BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1138 of 2000 R.Ramalingam Servai ... Appellant/Appellant/Defendant Vs R.Karuppiah Servai ... Respondent/Respondent/Plaintiff Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree of the learned III Additional Subordinate Judge, Madurai, dated 08.10.1999 in A.S.No.128 of 1978 in confirming the judgment and decree of the learned District Munsif, Melur, dated 29.04.1978 in O.S.No.131 of 1977. !For Appellant ... Mr.S.Subbiah ^For Respondent ... Mr.P.T.S.Narendravasan :JUDGMENT
This second appeal is focussed as against the judgment and decree of the
learned III Additional Subordinate Judge, Madurai, dated 08.10.1999 in
A.S.No.128 of 1978 in confirming the judgment and decree of the learned District
Munsif, Melur, dated 29.04.1978 in O.S.No.131 of 1977, but modifying on certain
aspects, certain findings and the reliefs granted by the trial Court.
2. The parties, for convenience sake, are referred to hereunder according
to their litigative status before the trial Court.
3. Broadly but briefly, narratively but precisely, the case of the
plaintiff as stood exposited from the records could be portrayed thus:
The plaintiff filed the suit in respect of three items of the suit landed
properties, so to say, an extent of 14 cents out of 1 acre 18 cents in the first
item, 8 cents out of 2 acres 80 cents in the second item and 9 cents out of 7
acres of land in the third item described in the Schedule of the plaint. The
plaintiff sought for declaration of title in respect of all the three items,
however in respect of first item, he prayed for recovery of possession. In
respect of items 2 and 3, he prayed for injunction, relying on the registered
partition deed dated 20.09.1963, Ex.A.1. Accordingly, he prayed for decreeing
the suit.
4. Per contra, denying and challenging, the allegations/averments in the
plaint, the defendant filed the refutatory written statement; the pith and
marrow of it would run thus:
The allegations and the claims made in the plaint are untenable. The
plaintiff is not entitled to the extents referred to in the plaint. In the
partition deed itself, the southern boundary for 1 acre 18 cents allotted to the
plaintiff (second item), the Ittarai Pathai is not found mentioned. The
pathway referred to in the plaint as though it was converted into cart road in
S.No.240/4-A is false. There is only a small Nadai Pathai running through
S.No.240/4-A and it is not a cart track. S.No.108/3 measuring an extent of 1
acre and 18 cents being a Nanja land and S.No.108/2 measuring an extent of 1
acre and 26 cents being a Punja land are contiguous areas and constituted the
joint family property prior to the said partition. There were demarcations also
by making ridges. In the partition deed, the extents are referred to in a rough
manner and not mentioned after actually measuring the said two Survey Numbers.
The plaintiff made encroachments in S.No.240/4-A belonging to the defendant even
in the year 1974. After setting out other details about the plaintiff’s
encroachment and the physical features of the suit properties, the defendant
prayed for the dismissal of the suit.
5. The trial Court framed the relevant issues.
6. During trial, P.W.1 and P.W.2 were examined and Exs.A.1 to A.22 were
marked on the side of the plaintiff. D.W.1 and D.W.2 were examined and Ex.B.1
was marked on the side of the defendant.
7. Ultimately, the trial Court by virtue of the judgment and decree dated
29.04.1978, decreed the suit as prayed for.
8. Challenging the judgment and decree of the trial Court, the appeal in
A.S.No.128 of 1978 was preferred on the file of the Subordinate Judge, Madurai,
which Court confirmed the judgment and decree of the trial Court with certain
modifications.
9. Being aggrieved by and dissatisfied with, the judgments and decrees of
both the Courts below, the defendant preferred S.A.No.209 of 1979 and that this
Court made observations including the one that the suit properties should be
located by appointing an Advocate Commissioner and thereafter, the first
appellate Court has to decide the matter. An excerpt from the said judgment is
extracted hereunder for ready reference:
“Thus, the real controversy that arose between the parties is as to
whether the defendant has, in fact, trespassed into item No.1 and is attempting
to trespass into Item No.2 and 3 as alleged by the plaintiff. This would
require definite clarification through local investigation by a Commissioner,
who will be in a position to find out as to where exactly the portions allocated
to the parties and to which they are entitled lie in the respective survey
numbers by making proper correlation from the boundaries given in the documents
and further find out as to whether each of the parties is in occupation of the
extent to which he is entitled and as to whether any party is in occupation of
portions in excess of what he is entitled to under the documents.”
