Madras High Court
Thiyagarajan vs Uthanda Veeraiah on 3 January, 2023
S.A(MD)No.593 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.01.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A(MD)No.593 of 2013
and
M.P(MD) No.1 of 2014
1.Thiyagarajan
2.Karuppayee @ Dhanavalli ...Appellants/Appellants/
Defendants
-Vs-
Uthanda Veeraiah ... Respondent/Respondent/
Plaintiff
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 21.08.2012 made in
A.S.No.2 of 2012 on the file of the III Additional Sub Judge, Madurai, confirming
the judgment and decree dated 20.09.2011 made in O.S.No.17 of 2008 on the file
of the Principal District Munsif, Madurai.
1/11
https://www.mhc.tn.gov.in/judis
S.A(MD)No.593 of 2013
For Appellants : Mr.J.Sanjey Vignesh
For Respondent : Mr.S.A.Ajmal Khan
JUDGMENT
The defendants in the suit are the appellants. The respondent herein
filed a suit for permanent injunction and also mandatory injunction directing the
appellants to remove the offending constructions made by them in the suit second
schedule property. The suit was decreed by the Trial Court and the first appeal
filed by the appellants was also dismissed. Challenging the concurrent judgments
passed against them, the appellants are before this Court.
2. According to the respondent/plaintiff, the suit property was originally
purchased by his mother Chellammal on 09.02.1973 under Ex.A.1. She settled
the property purchased by her in favour of the respondent/plaintiff on 11.07.1983
under Ex.A.2. The respondent/plaintiff in his plaint further averred that the
appellants are his southern neighbors and taking advantage of his absence from
the suit property, during August 2006, the appellants encroached the portion of
his property on the southern side with the measurements of three feet north-south
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S.A(MD)No.593 of 2013
and 41¼ feet east-west. According the respondent/plaintiff, he put up the
building in the property gifted to him by his mother under Ex.A.2 leaving vacant
space on the southern side with the measurements of five feet north-south and
41¼ feet east-west. The entire vacant space on the southern side was shown as
suit first schedule property. The portion allegedly encroached by the appellants
was shown as suit second schedule property.
3. The appellants filed a written statement and resisted the suit by
contending that they put up constructions in the suit property as early as in the
year 1976 and they have been residing in the house put up by them from the year
1978. According to the appellants, they purchased the Plot Nos.17 and 18, which
lie on the south of the plot owned by the respondent on 09.02.1973 and from the
date of purchase, they have been in possession and enjoyment of the same. It was
also stated that the appellants had not encroached any portion of the property
owned by the respondent/plaintiff.
4. Before the Trial Court, the respondent was examined as P.W.1 and
24 documents were marked on his side as Ex.A.1 to Ex.A24 and the first
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S.A(MD)No.593 of 2013
appellant/first defendant was examined as D.W.1 and 6 documents were marked
on the side of the appellants as Ex.B.1 to Ex.B.6. The Surveyor's Sketch,
Commissioner's Sketch and Report have been marked as Ex.C.1 to Ex.C.3.
5. The trial Court, based on Ex.C.1 to Ex.C.3 and the admissions of
D.W.1, came to the conclusion that the appellants encroached portion of suit
second schedule property and decreed the suit to that extent. Aggrieved by the
same, the appellants filed first appeal in A.S.No.2 of 2012 on the file of the
learned III Additional Subordinate Judge, Madurai and the same was dismissed
by confirming the findings of the Trial Court. Challenging the said judgment and
decree, the appellants are before this Court.
6. The learned counsel for the appellants/defendants mainly submitted
that the constructions found in the second schedule of the suit property were put
up by the appellants even prior to 2002 and the suit filed by the respondent in the
year 2008, is hopelessly barred by limitation. The learned counsel further
submitted that both the Courts below arrived at a conclusion that the appellants
had encroached portion of the land belonged to the respondent by relying on the
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S.A(MD)No.593 of 2013
report and plan submitted by the Advocate Commissioner and the findings of the
Courts below based on the Advocate Commissioner's report are not correct as
Commissioner is not entitled to give any finding with regard to the possession of
the parties. The learned counsel also submitted that the Courts below while
arriving at a finding that the appellants had encroached a portion of the suit
second schedule property, placed reliance on Ex.A.12-reply issued by the
Tahsildar, dated 13.09.2006 and the said document was not proved in the manner
known to law.
