Madras High Court

Chinnaraj vs Kaliammal (Died) on 21 November, 2025

                                                                                             S.A.No.858 of 2019


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                          Reserved on                         25.08.2025
                                        Pronounced on                           21.11.2025
                                                     Coram:

                         The Honourable Mrs. Justice K.GOVINDARAJAN THILAKAVADI

                                           Second Appeal No.858 of 2019
                                            and C.M.P.No.17734 of 201

                     1.Chinnaraj
                     2.Tamil
                     3.Sathish
                     4.Devaraj
                                                                                       ..Appellants
                                                             versus

                     Kaliammal (died)

                     1.K.Palanisamy
                     2.Loganathan

                                                                                       .. Respondents

                     Prayer: Second Appeal is filed under Section 100 CPC, praying to set aside
                     the decree and judgement dated 15.02.2019 made in A.S.No.24 of 2018 on
                     the file of the learned Sub Judge, Sathyamangalam, Erode District
                     confirming the judgment and decree dated 16.04.2018 made in O.S. No. 11
                     of 2015 on the file of the learned District Munsif, Sathyamanagalam,Erode

                     1




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                                                                                             S.A.No.858 of 2019


                     District by allowing the Second Appeal.
                                  For Appellants  : Mr. I.C.Vasudevan
                                  For Respondents : Mr. A.Sundaravadhanan
                                                        for Rr1 and R2


                                                              JUDGMENT

The above second appeal arise out of the judgment and decree dated

15.02.2019 made in A.S.No.24 of 2018 on the file of the learned Sub

Judge, Sathyamangalam, Erode District confirming the judgment and decree

dated 16.04.2018 made in O.S. No. 11 of 2015 on the file of the learned

District Munsif, Sathyamanagalam, Erode District.

2.The unsuccessful defendants have preferred this second appeal.

The plaintiff's case is that the suit property originally belong to her

father Suppanna Goundar vide partition deed dated 09.10.1975, who

executed a Will in favour of the plaintiff on 11.02.1993 and after his demise

the plaintiff became the absolute owner of the suit property. The plaintiff is

cultivating in the suit property. Therefore, the plaintiff is alone in

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possession and enjoyment of the suit property. The defendants are

possessing land on the south of the suit property. While so, the defendants

were attempting to plough their land by crossing through the plaintiff's

land and the same was successfully prevented by the plaintiff. Since the

attempt of the defendants to purchase the suit land failed, the defendants on

28.01.2015 stored the materials in the suit property for installing an iron

fence in the suit property. After the suit, an Advocate Commissioner was

appointed to note down the physical features in the suit property. While so,

on 29.01.2015 before the Advocate Commissioner visited the suit property,

the defendants have encroached an extent of 0.47 cents in the suit property

without any authority. Hence, the plaintiff was constrained to file the above

suit for declaration of title and for permanent injunction. After the alleged

encroachment, the plaintiff amended the plaint, including the prayer for

recovery of possession of the 'B' schedule property directing the defendants

to remove the iron fence from the suit property and hand over the

encroached portion to the plaintiff.

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2.1.The claim of the plaintiff was resisted by the defendants stating

that originally the father of the 4th defendant namely Chenna Naicker and

one Palaniappan son of Chinna Naicker jointly purchased a specific extent

of Hc.1.86.5 in S.F.No.256 along with an extent of Hc.1.40.0 in

S.F.No.228/2 of Sathyamangalam Village under the sale deed dated

04.07.1984. In a subsequent oral partition between them, the northern 2.30

acres, corresponding to T.S.Nos.7/2 and 7/3 was allotted to the share of

Chenna Naicker and the southern 2.31 acres, corresponding to T.S.No.7/4

was allotted to Palaniyappan.

3.Thereafter, the said Chenna Naicker and the sons of Palaniyappan

namely Muthuraj and Mohanraj entered into a registered cart track

agreement dated 01.07.2009 measuring 226 ft. in length and 15 feet width

within the western and northern portions of T.S.No.7/2. It is further

submitted that the plaintiff's land in old S.f.No.283A, corresponding to new

S.F.No.256/1 and T.S.No.7/1 is situate to the north of the above mentioned

cart track in T.S.No.7/2. The plaintiff suppressing the existence of the said

cart track in T.S.No.7/2 and by omitting to furnish the town Survey number

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of her property has filed the present suit which is liable to be dismissed.

