IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:25.3.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.394 of 1998 and M.P.No.1 of 2008 R.Radha Krishnan ... Appellant vs. R.Nagarajan ... Respondent This second appeal is filed against the judgement and decree dated 4.11.1996 passed in A.S.No.203 of 1995 by the District Judge, Coimbatore, modifying the judgement and decree dated 22.9.1995 passed by the III Additional District Munsif, Coimbatore, in O.S.No.916 of 1986. For Appellant : Mr.S.Parthasarathy,Sr.counsel for Mr.Govi Ganesan For Respondent : Mr.C.Deivasigamani JUDGMENT
This second appeal is focussed by the plaintiff, animadverting upon the judgement and decree dated 4.11.1996 passed in A.S.No.203 of 1995 by the District Judge, Coimbatore, modifying the judgement and decree dated 22.9.1995 passed by the III Additional District Munsif, Coimbatore, in O.S.No.916 of 1986, which was filed for permanent injunction, so as to restrain the defendant from interfering with the plaintiff’s peaceful possession and enjoyment of the suit property and to direct the defendant to vacate the ‘B’ scheduled property and hand over vacant possession of the same to the plaintiff. The defendant entered appearance and filed the written statement.
2. The trial Court framed the relevant issues. During enquiry, the plaintiff examined himself as P.W.1 along with one C.A.Ravikumar-Advocate Commissioner as P.W.2 and Exs.A1 to A.14 were marked. The defendant examined himself as D.W.1 and Exs.B1 to B9 were marked. Exs.C1 and C2 were marked as Court documents.
3. Ultimately, the trial Court decreed the suit as prayed for, as against which, the first appeal A.S.No.203 of 1995 was filed and the first appellate Court partially allowed the appeal by passing the order as under:-
“In the result the judgement and decree of the trial Court are confirmed with regard to the relief of permanent injunction only, with regard to the property shown as A B E F C D in the Commissioner’s plan-Ex.C2 and in other respects the judgement and decree of the trial Court are set aside and the suit with regard to such claim is dismissed. Taking into consideration of the relationship between the parties, both parties are ordered to bear their own costs in this appeal.”
4. Being disconcerted and aggrieved by the judgement and decree of the first appellate Court, this appeal is focussed by the plaintiff on various grounds and also suggesting the following substantial questions of law:-
“1. Whether the rejection of the recited measurements of the property settled under Ex.A3 to the plaintiff when the settlor had the title and possession of the extent, at the time of the execution of deed, on the basis of the incorrect measurements given in the subsequent settlement deed Ex.B1 when the settlor had neither ownership nor possession of the excess area is legally sustainable?
2. Whether the lower appellate Court has committed an error of law in the localisation of common passage and the houses of the Settlor as the eastern boundary for the property given under the settlement deed Ex.A3 without reference to the admitted existence of a passage south of the shop No.1 and running into the area of 1006/2B in the plan Ex.C2 and ignoring the factual non-existence of any house further west of shop No.1 and non-mentioning of the tinkering shop in Ex.B1 as lying in between the points FG and further extending upto the points OS in Ex.C2 plan is patently against the evidence and the actual measurement of 10 feet width south of the tinkering shop in plan Ex.C2?
3. Whether the lower appellate Court has committed an error of law in overlooking the material aspects that the settlement deed Ex.A3 of the year 1983 long prior to the settlement deed Ex.B1 in the year 1986 should have precedence and binding effect in law and the measurements in Ex.A3 for the property given under Ex.A3 were within the power of the settlor and should override the measurements in Ex.B1 and whether the non-appreciation of this legal position in a patent error of law leading to a perverse finding and failure of justice?”
5. Heard both sides.
6. A bare poring over and perusal of the typed set of papers and also considering the arguments advanced on both sides, would display and demonstrate, evince and expatiate that one Alamelu Thayammal-the mother of the plaintiff and the defendant purchased a property under Ex.A1-the sale deed dated 19.1.1958; subsequently, she purchased the property adjacent to it on the West, as per Ex.A2-the sale deed dated 23.5.1960; thereafter, the said Alamelu Thayammal executed Ex.A3-Settlement Deed dated 17.6.1983 in favour of the plaintiff and Ex.B1-the Settlement Deed dated 13.6.1986, in favour of the defendant. What transpires from the scrutiny of the records would run thus:-
