Madras High Court
Vellaian vs Maruthiah (Deceased) on 21 November, 2025
S.A.No.837 of 2019
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
S.A.No.837 of 2019
1. Vellaian
2. Devendran
3. Sekar
4. Rajeswari ...Appellants
Vs.
Maruthiah (deceased)
1. Subramanian
2. Karthick
3. Sasipriya
4. Vijayan
5. Velu
6, Shanthi Rajeswaran ...Respondents
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
judgment and decree dated 18.06.2010 passed in A.S. No.41 of 2008, on
the file of the Subordinate Court, Perambalur, confirming the Judgment
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S.A.No.837 of 2019
and decree dated 20.10.2003 passed in O.S.No.381 of 1993, on the file of
the District Munsif Court, Perambalur.
For Appellants : Mr. P. Srinivasan
For Respondents : Mr.G. Ilamurugu for R1 to R5
R6 - No appearance.
JUDGMENT
This Second Appeal is preferred against the judgment and decree
dated 18.06.2010 passed in A.S. No.41 of 2008, on the file of the
Subordinate Court, Perambalur, confirming the Judgment and decree
dated 20.10.2003 passed in O.S.No.381 of 1993, on the file of the
District Munsif Court, Perambalur.
2. Briefly stated, the plaintiffs have purchased the suit property
under Ex.A2 and Ex.A3 sale deeds measuring 1 acre out of 1.31 acres
and a well, comprised in S.No.26/E, morefully described in the suit
schedule. The existence of the above well is mentioned in Ex.A3 sale
deed. The 2nd plaintiff was given UDR patta for the land measuring
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0.44.5 hectares, comprised in S.No.26/6E1. While so, the defendants
have encroached upon the plaintiffs' land measuring 3 ½ cents, shown as
'CDEF' in the plaint plan. Hence the plaintiffs have filed the above suit
for declaration of title and for permanent injunction.
3. The claim of the plaintiffs was resisted on the side of the
defendant stating that the above 'CDEF' portion do not belong to the
plaintiffs. It is incorrect to state that the defendant has encroached upon
the 'CDEF' portion and annexed the same along with his property. In fact,
the plaintiffs, while measuring the properties, found that the plaintiffs has
encroached upon the property of the defendant. The further contention of
the defendant is that on 23.07.1993, the defendant issued a legal notice to
the plaintiffs stating that the plaintiffs have encroached the property of
the defendant and put up the construction. Therefore, a panchayat was
convened in which it was decided that the plaintiffs would pay a sum of
Rs.10,000/- to the defendant or shall remove the encroachment within a
period of 3 months and the same was accepted by the plaintiffs. But, the
plaintiffs failed to adhere to the decision of the panchayat. It is further
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stated that the Advocate Commissioner, in his Report and Plan, has
submitted that only if the properties are measured with the aid of
surveyor, it could be found to whom the 'CDEF' portion as mentioned in
the rough plaint plan belong to. It is not established by the plaintiffs that
the plaintiffs and their predecessor in title were in possession and
enjoyment of 'CDEF' portion. The plaintiffs cannot claim adverse
possession over the eastern portion of the well. Hence, prayed for
dismissal of the suit.
4. The trial court, considering the oral and documentary evidence
adduced, dismissed the suit, against which the plaintiffs preferred the
appeal suit in A.S. No.41/2008 before the Subordinate Court,
Perambalur, and the same was also dismissed by the first appellate court
vide its judgment and decree dated 18.06.2010. The courts below, based
on Ex.C9 to Ex. C11, came to the conclusion that a portion of the well,
that is, 1 meter on the northern side and 1.2 meter on the southern side
belong to the defendant and the same is annexed with the lands of the
plaintiffs. Therefore, the courts below concluded that only the plaintiffs
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have encroached the property of the defendant and thereby dismissed the
suit filed by the plaintiffs. Aggrieved by this, the present Second Appeal
is preferred by the plaintiffs.