4.It is further submitted that on 16.07.2010 the 4th defendant and his

father Chenna Naicker along with his brother and sisters entered into a

registered partition deed with regard to their family properties. In the said

partition deed, an extent of 2.08 acres in T.S.No.7/2 & 7/3 was allotted to

this defendant's father Chenna Naicker under 'A' schedule, who in turn

executed a registered Will on 16.07.2010 and in the said Will, the northern

1.04 acres in T.S.No.7/2 and T.S.No.7/3 was bequeathed to the 4th

defendant and the southern 1.04 acres was bequeathed to the 1st defendant.

On 08.09.2014, the said Chenna Naicker died and the Will came into force.

Hence, the 4th defendant became absolute owner of the northern 1.04 acres

in T.S.No.7/2 & T.S.No.7/3 and the 1st defendant became owner of the

southern 1.04 acres in the said survey numbers. It is submitted that there is

no demarcation ridge between the plaintiff's land in T.S.No.7/1 and this

defendant's land in T.S.No.7/2 as alleged by the plaintiff. The 15 feet width

east west cart track is in T.S.No.7/2 which is lying to the south of plaintiff's

land. Hence, the allegation of the plaintiff that the defendants attempted to

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plough the plaintiff's land beyond the alleged ridge is absolutely false. This

defendant is alone cultivating commercial crops in T.S.No.7/2 & 7/3 and

where as, the plaintiff's land is a dry rain fed land. In the 1 st week of January

2015, for the purpose of protecting the crops in his land, the 4th defendant

has put up wire fences along the western and northern boundaries of his

land which is to the south of the said cart track. While so, on 07.01.2015 the

plaintiff attempted to obliterate the east west cart track by making false

claim over it for which the defendant lodged a complaint in the police

station.

5.In the additional written statement it is stated that the allegation

made in the amended plaint that before the visit of the Advocate

Commissioner on 30.01.2015, the 4th defendant unlawfully encroached an

extent of 0.47 cents in the suit property is totally false. The interim report

dated 05.02.2015 submitted by the Advocate Commissioner stating that this

defendant encroached upon the suit property is also false and factually

incorrect. It is submitted that none of the defendants have made any

encroachment in the suit property as alleged by the plaint. The defendants

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are in possession and enjoyment of their properties as per their title deeds.

Moreover, the said cart track was formed within the western and northern

portion of T.S.No.7/2. Hence, no new cart track was formed before the visit

of the Advocate Commissioner on 30.01.2015 as alleged by the plaintiff.

Therefore, the report of the Advocate Commissioner stating that out of 4.86

acres in old S.F.No.283A, 3.95 acres is in new S.F.No.256/1, 0.56 acres is

in New S.F.No.256/2 and 0.40 acre is in new S.F.No.228/1A are only

imaginary and incorrect. Hence, the plaintiffs' claim for declaration of title

with regard to the 'A' schedule property and delivery of possession of the 'B'

schedule property on the basis of the report and the plan of the Advocate

Commissioner is unsustainable. It is submitted that without measuring

S.F.No.283A and fixing its boundaries, the suit property measuring 83

cents cannot be identified. Hence, prayed for dismissal of the suit.

6.Considering the oral and documentary evidence adduced the trial

Court decreed the suit in favour of the plaintiff. The First Appellate Court

also dismissed the appeal filed by the defendants.

7.The second appeal is admitted on the following substantial

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questions of law:

1.Whether the courts below are correct in holding that the survey measurements taken by the Commissioner based in Re-survey without verifying the same with the corresponding old survey proceeding are correct and decreed the suit?

2.Whether the courts below are correct in relying on the measurements taken in a piece meal manner by the surveyor that too on Resurvey instead of either the Town survey stones which is available at present or old survey proceedings as mentioned in parental deeds?

3.Whether the courts below are correct in relying on the commissioner's report especially when there is a total contradiction between the interim report and the final report filed by the commissioner?

