BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04/03/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1190 of 2000 1.Subbammal (died) 2.Esaki Ammal ... Appellants/Respondents/Plaintiffs (2nd appellant is brought on record as the legal representative of the deceased first appellant as per the Memo dated 08.02.2008 filed by the Counsel for the appellants.) Vs Velliammal ... Respondent/Appellant/Defendant Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 24.01.2000 passed in A.S.No.101 of 1994 by the learned Principal Sub Judge, Tirunelveli, in reversing the judgment and decree dated 30.08.1994 passed in O.S.No.729 of 1987 by the learned Principal District Munsif, Tirunelveli. !For Appellants ... Mr.R.S.Ramanathan ^For Respondent ... Mr.K.Srinivasan :JUDGMENT
This second appeal is focussed as against the judgment and decree dated
24.01.2000 passed in A.S.No.101 of 1994 by the learned Principal Sub Judge,
Tirunelveli, in reversing the judgment and decree dated 30.08.1994 passed in
O.S.No.729 of 1987 by the learned Principal District Munsif, Tirunelveli.
2. The parties are referred to according to their lititgative status
before the trial Court for clarity sake.
3. Narratively but pithily, the case of the plaintiffs as stood exposited
from the plaint could be portrayed thus:
(i) The plaintiffs and the defendant are neighbours. The plaintiffs are
owing their plot and house to the south of the defendant’s plot and house, as
described in the first schedule of the plaint. The second schedule of the
plaint refers to 1 ft of vacant land which forms part of the plaintiffs’ plot on
the northern side of their northern wall.
(ii) According to the plaintiffs, the second scheduled property forms part
of the first scheduled property as it is situated in S.No.227. The third
scheduled property refers to another 1 ft of property in one other S.No.229 to
the north of S.No.227 which belongs to the defendant. The defendant is the
purchaser of the suit property vide sale deed dated 30.09.1975, Ex.B.1. The
plaintiffs during the year 1975 were not aware what was contained in Ex.B.1.
(iii) However, during the year 1979, when they came to know about the
misdescription affecting the plaintiffs’ right as found incorporated in Ex.B.1,
Ex.A.1, the legal notice was issued by the plaintiffs to the defendant calling
upon him to make corrections in the sale deed and that he should not based on
such erroneous description lay claim over the plaintiffs’ first and second
schedule of the property described in the plaint.
(iv) Thereupon, elders intervened and Ex.A.4, emerged which is an
agreement between the plaintiffs and the defendant whereby the latter agreed not
to raise construction in the second and third schedules of the properties in the
event of the defendant demolishing the existing structure and raising new
construction.
(v) However, giving a go-bye to his promise, he started putting up new
construction including the third schedule of the property which necessitated the
plaintiff to file the suit seeking the following reliefs:
“1) declaring the plaintiffs’ title, interest and right to the 2nd
schedule property,
2) granting injunction restraining the defendant, her men, servants,
employees, agents and assigns etc from interfering with the peaceful possession
and enjoyment of the 2nd schedule property by the plaintiffs,
3) granting injunction restraining the defendant, her men, employees,
servants, agents, and assigns etc, from putting up any construction in the 3rd
schedule property in view of the 3rd schedule property in view of the agreement
dated 21.07.1980,
4) granting mandatory injunction directing the defendant to remove the
construction if any such as latrine, bathroom, septic tank, loft and any other
constructions in the 2nd and 3rd schedule properties within a fixed period and
in default to do the same through the Court,
5) awarding costs of this suit, and
6) granting such other reliefs as the Honourable Court may deem fit and
proper in the circumstances of this case and render justice.”
4. Per contra, denying and disputing, the allegations/averments in the
plaint, the defendant filed the refutatory written statement; the warp and woof
of it, would run thus:
Ex.A.4 is not a genuine document and it was brought about by coercion and
undue influence. The plaintiffs are having no right over either the second
scheduled property or the third scheduled property as described in the plaint.
The description as found set out in Ex.B.1, the sale deed in favour of the
defendant is genuine. There is no right of passage beyond the northern wall of
the suit property to an extent of 1 ft. Accordingly, she prayed for the
dismissal of the suit.
5. The trial Court framed the relevant issues.
6. During trial, P.W.1 was examined and Exs.A.1 to A.12 were marked on the
side of the plaintiffs. D.W.1 was examined and Ex.B.1 was marked on the side of
the defendant. Ex.C.1 was marked as a Court document.