Accordingly, the matter was remitted back to the first appellate Court, which
Court appointed the Advocate Commissioner who visited the suit properties with
the assistance of the Surveyor and other revenue officials and submitted his
report Ex.C.1 along with the sketches, Exs.C.2 to C.4. Before the first
appellate Court, on the side of the appellant/defendant, Exs.B.2 to B.35 were
marked and on the side of the respondent/plaintiff, no documents were marked.
10. Thereafter, the same first appellate Court, vide judgment and decree
dated 08.10.1999, granted the reliefs as under:
The first appellate Court dismissed the appeal confirming the judgment and
decree of the trial Court. However, in respect of the item No.3, the injunction
was not granted in respect of the 1950 sq links which are found to be under the
encroachment of the plaintiff. However, the judgment would observe that the
plaintiff is at liberty to initiate separate legal action in respect of 1950 sq
links in the third item and injunction was not granted in respect of that area.
11. Being aggrieved by, the said judgment and decree of the first
appellate Court, the present second appeal has been filed on the following main
grounds among others:
12. The judgment and decree of both the Courts below are erroneous. There
is no evidence to prove that the plaintiff is entitled to 62 cents of land.
There is also no evidence to show that the plaintiff is not in possession of 12
cents of land out of his entitlement under Ex.A.1. In respect of item 3 of the
suit properties, the first appellate Court was not justified in confirming the
declaration made by the trial Court. Only in the suit, if any to be filed by
the plaintiff, the maintainability of the reliefs should be considered and the
piecemeal relief granted in respect of item 3 is not sustainable. Accordingly,
he prayed for setting aside the judgment and decree of both the Courts below and
for dismissing the suit filed by the plaintiff.
13. At the time of admitting this second appeal, my learned Predecessor
framed the following substantial question of law:
“Whether both the Courts below are right in decreeing the portion of the
land in respect of which relief has not been sought for by the plaintiff can be
granted?”
14. Perused the records and found that instead of the aforesaid
substantial question of law, the following substantial questions of law are
framed:
(i) Whether both the Courts below were justified in declaring the right of
the plaintiff in respect of three items of the properties, de hors the finding
given in the Commissioner’s report and the sketch?
(ii) Whether the first appellate Court was justified in relying on the
Commissioner’s report and sketch in toto in the absence of supportive evidence?
(iii) Whether the first appellate Court was justified in granting
piecemeal relief of declaration in respect of item 3 of the suit property after
rejecting the part of the prayer for permanent injunction in respect of 1950 sq
links of land and also while giving liberty to the plaintiff to take separate
proceedings for recovery of possession in respect of that portion of the land
from the defendant and Whether the judgments and decrees of both the Courts
below are perverse and liable to be set aside?
15. All the points are taken together for discussion as they are
interlinked and interwoven with one another.
The Points:
16. The learned Counsel for the defendant drawing the attention of this
Court to the Commissioner’s report Ex.C.1 and sketches Exs.C.2 to C.4, would
develop his argument to the effect that absolutely there is no finding given by
the Commissioner or by the first appellate Court as to how much extent of land
over which the plaintiff is having possession in the first item i.e, S.No.108/3
and that there is only unilateral finding by the lower Court as though the
defendant has been in possession of 60 cents out of which 12 cents of land is
deemed to be the encroached portion.
17. The learned Counsel for the defendant would also contend that unless
the extent of land in possession of the plaintiff is proved to be deficient to
an extent of 12 cents, there is no question of ordering delivery of 12 cents in
the first item, would arise at all. Whereas the learned Counsel for the
plaintiff would submit that the Commissioner with the assistance of the Surveyor
and Revenue Records located S.No.108/3 and properly noted the physical features
and from that he arrived at the conclusion that the defendant has been in
possession on 60 cents of land in excess of 48 cents of his entitlement as per
Ex.A.1, the partition deed.
18. Hence, in such a case, the defendant being in possession of excess
land, cannot call upon the plaintiff to prove his possession over the land under
his possession.
19. At this juncture, I would like to highlight that peculiar features
involved in this case. As per Ex.A.1, the partition deed unassailably and
incontrovertibly, the plaintiff and the defendant and their one other relative,
are entitled to specific portions in S.No.108/3 which is referred to in the
first item of the suit properties. It is also an admitted fact that the
plaintiff, the defendant and their one other relative, are entitled to 50
cents, 48 cents and 28 cents respectively in 1 acre 18 cents of land in
S.No.108/3.
