Sekar vs Sampath
2022 Latest Caselaw 7774 Mad

                                                                                        SA.No.23/2017



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 13.04.2022

                                                      CORAM:

                                   THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                        SA.No.23/2017 and CMP.No.2701/2020


                    Sekar                                                  .. Appellant / Plaintiff

                                                           Vs.


                    1.Sampath
                    2.Sub Registrar,
                      O/o Sub Registrar,
                      Thusi Village,
                      Cheyyar Taluk,
                      Thiruvannamalai District.                       .. Respondents / Defendants



                    Prayer:- Second Appeal filed under Section 100 of the Civil Procedure
                    Code against the judgment and decree dated 05.11.2013 made in
                    A.S.No.2/2011 on the file of the Sub-Court, Cheyyar confirming the
                    judgment and decree dated 30.11.2010 made in O.S.No.202/2002 on the
                    file of Additional District Munsif Court, Cheyyar.
                                      For Appellant    :         Mr.K.Gandhi Kumar
                                      For R1           :         Mr.R.Karthikeyan
                                      For R2           :         Mr.P.Harish
                                                                 Government Advocate


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                                                                                           SA.No.23/2017




                                                       JUDGMENT

(1) The plaintiff in the suit in O.S.No.202/2002 before the Additional

District Munsif Court, Cheyyar is the appellant in the above second

appeal.

(2) It is unfortunate that the appellant and the 1st respondent are

brothers, and the dispute is in respect of the property that was

allotted in the Will executed by the father of the appellant and the 1st

respondent.

(3) The suit in O.S.No.202/2002 was filed by the appellant for

declaration of his title in respect of an extent of 93 cents in S.No.102

in Mamandur Village.

(4) The case of the plaintiff is that the suit property along with adjacent

property belonged to one Thiru Vazhmunia Naicker, who is the

father of appellant and 1st respondent. It is admitted that the plaintiff

's father executed a registered Will on 29.01.1988 bequeathing the

property owned by him in favour of the plaintiff and the 1st

defendant. It is further stated that the Will came into effect after six

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months from the date of execution of the Will. It is the specific case

of the plaintiff that the property belonged to his father falls under

S.Nos.102 and 100/3, and that the property was not properly

described in the said Will and that the 1st respondent is objecting to

the appellant's entitlement to equal extent and the proportionate road

frontage as per the Will and that the 1st defendant is trying to sell his

share as if more extent facing the main road was allotted to him

under the Will. The suit is therefore filed for a declaration of his title

in respect of an extent of 80 cents out of 93 cents in S.No.102 on the

premise this portion was bequeathed in his favour under the Will.

(5) The Trial Court after finding that the contention of the plaintiff and

the description of the suit schedule in the plaint do not tally, held

that the plaintiff is not entitled to a decree for declaration of his title

and for consequential relief. Aggrieved by the judgment and decree

of the Trial Court the appellant preferred an appeal in

A.S.No.2/2011 on the file of the Sub-Court, Cheyyar.

(6) The Lower Appellate Court also confirmed the findings of the Trial

Court and dismissed the appeal after holding that the plaintiff has

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not proved his case that the suit property was exclusively allotted to

him in the Will executed by the appellant's father.

(7) Aggrieved by the concurrent judgments and decrees of the Courts

below the above Second Appeal is filed.

(8) The appellant has raised following substantial questions of law in

the Memorandum of Grounds of Second Appeal.

1. Whether the Courts have committed error in not taking into consideration of settled principle of law that the boundaries will prevail over the extent mentioned in the document?

2. Is not the Courts committed mistake in not decreeing the suit even after holding that the plaintiff is in possession of the portion of suit property?

3. Having found that the physical features mentioned Advocate Commissioner's report and plan disclose plaintiff 's possession is not the Courts below committed error in dismissing the suit?

4. Is not the Courts committed error in overlooking the fact that the respondents have admitted the possession of the plaintiff in their objection to the Advocate Commissioner's report as it would be an

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admission of fact?

(9) The second appeal was admitted on the following substantial

questions of law:

1. Whether the Courts have committed error in not taking into consideration of settled principle of law that the boundaries will prevail over the extent mentioned in the document?

2. Is not the Courts committed mistake in not decreeing the suit even after holding that the plaintiff is in possession of the portion of suit property?

3. Having found that the physical features mentioned Advocate Commissioner's report and plan disclose plaintiff 's possession is not the Courts below committed error in dismissing the suit?

(10) At the time of hearing the appeal before this Court, the learned

counsel appearing for the respondents submitted that the property

that falls within the description of the property under Ex.A1 falls

under two Survey Numbers. The Advocate Commissioner who was

appointed before the Trial Court has reported that the property

covered under the Will measuring an extent of 1 acre 17 cents is

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identified on ground. It is the specific finding of the Advocate

Commissioner that the entire suit property covered under the Will

executed by the appellant's father falls under two survey fields

namely S.Nos.102 and 100/3. While the property in S.No.100/3 is

shown as an extent of 80 cents, the property in S.No.102 is found to

be measuring an extent of 90 cents. From the boundary description

indicated in the Will, the Advocate Commissioner has drawn a plan

justifying the boundaries. From the Advocate Commissioner's report

it is seen that the plaintiff was given 40 cents on the road side which

falls in S.No.102 whereas the 1st defendant was given 50 cents on

the road side which falls in S.No.102. The rear portion is on the

eastern side measuring an extent of 40 cents in the southern portion

of S.No.100/3 is found to be allotted to the plaintiff whereas the

defendant was allotted an extent of 40 cents on the eastern side of

S.No.102 which falls in S.No.100/3.

