{"id":176873,"date":"2008-02-06T00:00:00","date_gmt":"2008-02-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dhandapani-vs-murugesan-on-6-february-2008"},"modified":"2017-09-23T10:49:11","modified_gmt":"2017-09-23T05:19:11","slug":"dhandapani-vs-murugesan-on-6-february-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dhandapani-vs-murugesan-on-6-february-2008","title":{"rendered":"Dhandapani vs Murugesan on 6 February, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Dhandapani vs Murugesan on 6 February, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 06\/02\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nSecond Appeal No.343 of 2000\n\n\n\nDhandapani\t\t\t\t\t... Appellant\n\n\nVs\n\nMurugesan\t\t\t\t\t... Respondent\n\n\nPrayer\n\nSecond Appeal filed against the Judgment and Decree dated 08.09.1999\nmade in A.S. No.58 of 1998 on the file of the Sub Court, Karur, reversing the\nJudgment and Decree, dated 30.07.1998 made in O.S. 749 of 1994 on the file of\nthe District Munsif Court, Karur.\n\n!For Appellant     \t... Mr.S.Anand Chandrasekar\n\n^For Respondent\t\t... No appearance\n\n\n:JUDGMENT\n<\/pre>\n
\tThis second appeal is focussed as against the  judgment and decree dated
\n08.09.1999 passed in A.S. No.58 of 1998 on the file of the Sub Court, Karur, in
\ndismissing the original suit after reversing the Judgment and Decree, dated
\n30.07.1998 made in O.S. 749 of 1994 on the file of the District Munsif Court,
\nKarur.\n<\/p>\n
\t2. Heard the learned counsel for the appellant.  Despite printing the name
\nof the respondent, no one appeared.\n<\/p>\n
\t3. The parties, for convenience sake, are referred to hereunder according
\nto their litigative status before the trial Court.\n<\/p>\n
\t4. Broadly but briefly, precisely but narratively, the case of the
\nplaintiff as stood exposited from the plaint could be portrayed thus:
\n\tThe plaintiff Dhandapani filed the suit O.S.No.749 of 1994 in the Munsif
\nCourt, Karur.  The nitty-gritty, the gist and kernel of the case of the
\nplaintiff would run thus:\n<\/p>\n
\tBy virtue of the sale deed Ex.A.2 dated 08.07.1985, the plaintiff
\npurchased the “A” Schedule property described in the plaint measuring an extent
\nof 900 Square feet on the northern portion of the larger extent of 1800 square
\nfeet.  His predecessor in title was in possession and enjoyment of the property
\npurchased by him, following the same, he continued to enjoy “A” Schedule
\nproperty.  While so the defendant illegally attempted to exercise right over
\nthe “B” Scheduled property of the plaint i.e, ABFG portion, specified in the
\nrough sketch attached to the plaint.  When the plaintiff  raised a wall in the
\nGF portion  from East to West, the defendant tried to make a hole in that wall
\nunder the pretext of having a right to take sewage and rain water through that
\nwall and let it into the said ABFG portion.  Thereupon the suit was filed for
\ninjunction.\n<\/p>\n
\t5. Denying and challenging the plaint averments defendant Murugesan filed
\nthe refutory written statement, the nitty gritty of it would run thus:
\n\tABFG portion described in the “B” Schedule property of the plaint, refers
\nto the  common passage and it also forms part of the road, was used by the
\ndefendant and that drainage water was also let into that portion.  Accordingly,
\nhe prayed for the dismissal of the suit.\n<\/p>\n
\t6. The trial Court framed the relevant issues.   During trial, the
\nplaintiff examined himself as P.W.1 along with P.W.2 and Exs.A.1 and A.2 were
\nmarked. The defendant examined himself as D.W.1 along with D.W.2 and Exs.B.1 to
\nB.5 were marked. Ultimately, the trial Court decreed the suit.\n<\/p>\n
\t7. Challenging the said Judgment and decree of the trial Court, the
\ndefendant preferred appeal in A.S.No.58 of 1998, which was allowed by dismissing
\nthe original suit filed by the plaintiff after reversing the Judgment and Decree
