Madras High Court
M.V.Swaminathan vs A.Swaminathan on 12 April, 2022
SA.No.431/2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 12.04.2022
CORAM
THE HONOURABLE MR. JUSTICE S.S.SUNDAR
S.A.No.431/2017 & CMP.No.10803/2017
M.V.Swaminathan .. Appellant /
Defendant
Versus
A.Swaminathan .. Respondent /
Plaintiff
Prayer:- Second Appeal filed under Section 100 of CPC against the
judgment and decree made in AS.No.11/2016 dated 17.11.2016 on the file
of the learned III Additional District Judge, Vellore at Thirupathur,
confirming the judgment and decree made in OS.No.47/2011 dated
11.11.2013 on the file of the learned Subordinate Judge, Vaniyambadi.
For Appellant : Mr.V.Selvaraj
For Respondent : Mr.R.Subramanian
1
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
JUDGMENT
(1) The defendant in the suit in OS.No.47/2011 on the file of hte Sub
Court, Vaniyambadi, Vellore District is the appellant in the above
Second Appeal.
(2) The respondent herein, as plaintiff, filed the suit in OS.No.47/2011
for a declaration, declaring the title of the plaintiff in respect of a
compound wall described as ABC in the Rough Plan attached to the
plaint and for consequential permanent injunction restraining the
defendant from interfering with the peaceful possession and
enjoyment of the suit property by the plaintiff.
(3) The plaint pleadings are as follows. The suit property and other
properties belonged to the plaintiff's ancestors and the same was
allotted to the plaintiff's father in a partition that took place in the
year 1968. In the family of the plaintiff, there was a subsequent
partition by a registered Partition Deed dated 07.03.1973 under
which the suit property which was referred to in the document as '' A
'' Schedule, was allotted to the plaintiff's father. The plaintiff's
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
father constructed a house after getting permission from the
Municipality / Local Body. The plaintiff's father by name
Chittambala Chettiyar died on 07.03.1979 leaving behind the
plaintiff and his mother as his legal heirs. The plaintiff's mother
also died on 04.08.2010 and the suit property became the absolute
property of the plaintiff.
(4) The defendant owns the house on the Western side of the suit
property and vacant land on the Southern side of the suit property.
The property of the defendant is in S.No.91, whereas the property of
the plaintiff is comprised in S.Nos.89 and 90. The length of the AB
portion of the compound wall is measuring 13 feet and the length of
the BC portion of the compound wall is 27 feet. The width of the
compound wall is 1 ½ feet and its height is 20 feet.
(5) The defendant started putting up his construction adjoining the BC
portion of the wall and at that time, requested the plaintiff to give
him the entire compound wall. Since the plaintiff refused to
consider the request of the defendant, the defendant tried to damage
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
the ABC wall and therefore, a police complaint was lodged. The
suit property was allotted to the plaintiff's father on 07.03.1973 and
he was in enjoyment of the same for more than 40 years. Since the
defendant tried to damage the ABC compound wall, the plaintiff
was constrained to file the suit.
(6) The suit was contested by the defendant by filing a written
statement, totally denying all the averments made in the plaint.
However, it is admitted that the defendant started putting up a new
house adjacent to the BC wall. The contention of the plaintiff that
the entire ABC wall belongs to him, is specifically denied by the
defendant in the written statement. It is admitted by the defendant
that AB portion of the wall belongs to the plaintiff. However, the
defendant contended that the BC portion of the compound wall was
constructed by the predecessors in title of the defendant about 100
years back and therefore, the BC wall is the exclusive wall of the
defendant.
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
(7) Before the Trial Court, an Advocate Commissioner was appointed
and he filed a Report under Ex.C1 and the Plan submitted by the
Advocate Commissioner was marked as Ex.C2. The Advocate
Commissioner has given a Report pointing out that the disputed wall
when measured from South, partly falls within the survey field
belonging to the defendant and partly falls within the sruvey field
belonging to the plaintiff. After referring to the survey plan and
measurements as per the Revenue Records, the Advocate
Commissioner also found that the disputed wall falls within the
property of the plaintiff, which falls in S.No.89.
