Madras High Court
Vasantha vs Irudayaraj on 21 November, 2025
S.A.Nos.148 & 1027 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 29.08.2025
Pronounced on 21.11.2025
Coram:
The Honourable Mrs. Justice K.GOVINDARAJAN THILAKAVADI
Second Appeal Nos.148 & 1027 of 2022
and C.M.P.Nos.2981 & 22064 of 2022
Second Appeal Nos.148 of 2022
Vasantha
..Appellant
versus
Irudayaraj
..Respondent
Second Appeal Nos.1027 of 2022
Irudayaraj
..Appellant
versus
Vasantha
..Respondent
1
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S.A.Nos.148 & 1027 of 2022
Prayer in S.ANo.148 of 2022
Second Appeal is filed under Section 100 CPC, praying to set aside
the decree and judgement dated 27.08.2021 made in A.S.No.5 of 2021 on
the file of the learned Principal Sub-Ordinate Judge at Pondicherry partly
allowing the judgment and decree dated 12.12.2019 made in O.S. No. 912
of 2007 on the file of the learned I Additional District Munsif, Pondicherry.
Prayer in S.ANo.1027 of 2022:
Second Appeal is filed under Section 100 CPC, praying to set aside
the decree and judgement dated 27.08.2021 made in A.S.No.5 of 2021 on
the file of the learned Principal Sub-Ordinate Judge at Pondicherry,
reversing the judgment and decree dated 12.12.2019 made in O.S. No. 912
of 2007 on the file of the learned I Additional District Munsif, Pondicherry.
S.A.No.No.148 of 2022
For Appellant : Mr. S.Sudharshan
For Respondent : Mr.R.Sreedhar
2
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S.A.Nos.148 & 1027 of 2022
S.A.No.1027/2022
For appellant :Mr.R.Sreedhar
For Respondent : Mr.s.Sudharshan
COMMON JUDGMENT
The Second Appeal in S.A.No.148 of 2022 is preferred by the
defendant in O.S.No.912 of 2007 challenging the judgment and decree
dated 27.08.2021 made in A.S.No.5 of 2021 on the file of the learned
Principal Sub-Ordinate Judge at Pondicherry partly allowing the judgment
and decree dated 12.12.2019 made in O.S. No. 912 of 2007 on the file of
the learned I Additional District Munsif, Pondicherry.
2.The Second Appeal in S.A.No.1027 of 2022 is preferred by the
plaintiff defendant in O.S.No.912 of 2007 challenging the judgment and
decree dated 27.08.2021 made in A.S.No.5 of 2021 on the file of the learned
Principal Sub-Ordinate Judge at Pondicherry, reversing the judgment and
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S.A.Nos.148 & 1027 of 2022
decree dated 12.12.2019 made in O.S. No. 912 of 2007 on the file of the
learned I Additional District Munsif, Pondicherry.
3.For the sake of convenience, the parties are referred to as per their
ranking in the trial Court.
4.The case of the plaintiff is that plaintiff in O.SNo.912 of 2007 had
purchased the suit property from his vendors Lakshmanan and Arumugam
vide sale deed dated 30.08.1988. From the date of purchase he is in
possession and enjoyment of the 'A' schedule property without any
disturbance. He has taken effective steps for raising construction in the 'A'
schedule property. During the 1st week of May 2007, the defendant who is
the owner of the adjacent property, tried to encroach upon the 'B' schedule
property, which is a part of 'A' schedule property and the same was resisted
by the plaintiff. Thereafter, the plaintiff took steps to measure his property
with the help of a surveyor. The defendant despite informed by the plaintiff
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S.A.Nos.148 & 1027 of 2022
regarding the date of surveyor's visit for measuring the properties, did not
give assistance for measuring the property. The defendant gaining
knowledge about the representation given by the plaintiff for measuring the
property, under the ill advice of her husband, encroached into the 'B'
schedule property to an extent of 2x43 feet and started to raise construction
over the same without any right whatsoever. He had reported the matter to
the SHO, Villianur Police station, but the police officials after enquiry
advised the plaintiff to approach the Civil Court. Hence, the suit.
5.The claim of the plaintiff was resisted by the defendant. The
defendant would contend that the property in R.S.No.67/3 belonged to one
Krishnaraj and he has sold the said property to one Nagamuthu by a
registered sale deed dated 26.07.1988 and the said Nagamuthu who also had
the right over the adjacent properties in R.S.Nos. 70/4, 70/7,166/3, 166/7
and 166/8 developed the same by dividing into 65 plots by a lay out. The
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defendant has purchased an extent of 1279 sq.ft in plot No.61 A in
R.S.No.67/3 through a registered sale deed dated 04.09.2006 under Ex.B5.
