Madras High Court
Patel vs Annamalai on 13 April, 2022
S.A.(MD)No.493 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.493 of 2010
1.Patel
2.Kandhasamy
3.Leelavathi ... Appellants / Respondents 2 to 4 / Defendants 2 to 4
Vs.
1.Annamalai
2.Kannan ... Respondents 1 & 2 / Appellants 2 & 3 /
Lrs of the deceased Plaintiffs
3.Meenal
4.Abirami ... Respondents 3 & 4 / Respondents 6 & 7 /
L.Rs of the deceased Plaintiff
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree dated 13.02.2009 rendered in A.S.No.1 of
2002 on the file of the Subordinate Judge, Periakulam, reversing the decree and
the judgment dated 27.03.2001 rendered in O.S.No.19 of 1996 on the file of the
District Munsif Court, Periakulam.
For Appellants : Mrs.J.Anandhavalli
for Mr.K.Muthu Ganesa Pandian
For R1 : Mr.S.Manohar
For R3 & R4 : No appearance
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S.A.(MD)No.493 of 2010
JUDGEMENT
The defendants in O.S.No.19 of 1996 on the file of the District Munsif
Court, Periakulam are the appellants in this second appeal.
2. The suit was filed for permanent injunction restraining the defendants
from interfering with the plaintiff's possession and enjoyment of the suit
property. According to the plaintiff, the suit property was allotted to the share
of the plaintiff's father namely Annamalai Chettiar in the deed of dissolution-
Ex.A1 dated 22.06.1944. The suit property is mentioned as 6 th item in the 'B'
schedule of Ex.A1. After the demise of Annamalai Chettiar, the suit property
devolved on the plaintiff and his brother Andiappan @ Thyagarajan. On
17.10.1966 in a family partition-Ex.A2, the suit property was allotted to the
plaintiff's share. The plaintiff has been in exclusive enjoyment of the suit
property and also has been paying the property tax. The suit property is
comprised in T.S.No.3642. The property lying to the north of the suit property
in T.S.No.3643 was purchased by the defendants. The defendants while putting
up construction attempted to trespass into the suit property and that is why, the
plaintiff was constrained to file the suit for injunction.
3. The defendants filed written statement controverting the plaint
averments. Based on the divergent pleadings, the trial court framed the
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S.A.(MD)No.493 of 2010
necessary issues. The plaintiff examined himself as P.W.1 and one Manikandan
was examined as P.W.2. Ex.A1 to Ex.A15 were marked. The second defendant
examined himself as D.W.1. Ex.B1 to Ex.B4 were marked. The reports and
plan of the Advocate Commissioner were marked as Ex.C1 to Ex.C3. After
consideration of the evidence on record, by judgment and decree dated
27.03.2001, the trial court dismissed the suit. The plaintiff filed A.S.No.1 of
2002 before the Sub Court, Periakulam. During the pendency of the appeal, the
plaintiff passed away and his sons came on record. The first appellate court by
the impugned judgment and decree dated 13.02.2009 reversed the decision of
the trial court and decreed the suit as prayed for. Challenging the same, this
second appeal came to be filed. Though the second appeal was filed in
November 2010, only notice was ordered and it has not been admitted till date.
4. The learned counsel appearing for the appellants reiterated all the
contentions set out in the memorandum of grounds. She also filed a notes of
arguments. In order to understand the ground reality better, I passed an order
on 03.03.2022 directing the jurisdictional Tahsildar to measure the property
with the assistance of the taluk surveyor and submit a report. Tahsildar,
Periakulam has since submitted a report. But the appellants have filed their
objections in response thereto. The learned counsel appearing for the appellants
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S.A.(MD)No.493 of 2010
submitted that while the plaintiff is the absolute owner of T.S.No.3642 in
Kattamettu Street, Thenkarai, Periyakulam, Theni District, the defendants are
the absolute owner of T.S.No.3643. The defendant's property is lying to the
north of the plaintiff's property. The plaintiff's property is not a square plot. It
has projections in the north-west side to a width of 2 feet and narrows to a
width of 1 ½ feet towards eastern side. The appellant's mother purchased the
property comprised in T.S.No.3643 under Ex.B2-sale deed dated 30.06.1993.
Originally, there was a mud wall on the northern side. After the defendants
demolished the said wall and were to put up construction, the suit for
injunction was filed. Even though the defendants had denied the claim of the
plaintiff, the plaintiff failed to amend the plaint and seek the relief of
declaration. Since the cause of action arose only on account of the demolition
of wall, the first appellate court ought to have rendered a finding as regards
existence of the said wall. The plaintiff did not have the property measured
with the assistance of the qualified surveyor.
5. The core argument of the learned counsel appearing for the appellants
is that the dimensions of the property shown in Ex.A1 and Ex.A2 are different.
As per Ex.A1, north-south wall on the eastern side measures 26 feet. But in the
subsequent deed of family arrangement, it is shown as 28 feet. If the plaintiff is
directed to confine his claim to 26 feet as shown in Ex.A1, there would not be
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S.A.(MD)No.493 of 2010
any dispute at all. The learned counsel further pointed out that already, a toilet
had been unauthorisedly put up to an extent of 1 ½ feet. The appellants also
expressed their grievances over the manner in which the jurisdictional Tahsildar
had made the measurements. The learned counsel pointed out that even though
I had given a direction that measurements should be made with reference to the
title deeds, the Tahsildar had gone by the survey sketch. From a survey sketch,
one can note that there is a bend on the eastern side and it is not a straight line.