(8) On behalf of the plaintiff, the plaintiff examined himself as PW1 and
examined one Soundararajan as PW2. The defendant examined
himself as DW1 and two other witnesses as DW2 and DW3. While
the plaintiff marked Exs.A1 to A8, the defendant marked Exs.B1 to
B4.
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
(9) The Trial Court, considering the pleadings, framed a specific issue
as to whether the suit ABC wall is proved to be the wall belonging
to the plaintiff? Since there is no dispute with regard to the title and
right in respect of AB portion of the wall that it belongs to the
plaintiff, the Trial Court considered the next issue as to whether the
BC suit wall comes within the plaintiff's property. Based on the
document-Ex.A1 under which the plaintiff's father was allotted a
plot measuring 45x45 feet, the Trial Court, in the light of the
Advocate Commissioner's Report and the entire evidence adduced
on both sides, held that the plaintiff has proved his case that ABC
wall belongs to him. Even though the Partition Deed does not refer
to any compound wall, the Trial Court found that the Planning
Permission obtained by the plaintiff from the Local Body, shows the
construction of the house with compound wall and held that the case
of the defendan is not probable. Since the title in respect of BC
portion of the disputed wall is held in favour of the plaintiff, the
Trial Court also granted the consequential prayer for permanent
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
injunction.
(10) Aggrieved by the judgment and decree of the Trial Court, the
defendant preferred an Appeal in AS.No.11/2016 on the file of the
III Additional District Judge, Vellore at Tirupathur.
(11) The Lower Appellate Court also considered the pleadings, evidence
and the arguments independently and confirmed the findings of the
Trial Court and dismissed the appeal. Aggrieved by the concurrent
judgments and findings of the Courts below, the above Second
Appeal is filed by the defendant.
(12) The appellant has raised the following substantial questions of law
in the Memorandum of Grounds of Second Appeal:-
A) Whether the Courts below were right in not
considering the Advocate Commissioner's Report
[Ex.C1] and the sketch [Ex.C2] properly before
holding that the ABC wall belongs to the plaintiff
and decree the suit?
B) Whether the Courts below were right in granting
decree in favour of the plaintiff, when he has
admittedly pleaded that his property comes
within the S.Nos.89 and 90, while the Advocate
Commissioner's report and evidence establishes
that the 3/4th feet of BC wall comes within the
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
property survey number of the Defendant?
C) Whether the Courts below were right in
decreeing the suit without noting in the Advocate
Commissioner Report [Ex.C1] which clearly
indicates that the 45x45 feet size of the property
as claimed by the plaintiff is not there and it is
only lesser extent is in existence?
D) Whether the Courts below were right in relying
upon Ex.A2 the Municipal Plan, for deciding
about the BC portion of the wall when the plan is
only for the building and not for the ABC wall?
E) Whether the Courts below were right in
presuming that the schedule of the property of
the Ex.A1 Partition Deed and Schedule of the
Property of the plaint are same, without noting
that they are different and ABC wall has been
added in the plaint by the plaintiff falsely?
F) Whether the Courts below,especially the first
Appellate Court was right in not considering the
oral and documentary evidence adduced on the
side of the appellant/defendant before decreeing
the suit in contrary to the rulings of the Hon'ble
Supreme Court and this Hon'ble Court?
G) Whether the Courts below have erred in not
considering Ex.B3-CD/Photo which discloses the
old age of the BC wall and visibility of bricks
indicating its existence for more than 100 years
made of staked lime [chunnambu] when the
modern constructions are made with cement?
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
H) Whether the Courts below were right in not
giving more importance and consideration to the
Advocate Commissioner's Report-Ex.C1 and his
deposition as DW2 since all the documentary
evidence does not include ABC compound wall
either in the schedule of the property or
elsewhere?