20. Furthermore, 50 cents of the share of the plaintiff constitutes the
middle share in S.No.108/3. The perusal of the Commissioner’s report Ex.C.1
would leave no doubt in the mind of the court that the Commissioner measured the
entire extent of land in S.No.108/3 and located it and in that, he also measured
the total extent of land i.e, 1 acre and 18 cents and in that, on the northern
portion, the defendant is having right as per Ex.C.4. Whereas measuring from
northern side, to an extent of 48 cents of land alone belongs to the defendant
in S.No.108/3. However, the Surveyor sketch Ex.C.4 would demonstrate that 12
cents of land is in excess on the defendant’s side as per physical features and
to the south of the defendant, the plaintiff is having his share and to the
south of the plaintiff’s share, one other relative’s share is situated. In such
a case, there is absolutely the defendant cannot claim more extent of land than
48 cents in that S.No.108/3 as his share.
21. The learned Counsel for the defendant would argue that if it is found
that in S.No.108/3, there is excessive land, then in such an event, the
plaintiff would not be justified in enjoying the excess area more than his share
of 50 cents.
22. The learned Counsel for the plaintiff would at once stress upon the
fact that the plaintiff claims only 50 cents of land in S.No.108/3 in the middle
portion as per the partition deed Ex.A.1 and not anything more and a fortiori,
it could be held that even while demarcating and delivering possession at the
execution stage, the same could be ascertained and accordingly, 12 cents of land
as found by the plaintiff should be allotted to the plaintiff, so that the
plaintiff would be able to have 50 cents of land as his share. Accordingly,
such a view on the plaintiff’s side is reasonable and could be upheld. It is
therefore clear that in this factual situation, Hence, absolutely there is no
necessity to interfere with the findings of the first appellate Court.
23. Relating to item No.2, the learned Counsel for the plaintiff would
submit that the defendant is not focussing this second appeal relating to item
2.
24. Relating to item No.3 is concerned, I could see considerable force in
the submission made by the learned Counsel for the defendant that both the
Courts below were not justified in granting piecemeal relief by simply declaring
the right of the plaintiff over 1950 sq links with the finding that it is under
the encroachment of the defendant.
25. It is a trite proposition of law that the Civil Court while granting
relief should not simply grant relief in piecemeal. No doubt, the first
appellate Court consciously felt that the prayer of the plaintiff relating to
item No.3 was not fully justified, even though it felt that the plaintiff is
having right over that extent of 1950 sq links under the defendant’s occupation
and in such circumstances, instead of granting the relief of declaration, the
first appellate Court in the interest of even handled justice could have simply
directed the plaintiff to initiate fresh proceedings in laying claim over the
extent of 1950 sq links from the defendant and pray for all reliefs including
the relief of declaration and recovery of possession. Out of misconception of
facts, the relief relating to third item was formulated and prayed setting out
certain set of facts. Accordingly, the declaratory relief and the injunction
relief relating to the item No.3 are not sustainable.
26. Accordingly, the substantial question of law No.(i) is decided to the
effect that both the Courts below were justified in declaring the right of the
plaintiff in respect of the first item of the suit properties and not in respect
of the third item of the suit properties. The substantial question of law
No.(ii) is decided to the effect that the first appellate Court was justified in
relying on the Commissioner’s report and sketches in toto as there was evidence
supporting such conclusion. The substantial question of law No.(iii) is decided
to the effect that the first appellate Court was not justified in granting
relief in piecemeal in respect of third item after rejecting the prayer for
permanent injunction in respect of 1950 sq links of land.
27. In the result, the second appeal is partly allowed as under:
(i) In respect of the item No.1 is concerned, out of the total extent of 1
acre and 18 cents in S.No.108/3, as per Ex.A.1, on the northern portion, the
defendant shall be allotted 48 cents and to the south of the defendant’s
portion, the plaintiff shall be allotted 50 cents and to the south of the
plaintiff’s portion, the remaining 20 cents of land shall be allotted to the
other sharer as per Ex.A.1.
(ii) Relating to item No.2, the judgments and decrees of both the Courts
below are confirmed.
(iii) Relating to item No.3 is concerned, the prayer of the plaintiff
shall stand dismissed without prejudice to the plaintiff’s right to pray for
declaration and for recovery of possession and for other incidental reliefs and
at that time, the Court concerned shall be at liberty to decide on merits.
However, the observation made by the first appellate Court that the plaintiff is
at liberty to initiate proceedings shall hold good. No costs.
rsb
To
1.The III Additional Subordinate Judge, Madurai.
2.The District Munsif, Melur.