In Ex.A1-the sale deed the extent as well as the boundaries, is found mentioned as under:
@nfh hpo nfh rg;hpo nfh jh fzgjp fpuhkk; fr 220 y; $p/tp/fpUc&;za;ah; lay out y; nfhak;gj;Jhh; Kdprpgy; lt[d; giHa thh;L 6 g[J thh;L 8 fhe;jpg[uk; 3 ep tPjp nky;g[uk; !;nuzpapy; T.S.No.11/2007 y; vz; ,ju 23 eP tPl;ow;Fk; Kd; thrYf;Fk; (tlf;F) vd; ,ju 42 eP tPl;ow;Fk; (fpHf;F) 100 mo fpHnky; nuhl;ow;Fk; (bjw;f;F) 3 eP bjd;tly; tPjpf;Fk; (nkw;F) ,jd; kj;jpapy; tlg[uk; fpHnky; mo 89 bjd;g[uk; fpHnky; mo 88/1-2 fpHg[uk; bjd;tly; mo 38/1-2 nky;g[uk; bjd;tly; mo 36/ ,e;j mst[s;s 7/1-2 brz;l; $hfh g{uht[k; ,ijj; bjhl;Lj; bjd;g[uj;jpy; c& vz; ,ju 23eP tPl;ilr; nrh;e;j fhypaplj;jpy; tlg[uj;jpy; fPH;nuhl;oy; 3eP tPjp or;Rf;f’;fpypUe;J nkw;nf fpHnky; mo 34 1-2 mstpYs;s fpHnky; RtUk; c& Rtw;wpy;nghl;oUf;Fk; tlf;F thry; tpy;iyf;filfSk; c& 34/1-2 mo mWjpapypUe;J bjw;nf js;sp bjd;tly; 3/1-2 mo mfyj;jpYk; fpHnky; 34/1-2 mo ePsj;jpYs;s ,lj;ija[k; nrh;j;Jf;fl;oapUf;Fk; tlf;Fg; ghh;j;j 2 nghh;c&d; tpy;iyf;filfSk; c& 34/1-2 mo mstpd; nky;g[uj;jpy; mWjpapypUe;J tlf;nf js;sp bjd; tly;mo 3/1-2 mo mstpYs;s nkw;nf nghFk; Rtw;spy; 8/3-4 mo fpHnky; Rtw;wpd; kPJ bghUe;jp cah;j;jp Rth; itj;J $d;dy; itf;fhky; nfhg;g[g; nghl;Lf; bfhs;Sk; (fl;olk;) ghj;aKk; bfhLj;jpUf;fpnwd;/ vd; ,ju 23 eP tPl;od; gpwtpiljz;zPh; tifawh ,e;j fpua tPl;od; tHpahf 100 mo nuhl;od; Kdprpgy; rhf;filapy; ngha; fyf;Fkgo jh’;fs; $yjhiu tpl;L tpl ntz;oaJ/ c& 3 eP tPjp or;Rf;f’;fpypUe;J nkw;nf 77/3-4 mo mst[ tiua[s;s fpHnky; RtuhdJ vdf;Fk; ckf;Fk; bghJthf ghj;jpag;gl;lJ// / / / /@
In Ex.A2-the sale deed the following boundaries are found specified.
@nfhaKj;Jhh; hpo nfh rg;hpo c& jhYf;fh fzgjp fpuhkk; jpU!;ny ,dhk; rh;nt 219 be fhyp nfhaKj;Jhh; Kdprpgy; 8 tJ thh;L fhe;jpg[uk; 4 be tPjpapy; Rg;gz;z ft[z;lh; tPl;Lf;F tlf;F bjd; tly; 4 be nuhl;Lf; fpHf;F fpHnky; 100 mo nuhl;Lf;F bjw;F Rg;g[ yc&;kp mk;khs; fpUc&;z ma;ahplk; tpiyf;F th’;fp nghl;oUf;Fk; lhl;g[f;Fk; j’;fs; filfSf;Fk; nkw;F ? K.Venkatesalu Naidu – ,jd; kj;jpapy; ,Ug[uKk; bjd;tly; 65 3-4 tlg[uk; ? nky; nfhl;oypUe;J fpHnkyo 48 1-4 bjd;g[uk; nky; nfhl;oypUe;J fpHnky; 48 1-2 ,e;j ,lKk; mjw;Fs; fl;oapUf;Fk; fl;ol’;fs; tifauht[k; / / // //@
However, in Ex.A3-the settlement deed as well as Ex.B1-the settlement deed, even though Exs.A1 and A2 are found referred to respectively as antecedent title deeds to those deeds, the extents do not tally, so to say the extents from East-West direction do not tally.
7. It is an indubitable and indisputable fact that the Advocate Commissioner appointed by the lower Court simply visited the suit property and without the assistance of the Surveyor measured it and submitted Ex.C2-the Sketch along with Ex.C1-the report. To the shock and surprise of this Court, both the Courts below have not considered the fact as to how Alamelu Thayammal was justified in specifying more extent in Ex.A3 and Ex.B1-the settlement deeds over and above the extents found specified in Ex.A2 and Ex.A1-the respective antecedent deeds.
8. The logic and the ratiocination adhered to by the trial Court has to be looked askance at, in view of the facts that Alamelu Thayammal happened to be the common owner as per the two Sale deeds namely Ex.A1 and Ex.A2, wherein the extents are as found referred to as above, nonetheless she executed the respective Settlement Deeds, viz., Ex.A3 and Ex.B1, without specifying generally as though she acquired title over those properties by some antecedent title deeds, but she had chosen to specify clearly and categorically, unambiguously and plainly that for Ex.A3 and Ex.B1, their respective antecedent title deeds were only Ex.A2 and Ex.A1. As such, the scope of Ex.A3 and Ex.B1 got restricted by Ex.A2 and Ex.A1.
9. At least the first appellate Court should have thought fit to get the area located as per Ex.A1 and Ex.A2 on ground and accordingly should have decided the rival disputes of the parties, but it had not done so. Hence, I am of the considered opinion that the trial Court was not justified in simply deciding the lis on the sole point that Ex.A3 was anterior in point of time to Ex.B1. With this finding I would like to set aside the judgement of the first appellate Court and remit the matter back to the first appellate Court with the following direction:
The appellate Court shall appoint a Commissioner, with the mission to visit the spot and measure the areas concerned with the help of a qualified Government Surveyor and locate the extents as per Ex.A1 and Ex.A2 and demarcate the same and accordingly decide the case, after hearing both sides on merits and pass a reasoned judgement afresh. Both the parties shall appear before the Court on 30.4.2009.”
The second appeal is disposed of accordingly. No costs.
Msk 25.3.2009 Index:Yes/No Internet:Yes/No To 1.The District Judge, Coimbatore 2.The III Additional District Munsif, Coimbatore G.RAJASURIA,J. Msk S.A.No.394 of 1998 25.3.2009