Madras High Court
Kalarani vs Dhanuskodi Ramalingam on 10 March, 2025
SA(MD)No.170 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 10/03/2025
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
SA(MD)No.170 of 2007
and
MP(MD)No.1 of 2007
Kalarani : Appellant/Appellant/
Defendant
Vs.
Dhanuskodi Ramalingam : Respondent/Respondent/
Plaintiff
PRAYER:-Second Appeal is filed under Section 100 of
the Civil Procedure Code, against the judgment and decree
passed in AS No.57 of 2006, dated 31/07/2006 on the file
of the 1st Additional Sub Court, Tirunelveli, confirming
the judgment and decree passed in OS No.1243 of 2004,
dated 10/01/2006 on the file of the Principal District
Munsif Court, Tirunelveli.
For Appellants : Mr.S.Prabhu Rajadurai
For Respondent : Mr.Meenakshi Sundaram
Senior Counsel
for Mr.S.M.Sengu Vijay
J U D G M E N T
This Second Appeal is filed against the judgment and
decree passed in AS No.57 of 2006, dated 31/07/2006 by
the 1st Additional Sub Court, Tirunelveli, confirming the
judgment and decree passed in OS No.1243 of 2004, dated
10/01/2006 by the Principal District Munsif Court,
Tirunelveli.
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2.The averments in the plaint in brief:-
The suit property originally belonged to one
Srinivasa Pillai. He executed a settlement deed in favour
of his son by name P.Subramania Pillai. Subramania
Pillai sold the property to one Shanmugam on 23/01/1984.
Thereafter, Shanmugam sold the property to the plaintiff
on 06/01/1999.
3.Ever-since from the date of the purchase, the
plaintiff is in possession and enjoyment. The defendant
is a total stranger to the property. Along with the
plaint, a rough sketch is annexed. The first schedule is
shown as A,B,C,D,E,A1. The second schedule is shown as
A,A1,B,B1. The second schedule is a portion of the first
schedule.
4.On the west of AB portion in the first schedule,
the defendant's property is situated. The second schedule
is a vacant site. The plaintiff and his predecessor-in-
title were using the second schedule to reach the first
schedule to maintain A1, B1 wall right from the
beginning. 2 windscreens in the ground floor, 2
windscreens in the first floor and sunshades are
available in the house namely on A1 and B1 wall. One feet
breath gowtham is available. The defendant has no right
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in the second schedule property. Originally, the western
portion of A,B was a vacant site. The defendant made
arrangement to construct a house. At the time of
constructing the house, he left a space on the west of
the second schedule. A pillar, Hand pump was installed
in the second schedule. Drain water pipe was fixed to
drain the water in the second schedule. Because of
raising of the second schedule, the plaintiff's ground
floor is lowered. Because of that, the drainage water is
flowed into the house, causing damage to A1 and AB wall.
The plaintiff requested the defendant to remove the
offending structures. He promised. Later put up a gate in
B and B1 area, on 24/10/2004. That gate is blocking the
plaintiff to reach the second schedule. So, the suit is
laid for declaration that the suit second schedule
belongs to him, removing the offending construction and
permanent injunction.
5.The defendant filed written statement containing
following averments:-
The second schedule never belongs to the plaintiff.
The western boundary in the first schedule is defendant's
property situated in Door No.116A. The rough sketch
annexed along with the plain does not indicate the clear
picture. The second schedule is the pathway leading to
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the defendant's property. It is denied that the second
schedule was used by the plaintiff for reaching A1 and B1
portion for white washing, maintenance, etc. It is denied
that when the plaintiff was not available in the station,
the defendant put up construction in the second schedule.
After obtaining the plan approval, construction was made
by the defendant.
6.On the basis of the pleadings, the trial court
formulated the following issues:-
(1)Whether the plaintiff is
entitled to get the relief of
declaration that the 2nd schedule
property belongs to the 1st plaintiff
alone?
(2)Whether the plaintiff is
entitled for permanent injunction as
prayed for?
(3)Whether the plaintiff is
entitled for mandatory injunction as
prayed for?
(4)Whether the 2nd schedule
property is not belonging to the
plaintiff?
(5)To what other relief?
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7.On side of the plaintiff, 2 witnesses examined
and 8 documents were marked. On the side of the
defendants, 2 witnesses examined and 3 documents were
marked. Apart from that the Commissioner's report and
plan were marked as Exs.C1 and C2.