\nof the trial Court.\n<\/p>\n
\t8. Being aggrieved by and dissatisfied with, the judgment and decree of
\nthe first appellate Court, the present second appeal has been filed on the
\ngrounds inter alia:\n<\/p>\n
\tThe first appellate Court after giving a finding to the effect that the
\ndefendant is having no right to take water through the “B” Schedule property,
\nerroneously held that the plaintiff has not proved his title or right of
\npossession and accordingly dismissed the suit.\n<\/p>\n
\t9. At the time of the admission of the Second Appeal, my learned
\nPredecessor framed the following questions of law:\n<\/p>\n
\t(i) Whether the Court below erred in law in dismissing the suit for
\ninjunction on the assumption that necessary property description is not given in
\nschedule property without even looking into the schedule given in the plaint and
\nwithout considering the fact that the property description is given in the
\nplaint was never in dispute between the parties?\n<\/p>\n
\t(ii) Whether the lower appellate Court is right in law holding that the
\nappellant was in possession of the disputed property overlooking the admission
\nof respondent in the written statement as well as the admission of D.Ws.1 and 2
\nregarding possession? and\n<\/p>\n
\t(iii) Whether the lower appellate Court is right in discarding the
\nmaterial evidence, namely, Exs.A-2, B.2, C.1 and C.2; admission of D.Ws.1 and 2
\nand in reversing the judgment and decree of the trial Court?\n<\/p>\n
Point Nos:(i) to (iii)<\/p>\n
\t10. All these points are taken together for discussion as they are
\ninterlinked and interconnected with one another.\n<\/p>\n
\t11. The learned counsel for the plaintiff  drawing the attention of this
\nCourt to the plaint sketch as well as the two commissioners’ Report and the
\nCommissioners’ Sketches filed in this case, would develop his argument to the
\neffect that if the matter is viewed taking into consideration the description as
\nfound in Ex.A.2, it would be explicitly and pellucidly clear that the “B”
\nSchedule property which is ABFG marked portion in the rough sketch is situated
\nto the South of  Palanisamy’s land and East of South to North lane.  This area
\nis a small area over which the dispute exists and not relating to the rest of
\nthe area which the plaintiff purchased under Ex.A.2; the defendant is having no
\nright or title over the disputed area, however high-handedly he lays claim over
\nthat area as though it was  part of a lane and that it was used by him for
\nletting into it his drainage water and rain water from his house;  and that the
\nfirst appellate Court erroneously understood as though the defendant is claiming
\nfor the entire 900 square feet as contemplated under Ex.A.2.  Here, the disputed
\narea  is “B” Schedule property situated virtually at the North-Western corner of
\nthe land described in Ex.A.2. The  North-Western corner boundaries do tally with
\nthe “B” Schedule portion and thereupon the first appellate Court was not
\njustified in raising doubt over title, ownership and in simply reversing the
\njudgment of the trial Court.\n<\/p>\n
\t12. I could see considerable force in the submission made by the learned
\ncounsel for the plaintiff for the reason set out infra:
\n\tEx.A.2 would contemplate the following description:
\n\t“fUh; hpo mutf;Fwpr;rp rg;o fUh; jhY]f;fh uh$g[uk; fpuhkk; f!;ghtpy; 1.66
\ni& fjtpyf;fkpl;l tPL twt[f;F rf;Fge;jp fpHBky; Buhl;Lf;Fk; tlf;F, bjd;tly; bghJ
\nre;Jf;Fk; Bkw;F, KUBfrd; twh tPl;Lf;Fk; bjd;tly; re;Jf;Fk; fpHf;F gHdpr;rhkp twh
\ntPl;Lf;Fk; bjw;F, njd; kj;jpapy; fpHBky; KHk; Rkhh; 20 (30 mo) bjd;tly; KHk;
\nRkhh; 40 (60 mo) njpy; tlg[wk; ghjp 900 r.mo epyKk; njpy; fl;oa[s;s tlf;F
\nghh;j;j Tiu tPLk; mijr; Brh;e;j fl;ol rhkhd;fSk; fjt[ epyt[ fl;Lf;Bfhg;g[ Kd;
\nthry; gpwtil i& brhj;Jf;F khKy; tHp eilghij ghj;jpaA;fs; rfpjKk; Brh;e;J fpwak;
