Madras High Court
R.Chithiraikani vs Kottiappan on 22 November, 2023
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
2023/MHC/5338
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A(MD)NO.625 OF 2022
and
C.M.P(MD)No.8862 of 2022
R.Chithiraikani :Appellant/Appellant/Plaintiff
.vs.
1.Kottiappan
2.Thirumalai Vadivu
3.K.Mariammal
4.V.Mageswari
5.K.Ganesan
(Respondents 2 to 5 are brought on record as legal representatives
of the deceased sole respondent as per order of this Court made in
C.M.P(MD)Nos.1881 and 1882 of 2023 in S.A.(MD)No.625 of 2022,
dated 16.06.2023)
:Respondents/Respondents/
defendants
PRAYER: Second Appeal filed under Section 100 of the Civil
Procedure Code against the judgment and decree made in A.S.No.
20 of 2018, dated 13.4.2022, on the file of the Subordinate Judge’s
Court, Sankarankovil, confirming the judgment and decree made in
O.S.No.48 of 2010, dated 10.04.2018, on the file of the District
Munsif cum Judicial Magistrate Court, Sivagiri.
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2
For Appellant :Mr.F.X.Eugene
For Respondents :Mr.K.Jeyamohan
2 to 5
JUDGMENT
*********
The Second Appeal is filed challenging the concurrent
judgments in A.S.No.20 of 2018, dated 13.4.2022, on the file of
the Subordinate Judge’s Court, Sankarankovil and in O.S.No.48 of
2010, dated 10.04.2018, on the file of the District Munsif-cum
-Judicial Magistrate Court, Sivagiri.
2.The appellant/plaintiff filed the suit seeking the relief of
declaration that the appellant is entitled to 2 feet east-west and
43 ¼ feet north-south and the steps constructed on the west of his
AF Wall to maintain the wall and for restraining the respondents
from interferring with the appellant’s enjoyment, to remove the
encroachment made by the respondents in the AF Wall by stocking
hay-stack and the buildings thereon and for costs.
3.The case of the appellant is that the property described as
ABCDEF in the rough sketch is the property of the appellant. The
property described as EJKL is the property of the respondents. The
disputed property measuring 2 feet x 43 ¼ feet is shown in red
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colour in the rough sketch. ABCD1 property belong to Muthammal
Vagayara. Chithirakannu Pillai purchased this property on
30.11.1949. It is seen in the sale deed that there is a house in
CHIF portion and the remaining portion was vacant. The eastern
boundary of ABCD1 property was shown as Perumal Pillai’s land.
There is a window and drainage water pipes on FG Wall. The plaintiff
purhased the property purchased by Chithirakannu Pillai and the
property on the west by a sale deed, dated 1.9.1989 and
constructed a building in ABCDEF portion. He has not altered the
building in GHIF portion but only did some plastering works. He
closed the window in FG wall and now placed two windows in AG
Wall. There is also sun-shade for these windows. The rain water is
drained through pipe laid on the west of AF Wall. The defendants
disputed the appellant’s right on the further west of the appellant’s
house. A cattle shed is built using wooden sticks by getting
support from FG Wall.There is hay-stack stored on the west of AG
wall.
4.NSJ portion belong to Ramalakshmi. Ramalakshmi sold
PSRKLM portion to one Kaliammal. And kept for herself MNPQ
portion. The defendant purchased EJKL portion from one
Ramalakshmi on 19.02.1996. He has also purchased pathway for
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reaching this property. That is shown on the western side of the
appellant’s house. The defendants deny the appellant’s right on the
west of appellant’s house . In such circumstances, the suit was filed
for the aforesaid relief.