(11) After hearing elaborately the arguments of the learned counsels on

both sides and after referring to the documents particularly the

evidence of both witnesses, this Court finds that there is no dispute

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with regard to the Will executed by the father of the appellant and

the 1st respondent and that almost equal extent of property is given

to the appellant as well as to the 1st respondent. However the Will

does not specify one of the survey numbers and this has led to the

confusion. The plaintiff filed the suit for a declaration of his title in

respect of the suit property which is shown as the property

comprised in S.No.102. In the plaint, it is stated that the survey

number has been wrongly mentioned as S.No.100/3 instead of

S.No.102. A few discrepancies are also found in the description of

the suit property in the plaint. It is because the absence of one of the

survey fields in the Will. However, the learned counsel appearing

for the appellant submitted that the appellant is entitled to an extent

of 80 cents as per the Will executed by the father and there is no

dispute. It is further contended that the respondents cannot take

advantage of the discrepancy in the boundary description or failure

to mention another survey number in the Will so as to claim title to

the property in entirety. If the suit filed by the plaintiff as such is

dismissed, the learned counsel appearing for the appellant stated that

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he cannot file another suit and therefore, the appellant may lose his

property which was bequeathed in his favour by the father under his

Will. The dispute is only with regard to the description of the

property in the Will and the entitlement of plaintiff in respect of 80

cents in two survey fields can not be disputed. Even though, it is

admitted before this Court by both counsels that property

bequeathed under the Will falls in two different survey numbers, but

the Will does not indicate both survey numbers.

(12) Having regard to the nature of dispute and the arguments of both

counsels this Court suggested a settlement between the parties in the

light of the Will executed by the father of parties. Though the

appellant and his counsel submitted that they are willing for a

compromise and came with the proposal to take at least 20 cents of

land facing road, the learned counsel for the respondents reported

that his client namely, the 1st respondent is not agreeable for such

division.

(13) On the admitted facts, the appellant and the 1st respondent are

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entitled to the entire property as per the Will executed by their

father. Merely because there was some discrepancies and even

though the omission of S.No.102 in the Will is admitted, there is no

dispute that the entire property covered under the Will falls in two

S.Nos.100/3 and 102. The Advocate Commissioner's report clearly

gives an indication that the entire extent of 90 cents is available on

ground and therefore, the report of Advocate Commissioner on the

interpretation of the boundary description appears to be fair. The

learned counsel appearing for the 1st respondent submitted that he

has instruction from the 1st respondent to state that the father had

allotted another property with the road frontage to the appellant and

that the allotment under the Will in favour of the plaintiff was only

on the rear side without road frontage. He also conceded that the 1st

respondent has no document to prove his claim. Learned counsel

appearing for the appellant specifically denied such statement and

stated that there is no pleading in the written statement to sustain

such argument before this Court. It is admitted that the 1st

respondent cannot establish before this Court his new plea. Instead

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of driving the appellant to file another suit, this Court is of the view

that the plaintiff can be granted a decree giving 80 cents falls in

S.Nos.102 and 100/3 out of which 40 cents in 102 with

proportionate of road frontage as per the Advocate Commissioner's

report and plan, as this will serve the interest of justice.

(14) Having regard to the admitted facts, this Court is of the view that the

appellant shall be granted a decree for partition in terms of the

Advocate Commissioner's Report and plan which is marked as

Ex.C2 plan. The judgment and decree in A.S.No.2/2011 on the file

of the Sub Court, Cheyyar confirming the judgment and decree in

O.S.No.202/2002 on the file of the Additional District Munsif,

Cheyyar are set aside. There shall be a preliminary decree in terms

of the Advocate Commissioner's report and plan and the appellant is

entitled to an extent of 40 cents in S.No.102 facing the Vandavasi

Kanchipuram road on the southern side and the 1st respondent is

entitled to an extent of 50 cents in S.No.102 facing the Vandavasi

Salai on the northern side. The plaintiff / appellant is also entitled to

40 cents in S.No.100/3 which lies on the eastern side of the property

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allotted to him in S.No.102. Similarly, the 1st respondent is entitled

to 40 cents in S.No.100/3 which falls on the eastern side of the

property now allotted to the 1st respondent in S.No.102. The division

as directed by this Court now, should be effected with the help of an

Advocate Commissioner during final decree proceedings. The

parties are given liberty to file appropriate application seeking

appointment of an Advocate Commissioner to ensure that the

division as directed by this Court with proportionate frontage to the

appellant as well as to the 1st respondent. The suit in

O.S.No.202/2002 stands decreed by granting a preliminary decree as

indicated above.

(15) In the result, the Second Appeal is allowed with the above

direction. Since the parties are close relatives, there shall be no

order as to cost. Consequently connected Civil Miscellaneous

Petition is closed.

13.04.2022 cda Internet : Yes S.S.SUNDAR, J.,

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cda

To

1.The Sub-Court, Cheyyar.

2.The Additional District Munsif Court, Cheyyar.

3.The Section Officer, VR Records, High Court, Chennai.

SA.No.23/2017 and CMP.No.2701/2020

13.04.2022

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