I) Whether the learned Appellate Judge is right in
observing that in the written statement, the
location of iron grill in the wall has not been
denied without noting as the plaint no such
allegations were made, in the written statement,
the same has not been denied?
J) Whether the Courts below have erred in
decreeing the suit when admittedly no material
has been given by the plaintiff regarding the
ABC compound wall as the documents on the
side of the plaintiff are all relating to the house
property alone and no mention of the ABC wall
any where in the recitals of the documents viz
Partition Deed, Property Tax Receipt, EB
receipt, water tax receipt and Ambur Town
Surveyor Sketch?
K) Whether the Courts below were right in
decreeing the suit inspite of Ex.A1 Partition
Deed was read and explained to the learned
Judge that compound wall is not the subject
matter of the partition?
L) Whether the Courts below were right in rejecting
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
the submission that in the 1973 Partition Deed
Ex.A1, it has been specifically stated that there is
no compound wall and decreeing the suit?
M) Whether the Courts below were right in
decreeing the suit on the basis of misreading of
the materials on record and not noting the real
dispute involved in the suit which relates to the
''BC'' wall and not ''AB'' wall and house
property?
N) Whether the Courts below were right in not
appreciating the report of the Commissioner
which says that the plaint schedule property is
not in conformity with the size of the property
described in Ex.A1?
O) Whether the Courts below were right in fixing
the burden of proof on this appellant/defendant
when it is actually on the plaintiff who has to
prove his case as stated in the plaint?
P) Whether the Trial Court were right in presuming
that the dispute relating to AB compound wall,
ignoring the real dispute for ''BC'' compound
wall and decreeing the suit without proper
application of mind?
(13) Though the appellant has raised several questions of law,
Mr.V.Selvaraj, learned counsel for the appellant challenged the
findings of the Courts below by referring to the documents and
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
evidence. Learned counsel pointed out that the document [Ex.A1],
namely the Partition Deed dated 07.03.1973 does not refer to any
compound wall and therefore, the Trial Court had erred in holding
that the BC portion of the disputed wall belongs to the plaintiff'.
Referring to the Advocate Commissioner's Report and Plan, the
learned counsel for the appellant contended that the recitals of the
document [Ex.A1] is not in tune with the case of the
plaintiff/respondent herein or in support of the findings of the
Courts below. The learned counsel further submitted that the burden
of proof is on the respondent herein to prove that BC portion of the
disputed wall belongs to him absolutely and that the Courts below
failed to consider the oral and documentary evidence produced by
the appellant/defendant and the case of the appellant that the
disputed wall is more than 100 years old as it can be seen from the
photographs and videos marked as exhibits.
(14) The learned counsel for the appellant by referring to the Plan as
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
approved by the Local Body, submitted that the Plan does not
include the compound wall. Similarly, the annexure to Ex.A1,
which is the self declaration of the parties to the document-Ex.A1,
also does not refer to the compound wall. The details of the
property is given in the Annexure. In the column relating to the
existence of compound wall, it is specifically answered in negative.
Pointing out that the document-Ex.A1, specifically states that there
is no compound wall and the Building Plan Approval does not show
the approval with regard to the construction of a compound wall, the
learned counsel contended that the findings of the Courts below
without looking into these aspects is perverse. He then relied upon
the Advocate Commissioner's Report – Ex.C1 and Plan-Ex.C2 and
contended that the respondent's claim is not corroborated by the
Advocate Commissioner's Report and Plan. Though the learned
counsel for the appellant contended that the Approved Plan marked
as Ex.A2 does not show any compound wall, Mr.R.Subramanian,
learned counsel for the respondent demonstrated before this Court
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
that the Building Plan Approval under Ex.A2 refers to the
compound wall. Learned counsel for the appellant strenuously
argued that the respondent's case claiming title to the BC wall is not
proved in the manner known to law. Stating that the findings of the
Courts below are on the basis of misconception of evidence and
misconstruction of documents, the learned counsel for the appellant
submitted that the judgments and decrees of the Courts below are
liable to be set aside.