5.The averments made in the plaint as detailed above are
denied by the respondents. It is the case of the
respondents/defendants that the appellant never enjoyed any
portion beyond his AF Wall. The claim made in the plaint that the
appellant is entitled for 2 feet x 43 ¼ feet extent of land on the
west of AF Wall, is absolutely false. The plaint plan does not reflect
the correct details. However, the defendants filed rough sketch with
correct details. In the rough sketch filed by the appellant, the
appellant’s property is shown as ABCDEF. In the said sketch the
property of Ramalakshmi shown as NSJE, properties sold by
Ramalakshmi to Kaliammal is shown as PSRKLM. The portion sold by
Ramalakshmi to the respondents is shown as KJFG. The portion
purchased for using as a pathway is shown as AM1LG. The house
kept by Ramalingam and nearby portion is shown as MNPQ. KUTJ
portion measures east-west 3 ½ feet and south north 20 feet. It
belongs to Chelliah Thevar. The defendants purchased this portion
from Chelliah Thevar by oral sale in the year 1997.Thus he is in
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possession and enjoyment of the property purchased by
Ramalakshmi and Chelliah Thevar shown as KJFG and UTEL. He
constructed buildings using the said property. There is a cattle
shed in E1E2E3E4FGL portion. The respondents are using AM1LG
pathway for raising road on the southern side. Item No.1 of the
properties in the written statement is shown as GFVT and item No.2
of the suit properties is shown as AM1LG.The appellant had
purchased only ABCEDF portion shown in the rough sketch filed by
the defendants on 1.9.1989. There was a house in FF1G1G.There
was no window or rain water draining pipe in the FG Wall. The
appellant constructed building in F1EDC portion and G1BA portion
only recently. When making this construction, he had encroached
GAA1 portion and built a wall to the width of one feet and length of
23 ¾ feet. He also placed two windows in the wall with sunshades.
The drainage pipe was also laid for taking waste water, drainage
water etc., in VY portion. When the respondents demanded the
appellant to remove the windows in February 2019, he refused.
After filing the suit, he made construction in GG1BA portion. The
appellant has no right on the further west of GFA portion and that
exclusively belongs to the respondents. In the said circumstances,
counter claim is made seeking the relief of:
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(1)item No.2 of the schedule property mentioned in the
written statement and GLEF portion exclusively belongs to the
respondents and for consequential injunction;
(2)for the removal of wall measuring one feet width and 23
¾ feet length in GAA1 portion;
(3)for the removal of windows and sunshades and also for the
removal of pipes laid underground in EF portion.
6.During trial, P.W.1 and P.W.2 were examined and Ex.A1 to
Ex.A8 were marked. D.W.1 was examined and no exhibit was
marked on the side of the respondents. Considering the oral and
documentary evidence, the learned trial Judge had dismissed the
suit filed by the plaintiff and also counter claim made by the
defendants. Challenging the judgment appellant/plaintiff filed
A.S.No.20 of 2018.The learned Appellate Judge concurred with the
findings of the trial Court and dismissed the appeal. Thus the
appellant is before this Court by way of this Second Appeal.
7.It is the submission of the learned counsel for the appellant
that his property measures 29 feet east-west on the north 22 feet
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east west on the south and 52 ¼ feet north south on both sides.
Within this extent, his house and two feet lane for the maintenance
of western wall of his house situate. Despite production of sufficient
oral and documentary evidence, the Courts below have negatived
the relief. It is his further submission that though the respondents
made counter claim, respondent have only filed a proof affidavit, but
did not subject himself for the cross-examination. The dismissal of
the suit even in the absence of any contra evidence to the case of
the appellant is not correct. It is his further submission that the
learned trial Judge found that in the absence of measurement of the
properties of both sides, it is difficult to adjudicate the issues
involved in this case and that was the reason for the dismissal of
the suit. Unfortunately, the appellant has not taken any steps for
appointment of an Advocate Commissioner and now requested this
Court that this appeal may be remanded back to the trial Court for
appointment of an Advocate Commissioner and for disposal of the
case on merits.
8.In response to this submission, the learned counsel for the
respondents opposes the remand of the appeal on the ground that
there is no need for appointment of an Advocate Commissioner in
this case. Even if there is a necessity for the appointment of an
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Advocate Commissioner, the appellant should have taken steps for
appointing an Advocate Commissioner before the trial Court or
before the first appellate Court. Having failed to avail the
opportunity, it is not open to the appellant to seek remand of the
matter for the purpose of appointment of an Advocate
Commissioner and for the disposal of the case on merits,when the
matter is pending in Second Appeal stage. He further submitted that
there is no reference in the appellant’s document as to the
availability of two feet lane on the west of his wall. The appellant
failed to prove that he has two feet lane on the west of his western
wall. The Courts below have rightly dismissed the suit and prayed
for dismissal of the Second Appeal.