8.The learned counsel for the appellants/defendants would submit

that the defendants have traced their title over 'B' schedule property based

on Exs.B1 to B.3 Revenue records. The Advocate Commissioner has

identified the suit property based on the boundaries of the adjacent land and

not by measuring the property from the boundary stone and therefore, the

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report and plan of the Advocate Commissioner ought not to have been

accepted by the Courts below. It is further submitted that the First Appellate

Court erred in holding that the appellant's predecessor in title did not

purchase any land in old S.F.No.283/A from one Rangasamy Goundar

under Ex.B.1 especially when the said Rangasamy Goundar was allotted 'A'

schedule property in the partition took place on 05.03.1965 and he was

allotted 0.44 cents and the same was also not denied by the plaintiffs. The

Courts below have failed to consider that the plaintiff's have no right in the

suit property and the defendants alone have clear title over the 'B' schedule

property and that the defendants did not encroach any land of the plaintiffs.

The measurements taken by the Advocate Commissioner based on resurvey

without verifying the same with the corresponding old survey proceedings

is incorrect. Moreover, the interim report filed by the Advocate

Commissioner is contrary to his final report. The surveyor ought to have

measured the properties from the town survey stones or based on old survey

proceedings as mentioned in the parent documents. The findings of the trial

Court that boundaries would prevail over the measurement is incorrect and

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the same was not considered by the lower Appellate Court by framing

necessary points for consideration in this regard. The Courts below failed to

consider the parent title deed marked as Ex.B.1 on the side of the defendant.

Hence, prayed for allowing the second appeal.

9.On the other hand, the learned counsel for the respondent would

submit that the Courts below, upon considering the oral and documentary

evidence led by the plaintiff and the report of the Advocate Commissioner

rightly found that the defendants have encroached upon the plaintiff's 'B'

schedule property and accordingly decreed the suit granting the declaratory

relief and recovery of possession which warrants any interference by this

Court.

10.This Court carefully considered the submissions of the learned

counsel on both sides and perused the material papers placed on record.

11.Originally the suit was filed for an extent of 83 cents in old

S.No.283A corresponding to new survey Nos. 256/1 to 256/3 for the relief

of declaration of title and for injunction. After filing of the Advocate

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Commissioner's report and plan, the plaint was amended, deleting survey

No.256/3 and by adding new S.No.228/1A, T.S.No.7/1, 7/2 and 8/1, shown

as 'B' schedule property, sought for recovery of possession in respect of 'B'

schedule property. It is the specific contention of the defendants that

without measuring the land in S.No.283A, the suit property cannot be

identified based on the survey numbers given in the plaint.

12.Admittedly, the plaintiff is tracing her title through the deeds

dated 05.03.1965 and 09.10.1975 and through the Will dated 11.02.1993.

According to the plaintiff, his father Suppanna Goundar and one

Rangasamy Goundar owned 5.30 acres of land in S.No.283/A. They divided

the property in which Suppanna Goundar was allotted 4.86 acres of land

and Rangasamy Goundar was allotted 0.44 cents and the same is established

through Ex.A1 partition deed. Thereafter, the said Suppanna Goundar and

his Son Palanisamy Goundar divided the property in which Suppanna

Goundar was allotted 83 cents and Palanisamy Goundar was allotted 4.03

cents which is evident from Ex.A2 partition deed. The said Suppanna

Goundar under Ex.A3 had given his 83 cents of land to the plaintiff. The

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Advocate Commissioner inspected the suit property, measured the same

with the help of surveyor and filed his report and plan marked as Exs.C.1 to

C.4 respectively. In Exs.C.3 and C.4 report and plan, it is shown that the

suit property is comprised in survey Nos.256/1, 256/2 & re-survey

No.228/1A. After the said report, the plaint is amended accordingly. The

same was objected on the side of the defendants stating that the survey

ought to have been conducted in respect of 5.30 acres of land as mentioned

in Ex.A3 Will and therefore, the survey conducted in respect of the land

measuring 4.86 acres lying to the north of 5.30 acres of land and identifying

the suit 83 cents of land is incorrect. It is submitted that, the suit land ought

not to have been identified on the basis of Exs.C3 and C4. However, Ex.C1

to C4 would reveal that the old survey No.283A is part of resurvey no.256

and that the re-survey No.256 was sub divided into 256/1 to 256/3. Further,

it is also mentioned that the above three survey numbers are connected with

survey No.283/A. Likewise, the old survey No.283B is part of Survey

No.228/1 and the same has been subdivided as survey No.228/1A and

228/1B and that the old survey No.283B includes the above two

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subdivisions. The above report and plan confirms that the suit 83 cents of

land is comprised in S.No.283A with specific boundaries.

