IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.03.2011 CORAM : THE HON'B1LE MR.JUSTICE G. RAJASURIA S.A. No. 1420 of 2010 and M.P. No. 1 of 2010 Thiruvannamalai Gandhi Nagar Cooperative House Building Society Limited rep. by its Secretary D. Chandrasekaran Gandhi Nagar Thiruvannamalai .. Appellant Versus 1. Sambasivam 2. S. Baggiyammal .. Respondents Appeal filed under Section 100 of CPC against the Decree and Judgment dated 06.07.2009 made in A.S. No. 5 of 2009 on the file of District Judge, Thiruvannamalai reversing the decree and judgment dated 21.08.2008 in O.S. No. 200 of 2002 on the file of the Subordinate Judge, Thiruvannamalai. For Appellant : Mr. G. Rajan For Respondents : Ms. P.T. Asha for M/s. Sarvabhauman Associates JUDGMENT
The parties are referred to here under according to their litigative status and ranking before the trial court.
2. A recapitulation and resume of facts which are absolutely necessary and germane for disposal of the second appeal wound run thus:-
(a) The Plaintiff’s society filed the suit in O.S. No. 2002 of 2002 before the trial court seeking the following reliefs:-
“(a) To declare the title of the plaintiff to the ‘B’ schedule property and directing the defendants to surrender vacant peaceful possession of the ‘B’ schedule property and in default directing delivery through Court.
(b) Directing the defendants to remove the construction put up by the defendants over the B Schedule property by an order of mandatory injunction and in default directing the removal by the office of the Court
(c) Granting permanent injunction against the defendants from making any permanent constructions over the ‘B’ schedule property.
(d) Directing the defendants to pay the plaintiff the costs of the suit
(Extracted as such)
(b) Written statement was filed by the defendants resisting the suit.
(c) Whereupon, the trial court framed the relevant issues.
(d) The Secretary of the Plaintiff’s Society Chandrasekaran examined himself as PW1 and Exs. A1 to A6 were marked. On the side of the defendants, the second defendant Baggiyammal was examined as DW1 and one Elangovan was examined as DW2 and Exs. B1 to B13 were marked. Exs. C1 to C4 were also marked as Court documents.
(e) Ultimately, the trial court decreed the suit as against which, the defendants filed the appeal. The first appellate court reversed the findings of the trial court and set aside the decree and judgment passed by the trial court by dismissing the suit, as against which, the plaintiff’s society has come forward with this second appeal on various grounds inter alia to the effect that the first appellate Court failed to take into account the factual as well as legal issues.
3. The following substantial questions of law are found suggested in the grounds of appeal:-
(i) Is not the first appellate Court wrong in refusing to accept the secondary evidence marked as Ex.A1 to A4 when the plaintiff has proved and established that the originals were lost as stipulated under Section 65 of the Indian Evidence Act?
(ii) Is not the lower Appellate Court wrong in requiring stricter proof of evidence as required under Criminal law when the plaintiff has proved title over the suit property by virtue of Ex.A1 to A6 and shifted the onus to the shoulders of the defendant
(iii) Is not the lower Appellate Court wrong in dismissing the suit when the claim of the defendant is in respect of some other survey number and not in respect of the suit B Schedule property?
(iv) Is not the lower appellate Court wrong in reversing the well considered decree and judgment of the trial court judgment by misappreciating, misconstruing and in a exclusion of oral and documentary evidence adduced by the plaintiff?
(v) Whether the first Appellate Court is correct in rejecting the advocate commissioner report, which has been filed, on the inspection with the help of Surveyor and on the basis of municipal sketch and survey record as provided by the surveyor without any valid reasons?
(Extracted as such)
4. On hearing both sides, I am of the view that the following substantial questions of law have to be framed for consideration in this appeal.
(i) Whether the first appellate Court was justified in holding that the survey number in which the defendants’ superstructure is situate is different from the suit property
(ii) Whether there is any perversity or illegality in the findings rendered by the first appellate Court.
5. The pith and narrow of the arguments of the counsel for the plaintiff/appellant can tersely and briefly would run thus:-
(a) A mere perusal of the description of the schedule of property and the sketch filed by the advocate commissioner, Ex.C2 along with his report, Ex.C1 would exemplify and demonstrate that the findings of the first Appellate Court is totally perverse and antithetical to the reality existing on ground and therefore he would pray for reversing the judgment and decree of the First Appellate Court and for restoring the judgment and decree of the trial court.
6. Per contra, in a bid to torpedo and pulverse the arguments as putforth and setforth on the side of the Plaintiff/appellant, the learned counsel for the defendants/respondents herein would advance his arguments, which could tersely and briefly be set out thus:-
(a) The defendants have been in possession and enjoyment of the suit property for a pretty long time, so to say, long before the plaintiff’s society having allegedly acquired title over the suit property by purchasing it from some imaginary owners of the suit property
(b) The persons, who allegedly sold the suit property in favour of the plaintiff’s co-operative society had no ownership at all or they had no possessory right also and in such case, the trial court was wrong in decreeing the suit, whereas, the first appellate Court rectified the mistake and correctly dismissed the suit filed by the plaintiff’s society and therefore interference of this Court is not warranted in this second appeal.
