Madras High Court

S.M.Shajahan vs Mohammed Umer Farooq ... 1St on 3 March, 2023

                                                                              S.A.(MD) No.318 of 2009



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED : 03.03.2023

                                                       CORAM

                                    THE HONOURABLE MR. JUSTICE S.SOUNTHAR

                                              S.A.(MD) No.318 of 2009

                     1.S.M.Shajahan
                     2.Ayisha Begum                        ... Appellants/Respondents 2 & 3/
                                                               Plaintiffs 2 & 3

                                                          Vs

                     1.Mohammed Umer Farooq                ... 1st Respondent/Appellant/
                                                               Defendant
                     2.B.Ambika Ammal                      ... 2nd Respondent/1st Respondent/
                                                               1st Plaintiff


                     Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside

                     the judgment and decree dated 05.08.2008 made in A.S.No.76 of 2007 on

                     the file of the Principal Sub Court, Tenkasi, reversing the judgment and

                     decree dated 08.03.2007 made in O.S.No.467 of 2004 on the file of the

                     Principal District Munsif's Court, Tenkasi.




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                                                                                  S.A.(MD) No.318 of 2009




                                       For Appellants    :     Mr.M.P.Senthil


                                       For R1            :     Ms.N.Krishnaveni
                                                               Senior Counsel
                                                               assisted by
                                                               Mr.P.Thiagarajan


                                                        JUDGMENT

1.1. Plaintiffs 2 and 3 are the appellants. The suit was filed for

declaration and injunction. The appellants and the second respondent

herein filed a suit for declaration that Item-4 of the suit property belonged to

the appellants and Item-5 belonged to the second respondent and for a

consequential injunction restraining the first respondent from interfering

with the right of the appellants over 4th Item and rights of the second

respondent over 5th Item. The first respondent filed a counter claim seeking

removal of the foundation put up by the appellants and the second

respondent in Items-4 and 5 respectively. The trial Court decreed the suit as

prayed for and dismissed the counter claim filed by the first respondent.

Aggrieved by the same, the first respondent herein filed an appeal in

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A.S.No.76 of 2007. The first appellate Court reversed the findings of the

trial Court and dismissed the suit. The counter claim preferred by the first

respondent was decreed. Aggrieved by the same, plaintiffs 2 and 3 are

before this Court.

1.2. The second respondent/first plaintiff has not filed any second

appeal in respect of Item-5. Therefore, the second appeal is confined to

Items-2 and 4 alone. Items-2 to 5 of the suit property are part of Item-1.

The entire suit property, viz., Item-1 was purchased by the second

respondent under Ex.A.1 and Ex.A.2 dated 22.02.1998 and 16.04.1990

respectively. The old survey numbers of the suit property were 195/3E and

195/3F. The new survey numbers of the suit property are T.S.Nos.17 and

18. The second respondent purchased 46 cents under Ex.A.1 and Ex.A.2 in

the suit survey numbers. Out of the said 46 cents, the appellants herein

purchased 20 cents under Ex.A.3 dated 21.08.2002 from the second

respondent. The said 20 cents on the south-western portion purchased by

the appellants was shown as Item-2 in the plaint. The remaining 26 cents on

the eastern side retained by the second respondent was shown as Item-3.

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1.3. It was further averred in the plaint that the first

respondent/defendant owned property on the south of the property

purchased by the second respondent under Ex.A.1 and Ex.A.2. The first

respondent's property is situated in Old S.No.195/3G, which is equivalent to

new T.S.No.16. The appellants and the second respondent wanted to put up

a compound wall on the southern extremity of their property and hence, they

started digging up pit for laying foundation on the southern extremity of the

properties. The property over which foundation work commenced by the

appellants is shown as the 4th Item and the portion of the property in which

the foundation work is commenced by the second respondent is shown as

the 5th Item in the plaint. Since the first respondent claimed right over

Items-4 and 5, the appellants and the second respondent were constrained to

file a suit for declaration and injunction as prayed for.

2. The first respondent herein filed a written statement denying the

title and possession of the appellants and the second respondent over the

suit property. The first respondent claimed that Items-4 and 5 were part of

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his property on the southern side. The first respondent claimed that the

properties of the appellants and the second respondent were not properly

described in the plaint and the southern wall of the small building noted by

the Advocate Commissioner appointed by the Court is the southern

boundary of the appellants and the second respondent and on further south

of the said wall, they had no right. Since the first respondent claimed that

the appellants and the second respondent had dug up pit for laying

foundation in his property, he sought for mandatory injunction for closure of

the foundation pit.