(15) Learned counsel also pointed out that the document under Ex.A2 is
dated 23.07.1970. The subsequent partition under Ex.A1 does not
refer to the existence of the compound wall. Therefore, the findings
of the Courts below on the basis of Ex.A2 is perverse.
(16) Per contra, Mr.R.Subramanian, learned counsel for the respondent
referred to the relevant portions of the Advocate Commissioner's
Report and the oral evidence of the witnesses examined on both
sides and submitted that since the findings of the Courts below are
based on proper appreciation of pleadings and evidence, both oral
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
and documentary, there is no scope for any interference as there is
no question of law involved.
(17) This Court has carefully considered the submissions of the
respective learned counsels and also perused the materials placed.
(18) From the pleadings, it is seen that the appellant has admitted the title
of the respondent/plaintiff over AB portion of the compound wall.
From the rought plan and the Advocate Commissioner's Plan, it is
seen that the AB portion of the wall lies North-South with the length
13 ½ feet. BC portion of the compound wall runs East-West with
the length of 27 feet. It is admitted that the appellant's land lies on
the South of the BC wall and construction activity was started just
before the filing of the suit and the entire portion was kept vacant by
the appellant. DW1/appellant herein, during cross-examination, has
specifically admitted that AB and BC portions appear to be the same
cosntruction and that the appellant's portion was kept vacant. It is
also admitted by the appellant during cross-examination that the
respondent/plaintiff has rested the iron grill on AB and BC walls at
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
the time when the respondent/plaintiff had put up his residential
house. The relevant portion of the evidence of DW1/appellant is
extracted below:-
''/////AB, BC Rthpy; BC Rthpd; fdk; kl;Lnk
vdf;F bjhpa[k;/ AB Rthpd; fdk; vdf;F
bjhpahJ/ vd;W milahsk; fhzg;gl;l AB,
BC Rth;fs; fspkz;zhy; fl;lg;gl;L
Rz;zhk;g[ g[{r;R g[{rg;gl;lJ/ vdnt AB, BC
,uz;L Rth;fspd; fl;olj;jpd; jd;ik xnu
khjphpahf cs;sJ vd;why; rhpjhd;////..
/////,Uk;g[ ge;jy; nghl;ljw;F nky; 3
mo Rth; AB, BC kPJ fl;lg;gl;oUf;fpwJ
mt;thW fl;lg;gl;l nkw;go 3 mo RtUk;
fspkz;zhy; fl;lg;gl;L rpbkz;lhy;
g[{rg;gl;oUf;fpwJ/ ,Uk;g[ ge;jy; nghl;L Rtu;
fl;oaJ thjp tPL fl;Lk; nghJ fl;oaJ
jhd;/ ,e;j gpur;rpid te;j nghJ jhd;
Kjd; Kjyhf BC mse;J ghh;j;njd;/////
(19) The document-Ex.A1 dated 07.03.1973 does not include the
compound wall. However, the Approved Plan-Ex.A2 refers to the
compound wall and the respondent had obtained permission from
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
the Local Body for the construction of the building and the
compound wall surrounding the building. Though the compound
wall is not mentioned in the Partition Deed, it cannot be a clinching
circumstance to disprove the case of the plaintiff/respondent. When
the respondent/plaintiff's father obtained Planning Permission under
Ex.A2, the compound wall as it exists, is shown. It is admitted that
AB portion of the compound wall belongs to plaintiff. Therefore,
the self declaration attached to Ex.A1-Partition Deed indicating that
there was no compound wall cannot be given much importance.
Hence, this Court is unable to find any irregularity in the findings of
the Courts below in relying upon Ex.A2.