7. Ultimately, the trial Court decreed the suit.
8. Challenging the judgment and decree of the trial Court, the defendant
filed the appeal in A.S.No.101 of 1994 before the Principal Sub Court,
Tirunelveli, which Court reversed the judgment and decree of the trial Court
after appointing an Advocate Commissioner during the appellate stage and placing
reliance on the report submitted by the Commissioner.
9. Being aggrieved by and dissatisfied with, the judgment and decree of
the first appellate Court, this second appeal has been filed by the plaintiffs
on the grounds inter alia thus:
The first appellate Court erroneously rejected Ex.A.4 on the ground of
want of registration and payment of stamp duty. Ex.A.4 is merely an agreement
between the two neighbours and it is admissible in evidence. The first
appellate Court erred in giving a finding that the attestors to Ex.A.4 were not
examined, ignoring the fact that P.W.1 is one of the attestors to Ex.A.4. The
husband of the defendant deliberately avoided from entering into the witness
box, even though, he happened to be one other attestors of Ex.A.4. The Advocate
Commissioner who was appointed at the appellate stage, did not measure the suit
property properly. Even though the defendant candidly admitted that there is
dispute relating to two and half feet to the northern portion of the defendant’s
property, nonetheless that fact was not considered either by the Commissioner or
by the first appellate Court. Accordingly, they prayed for setting aside the
judgment and decree of the first appellate Court and for restoring the judgment
and decree of the trial Court in decreeing the suit.
10. At the time of admitting this second appeal, my learned Predecessor
framed the following substantial question of law:
“Whether the construction placed on Ex.A.4 by the lower appellate Court is
sustainable in law or it is a misconception as the lower appellate Court had
proceeded on the assumption as if Ex.A.4 creates an interest in immovable
property?”
11. Heard both sides.
12. The learned Counsel for the plaintiffs placing reliance on the grounds
of appeal and drawing the attention of this Court to the Commissioner’s report
and also Ex.A.4 would develop his argument to the effect that the first
appellate Court without giving due opportunity to the plaintiffs to cross-
examine the Commissioner and the Surveyor, out and out relied upon the
Commissioner’s report and the sketch Exs.C.2 and C.3 respectively and passed the
judgment and that approach of the first appellate Court is erroneous. Whereas
the learned Counsel for the defendants would support the finding given by the
first appellate Court by advancing argument to the effect that the first
appellate Court after considering that the Commissioner appointed by the trial
Court was not allowed to execute the mission and that he submitted his report
which was of no use to either side, did choose to appoint the fresh Advocate
Commissioner at the appellate stage, who visited the suit property along with
the Surveyor and filed the report and sketch.
13. The learned Counsel for the defendant also would highlight that there
is nothing on record to highlight as to what mistake the Commissioner appointed
by the first appellate Court committed in arriving at his conclusion or in
measuring the respective properties.
14. The unassailable and indubitable propositions both factual and legal,
have to be set out thus:
The onus of proof is on the plaintiffs to prove their case. However, the
plaintiffs are having no document of title to prove the actual extent, for which
they are entitled to and they relied on the revenue records only. According to
them, the plaintiffs are entitled to a plot of land in S.No.227 and not in
S.No.229. Ex.A.3 is the admitted Government Plan relating to the S.Nos.227, 229
and 228. In this case, it is evident and apparent that a street is running from
north to south to the west of S.Nos.227 and 229. The land in S.No.228 is
situated to the east of S.No.229. In fact, S.No.227 is situated to the south of
both S.Nos.229 and 228. There is no dispute between the plaintiffs and the
owner of the plot in S.No.228. However, the dispute is between the defendant
who is admittedly the owner of S.No.229 and the plaintiffs who are admittedly
the owner of S.No.227. Hence, in this case, relating to the right over the
plots covered under thos respective survey numbers are concerned, absolutely
there is no dispute. The plaintiffs are not claiming any ownership right over
S.No.229 except for 1 ft as described in the third schedule of the plaint.
15. Similarly, the defendant is not claiming any right in the plot in
S.No.227. The Advocate Commissioner appointed at the appellate stage, with
reference to survey stones and after cross verifications, located the boundaries
relating to the aforesaid survey numbers concerned, which the first appellate
Court held after due discussions as done correctly. The dispute here is not
between the owners having plot areas in one and the same survey number. But, it
is the case as already set out supra, the plaintiffs are entitled to the land in
S.No.227 and the defendant is entitled to the land in S.No.229. As such, the
Commissioner as per Ex.C.3, located the respective survey numbers and submitted
his report.