The defendant took possession of the said property and made arrangements
to start the construction in the year 2007 by investing huge amount. While
so, the plaintiff is claiming a portion of the said property without any right.
Hence, prayed for dismissing the suit.
6. Considering the oral and documentary evidence adduced, the
trial Court decreed the suit in favour of the plaintiff granting the relief of
declaration of title and directed the defendant to handover vacant
possession of encroached portion in 'B' schedule property to the plaintiff,
against which the defendant preferred the appeal suit in A.S.No.5 of 2021.
The first Appellate Court partly allowed the appeal suit directing the
plaintiff to sell the encroached portion to an extent of 49 sq. feet to the
defendant at the rate of Rs.450/- per square feet along with the interest at the
rate of 9% from June 2007 till the date of execution of sale deed within a
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period of three months. Aggrieved by this, the defendant has preferred the
second appeal in S.A.No.148 of 2022 and the plaintiff has preferred the
second Appeal in S.A.No.1027 of 2022.
7.The learned counsel for the appellant/defendant in S.A.No.148 of
2022 would contend that the plaintiff failed to prove the title of his
predecessor who sold the property to the plaintiff and the extent of land that
was delivered to the plaintiff. In this circumstance, a legal duty is cast upon
the plaintiff to examine his predecessor in title which he failed to do so. He
would submit that, in a suit for ejectment the burden of proof is upon the
plaintiff alone and the weakness in the case of the defendant cannot be the
basis for granting such a relief to the plaintiff. The learned counsel would
further submit that, the plaintiff has relied upon Ex.A1 sale deed dated
31.08.1988, to prove his title over the 'A' schedule property. A perusal of
Ex.A1 sale deed would show that the plaintiff has purchased the 'A'
schedule property from one Lakshmanan and Arumugam, sons of Thangavel
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S.A.Nos.148 & 1027 of 2022
pillai and that the property is comprised in R.S.No.70/6 in Plot No.18 & 19
with linear measurements 52 feet on the northern side, 43 feet on the
southern side, 63 feet on the eastern side and 54 feet on the western side and
that the total extent is stated to be 2785 sq. feet. The learned counsel further
submits that neither the plaintiff nor his vendors have measured the property
before their purchase and the same is also admitted by the plaintiff during
his cross examination. Therefore, the burden rests heavily on the plaintiff to
prove the extent of the property which was purchased from his vendors.
Unless the same is proved, the plaintiff cannot seek for declaratory relief.
He would further submit that the variation in the extent between the linear
measurements and the total extent given in Ex.A1 is fatal to the case of the
plaintiff. Where as, the defendant has proved her title over the property
purchased by her measuring to an extent of 1279 sq. feet by producing
Exs.B3 to B5 documents and also by examining her vendor as D.W.3. While
so, the Courts below erroneously held that the property of the defendant lies
in R.S.No.67/3 lying on the south of the plaintiff's property in R.S.No.70/6,
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S.A.Nos.148 & 1027 of 2022
based on the stray admission made by the defendant during her cross
examination, which is contradictory to the well settled principles of law
laid down by three member Bench of Hon'ble Supreme Court of India in
Ambika Prasad Thakur & ors., Vs. Ram Ekbal Rai (dead) & ors. , in 1965
SCC Online SC 52 in which it is held that ''Title cannot pass by mere
admission''.In the present case, a stray sentence that the defendant's
property lies to the south of the plaintiff's property could in no way amount
to an admission of plaintiff's title. As held in the above cited case, title
cannot pass by mere admission and the plaintiff has to independently prove
by cogent and convincing evidence to prove his title. The learned counsel
placing reliance on the decision of the Hon'ble Supreme Court in Smriti
Debbarma (dead) through legal representative vs. Prabha Ranjan
Debbarma & ors., in 2023 19 SCC 782 would submit that, the defendant
cannot be dispossessed unless the plaintiff has established a better title and
right over the entire 'A' schedule property. Therefore, a decree of possession
cannot be passed in favour of the plaintiff on the ground that the defendant
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is unable to establish her title in the portion of 'A' schedule property. The
defendant being in possession of the property is entitled to protect her
possession unless the plaintiff who seeks to dispossess her has a better title.