7. Heard both sides. First I would like to extract the description of the property given in the plaint, which would run thus:-
SCHEDULE OF PROPERTY
‘A’ Schedule
Tiruvannamalai Town II Ward Block
T.S. No. 196/1 0.66 Cents
T.S. No. 196/2 0.48 Cents
‘B” Schedule
Tiruvannamalai Town II Ward Vth Block
1. T.S. No. 196/1 (Now 196/1A) 3154 Sq.ft., bounded by North of 40 feet road; South of S.No. 185 & Director of Agriculture office; East of S.No. 186/13 belonging to plaintiff and West of S.No.196/2A (item 2)
2. T.S. No. 196/2 (Now 196/2A) 1017 Sq.ft., bounded by West and North of 40 feet Road. South of S.No. 185 and Director of Agriculture office; East of 196/1A (Item 1). Both items marked in the plan
(Extracted as such)
8. The description given in the schedule of property of the plaint has to be perused with reference to Ex.C2, the sketch filed by the commissioner and also the description given in Ex.B10, the application filed by the defendants seeking No Objection from the Tahsildar to obtain electricity connection. Along with that application, Ex.B10, the defendants enclosed the copy of the settlement deed dated 28.05.2002. According to the defendants, they got their property as per said Settlement deed dated 28.05.2002. The schedule of property, as contained in the settlement deed would run thus:-
VERNACULAR (TAMIL) PORTION DELETED
(Emphasis supplied)
9. The property contained in the settlement deed refers to T.S. No. 185. It is quite obvious that the property is situated to the North of Survey No. 196/1A and 196/2A over which the plaintiff’s society is claiming right and title. Whereas, in the settlement deed, even though survey number 185 is referred to, in fact, it is situated to the north of the plaintiff’s property, however, the four boundaries therein in Ex.B10 would show that the actual subject matter of settlement is situated to the East of the plaintiff’s land; wherefore, absolutely, there is no coherence whatsoever with regard to the property over which the defendants are claiming right under the settlement deed. In fact, the defendants claim right only to the land situate in the East of plaintiff’s land, but the advocate commissioner gave a clear finding that the area situate to East of the plaintiff’s property is under the occupation of Public Works Department as such it is crystal clear that owing to misconception, Ex.B10 itself emerged among the relatives and it is nothing but a self-serving document brought about during the year 2002 so as to lay claim over the plaintiff’s land. The first appellate Court failed to take into consideration this important aspect and simply held as though the defendants are occupying the property as per the settlement deed dated 28.05.2002, which cannot be held to be correct. No doubt, the original sale deeds in favour of the plaintiff were not filed, but certified copies were filed. In order to make the records straight, the plaintiff society also filed an application in M.P. No. 1 of 2010 pending the present second appeal to receive six documents out of which document Nos. 5 and 6 are not relevant. In view of the fact that the documents sought to be filed by the plaintiff’s society are certified copies of the documents and 2 out of 6 documents are originals, I am of the view that the documents sought to be filed as additional documents have to be allowed to be produced even at this stage of second appeal. The reasons found set out for filing the additional documents at the stage of second appeal are that those documents got mixed up with other documents in the co-operative society. In any event, there is no doubt about the fact that those documents are registered original documents and copies of the documents were already marked. Therefore, M.P. No. 1 of 2010 is allowed and the additional documents are marked as Exs. A7 to A12 on the side of the plaintiff/appellant in continuation of the documents Ex.A1 to A6 already marked during trial.
10. The judgment to be passed in this appeal is a judgment in personem and not a judgment in rem. A comparison of Ex.B10 with that of the sale deeds produced on the side of the plaintiff/appellant would make the point clear that those sale deeds emerged long prior to Ex.B10. To the risk of repetition and pleonasm, but without being tautologous, I would like to point out that Ex.B10 does not refer to the suit property at all, however, the defendants are in occupation of the suit property, which has been clearly located by the advocate commissioner. Ex.B11 simply refers to Survey No. 185 and a hut situated thereon, but that in no way is connected with the suit property. It is quite obvious that the said Ex.B11 is an unreliable document issued by the Tahsildar as it runs counter to Ex.B10 and the settlement deed 28.05.2002 as well as the report of the advocate Commissioner. As such, without any rhyme or reason, the first Appellate Court went to the extent of holding that the place in which the defendants are having their hut is not situate in the suit property, which is incorrect and therefore, the substantial questions of law are answered in favour of the plaintiff/appellant. The judgment and decree passed by the first appellate Court is set aside and the judgment and decree of the trial Court is restored.
11. Accordingly, the second appeal is allowed. No costs.
rsh
To
1. The District Judge
Thiruvannamalai
2. The Subordinate Judge
Thiruvannamalai