16. It is the grievance of the plaintiffs that had the survey numbers been
measured properly, then the claim of the plaintiffs over the second schedule
property which forms part of S.No.227, could have been located correctly and
because of erroneous measurements, it could not be done so.
17. Hence, it is just and necessary to look into Exs.C.2 and C.3
thoroughly. Ex.C.3, the sketch, reflects the averments in Ex.C.2 the report.
Had really 1 ft of the land as contemplated in the second schedule of the plaint
is situated in S.No.227 itself, then certainly there will be an “L” shape land
projecting towards north and it would not be in alignment with the southern
boundary of S.No.228.
18. The learned Counsel for the plaintiffs would point out that the plot
of the plaintiff itself is slanting and not exactly rectangular in shape. No
doubt, obviously Exs.A.3 and C.3 refer to the said fact.
19. The Commissioner’s report would reveal that he took pains to cross
verify the survey stones and thereupon alone, he fixed it. As has been
highlighted by the learned Counsel for the defendant, the plaintiffs have not
filed any objections before the first appellate Court as against the
Commissioner’s report and sketch and furthermore, even in the appeal grounds
there is no specification as to how the measurement effected by the Commissioner
is erroneous. Simply because the Commissioner and the Surveyor were not
examined before the first appellate Court, this Court cannot remand the matter
to the first appellate Court so as to give opportunity for the plaintiffs to
cross-examine them and elicit out certain facts. If at all, there is any error
in the Commissioner’s report, then naturally he could be subjected to cross-
examination. Virtually, Ex.C.2 is the Commissioner’s report wherein he even set
out the methodology adopted by him unlike in other reports, nonetheless no
objections emerged from the side of the plaintiffs.
20. Hence, I am of the considered opinion that no defect in the
measurement effected by the Commissioner could be traced.
21. The learned Counsel for the plaintiffs would submit that under Order
41 Rule 27 of the Code of Civil Procedure, additional evidence by way of
appointing of the Commissioner and receiving report should not have been
resorted to without adhering to proper procedure.
22. I am of the opinion that the appointment of Commissioner even at the
first appellate stage is governed by Order 26 of the Code of Civil Procedure.
Once, the Advocate Commissioner measured the suit property and submitted his
report, it will become the part of the records and for the purpose of clarity
sake, the report and the sketch were marked as Exs.C.2 and C.3. In such a case,
I could not countenance the aforesaid plea raised on the side of the plaintiffs.
23. The contention of the plaintiffs is to the effect that Ex.A.4 was
wrongly interpreted and considered by the first appellate Court. Ex.A.4 is
found written in a piece of paper which was not stamped earlier. However, at
the time of marking it, stamp duty and penalty were collected by the trial
Court.
24. The learned Counsel for the plaintiffs would cite the decision in
Hindustan Petroleum Corporation Ltd., v. M.Rose reported in (2007) 6 MLJ 468 and
develop his argument to the effect that Ex.A.4 is not bad for want of
registration. However, the first appellate Court misunderstood the said fact.
25. I am of the considered opinion that Ex.A.4, ex facie and prima facie,
does not attract registration for the foregoing reasons. In fact, according to
the plaintiffs, the first and second scheduled properties belonged to them and
as per Ex.A.4, the right of the plaintiffs was not transferred from the
defendant to the plaintiffs in respect of the first and second items of
properties. In respect of third item of property which admittedly belongs to
the defendant, there is also no transfer of interest from the defendant to the
plaintiffs.
26. What are all agreed under Ex.A.4 is that the defendant simply
undertook that in the event of the defendant raising some new construction, he
would leave 1 ft in his own land, and as such, according to the plaintiffs,
consensus was arrived at between the two neighbours without any transfer of
interest in any of the immovable properties referred to supra. Unless any
interest in immovable property worth more than Rs.100/- is involved in any
document, the question of invoking Section 17 of the Registration Act would not
arise. Hence, I am of the considered opinion that Ex.A.4 is not bad for want of
registration and the stamp duty and penalty also have been collected. Then, the
question arises whether Ex.A.4 is an enforceable document. The learned Counsel
for the defendant would contend that it has been brought about by practising
coercion and undue influence, whereas the learned Counsel for the plaintiffs
would submit that after issuance of Ex.A.1 and after the intervention of elders,
Ex.A.4 emerged, wherein P.W.1 and the defendant’s husband happened to be the
attestors.
27. However, the learned Counsel for the defendant would highlight that
P.W.1 himself who happened to be the son-in-law of the first plaintiff, would
submit that he did not see the defendant signing the document.