(20) The Advocate Commissioner's Report should be considered in the
light of the specific pleadings and the entire Report. When the entire
property measured from the property of the appellant on the South
side, the Advocate Commissioner has indicated that BC portion of
the wall partly comes within the property of the respondent/plaintiff
and partly falls in the survey field belonging to the appellant. It is
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
admitted that the width of the wall is 1.25 feet and out of 1.25 feet,
the Commissioner found that 1/2 feet falls within the property of
respondent/plaintiff and 3/4th feet falls in S.No.91 which belongs to
the appellant/defendant. However, the Advocate Commissioner,
with the help of the Surveyor resurveyed the wall at the request of
the plaintiff's advocate. He has given the Report in the following
lines:-
/////nkw;go tptuj;ij epy msitah;
Fwpg;gpl;L brhd;dnghJ mstPL Fwpj;J
vjph;kDjhuh; jug;gpy; kPz;Lk; xU Kiw
msf;f nfl;likahy; efu epy msitah;
rhiyapd; ,uz;L gf;f';fpypUe;Jk; cs;s
mstPLfis rhpghh;j;J kPz;Lk; xUKiw
mse;J fhz;gpf;fg;gl;lJ/ mg;nghJk;
nkw;go gpur;rpidf;Fupa Rth; gFjp kD
brhj;jpy; ml';FfpwJ vd;gJ bjhpate;jJ/
(21) Therefore, the Advocate Commissioner's Report ultimately proves
the case of the respondent/plaintiff. It is to be noted that the
Advocate Commissioner has mentioned in his Report that the
measurements found during survey does not tally with the
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
measurements of the property of the appellant which is shown as
45x45 feet. The Advocate Commissioner in paragraph No.4 of his
Report observed that the North-South measurement is slightly less
than 45 feet and this shortage is noted while measuring the property
from South. It is then observed to the effect 3/4th feet of the
compound wall falls in the survey field belonging to the appellant.
The Advocate Commissioner has not referred to the survey plan and
measurements before holding that the portion of the wall falls within
the property of the appellant. The Commissioner's Report therefore
reveals that the compound wall [BC portion] comes within the
measurements given under Ex.A1.
(22) The Surveyor who assisted the Advocate Commissioner was
examined as PW2. Whereas, the Advocate Commissioner was
examined as DW2. He has stated in his evidence that he has not
mentioned about the age of the compound wall as he was not asked
to give a report as to the age of the building. This Court is able to
see that the Courts below have considered the Report and Plan of the
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
Advocate Commissioner in proper perspective and the appellant has
not explained as to how the Advocate Commissioner's Report is in
favour of the appellant. Since the last portion of the Report clearly
support the plea of the respondent's / plaintiff's title to the BC
portion of the wall, this Court is unable to appreciate the arguments
of the learned counsel of the appellant. The most important finding
of the Advocate Commissioner in his Report is not explained while
examining the Advocate Commissioner as DW2.
(23) The appellant has admitted that the property belongs to him in
S.No.91 was kept vacant without construction even though he had
house on the Western side of the suit property. When it is admitted
that AB portion of the compound wall which is adjacent to the
appellant's house is the wall put up by the respondent/plaintiff, this
Court is unable to consider the appellant's plea of title over BC
portion of the compound wall. Both AB and BC portions of the
disputed compound wall is admitted to be constructed with the same
material at the same time. The respondent / plaintiff had put up an
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
iron grill resting on BC portion of the wall at the time of putting up
the construction pursuant to the approved plan under Ex.A2. This
Court is unable to visualize any probability of the case pleaded by
the appellant that BC portion of the wall belongs to him. The
respondent / plaintiff has proved his case by producing the
document-Ex.A2. The Advocate Commissioner's Report and Plan
corroborates the case of the respondent/plaintiff rather than helping
the appellant/defendant to sustain the plea that BC portion of the
wall belongs to the appellant.