3. The trial Court, on consideration of oral and documentary

evidences available on record, came to the conclusion that the appellants

and the second respondent proved their right over suit Items-4 and 5 and

granted a decree for declaration and injunction as prayed for. The counter

claim filed by the first respondent seeking mandatory injunction was

dismissed. Aggrieved by the same, the first respondent filed an appeal in

A.S.No.76 of 2007 on the file of the Principal Sub Court, Tenkasi. The first

appellate Court reversed the findings of the trial Court and came to the

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conclusion that Items-4 and 5 of the suit property lie in S.No.195/3G that

belonged to the first respondent and consequently, allowed the appeal and

dismissed the suit. The first appellate Court also decreed the counter claim

made by the first respondent and granted a decree for mandatory injunction

in favour of of the first respondent. Aggrieved by the same, the second and

third plaintiffs are before this Court.

4. At the time of admission, this Court formulated the following

substantial questions of law:

“(i) Whether the findings of the lower appellate Courts are vitiated by error in consider the evidence of P.W.-1 to P.W.-3 corroborated by documentary evidence Ex.X-1 to X-4 and the report of the Advocate Commissioner Ex.C-1 and C-2? and

(ii) Whether the lower appellate Court is correct in granting the counter claim for mandatory injunction in the absence of any evidence besides in the absence of the relief for declaration of title?”

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5.1. The learned counsel for the appellants submitted that the

Advocate Commissioner's report and plan make it clear that if the suit

property is measured based on new FMB with reference to new T.S.Nos.16,

17 and 18, the foundation pit dug up by the appellants falls within the

survey number of the appellants viz., T.S.Nos.17 and 18. The learned

counsel further submitted that if the property is measured based on old FMB

with reference to old S.Nos.195/3E, 195/3F and 195/3G, the appellants

would get only lesser extent than what they purchased under their title

documents. Therefore, it is the submission of the learned counsel that the

first appellate Court committed error in not considering the Advocate

Commissioner's report and plan along with the title documents of the

parties.

5.2. The learned counsel further submitted that whenever there is a

conflict between the title documents and revenue documents, the former

will prevail over the latter and hence, the first appellate Court ought not to

have dismissed the suit of the appellants based on the measurement made

with reference to the old survey numbers.

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6.1. The learned Senior Counsel appearing for the first

respondent/defendant, by taking this Court to the Advocate Commissioner's

report and also evidence of P.W.1, submitted that P.W.1 categorically

deposed that the appellants and the second respondent/plaintiffs entitled to

only 46 cents in the suit survey numbers and he also deposed that he was

not claiming anything more than what the plaintiffs purchased. The learned

Senior Counsel further submitted that if the property is measured based on

new FMB with reference to new T.S.Nos.16, 17 and 18, the appellants and

the second respondent/plaintiffs would get more extent than the 46 cents

purchased by them under their title documents.

6.2. The learned Senior Counsel further submitted that the Court

cannot grant a larger relief than the one prayed for. In this regard, she relied

on the judgment of this Court in Sreedharan Vs. Union of India reported in

2002 (2) CTC 408. Further, the learned Senior Counsel submitted that in a

suit for title, the plaintiff has to establish his case on his own strength and he

cannot rely on the weakness of the defences. In this regard, the learned ___________

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Senior Counsel relied on the judgment in K.S.Krishna Chetty and others

Vs. Chinna Pappammal reported in [2019] 4 MLJ 710.

7. Heard the arguments of the learned counsel for the appellants and

the learned Senior Counsel for the first respondent. Perused the typed set of

papers and other records.

8.1. As per the admitted case of the parties, originally the second

respondent herein purchased 46 cents in Old S.Nos.195/3E and 195/3F

under Ex.A.1 and Ex.A.2. Subsequently, she sold 20 cents to the appellants

herein under Ex.A.3. The property covered by Ex.A.1 and Ex.A.2 is shown

as suit Item-1. The property covered by Ex.A.3 is shown as suit Item-2.

The property that remained with the second respondent after sale under

Ex.A.3 is shown as suit Item-3. It is also specifically pleaded by the

appellants that the first respondent herein purchased the property on the

southern side of their Survey Nos.195/3E and 195/3F viz., S.No.195/3G. It

was also specifically pleaded by the appellants that they purchased the

property under S.Nos.195/3E and 195/3F and the first respondent purchased ___________

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the property under S.No.195/3G. According to the appellants and the

second respondent/plaintiffs, when they attempted to put up compound wall

on the southern extremity of their property, viz., Items-4 and 5 of the suit

property, the first respondent herein objected the same by laying claim over

Items-4 and 5 of the suit property. Therefore, the main issue to be decided

in this case is whether Items-4 and 5 of the plaint schedule property fall

within the property of the appellants and the second respondent/plaintiffs or

in the property of the first respondent. In order to resolve this dispute, an

Advocate Commissioner was appointed and he filed his report and plan

under Ex.C.1 and Ex.C.2. Pending second appeal also, the warrant was re-

issued to the Advocate Commissioner and he filed an additional report and

the same is enclosed in the typed set of papers filed by the learned counsel

for the first respondent.