28. Be that as it may, once the plea of the defendant is to the effect
that it was brought about by coercion and undue influence, it is of little
significance whether the attestors had seen the parties signing it or not. The
main legal issue is as to whether Ex.A.4 is an enforceable document. Put
simply, the neighbours at one point of time, entered into some agreement in the
form of Ex.A.4. Whether it is an enforceable document in stricto sensu in the
eye of law. There should be consideration for any agreement. In the case of
easement to light and air, there is pre-existing right on the part of the
beneficiary under such agreement relating to the right to light and air. But,
here so far, the third schedule property is concerned which admittedly belongs
to the defendant, Ex.A.4 does not demonstrate that such third schedule property
should be kept vacant for easement of light or air to be enjoyed by the
plaintiffs.
29. The plaintiffs’ contention is that it could also be taken as an
easement for the purpose of ingress and egress to the place to the north of his
northern wall, along with the second schedule property, so as to white wash and
repair the said wall. But, no such thing is found spelt out in Ex.A.4 that
Ex.A.4 was intended to be used as a common area for both the plaintiffs and the
defendant.
30. As such, I am of the considered opinion that Ex.A.4 which emerged
subsequently to Ex.A.1 notice, is not legally enforceable, once it is found that
the plaintiffs themselves are having no area to the north of the northern wall
of their properties. The finding of the first appellate Court would clearly
highlight that the plaintiffs are having no right to the north of the said wall
and in such a case, Ex.A.4 is found to have been emerged out of some
misconception. Then the question arises as to whether such a document which
emerged out of misconception, could be pressed into service by the plaintiffs as
against the defendant and whether the Court could enforce it. The answer at
once is an emphatic ‘No’.
31. The learned Counsel for the plaintiffs would also submit that the
first appellate Court has fallen into error in paragraph No.10 of its judgment,
to the effect that the southern part of the roof of the defendant’s house rests
upon the northern wall of the plaintiffs’ house.
32. The learned Counsel for the plaintiffs would expound and explain that
only to the extent of at the most, 4 or 5 ft that projection over the pial of
the defendant’s house is resting on the said wall. The remaining part of the
extent of 1 ft in the second schedule is vacant till the end; on the eastern
side also, the eastern wall of the defendant touches only the said northern wall
and that cannot be taken as though the second schedule of property was totally
under the occupation of the defendant.
33. At this juncture, I would like to point out that it is not the
question of mere projection resting on the said wall or the eastern wall of the
defendant simply touching the said northern wall, but it has to be found out
whether the second schedule area is in S.No.227 or in S.No.229.
34. The preponderance of probabilities would govern the adjudication in
civil cases. Here, while considering the probabilities, such projection resting
on the northern wall of the plaintiffs and the eastern wall touching that
northern wall demonstrates that there was no such second schedule property and
it is an illusory one. Had there been any right of the plaintiffs over the
second schedule property, then there is nothing to show as to why the plaintiffs
have not prevented such constructions by taking legal action for removal.
35. Furthermore, it is the case of the plaintiffs that at the time of
emergence of Ex.A.4, there was measurement at the instance of both sides by the
Surveyor. Absolutely, there is no reference to such a fact in Ex.A.4. The
Surveyor who allegedly measured the suit property has not prepared any
proceedings of it and the parties were not given with any sketch or findings by
the Surveyor. Admittedly, the said Surveyor who allegedly measured at the time
of the emergence of Ex.A.4 was not examined before the trial Court.
36. Hence, considering all these facts, a fortiori, there is nothing to
prove that the said second schedule property lies in S.No.227 and the second
schedule property could be located only in S.No.229 over which the plaintiffs
admittedly are having no right.
37. Hence, in these circumstances, I am of the considered opinion that
there is no possibility of remanding the matter to the first appellate Court to
further probe into the matter and the first appellate Court au curant with law
and fact correctly by considering the pros and cons reversed the judgment and
decree of the trial Court which did not decide au fait with all these facts
which this Court dealt with.
38. Accordingly, the substantial question of law is answered to the effect
that even though the appellate Court gave a finding that Ex.A.4 is bad for want
of registration, I am of the considered opinion that Ex.A.4 cannot be taken as
bad for want of registration, but it is an unenforceable document.
39. In the result, there is no merit in this second appeal and
accordingly, the same is dismissed, confirming the judgment and decree of the
first appellate Court. No costs.
rsb
To
1.The Principal Sub Judge, Tirunelveli.
2.The Principal District Munsif, Tirunelveli.