5. The learned counsel appearing for the appellants/plaintiffs has
submitted that, the appellants have proved their title under Ex.A2 and
Ex.A3 and that the area earmarked as 'CDEF' measuring 3 ½ cents as
shown in the plaint plan had been encroached by the defendant and the
existence of the well is established by the plaintiffs vide Ex.A3 sale deed.
His further contention is that, the court below erred in dismissing the suit
and appeal suit without considering the fact that Ex.A9 FMB sketch
clearly depicts the eastern boundary line which is a straight line running
from south to north. Whereas, in Ex.C7 to Ex.C11 a bend is shown on the
eastern side of the suit property which was created by the defendant after
encroachment. Hence, the courts below erred in dismissing the suit and
appeal suit filed by the plaintiffs which warrants interference by this
Court.
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6. On the other hand, the learned counsel for the respondents 1 to 5
submits that the rough plan submitted by the plaintiffs is incorrect since
it does not contain the true physical features of the suit property. It is
further submitted that the defendant's land lies on the eastern side of the
suit property and there is no ridge between the plaintiffs' and defendant's
land as alleged by the plaintiffs. The plaintiffs in fact have surveyed the
suit property with the help of surveyor who found that some portion of
the defendant's land was encroached and annexed with the plaintiffs land
in S.F. No.26/6A. The trial court ordered for measuring the property with
the help of surveyor. Thereafter, the property was measured by the
surveyor. Based on Ex.C9 to C11, the courts below have found that only
the plaintiffs had encroached upon the property of the defendant and
rightly dismissed the suit filed by the plaintiffs which warrants no
interference by this Court.
7. Despite notice, the 6th respondent remained absent.
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8. This Court carefully considered the submissions of the learned
counsel on both sides and perused the material papers placed on record.
The specific contention of the appellants / plaintiffs is that the courts
below erred in dismissing the suit without considering Ex.A9 FMB
sketch which clearly demonstrate the eastern boundary line, which is a
straight line running from south to north. On a perusal of Ex.C7 to C11,
there is a mentioning about a bend on the eastern side of the suit
property. According to the plaintiffs it was created by the defendant after
encroaching the plaintiffs' property. Admittedly the dispute between the
plaintiffs and the defendant is with regard to the ridge separating their
properties. It is not in dispute that the land belonging to the plaintiffs is
comprised in S.No.26/6E and to the east of the above property lies
S.No.26/5, admittedly belonging to the defendant. At the instance of the
parties, an Advocate Commissioner was appointed, who measured the
suit property with the help of surveyor. In Ex.C9 to Ex.C11, it is stated
that, after measuring the above properties it was found that the plaintiffs
have encroached upon the property of the defendant. This was objected
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by the plaintiffs stating that the surveyor ought to have measured the
property based on Ex.A9 FMB Plan. No doubt, an FMB Plan can
generally be relied upon as a crucial piece of evidence for fixing
boundaries, but it is not necessarily the sole or conclusive proof in a legal
dispute, especially if there are discrepancies or competing evidence. In
many cases, established physical boundaries (like, existing walls, fences
or natural land marks) and title deeds may take precedence over the
survey plan measurements. When there is inconsistent with the ground
reality, the FMB dimensions, the same cannot be taken into
consideration. In the present case, the courts below have considered the
joint survey report by the Advocate Commissioner and the Surveyor to
ascertain the true boundaries. Hence, no perversity or infirmity found in
the findings of the courts below which warrants any interference by this
Court. Therefore, I do not see any question of law much less a
substantial question of law in order to enable me to entertain the present
second appeals.
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9. In the result,
i. The Second Appeal is dismissed. No costs.
ii. The judgment and decree dated 18.06.2010 passed in A.S. No.41
of 2008, on the file of the Subordinate Court, Perambalur,
confirming the Judgment and decree dated 20.10.2003 passed in
O.S.No.381 of 1993, on the file of the District Munsif Court,
Perambalur, is upheld.
21.11.2025
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1. The Subordinate Judge, Perambalur.
2. The District Munsif, Perambalur,
3. The Section Officer, VR Section, High Court, Madras.
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K.GOVINDARAJAN THILAKAVADI,J
bga
Pre delivery Judgment in
21.11.2025
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