9.This Court considered the rival submissions made on either
side and perused the records.
10.It is seen from the judgment of the trial Court that P.W.1
and P.W.2 were examined and Ex.A1 to Ex.A8 were marked on the
side of the appellant. Though D.W.1 filed the proof affidavit, it is
seen from the judgment that D.W.1 has not appeared for the
purpose of cross examination. Therefore his evidence filed in the
form of proof affidavit was rejected. The suit was decided only on
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the basis of evidence of P.W.1 and P.W.2 and Ex.A1 to Ex.A8.
Reading of the judgment of the trial Court shows that it had
extensively considered the documents produced by the appellant
and the evidence of P.W.1. The suit was dismissed primarily for the
reason that the plaint plan does not have measurements of the
properties; that no steps had been taken by the appellant for
appointment of an Advocate Commissioner for measuring the suit
properties to identify the alleged encroachment made by the
respondents. In the said circumstances, the learned trial Judge held
that in the absence of measurements, it is not possible to find out
whether the appellant has two feet lane further west on AF wall.
Similarly, the respondents counter claim was also negatived for the
reason that the respondents have not produced any oral and
documentary evidence in support of the written statement
averments. This finding of the trial Court was confirmed by the first
appellate Court.
11.In the light of the discussions held above, it is evident that
the appellant claims two feet lane on the further west of his western
wall of his house for the purpose of maintaining the wall, draining
drainage water and rain water etc.
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12.On the other hand, the case of the respondents is that the
appellant had encroached the respondents land and built a wall.
From the nature of the dispute, it is just and necessary that a
Commissioner along with a qualified Surveyor should inspect the
properties of both the appellant and respondents and file a report
along with a plan, for the Court to come to a right decision.
Unfortunately, as submitted by the learned counsel for the
appellant, either the appellant or the respondents have not taken
any steps for appointment of an Advocate Commissioner to measure
the properties of both to identify the disputed properties. In the
said circumstances, the Courts below found that the Court is not
able to come to a conclusion as to whether the appellant has any
space left on the further west of his AF Wall. In the said
circumstances,though the matter is pending in Second Appeal
stage, to render a substantial justice to the parties, this Court is of
the view that an Advocate Commissioner has to be necessarily
appointed for measuring the properties of the appellant and
respondents with the help of a qualified Surveyor and to file a report
along with plan for helping the Court in making a right decision.
13.In this view of the matter, the judgment of the Courts
below are set aside and the matter is remanded back to the trial
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Court namely, the District Munsif-cum-Judicial Magistrate Court,
Sivagiri, for fresh consideration and disposal on merits. The learned
trial Judge is directed to appoint an Advocate Commissioner with a
direction to inspect the properties of both the appellant and
respondents with the help of a qualified Surveyor on the basis of the
revenue records and the title deeds and to file a report along with
plan for adjudication of the lis involved in this case. The expenses
for securing the service of Advocate Commissioner and Surveyor
has to be borne by the appellant. The learned trial Judge is also
directed to permit the parties to lead any additional evidence, if
proposed by the parties during the hearing of the case and dispose
of the suit on merits, as early as possible, preferably within a
period of three months from the date of receipt of the Advocate
Commissioner’s report along with plan.
14.Accordingly, with the above direction, the Second Appeal is
allowed. No costs. Consequently connected Miscellaneous Petition is
closed.
22.11.2023
Index:Yes/No
Internet:Yes/No
NCC:Yes/No
vsn
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To
1.The Sub-Judge,
Sankarakovil.
2.The District Munsif cum Judicial Magistrate,
Sivagiri.
3.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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G.CHANDRASEKHARAN,J.
vsn
JUDGMENT MADE IN
S.A(MD)NO.625 OF 2022
and
22.11.2023
https://www.mhc.tn.gov.in/judis
