Madras High Court
P.A.Kumarasamy Raja vs Maniraja (Died) on 20 April, 2022
S.A.(MD)No.369 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.369 of 2010
1.P.A.Kumarasamy Raja
2.Raju ...Defendants/Appellants/Appellants
Vs.
1.Maniraja (died)
2.Krishnakumari ... Plaintiffs/Respondents/Respondents
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree of the Subordinate Judge, Srivilliputhur in
A.S No.52 of 2005 dated 27.11.2006 confirming the judgment and decree of
the Principal District Munsif, Srivilliputhur in O.S No.277 of 2004 dated
30.03.2005.
For Appellants : Ms.Lakshmi Gopinathan
For Respondents : Mr.V.Panneerselvam
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S.A.(MD)No.369 of 2010
JUDGEMENT
The defendants in O.S No.277 of 2004 on the file of the Principal District
Munsif Court, Srivilliputhur are the appellants in this second appeal. The suit
was filed for declaring that the second schedule property is the exclusive
property of the plaintiffs and for consequential relief of permanent injunction
restraining the defendants from interfering with the plaintiffs' peaceful
possession of the same. The defendants filed their counter claim for
mandatory injunction for removal of the construction made in the second
schedule property. Based on the divergent pleadings, the trial court framed
the following issues :
“1.Whether the plaintiff has right and title over the
plaint 2nd schedule property?
2.Is the plaintiff entitled for the relief of declaration and
permanent injunction ?
3.Is the defendants have right and possession over the
2nd schedule property ?
4.Is the counter claim for mandatory injunction is not
maintainable without a relief of declaration?
5.Is the defendants entitled for mandatory injunction?
6.What are all other reliefs and cost plaintiffs are
entitled for ?
7.What are all the reliefs and cost defendants are
entitled for?”
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S.A.(MD)No.369 of 2010
2.The first plaintiff examined himself as PW.1 and marked Exs.A1 to
A21. The first defendant himself examined as DW.1 and marked Exs.B1 and
B2. Advocate Commissioner was appointed and his report and plan were
marked as Exs.C1 and C2. The municipal surveyor's map in respect of T.S
Nos.95 and 96 was also marked as Ex.C3. After consideration of the evidence
on record, by judgment and decree dated 30.03.2005, the trial court declared
that the suit second schedule property is the exclusive property of the
plaintiffs and the defendants were restrained from interfering with the
peaceful possession and enjoyment of the second schedule property and
dismissed the counter claim of the defendants. Challenging the same, the
defendants filed A.S No.52 of 2005 before the Sub Court, Srivilliputhur. By
the impugned judgment and decree dated 27.11.2006, the first appellate court
confirmed the decision of the trial court and dismissed the appeal.
Challenging the same, this second appeal came to be filed. The second
appeal was admitted on 11.04.2022 on the following substantial question of
law :
“Whether the courts below failed to note that the Advocate
Commissioner did not measure the suit properties with reference to
the defendants' title documents.”
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S.A.(MD)No.369 of 2010
3.The plaintiffs own the property lying to the north of the defendants'
property. The question is whether the suit property shown as DEFG
measuring 3 feet north south and 10 feet east west is the property of the
plaintiffs. There is no dispute that the first plaintiff derived his title from
Ex.A2 dated 20.08.1905. The property in question finds mention in the said
document. The north south measurement has been given as 18 feet
carpenter cubic feet. One Thayammal who inherited the property mortgaged
the same in favour of one Perumal Raja under Ex.A3 dated 08.07.1946.
Interestingly, in Ex.A3, the north south measurement has been given as 18
yards. Thus, 18 carpenter cubic feet metamorphosed into 18 yards in Ex.A3.
1 carpenter cubic feet is equivalent to 2 ¾ feet. It means, the measurement
would be 49.6 feet north south. By virtue of Ex.A3, it became 54 feet north
south. When Maniraja executed a Will in favour of his daughter
Krishnakumari, the second plaintiff under Ex.A12 dated 02.08.1995, 18 yards
became 19 yards. Thus, it is very apparent from the measurements given in
the plaintiffs' own title documents, the north south measurements were
getting extended. The courts below were quite cognizant of this fact. Yet,
they chose to decree the plaintiffs' suit in favour of them but dismissed the
counter claim as they went by the boundary descriptions. There is no
dispute that one Singaraja was the predecessor -in-title of the property of the
defendants. The property of the plaintiffs has been described as lying to the
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S.A.(MD)No.369 of 2010
north of the Singaraja shops. The defendants title documents are Exs.B1 and
B2. In both the documents, the north south measurement has been given as
13 carpenter cubic feet that is equivalent to 35.9 feet. On ground, the
defendants are in occupation of 33.9 feet. Unfortunately, the Advocate
Commissioner did not measure the suit property with reference to the
defendants' title documents though he has mentioned in Paragraph 18 of his
report that the documents were shown. The defendants had filed their
objections in response to the Advocate Commissioner's report. Neither the
trial court nor the first appellate court has dealt with the said objections. It is
also seen that there is a wall running between F and G. The disputed
property lies in DEFG. There is a wall running between E and D also.
4.The courts below ought to have re-issued the warrant so that the
properties of both the parties are measured with reference to the dimensions
given in their respective title documents. That has not been done. The
courts below mechanically assumed that the properties of the defendants
stopped with D and E. This is clearly incorrect. Therefore, I answer the
substantial question of law in favour of the appellants. The impugned
judgment and decrees of the courts below are set aside. The matter is
remitted to the first appellate court. The first appellate court is directed to
appoint a new Advocate Commissioner so that the properties of both the
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S.A.(MD)No.369 of 2010
parties are measured with reference to their respective title documents. Both
the parties are at liberty to adduce additional evidence. The parties shall
appear before the first appellate court on 13.06.2022 through counsel. The
second appeal is allowed. No costs.
20.04.2022
Index : Yes / No
Internet : Yes/ No
skm
Note :In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized 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.
To
1.The Sub Judge, Srivilliputhur.
2.The Principal District Munsif, Srivilliputhur.
3.The Record Keeper, V.R. Section,
Madurai Bench of Madras High Court, Madurai.
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S.A.(MD)No.369 of 2010
G.R.SWAMINATHAN, J.
skm
S.A.(MD)No.369 of 2010
20.04.2022
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