8.At the conclusion of the trial process, the trial
court decreed the suit as prayed for with costs and the
defendant was directed to remove the structure in the
second schedule within three months. Against which, the
defendant filed AS No.57 of 2006 before the I Additional
Subordinate Judge, Tirunelveli. The appeal was dismissed
by the appellate court, confirming the judgment and
decree of the trial court.
9.Against which, this second appeal is preferred.
10.At the time of admission, the following
substantial question of law was framed:-
“Whether the first appellate court
is correct in rejecting the application
filed under Order 41 Rule 27 of C.P.C
and also disposing the application for
reissue of Commissioner warrant?
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11.After perusal of the records, and on hearing the
argument on both sides, the following additional
substantial question of law is framed.
“When the dispute between the
parties is really in the location of
the boundary between the property of
the parties, whether the suit for
declaration is maintainable without the
prayer for demarcation of the
property?”
12.Heard both sides.
13.The facts and issues are very simple. Both the
plaintiff and the defendant are neighbours. The plaintiff
house and the disputed second schedule lies on the
eastern side of the defendant's house.
14.Without referring to the rough sketch annexed
along with the plaint, we can straightaway go to the
Commissioner's report and plan for better appreciation,
which were marked during the course of the trial, as
Exs.C1 and C2. It was ex-parte appointment of
Commissioner. The trial court directed the Commissioner
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to note down the physical features and file a report. He
issued notice to the plaintiff's counsel about the
proposed visit, on 01/11/2004 at about 05.30 pm. At that
time, the plaintiff and his counsel were present. The
defendant was also present in that spot and notice of
inspection was given to him. The advance intimation could
not be served upon the defendant, since he was not
available, on 28/10/2004. But on the date of the visit,
the defendant was present, notice of investigation was
given to him. He marked the suit first item as 'ABCD'. AB
measures 55.7 feet. BC measures 17-1/4 feet on the east.
AD measures 17-1/4 feet on the north. North-South
measurement on the west was noted as 33-1/4 feet. On the
east of the first item, there is a small lane, which is
not the subject matter of the issue now. It measures 3.3
feet. The inner measurement was noted as 3-1/4 feet. B,
B1 measures 2.75 feet.
15.A portion marked as 'CDEF' is the second item,
which is disputed property between the parties. D portion
measures on the north as 5 feet. From the measurement
taken by the Commissioner, it is seen that the disputed
portion measures 5 feet.
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16.Now coming to the physical features available in
the disputed second item in the plaintiff as well as the
defendant's wall, as mentioned above, CD is the western
absolute wall of the plaintiff. There is no dispute in
it. In that wall, two windows and nulli (gowtham) is
present, apart from a tap water connection is also
available which is noted as P.
17.Now on the eastern wall of the defendant, K, K1
are the two windows available in the defendant's wall. L
and L1 are the front entrance of the defendant. A motor
is put up noted as M, M1. Q and Q1 are water drainage
pipe. A bore well is put up noted as T. There was no door
in the CF portion. 'O' refers to a new pillar measuring
about 1 x 10 closure to the CD wall. A slab was put up
in CF portion. So, the physical feature available in the
walls of the respective parties indicates that the second
item is a small portion measuring east-west 5 feet
situated in the middle of their houses prima face
indicates a common space to both.
18.The problem lies is measurement. There is a clear
finding by the trial court as well as the appellate court
that as per the Commissioner's report and plan, the
document of title produced by the plaintiff tallies. But
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since the defendant did not permit the Commissioner to
take out the measurement of his property, it could not be
verified with reference to his title document.
19.Even though, an endorsement was made by the
learned counsel appearing for the defendant as well as
the plaintiff in the Commissioner report for filing
objection, it appears that that was not done by the
parties before the trial court. That was noticed by the
appellate court. An attempt was made by this appellant
before the appellate court to reissue the Commissioner
warrant for measuring the appellant's property with
reference to the title document also. But that came to be
rejected by the appellate court. This is seriously
objected by the appellant at the time of argument.
20.The learned counsel appearing for the appellant
would submit that in view of the rejection of the request
by the appellant court, the matter may be remitted back
to the trial court for reissuing the warrant to measure
the properties of both parties with reference to their
title documents. He would also referring to the reference
made by the Commissioner. According to him, the eastern
side lane was not included in the total measurement.
According to him, it is a mistake committed by the
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Commissioner by measuring the property and he is
referring to the judgment of this court reported in
Vadivel (died) and others Vs. Rengasamy and another [2020
0 Supreme (Madras) 403] as to the evidentiary value of
the ex-parte Commissioner report. According to him, for
rendering justice between the parties, it is imperative
on the part of this court to remit the matter to the
trial court for fresh consideration.