The Tahsildar must have drawn a straight line by taking the centre point, in
which event, the measurement would be 26 feet and definitely not 28 feet. The
learned counsel called upon this Court to reject the report of the jurisdictional
Tahsildar. Since the second appeal had not been admitted, the learned counsel
called upon this Court to formulate the substantial question of law and then
take it up 'for disposal'.
6. Per contra, the learned counsel appearing for the respondents
submitted that no substantial question of law arises for consideration and
pressed 'for dismissal' of the second appeal.
7. I carefully considered the rival contentions and went through the
evidence on record.
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S.A.(MD)No.493 of 2010
8. The suit property bears Door No.26, Kattamettu Street, Thenkarai,
Periyakulam Town and is comprised in T.S.No.3642. The suit property has
been described as measuring east-west- 37 feet, north-south on the western
side-30 feet and north-south on the eastern side-28 feet.
9. The title deeds of the plaintiff are Ex.A1 & Ex.A2. It is true that there
is a discrepancy as regards the eastern side measurement between the two
documents. In Ex.A1, the property allotted to the share of Annamalai Chettiar /
father of the plaintiff has been described as measuring 37 feet east-west, north-
south on the western side-30 feet and north-south on the eastern side-26 feet.
However, in the suit schedule, the property measures 28 feet north-south on the
eastern side. No doubt, this is a discrepancy. But the plaintiff has only sought
the relief of injunction based on possession. The four boundary description
given in Ex.A1 for the property allotted to Annamalai Chettiar is significant.
The property allotted to Alamelu Chettiar has been described as located in
T.S.No.3642. North-south street is shown as western boundary. T.S.No.3641 is
shown as southern boundary. A municipal lane is shown as western boundary.
The vacant site of Alamelu Chettiar comprised in T.S.No.3643 is shown as
northern boundary. It is therefore safe to assume that whatever is lying
immediately to the south of T.S.No.3643 would belong to the plaintiff subject
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S.A.(MD)No.493 of 2010
to the aforementioned boundary description. The toilet in question was put up
long time back as is evident from Ex.C1 to Ex.C3. Thaiyarammal / mother of
the appellants had purchased the property comprised in T.S.No.3643 under
Ex.B2 dated 30.06.1993.
10. I carefully went through the four boundary description as well as the
dimensions. The property purchased by Thaiyarammal has the following
dimensions:-
48 ½ feet east-west on the north, east-west on the south – 55 feet,
north-south on the eastern side-22 ½ feet & on the western side- 18 feet.
The southern boundary is mentioned as Chellapa Chettiar's house site and
municipal lane. The property of the defendants measures 55 feet east-west on
the southern side, whereas the property of the plaintiff measures only 37 feet-
east-west on the northern side. That is why, in Ex.B2, the southern boundary is
given as Chellappa's Chettiar's house site and municipal lane. Beyond 37 feet,
it is the municipal lane. That forms the southern boundary of the defendant's
property.
11. The Advocate Commissioner's report as well as the report of the
Tahsildar clearly indicate that the property occupied by the appellants has not
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S.A.(MD)No.493 of 2010
suffered any diminution at all. The Thasildar has enclosed two sketches one as
per the title document and the other as per the state on ground. The blue
washed portion is what is enjoyed by the appellants. A mere look at it would
indicate that it perfectly synchronizes with the measurements set out in their
title document. The plaintiff is not seeking to lay claim on the property covered
under Ex.B2. A categorical statement was made by the learned counsel
appearing for the respondents to this effect and it is placed on record. In other
words, the blue washed portion in the sketch drawn by the Tahsildar,
Periyakulam belongs to the appellants and it is in their possession and
enjoyment. The respondents categorically undertake before this Court that they
have no claim whatsoever on the same.
112. What clinches the issue is that the suit property is comprised in
T.S.No.3642 and it always stood in the name of Chellappa Chettiar. The suit
claim is confined only to T.S.No.3642. The appellants are having their property
only in T.S.No.3643/2b. The first appellate court correctly appreciated the
issues and came to the conclusion that there was cause of action for filing the
suit and rightly granted the relief as prayed for. No substantial question of law
arises for consideration.
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S.A.(MD)No.493 of 2010
13. Recording the undertaking of the respondents that they have no claim
whatsoever on the property covered under Ex.B2 and after noting that the
property covered under Ex.B2 remains intact in all respects on ground, the
second appeal is disposed of. The report of the Tahsildar along with the
enclosures will form part of the decree. No cost.
13.04.2022
Index : Yes / No
Internet : Yes/ No
rmi
To:
1.The Sub Court, Periakulam.
2.The District Munsif Court, Periakulam.
Copy to:
The Record Keeper, V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.493 of 2010
G.R.SWAMINATHAN, J.
rmi
S.A.(MD)No.493 of 2010
13.04.2022
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