The learned counsel further relied upon the judgment of the Hon'ble
Supreme Court in 1964 SCC Online SC 313 in Brahmanand Puri vs. Neki
Puri & Anr., and submitted that, the suit being one for ejectment, the
plaintiff has to succeed or fail on the title he establishes and if he cannot
succeed on the strength of his title, his suit must fail not withstanding that
the defendant in possession has no title to the property. His further
submission is that though consent given by a party for marking a document
does not dispense with either the proof of contents of the document or the
truth or otherwise of the contents. To support his contention, he has relied
upon the judgement reported in 1996 2 LW 637. His further contention is
that the Courts below have erroneously placed reliance upon the
Commissioner's report which itself defective, relating to the physical
features of the suit property. The Commissioner's report has been prepared
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S.A.Nos.148 & 1027 of 2022
without measuring the property of the defendant. Unless the properties of
the plaintiff and the defendant is surveyed and measured it cannot be found
out whether there is any encroachment in the plaintiff's property. The
Commissioner during his examination has categorically admitted that he has
measured only the property of the plaintiff and therefore, the findings of the
Courts below on the basis of such incomplete and untenable report, that the
defendant has encroached upon the plaintiff's property is perverse. His
further contention is that the 1st appellate Court is wrong in fixing value for
the alleged encroached portion and directing the defendant herein to
purchase the same from the plaintiff. The first appellate Court has no
jurisdiction to mould such a relief which is neither pleaded nor prayed by
any of the parties to the suit. He would submit that it is settled principle of
law that the parties to the suit cannot travel beyond the pleadings so also the
Court cannot record any finding on the issues which are not part of the
pleadings. In other words, the Court has to record the findings only on the
issues which are part of the pleadings on which parties are contesting the
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case. Any finding recorded on an issue dehors the pleadings is without
jurisdiction. Hence, the learned counsel would submit that the findings of
the learned appellate Court invoking Section 51 of Transfer of Property Act
is wholly without jurisdiction and liable to be set aside.
8.On the other hand, the learned counsel for the appellant/plaintiff in
S.A.No.1027 of 2022 submits that the First Appellate Court erred in
moulding the relief in the appeal, directing the plaintiff to sell his property
which was encroached by the defendant, which relief was not sought by the
plaintiff in the suit. He would submit that the plaintiff has clearly proved the
encroachment made by the defendant by oral and documentary evidence
along with the Advocate Commissioner's report. While so, the First
Appellate Court cannot regularize the said encroachment by directing the
plaintiff to sell the encroached portion to the defendant. The trial Court by
its well reasoned judgment concluded that the defendant has encroached
upon the property of the plaintiff and rightly passed a decree in favour of
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S.A.Nos.148 & 1027 of 2022
the plaintiff which the first Appellate Court ought not to have interfered.
Hence, prayed for allowing the second appeal in S.A.No.1027 of 2022 by
setting aside the judgment and decree passed by the first Appellate Court. In
this regard.
9.The second appeal in S.A.No.1027 of 2022 is admitted on the
following substantial question of law:
Whether the First Appellate Court is right in partly
allowing the appeal filed under Section 96 CPC in the
absence of any specific plea by the respondents in terms of
seeking benefit under Section 51 of Transfer of Property Act?
10.Heard on both sides and records perused.
11.Notably, Section 51 of the Transfer of Property Act deals with
improvements made by a bonafide holder under a defective title. If a person
who has made improvements on a property in the good faith belief that they
were the absolute owner, is later evicted by a person with a better title, the
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evicted transferee has the right to either demand compensation for the
improvements or to buy the property from the true owner at the current
market value. The protection applies to a transferee who genuinely believed
they had absolute ownership and acted in good faith, even if their title is
later found to be defective. The belief must be based on sufficient grounds.
In such a case, the law provides him with two options in the alternative
generally that is in the nature of relief to the transferee. First, he can require
the owner to pay him the value of the improvements effected by him on the
property and in the alternative, he can require the real owner to transfer the
interest in the property to him at the market value. The option is with the
person who evicts the transferee. Transferee has to select any one of the
reliefs given to him by the evictor. Transferee cannot compel the evictor to
give any particular relief to him.[Ref: Moti Chand V. British India
Corporation Ltd., Cawnpore and others reported in 1931 SCC Online All
12.The fundamental principle on which this Section is based is the
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maxim -''one who seeks equity must do equity''. The equity enacted in this
Section gives relief to the transferee of an immovable property who beliefs
himself to be absolutely entitled to make improvements. Where the
transferee who purchased a property was given possession of a larger area
than he was entitled under the deed and who made improvements on excess
land under a mistaken belief that he was entitled to do so. However, a
specific plea is generally required to invoke Section 51 of the Transfer of
Property Act, as the person claiming the right to compensation must be a
transferee who acted in good faith and made improvements while believing
themselves to be the absolute owner. This right is not automatically granted
and must be pleaded in Court as a defence or a counter claim to a suit for
eviction, along with proof that the requirements of the Section have been
met.