(24) The reading of the Advocate Commissioner's Report in entirety
gives a clear indication that the BC portion of the wall is the
property of the respondent/plaintiff especially when the small
discrepancy in the Report is also explained if one accepts the case of
the respondent/plaintiff. This Court is of the view that the Courts
below have resolved the issue with the full understanding of the
dispute and the evidence adduced on both sides. The Advocate
Commissioner's Report cannot be interpreted to support the case of
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
the appellant as it was contended by the learned counsel for the
appellant.
(25) It is true that the property of the respondent/plaintiff is located in
S.Nos.89 and 90 and the property of the appellant falls in S.No.91.
Though the Advocate Commissioner's Report refers to a portion of
BC wall falling within the property in S.No.91, a reading of the
entire Report explains the inconsistency in the Report of the
Advocate Commissioner. The total extent of the property of the
respondent/plaintiff as per Ex.A1 is 45x45 feet. The Advocate
Commissioner has found that there is a small reduction in the extent
of the respondent's property. Hence, the finding of the Advocate
Commissioner that the property measuring 45x45 feet is not
available on ground, is perverse. If the case of the respondent /
plaintiff that the BC portion of the wall belongs to the respondent is
accepted, then the respondent's title under Ex.A1 as per the
measurements stands proved. The Advocate Commissioner has not
given any reason to measure the property from south and then to say,
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
the suit property does not lie within the property allotted to
plaintiff's father under Ex.A1. Though the learned counsel referred
to the Plan under Ex.A2 and submitted that there is no indication
about the approval granted in respect of the wall portion, the learned
counsel for the respondent demonstrated that the plan approval is
obtained in respect of the wall. Therefore, the document-Ex.A2
establishes the case of the respondent / plaintiff that BC portion of
the wall belongs to him exclusively. The failure to mention the
existence of the compound wall in Ex.A1 may be a circumstance in
favour of the appellant. However, that is not a decisive factor to
decide whether the disputed wall belongs to the appellant or the
respondent. Admittedly, the appellant / defendant does not dispute
the title of the respondent / plaintiff over AB portion of the wall.
BC portion of the wall is not a separate wall and it is attached to AB
portion of the wall. The construction is the same and the width of
the wall is same and it is also continuous. In such circumstances,
the case of the appellant that the wall was constructed by his
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
forefathers about 100 years back, cannot be believed without any
oral or documentary evidence to support his case. When the
appellant /defendant had no building adjacent to the BC portion and
the commencement of construction by the appellant in the vacant
land was just prior to the filing of the suit, this Court is unable to see
a probability in the case of the appellant that BC portion of the wall
was constructed by his forefathers. The existence of the iron grill
resting over BC portion of the wall at the time of construction of the
respondent's / plaintiff's house clearly indicate that the respondent /
plaintiff has asserted his right. The case of the appellant / defendant
that the iron gate was put up by the respondent / plaintiff with the
permission of the appellant is not proved.
(26) After considering the pleadings, evidence both oral and
documentary, the Trial Court as well as the Lower Appellate Court
has concurrently held that the suit ABC wall is the absolute property
of the respondent / plaintiff and that the appellant has no right to
either interfere or put up his construction as if the suit wall is the
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
exclusive wall of the appellant or the common wall of the appellant /
defendant and the respondent / plaintiff.
(27) In view of the concurrent findings of facts and this Court is
convinced that the findings of the Courts below are supported by
reasons, the substantial questions of law raised by the appellant in
the Second Appeal have no substance. Hence, this Court finds no
merit in the Second Appeal.
(28) In fine, the Second Appeal is dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
12.04.2022
AP
Internet : Yes
Index : Yes/ No
To
1.The III Additional District Judge,
Vellore at Thirupathur.
2.The Subordinate Judge
Vaniyambadi.
3.The Section Officer
VR Section, High Court
Madras.
https://www.mhc.tn.gov.in/judis
SA.No.431/2017
S.S.SUNDAR, J.,
AP
SA.No.431/2017
12.04.2022
https://www.mhc.tn.gov.in/judis
