 feet lane left by the plaintiff and in fact, the defendant left
2 feet passage on the southern side of the property which is the northern
boundary of the plaintiff.
6. The trial Court framed appropriate issues and decreed the suit in
favour of the plaintiff. On appeal, the lower appellate Court reversed the
findings of the trial Court for want of proof of encroachment.
7. Aggrieved over the same, the plaintiff has filed the above second
appeal. The same was admitted on 07.10.2014 and the following
substantial questions of law were framed for consideration:
“a) Whether the plaintiff is entitled to the
relief as prayed for with respect to the “B”
schedule property when the plaintiff established
his title over the “A” schedule property and when
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S.A.No.837 of 2014
“B” schedule property forms part of “A”
schedule property?
b) Whether the defendant is entitled to
more extent with measurements as stated in Ex.B1
and B2 sale deeds when lesser extent and
measurements have been stated in the previous
title deed Ex.A3?”
8. According to the learned counsel for the plaintiff, it is categorically
admitted that Ex.B1 and Ex.B2 are the sale deeds of the defendant. The
defendant claims title through Exs.B1 and B2 sale deeds, dated 14.07.1997
and 11.08.2006, wherein, it is mentioned that the property is 30 yards in
length and 6 yards in breadth. 1 yard is equal to 3 feet. Thus, the
measurements of the defendant's property is 90 feet x 18 feet, whereas, the
defendant, as DW1 in his evidence, has admitted that he is possessing the
property measuring 90 feet x 22 feet. Therefore, it is the case of the plaintiff
that the excess land possessed by the defendant is the B schedule property is
the one which was encroached by him. The trial Court had also finding
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S.A.No.837 of 2014
lesser measurement in Exs. B1 and B2 decreed the suit in favour of the
plaintiff. According to him, the findings of the lower appellate Court
without adverting to Ex.A3 sale deed of the plaintiff's brother and Ex.B1 and
Ex.B2, sale deeds of the defendant for a lesser extent is erroneous and liable
to be set aside. He would also contend that the defendant himself admits the
title of the plaintiff to the A schedule property, he is estopped from denying
title of the plaintiff with respect to the B schedule property, which is an
integral part of the A schedule property.
9. Per contra, learned counsel for the defendant would vehemently
contend that the plaintiff has drastically failed to prove the encroachment by
marking the measurement of the property. It is categorically admitted by the
plaintiff, during the course of cross examination, that he has not purchased
the property after measuring it. In other words, the property in A schedule
was purchased without taking measurements before it was purchased.
Without knowing the exact measurement of the property, the plaintiff is not
entitled to rely on the title documents of the defendant and seek for excess
land. There is no clear proof as to the existing measurement of the plaintiff
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S.A.No.837 of 2014
as well as the defendant and therefore, the alleged encroachment on the
basis of the measurements found in the title deeds itself is absolutely
baseless and the substantial questions of law raised by the appellant are
questions of fact and there is no substantial questions of law in issue.
10. On the perusal of the plaint, it is noted that the plaintiff's brother
purchased the property from one Arumugam by entering into an exchange
deed on 09.12.1987. Thus, the property belongs to the plaintiff's brother.
Even though the plaintiff states that there was partition between the brothers
and that he is the owner of the northern portion of the A schedule property,
he has not filed any documents to prove that he had perfected his title
through oral partition. Admittedly, A schedule property measures east- west
90 feet, north-south 16 feet as per the schedule mentioned in the plaint. As
per the plaint schedule, there are two pieces of properties in A schedule.
The first piece of property measures 90x16½ feet, other piece of property
measures 120 x10 1/8 feet. Out of which, 3 x 200 feet is said to be
encroached as mentioned in B schedule. If this measurement is taken into
account, the evidence of PW1, the plaintiff, that he owns the house with a
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S.A.No.837 of 2014
breadth of 27 feet is falsified. The breadth of the house to the maximum is
16 ½ feet and nothing more than that. Be that as it may, there is a
probability that the length of the property on the east and the north-south
should be 216 feet and on the east-west, it should be 16 ½ feet. In A
schedule property, both the plaintiff and the plaintiff's brother have
constructed house. In a property which is measuring a breadth of 16 ½ feet,
there is no possibility of leaving 5 feet on the eastern side. If 5 feet is left, it
will reduce the breadth by 10 feet x 11 feet. Therefore, the measurements
given in the plaint appears to be not correct.
11. Further, in the evidence also, the plaintiff claims that the
defendant has encroached 3 feet x 200 feet, based on the measurements in
Exs.B1 and B2 title deeds of the defendant. In case of encroachment, the
plaintiff shall set out the exact measurements of his property and the area in
his possession and the area encroached by the defendant depriving him of
his land. In the plaint, the plaintiff has not attached any diagram or any
documentary evidence that the defendant has encroached 3 feet x 200 feet of
the land belonging to the plaintiff. The trial Court has wrongly proceeded
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S.A.No.837 of 2014
on the basis of the measurements found in the title deeds, but not on the
physical measurements that exist on ground. The lower appellate Court has
rightly faulted with the finding of the trial Court and held that the plaintiff
has failed to prove the encroachment by sufficient evidence. The findings of
the lower appellate Court is found on justifiable reasons that the plaintiff has
failed to prove the encroachment by sufficient evidence. In the absence of
any proof of existence of the dispute, this Court is not inclined to interfere
with the findings of the lower appellate Court. The questions of law framed
are merely questions of fact and I do not find any substantial questions of
law involved arising out of the judgment of the Court below. Therefore, on
the basis of the questions of fact, the second appeal cannot be entertained.
12. In fine, the second appeal is dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
08.09.2021
Index : Yes/No
Internet : Yes
sli
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S.A.No.837 of 2014
To
1.The Sub Court, Ranipet.
2. The District Munsif Court, Ranipet.
M. GOVINDARAJ, J.
https://www.mhc.tn.gov.in/judis
S.A.No.837 of 2014
sli
S.A.No.837 of 2014
&
M.P.No.1 of 2014
08.09.2021
https://www.mhc.tn.gov.in/judis