7. Per contra, the learned counsel appearing for the respondent / plaintiff
submitted that in order to find out the fact whether there is any encroachment in
the property of the respondent, the Trial Court appointed an Advocate
Commissioner and he measured the suit property with the help of Surveyor and
filed his report along with Surveyor's sketch. The appellants have not chosen to
file any objection to the Advocate Commissioner's report and plan, even though
in his report the Advocate commissioner categorically stated that the appellants
had encroached a portion of the second schedule of the suit property. It is the
submission of the learned counsel for the respondent that having failed to object
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S.A(MD)No.593 of 2013
to the Advocate Commissioner's report and plan before the Court below,
it is not open to the appellants to assail the same in the second appeal. The
learned counsel for the respondent has also taken this Court to the evidence of the
D.W.1, wherein he admitted that he had gone through the Advocate
Commissioner's report and plan, but had not chosen to file any objection to his
report. Therefore, it is the contention of the learned counsel for the respondent
that both the Courts below have given a concurrent finding that the appellants had
encroached into the property of the respondent/plaintiff and the said concurrent
finding need not be interfered with by this Court in the absence of any substantial
question of law arising for consideration.
8. It is the admitted case of both the parties that the respondent herein
owned Plot No.16 and the appellants owned Plot Nos.17 and 18. It is also
admitted that the plots of the appellants are lying south of the respondent's plot.
In order to find out whether there is any encroachment by the appellants into the
property of the respondent, an Advocate Commissioner was appointed to measure
the properties of the parties with the help of Surveyor. The Surveyor's sketch
along with Advocate Commissioner's report and plan were marked as Ex.C.1 to
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S.A(MD)No.593 of 2013
Ex.C.3. A perusal of Ex.C.1 to Ex.C.3 filed in the additional typed set of papers
filed by the respondent would suggest that the appellant herein made an
encroachment into the property of the respondent on the southern side of his
property. The measurement of the encroached portion is given as 41 feet
east-west and three feet north-south on the eastern side and two feet north-south
on the western side. When D.W.1 was confronted with the Advocate
Commissioner's report and plan, he categorically admitted that he had gone
through the Advocate Commissioner's report and plan and he did not file any
objection. When the Advocate Commissioner, after measuring the property of the
parties with reference to the title deed, found that there is an encroachment into
the portion of the second schedule of the suit property, in the absence of any
objection by the appellants it is not open to the learned counsel for the appellants
to assail the findings of the Courts below based on the Advocate Commissioner's
report and plan. While coming to the conclusion that there is an encroachment in
the portion of the suit second schedule property by the appellants, the Courts
below also relied on Ex.A.12-the proceedings of the Tahsildar. In Ex.A.12 also, it
is mentioned that the appellants have encroached into the property of the
respondent on the southern side.
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S.A(MD)No.593 of 2013
9. Though the learned counsel for the appellants submitted that
Ex.A.12-the proceedings of the Tahsildar was not proved by the respondent in the
manner known law, the said objection cannot be taken into consideration now
as Ex.A.12 was marked without any objection before the Trial Court. It is settled
law that objection as to want of proof has to be made, when the document is
tendered in evidence. If the document is marked in evidence without any
objection, it is not open to the other side to raise any objection with regard to the
proof or competency of the witness to tender the document in evidence.
Therefore, the contention raised by the learned counsel for the appellants with
regard to the competency of P.W.1 to tender Ex.A.12 in evidence, cannot be
accepted. Even otherwise, the Courts below have come to a conclusion that the
appellants have encroached into the property of the respondent based on
Advocate Commissioner's report and plan coupled with the own admission of
D.W.1. The said findings of fact arrived at by the Courts below does not call for
any interference by this Court, while exercising jurisdiction under Section 100 of
CPC in the absence of any substantial question of law.
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S.A(MD)No.593 of 2013
10. As far as the contention raised by the learned counsel for the
appellants with regard to the question of limitation, absolutely there is nothing on
record to show that the offending constructions in the suit property were put up
prior to the year 2002. Except the interested testimony of the appellants as
D.W.1, there is no other evidence available on record to show that the offending
constructions were put up even prior to 2002. In these circumstances, the said
contention made by the learned counsel for the appellants cannot be accepted.
11. In view of the discussion made above, this Court finds no substantial
question of law in the second appeal and hence, the Second Appeal is dismissed.
12. In nutshell,
(a) this Second Appeal stands dismissed by confirming the judgment
and decree passed in A.S.No.2 of 2012 on the file of the learned III Additional
Subordinate Judge, Madurai;
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S.A(MD)No.593 of 2013
(b) in the facts and circumstances of the case, there will be no order as
to costs; and
(c) connected miscellaneous petition is closed.
03.01.2023
NCC : Yes/ No
Index : Yes / No
Internet : Yes / No
cp
To
1.The III Additional Sub Judge,
Madurai.
2. The Principal District Munsif, Madurai.
3.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.593 of 2013
S.SOUNTHAR, J.
CP
S.A(MD)No.593 of 2013
and
M.P(MD) No.1 of 2014
03.01.2023
https://www.mhc.tn.gov.in/judis
