Madras High Court
Kuttaya Gounder vs Vadivel Gounder on 6 January, 2022
S.A.No.1122 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 06.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.No.1122 of 2021
Kuttaya Gounder ... Appellant
.Vs.
1.Vadivel Gounder
2.Ramamoorthy ... Respondent
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code, to set aside the judgment and decree dated 24.02.2021, passed in
A.S.No.17 of 2018 on the file of the Subordinate Judge, Gingee
confirming the judgment and decree dated 10.01.2018, passed in
O.S.No.375 of 2010 on the file of the Additional District Munsif Court,
Gingee.
For Petitioner : Mr. S. Shahul Hameed
JUDGMENT
This second appeal is directed against the judgment and decree of
the learned Subordinate Judge, Gingee in A.S.No.17/2018, confirming
the judgment of the learned Additional District Munsif Court, Gingee in
O.S.No.375/2010.
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S.A.No.1122 of 2021
2. The appellant as a plaintiff, filed the suit in
O.S.No.375/2010, seeking the relief of declaration of title in respect of
the suit property and for permanent injunction restraining the respondents
from interfering with the possession and the enjoyment of the suit
property.
3. For the better understanding, it is necessary to know what is
the suit property.
3(i). The suit property is an extent of 1.86 acres of land in
Thazhakunam Village, in Survey No.40, within the following boundaries:
West by canal, North by land belong to Kasiammal, East by Pattai and
South by land belongs to Visalatchi Ammal. This property was sold with
2/3 right to draw water from Well, mamool kalvai, kamizhi etc.
4. The case of the appellant is that he purchased the suit
property from one Parasurama Gounder on 21.09.1981. There is a total
extent of 2.86 acres available in S.No.40. Out of this total extent, 1 acre
was settled on 15.12.1960 to the respondents by Pachaiyappa Gounder.
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S.A.No.1122 of 2021
The remaining 1.86 acres was purchased by the appellant. There is a
Well in S.No.40. On the east of this Well, appellant's 1.86 acres and on
the west of this Well, respondents' 1 acre situate. The respondents,
suppressing physical features and the fact of sub division, filed a suit in
O.S.No.218/2001 against the appellant and his wife. Subsequently, the
suit was dismissed for non prosecution. After the disposal of the suit, the
respondents tried to encroach the appellant's land claiming that they own
86 cents of their lands there. Therefore, the suit is filed for the aforesaid
reliefs.
5. It is seen from the written statement filed by the first
respondent that they denied that the respondents tried to encroach
appellant's land. The total extent of land available in S.No.40 in 2.86
acres. There is Well in this property and the survey number of the
property is 40/2. Appellant's property comes under S.No.40/3. The Well
situates with an extent of 0.02.0 acres. The lands of the parties have to
be measured after deducting the area of Well namely 0.05 cents. There is
a mamul canal running from the Well and it measures 2 cents. This
extent has also to be deducted, while taking the extent of the land belong
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S.A.No.1122 of 2021
to the parties. Appellant fails to understand that both the parties do not
possess the extent mentioned in the title deeds. Approximate extent was
given in the title deeds of the parties. The western boundary of the
appellant's property is mamul vaikaal. Both the parties are drawing
water from the common Well, using the common canal. It is not correct
to state that the respondents tried to create a new canal. In
O.S.No.218/2001, interim injunction was granted and then appellant
filed appeal before the Sub Court, Gingee. The sub Court Gingee
dismissed the appeal. The suit was primarily filed for the reason that the
appellant tried to obliterate the common canal. After dismissal of the
appeal, appellant has not taken any steps to obliterate the canal.
Therefore, the suit was not prosecuted. This suit has no merits and it is
liable to be dismissed.
6. On the basis of the pleadings, the trial Court framed the
following issues.
1.Whether, the plaintiff is entitled to the relief of
declaration as prayed for?
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S.A.No.1122 of 2021
2. Whether the plaintiff is entitled to the relief of
permanent injunction as prayed.
3. To what other relief the plaintiff is entitled to.
7. During the trial before the trial Court, P.W.1 and P.W.2
were examined. Ex.A1 to A7 were marked. D.W.1 was examined and
Exs.B1 to B4 were marked. That apart, Exs.C1 and C2, Commissioner's
report and plan were also marked.
8. On going through the oral and documentary evidence, the
trial Court found that the appellant purchased through Ex.A1 sale deed
only to the extent of 1.80 acres and therefore, the declarative prayer for
1.86 acres cannot be granted and in this view of the matter, the suit was
dismissed. Challenging the said judgment, the appellant filed appeal in
A.S.No.17/2018.
9. The learned first appellate Judge also found from the oral
and documentary evidence that appellant has failed to establish that he
was in possession and enjoyment of 1.86 acres and that he admitted that
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S.A.No.1122 of 2021
respondents have not claimed any right in 86 cents. In this view of the
matter, the learned first appellate Court found that there is no cause of
action for filing the suit and dismissed the appeal by confirming the
judgment of the trial Court. Challenging the said judgment, appellant
has filed this second appeal.