8.2. A perusal of the Advocate Commissioner's report and plan would

make it clear that if the property is measured with reference to the old FMB

and old S.Nos.195/3E, 195/3F and 195/3G, the foundation pit dug up by the

appellants and the second respondent falls in the northern portion of old

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S.No.195/3G purchased by the first respondent under Ex.B.1. On the other

hand, if the suit property is measured with reference to new T.S.Nos.16, 17

and 18, the dividing line in between the property of the appellants and the

second respondent/plaintiffs and the first respondent/defendant get shifted

towards the southern side by 4 feet on the western side and 3.5 feet on the

eastern side (as per the additional report filed by the Advocate

Commissioner). In such case, the foundation pit dug up by the appellants

and the second respondent falls within new T.S.Nos.17 and 18 equivalent to

old S.Nos.195/3E and 195/3F which belonged to the appellants and the

second respondent. If we peruse the title deeds of the parties, the appellants

and the second respondent purchased their respective properties under

Ex.A.1 to Ex.B.3 with reference to old S.Nos.195/3E and 195/3F. In the

title documents of the appellants and the second respondent/plaintiffs, the

new survey number is not mentioned. Therefore, it is clear from the title

documents of the appellants and the second respondent/plaintiffs that they

purchased 46 cents in old S.Nos.195/3E and 195/3F. The same is clearly

admitted by P.W.1, husband of the second respondent, when he was

examined as a witness before the trial Court. He also said that he is not

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claiming anything more than 46 cents purchased by the plaintiffs.

Therefore, when property is purchased with reference to the old survey

numbers, which found place in the title documents of the appellants and the

second respondent/plaintiffs, it would be advisable to go by the

measurement based on old survey number and old FMB. Merely because in

the new FMB, measurements are different and the appellants and the second

respondent/plaintiffs would get more extent by shifting of dividing line

towards the south in the new town survey plan, the appellants are not

entitled to claim more than what they purchased.

8.3. It is the specific case of the appellants that they have not

purchased any land in old S.No.195/3G belonged to the first respondent.

Therefore, when property is measured with reference to the old survey

number, whatever available on the ground for old S.Nos.195/3E and 195/3F

alone is deemed to have been purchased by the appellants under their

respective title documents. The appellants should be satisfied with the

extent that available on the ground, if the property is measured with

reference to the old survey numbers.

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8.4. In the case on hand, the Advocate Commissioner's report and

plan make it clear that if the property is measured with reference to the old

survey numbers, suit Items-4 and 5 viz., the foundation pit dug up by the

appellants falls within the survey number of the first respondent viz., S.No.

195/3G. In such circumstances, the first appellate Court is justified in

dismissing the suit filed by the appellants and decreeing the counter claim

filed by the first respondent.

8.5. As mentioned earlier, if the property is measured with reference

to new T.S.Nos.16, 17 and 18, the appellants would get more extent than

what they purchased. As held in the decision of this Court in Sreedharan

Vs. Union of India, cited supra, Court cannot grant a larger relief than the

one prayed for by the plaintiffs. It would be appropriate to extract the

relevant observation of this Court in the above judgment, which reads as

follows:

“16. That apart, it has to be pointed out that the Court cannot grant a larger relief than what is asked for. As already pointed out, there is no claim in the plaint claiming

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title for an extent of 1-60-00 Ha. No petition to amend the plaint was filed by the plaintiffs. What was filed was only a memo purported to be under sections 152 and 153 of Code of Civil Procedure.”

8.6. In the case on hand, P.W.1 clearly admitted that the plaintiffs

purchased only 46 cents in old S.Nos.195/3E and 195/3F and the property

purchased by the first respondent/defendant lies in old S.No.195/3G. He

also had gone to the extent of saying that he is not claiming anything more

than what he purchased. In such circumstances, the first appellate Court is

justified in dismissing the suit and decreeing the counter claim based on the

measurement made by the Advocate Commissioner in his report with

reference to old S.Nos.195/3E, 195/3F and 195/3G.