13.Though it is contended on the side of the defendants that the

survey number mentioned in the suit is incorrect and the measurements

done based on the incorrect survey Number cannot be accepted, the

defendants have not raised any objections to the boundaries described in the

suit. It is well established general principles of law that the boundary

descriptions shall prevail over survey number, extent, side measurements

etc. The Hon'ble Apex Court in Subhaga vs. Shoba, 2006 -5 SCC 466

observed as under:

''That a property can be identified either by boundary or by any other specific description is well established. Here the attempt has been made to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail.''

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Notably in, The Church of South India Trust Association Vs.Raja Ambrose , (1978) 2 MLJ 620, it is further laid down as under:

''Where the deed sets out the extent and measurements correctly, there can be no difficulty in determining the subject matter of the grant. But where no measurements are given or the extent mentioned in the deed is either vague or is only a rough and ready approximation, one has to look to other indications in the deed in order to fix the identity of the property which is the subject of the grant. If the deed in question sets out the boundaries of the property conveyed, then these boundaries will have to be accepted as a clear reflection of the intention of the grantor and they will conclude not only the exact position of the property conveyed, but also its true extent. The boundaries given in the deed will also in such cases, prevail over the measurements given in the deed, if these are given as approximations.''

14.Hence, it is settled law that boundaries prevail over extent and

survey numbers as also measurements, because they are considered a more

reliable and precise way to identify a property on the ground, especially

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when there are discrepancies. When a conflict arises between the two, the

physical, locatable boundaries are given precedence by Courts. The

Commissioner's report reveals that the suit property is measured based on

the boundaries.

15.On the side of the defendants, it is contended that without

measuring the entire land of 5.30 cents in S.No.283A the suit property

cannot be identified. In this regard, the evidence of land surveyor examined

as D.W.3 is relevant and the same is extracted as hereunder:

jhth g{kpia e Pj p k d; w Mizah; brhd;d g o jhd; m s e ; nj d;/ jhth brhj;ij giHa kw; W k; uP rh;nt vz; m o g; gilap y; m s e ; nj d;/ jhth brhj;jpd; giHa ru;nt vz;/283? d; uP rh;nt vz;/256- 1.

                                    256- 2.    256- 3           kw; W k;             228- 1 A/ ru;nt
                                    vz;/256- 1 Kjy; 256- 3 g{kpf s p y ;                          bkhj;jk;
                                    g[/V/15/67 brz;l; g{kpia m st P L                           bra;njd;/
                                    m e;j     bkhj;j           g{kpa p y;                  e P k r h M/4? y;

,s;";rptg;g[ tu;zkpl;l Vf;fh; 5/30 brz;l; g{kpia

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milah s k ; fhzg;gl;lJ/ m e;j g{kpf;F s ; tlg[wkhf Vf;fh; 4/86 brz;l; g{kpia m s e ; J milah s k ;

                                  fhl;on d d;/        eh d;         giHa         kw; W k;           u P/rh;nt
                                  rk;k e;jg;gl;l          Mtz';fis            itj;J          jhd;       m st P L
                                  bra;njd;/ m s g ; gj w; F                  Kd;g[ vy;iyf; fw;fis
                                  rhp ghh;j;J c Wjp bra; J bfhz;l gp w F jhd;.
                                  MizaUld;              nrh; e; J             mst P L               bra;njd;/
                                  m g; b g h G J          ,U          jug;g[             tHf;fwp"h;f S k;
                                  cldp U e ;jh h;f s;/           m s t P l; o d;             bg h G J     ,Ue;j
                                  $';rd;    fy;yh d J           giHa          ru;nt           kw; W k;       uP
                                  rh;nta p d; bgh G J k ; ,Ue;j fy;ny jhd;/ giHa
                                  kw; W k; u P rh;ntap y; rh;nt vz;/256- 1?d;
                                  tlg[w vy;iya p y; v e;j kh w; w K k ; ,Uf;ftpy;iy/
                                  brhj;ij m s e ;j          bgh G J            giHa            rh;nt     fw;fs;
                                  epiy a p y; ,Ue;jJ/ u P rh;nt fw;fS k; ,Ue;jJ/
                                  m e;j giHa kw; W k; uP rh;nt fw;fis mUfp y;
                                  ,Ue;j g{kpa p y; c s; s fw;fs p y p U e ; J                           mse;J
                                  c Wjp bra; J bfhz;nld;/ Kjy; Kiw m s f;f brd; w