13.The Hon'ble Supreme Court in Baini Prasad Vs. Durga Devi,
reported in (2023) 6 SCC 708 has brought the application of Section 51 into
sharp focus. It has reaffirmed the stringent pre-requisits for invoking
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Section 51, emphasising that the status of a bonafide ''transferee'' is pivotal
for its applicability. In essence, Section 51 of the Transfer of Property Act
aims to protect the rights of transferees who, acting in good faith, enhanced
the value of immovable property they believe they are rightfully entitled to.
Therefore, this provision serves to balance the interests of all parties
involved in property transactions and upholds the principles of justice and
equitable treatment in such situations.
14.In the present case, at first it must be noted whether the defendant
has encroached upon the plaintiff's property and such encroachment is done
by the defendant believing in good faith that she is the absolute owner of the
said property. Since it is a suit for possession, the burden is heavily on the
plaintiff to prove his title in the said property. From the bare perusal of the
impugned judgments, it is seen that the Courts below relying upon the
Commissioner's report, came to the conclusion that the defendant has
encroached upon the plaintiff's property. Admittedly, the Commissioner's
report and plan are prepared based on the measurements of the plaintiff's
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property, without measuring the property of the defendant. It is the specific
contention of the defendant that she has purchased 1279 sq. feet under
Ex.B.5 sale deed and by examining her vendor as D.W.3 confirms the same.
While so, the Courts below have held that the property of the defendant lies
in R.S.No.67/3, and the same lies to the south of the plaintiff's property in
R.S.No. 70/6 based on the stray admission made by the defendant during her
cross examination, without perusing any revenue records. Moreover, the
Commissioner and Surveyor reports are based on FMB and lay out. While
so, the Courts below ought to have called for the FMB and lay out
pertaining to the disputed property, for proper identification of the said
property. Further, the report of the Advocate Commissioner and surveyor
sketch would not depict the correct lie of the properties without measuring
the defendant's property. The Commissioner ought to have insisted the
surveyor to measure the defendant's property also before arriving at a
conclusion that the defendant has encroached upon the plaintiff's property.
Therefore, if any order is pronounced without a perfect sketch, it is not
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possible to find out whether the plaintiff's property is encroached by the
defendant. Moreover, without establishing the factum of encroachment and
without analyzing whether such encroachment is done in good faith, the
first appellate Court ought not to have invoked Section 51 of Transfer of
Property Act.
15. Therefore, there is no option for this Court except to remit the
matter to the trial Court for reissuing the Commissioner's warrant to the
same Commissioner if available or to any competent Advocate
Commissioner with the aid of qualified Surveyor for measuring the
properties of the plaintiff and the defendant and to file a fresh sketch along
with this report and also to direct the Revenue Authorities to produce the
FMB and lay out for the said properties. The parties are at liberty to file
necessary applications before the First Appellate Court for reception of the
Commissioner's report and sketch as additional documents apart from
relevant other documents to be produced for the purpose of enabling the
Court to have a fair adjudication on the issue. Therefore, it has become
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necessary for this Court to set aside the judgement and decree passed by the
First Appellate Court and the trial Court and to remand the matter for fresh
disposal as per the directions indicated above.
16.For the forgoing discussion, I am of the considered view that
the judgment and decree passed by the Courts below have to be set
aside and accordingly, set aside. The parties are given opportunity to
adduce further evidence by way of filing applications regarding the
production of documentary evidence and also to file necessary
application for re-issue of warrant to the same Commissioner if
available, or to appoint any other Commissioner, to measure the properties
once again and produce necessary sketches with actual measurements
along with this report and such report shall be received by way of
additional evidence and pass a judgment in accordance with law. If the
Court finds that the defendant has encroached upon the plaintiff's
property as bonafide transferee, the trial Court can invoke the
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provision under Section 51 of the Transfer of Property Act, if the same is
opted by the respective parties. The trial Court is directed to complete the
above exercise within a period of three months from the date of receipt of
copy of this order.
17.Accordingly, these second appeals are disposed of. No costs.
Consequently, connected miscellaneous petitions are closed.
21.11.2025
vsn
Index: Yes/No
Speaking order / Non-speaking order
NB : The Registry is directed to issue
order copy on or before 15.12.2025 and
to send back their records to the trial
Court.
To
1.The Principal Sub-Ordinate Judge at Pondicherry
2.The I Additional District Munsif, Pondicherry
3.The Section Officer, VR Section, High Court, Madras
K.GOVINDARAJAN THILAKAVADI,J.
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S.A.Nos.148 & 1027 of 2022
vsn
Pre-delivery judgment made in
Second Appeal Nos.148 & 1027 of 2022
and C.M.P.Nos.2981 & 22064 of 2022
21.11.2025
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