21.Per contra, the learned Senior counsel appearing
for the respondent by relying upon the judgment of this
court reported in Pappayee Ammal Vs. Subbulakshmi Ammal
and another [CDJ 1982 MHC 319] would submit that the
attempt made by the appellant before the appellate court
is per se illegal and such a reissue can be made only in
rare cases. According to him, it was rightly rejected by
the appellate court, which requires no reconsideration by
this court.
22.The learned Senior counsel appearing for the
respondent would draw the attention of this court to the
physical feature available, As noticed above, on the
western wall structures are available. It is true that
the physical feature available on the western wall of the
plaintiff does prima facie indicates that second item was
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under the use of the plaintiff for drainage repairing,
maintaining the western wall.
23.The defendant put up construction recently,
before the suit and certainly not at that time of
purchase made by the plaintiff. After purchase, the
plaintiff did not make any alteration. He would say that
2-1/1 feet is available to him on the west of his western
wall. This is specifically pointed out by the trial court
in the judgment. The son of the plaintiff's Vendor was
examined as PW2. He would say that his father sold
inclusive of 2-1/2 feet situated on the west of the
western wall. Similarly, the defendant also left 2-12
feet on the east of his eastern wall and put up a new
construction. It was admitted by the plaintiff in the
plaint. As mentioned above, the total breadth of the
second item measures 5 feet, which means that the
plaintiff is entitled for 2-1/2 feet and the defendant
remaining 2-1/2 feet. But the matter does not rest with
it.
24.The learned counsel appearing for the appellant
has brought an important fact at the time of argument. He
would say that as per Ex.A2 title document of the
plaintiff, east-west measurement on the north measures
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about 17-1/4 feet. But, as per the Commissioner's report
now it measures 17-3/4 feet on the south inclusive of
drain area. East-west measurement is noted as 19-3/4
feet. Now he is referring to Ex.A1, the prior title deed
of the vendor, wherein the measurements are mentioned in
Tamil version of measurement as north 21 Jathi Adi ($hjp
mo) inclusive of eastern, north-south exclusive lane. On
the south includes of drain area. On the west measuring
about 23-1/2 Jathi Adi ($hjp mo).
25.Now the learned counsel appearing for the
appellant by comparing the description of property in
Exs.A1 and A2 with reference to the measurement, would
submit that the Commissioner has not taken into account
the measurement between A, A1 to calculate the total A1,
A,D portion.
26.Continuing the argument on the side of the
appellant, the learned counsel appearing for the
appellant would submit that conversion of feet from Jathi
Adi ($hjp mo) was not properly made and that was the
main reason for wrong appreciation of the measurement by
the trial court as well as the appellate court. Now it is
commonly accepted that one Jathi Adi ($hjp mo) will be
equivalent to 10.46 inches.
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27.As mentioned in the second substantial question
of law, the boundary line between the plaintiff purchased
property and that of the defendant property with
reference to their title document ought to have been
fixed. Since, as admittedly the rough sketch annexed with
the plant does not indicate the correct position. In the
plaint sketch, the second item is shown as 5 feet east-
west. But actually, as mentioned above, the plaintiff is
entitled to 2-1/2 feet on the western of his western wall
and the defendant 2-1/2 feet on the eastern of his
eastern wall as indicted by the trial court in its
judgment. But a mistake has been committed by the trial
court in annexing the rough sketch drawn by the plaintiff
along with the decree. Without demarcating 2-1/2 feet
claimed by the plaintiff, the trial court have found that
the structure put up by the defendant lies within 2.6
feet on the west of the plaintiff's western wall.
28.So, I am of the considered view that a finding
can be called for from the trial court by reissuing the
warrant to the very same Commissioner if available, if
not, to some other Commissioner to measure the property
of the plaintiff and the defendant with reference to the
title document and fix the boundary line between the
parties and the structure available within 2.6 feet from
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the western wall of the plaintiff. The parties are at
liberty to lead evidence so that a finding can be
recorded by the trial court in this aspect.
29.The expenses for the Commissioner must be borne
by the appellant herein. Let the finding be submitted by
the trial court within a period of six months from the
date of receipt of a copy of this order. The Registry is
directed to list the matter for final disposal after
receiving the finding from the trial court.
10/03/2025
Index:Yes/No
Internet:Yes/No
er
To,
1.The I Additional Sub Judge,
Tirunelveli.
2.The Principal District Munsif,
Tirunelveli.
3.The Section Officer,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
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G.ILANGOVAN, J
er
10/03/2025
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