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                                  bgh G J           mUfp y;                  ,Ue;j               g{kpa p d;
                                  chpik a h s h ;f s ;.      mth;f s;           g{kpf;F s ;         brd; W

fw;fis fz;lwptjw;fhf m s f;f tplhjjhy;. Mizah;. fhty; Jiw cjtp bg w; W te;jjd; m o g; gilap y;.

kP z;L k; m st P L bra; J giHa kw; W k; uP rh;nt fw;fis c Wjp g; g Lj;jpf; bfhz;nld;/ uP rh;nt vz;/255? d; giHa rh;nt vz;fs; 281 A. 281 B. 282 A. 282 B/ m e;j giHa rh;nt vz;/255? d; m gjpntL kw; W k; g[y tiuglj;jpd; rhd; w pl;l efiy e Pj p k d; wj;jp w; F vLj;J te;jpUf;fpn w d ;/ m e;j Mtz';fis e Pj p k d; wj;jpy;

                                  jhf;fy;       bra;jpUf;fpn w d ;/                        mit      Kiwn a
                                  rhjrh/M15 kw; W k;                  rhjrhM/16/ u P                  rh;nt
                                  vz;/255?f; F k;          giHa           rh;nt            vz;/283?f; F k;
                                  rk;k e;jk; ,y;iy/ mjdh y;. rh;nt vz;/256- 1?d;
                                  tlg[w               vy;iya p y;                          rhjrhM/12? y;
                                  F w p g ; g pl g; gl;l yp';!; m s t p w ; F k ;. giHa rh;nt
                                  vz;/283? d;        tlg[w         vy;iyap y;               rhjrhM/6 y;






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                                    F w p g ; g pl g; gl;l       yp';!;         mstp w; F k;         ,ilapy;
                                    tpj;jpahrk h d           96         yp';!;          msthd J         rh;nt
                                    vz;255 ? y;         tuh J       vd;w h y;            rhpjhd;/        Kjy;
                                    tprhuziap d; bg h G J kPl;lh; m s t[f s p y p U e ; J
                                    yp';!; m s t[fis kh w; w p nfl;ljhy; FHg; g kile; J
                                    m e;j     tpj;jpahrk h d            96        yp';!; m st[          rh;nt
                                    vz;/255? y; tUk; vd; W brhy;y pt pl;ljhf rhl;rp
                                    jd;dpr;irahfnt            brhy;fp w h h ;/                giHa      rh;nt
                                    vz;/283? d; xU gFjp a h d J u P/rh;nt vz;/228-
                                    1A      g{kpf;F s ;           tUfp w J/              mjdh y;        rh;nt
                                    vz;/255?I         m s ;f;fhk n y n a             rh;nt      vz;/256- 1
                                    m s e ; J . jhth brhj;ij milah s k ; fhl;oa p U g; g J
                                    rhpa h d J     jhd;/         e P k r h M/4 ? y;. kDjhuh p d;
                                    mD gt        gFjp        kw; W k;             vjph;kDjh u h;f s p d ;
                                    Mf;fpu k p g; g[                      gFjpia                     F w pj; J
                                    fhl;lg;gl;oUf; F k; m st[f s; rhpa h d J jhd;/

16.From the above evidence of D.W.3, the alleged encroachment by

the defendants is established. The Courts below after analysing the above

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facts have rightly granted the relief of declaration of title and recovery of

possession which warrants any interference by this Court.