10. The learned counsel for the appellant submitted that both
the Courts below have relied heavily on Exs.C1 and C2, Advocate
Commissioner's Report to record the finding that the appellant was in
possession and enjoyment of 1.80 acres and not in a possession of 1.86
acres. The Advocate Commissioner has not measured the property of the
respondents. Without measuring the property of the respondents, a
proper finding cannot be given as to the entitlement of appellant's claim.
10(i). Further it is submitted that appellant's land is shown lying
till the dotted line shown in FMB Sketch. This dotted line should have
been drawn further west. This factor would have been known, if the
property of the respondents was also measured. When that was not
measured, the report given by the Advocate Commissioner is incomplete
and decision based on the Advocate Commissioner's Report is also not
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S.A.No.1122 of 2021
correct. It is also submitted that appellant filed objection to
Commissioner's Report and it was not considered by the Advocate
Commissioner and the Court. Therefore, he prayed for setting aside the
judgment of the Courts below and for allowing this second appeal.
11. Considered the submission of the learned counsel for the
appellant and perused the records.
12. Admittedly, the entire extent of 2.86 acres in S.No.40,
originally belonged to Parasurama Gounder. Parasurama Gounder's son,
Pachaiyappa Gounder settled 1 acre, out of this 2.86 acre, in favour of
respondents on 15.12.1960. The remaining 1.86 acre was sold to the
appellant through Ex.A1 sale deed on 21.09.1981. This 1.86 acre was
sold with specific four boundaries. Therefore, appellant cannot claim
anything beyond this four boundaries. On the west of this 1.86 acres, the
boundary is shown as canal. This canal is for the use of both the
appellant and respondents. The canal is a fixed boundary. The Advocate
Commissioner along with surveyor and the Village Administrative
Officer inspected the suit property. The mandate given to the Advocate
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S.A.No.1122 of 2021
Commissioner was to inspect the suit property alone. The Advocate
Commissioner was appointed at the instance of the appellant. The
appellant wanted only his property to be measured with the help of
surveyor. He has not sought for measuring the property of the
respondents. Therefore, it is not now open to the appellant to claim that
the respondents' property should also have been measured. As already
found that there is a fixed boundary on the West. That is, a canal, which
is used by both the parties. On the East, there is a pattai. It is also a
fixed boundary.
13. The Advocate Commissioner with the help of surveyor, the
revenue records found that appellant is in possession of 1.80 acres with
his four boundaries. It is not known, whether the properties were
measured at the time of purchasing the suit property under Ex.A1. If the
properties were measured and purchased, giving exact measurement with
the details of East-West, North-South and total extent, then he can say
that there is reduction in the property purchased and there is a possibility
of encroachment by the respondents. That is not the case here. The
details of measurement by East-West, North-South and total extent are
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S.A.No.1122 of 2021
not specifically given in Ex.A1 sale deed. Only four boundaries are
given. It is the settled proposition of law that boundaries prevail over the
extent. Therefore, whatever the extent available within the four
boundaries given in Ex.A1, that alone is entitled to the appellant. As per
the oral and documentary evidence, Exs.C1 and C2, Commissioner's
Report, it is found that there is an extent of 1.80 acres available to the
appellant with the four boundaries given in Ex.A1.
14. It is also to be taken note of the fact that there is a common
Well and common Canal. It is seen from the written statement filed by
the respondents that the extent of 5 cents for common Well and extent of
2 cents for common canal have to be excluded for calculating the extent.
There is a merit in this claim. It is also pleaded by the respondents in the
written statement that even if the property of the respondents is
measured, there is a possibility of reduction of extent of the land than
what is mentioned in their settlement deed.
15. From the oral and documentary evidence, it is found that the
appellant is entitled to 1.80 acres within four boundaries. Appellant has
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S.A.No.1122 of 2021
not made out a case that respondents tried to encroach his property. It is
admitted by the appellant that respondents have not tried to encroach his
property, that is 86 cents. Therefore, both the Courts below have rightly
found that the appellant has not made out the case for entertaining the
suit against the respondents and rightly dismissed the suit.
16. This Court finds no reason to interfere with the judgment of
the Courts below and no substantial question of law arise for
consideration in the second appeal. In fine, this Court confirms the
judgment passed in A.S.No.17/2018, on the file of the Subordinate
Judge, Gingee confirming the judgment passed in O.S.No.375 of 2010,
on the file of the Additional District Munsif Court, Gingee and dismisses
the second appeal. There shall be no order as to costs.
06.01.2022
AT
Index : Yes / No
Internet : Yes / No
Speaking Order/Non Speaking Order
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S.A.No.1122 of 2021
To
1.The Subordinate Judge, Gingee.
2.The Additional District Munsif Court,
Gingee.
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S.A.No.1122 of 2021
G.CHANDRASEKHARAN, J.
AT
S.A.No.1122 of 2021
06.01.2022
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