\ni& brhj;J ej;jk; rh;Bt 628 rp-y; cs;sJ.”\n<\/p>\n
\t\t\t(emphasis supplied)
\nA mere perusal of the boundaries as found set out would make the point clear
\nthat the “B” Schedule property marked as ABFG in the rough sketch is forming
\npart of the North-Western portion of the property purchased under Ex.A.2.  No
\ndoubt in the Commissioner’s Report there is no clarification as to whether that
\narea is forming part of that 900 square feet or not.  But in this case the first
\nappellate Court was not expected to go into all<\/p>\n
those details as the defendant has no locus-standi to question all those
\naspects.\n<\/p>\n
\t13. The plaintiff on the one hand  asserts his right basing on the
\nboundaries as found set out in Ex.A.2.   Whereas the defendant would contend
\nthat it is a public road\/lane and that it was under his usage for letting into
\nit his drainage and rain water.  The first appellate Court in para No.13 of its
\njudgment clearly and categorically held that the  defendant never used that “B”
\nSchedule property for letting into it his drainage and rain water. Nonetheless
\nit does not confirm the trial Court’s verdict. However, it raised doubt
\nregarding the description of property as well as the ownership over it.  To the
\nrisk of repetition without being tautologous, the first appellate Court has
\nfailed to see that the suit property is very much within the boundaries as
\ncontemplated under Ex.A2.  ABFG area found in the rough sketch clearly situated
\nto the South of  Palanisamy’s house.  Here, the sketch drawn by the first
\nCommissioner, who visited the suit property during trial stage,  clearly pointed
\nout that a third party is enjoying area to the North of the “B” Schedule
\nproperty and as such the Northern boundary is as contemplated under Ex.A.2. The
\nSouth to North lane virtually proceeds to the West of the Palanisamy’s land.  As
\nsuch the disputed area is to the South of Palanisamy’s area.  In such a case the
\ndisputed area can not form part and parcel of the South to North lane.  It
\nobvious and apparent that the South to North lane is situated to the West of
\nboth the plaintiff’s and Palanisamy’s land, in such a case the doubt developed
\nby the first appellate Court is not at all well founded and it was based on
\nmisconception of  facts.\n<\/p>\n
\t14. Quite against the trial Court’s detailed judgment, the first appellate
\nCourt for the  purpose of ascertaining further about the physical features once
\nagain  appointed a Commissioner and that Commissioner  submitted his Report and
\nsketch relating to the use of the disputed area and based on that the first
\nappellate Court gave a finding that the disputed area could not have been used
\nas a place for letting into it drainage water or rain water of the defendant.
\nHence, in these circumstances, in view of the factual circumstances as well as
\nthe physical features the first appellate Court was not right in giving an
\nadverse finding as against the plaintiff.\n<\/p>\n
\t15. The burden of proof is not static.  No doubt initially the burden of
\nproof was on the plaintiff and he clearly proved  both by oral and documentary
\nevidence that “B” Schedule property was in the possession of his predecessor in
\ntitle and following his possession he came into possession of the suit property.
\nAs such despite the burden of proof got shifted to the defendant’s side, the
\ndefendant has not proved that the disputed property was either part of the
\npublic road or lane or under the public use including the defendant’s use and he
\nhas not also proved that the disputed property was used for letting into it his
\ndrainage and rain water. Even D.W.2, the relative witness of the defendant would
\nclearly and categorically admit that the vendors of the plaintiff used the
\ndisputed property as the place for drying their potteries as they were doing
\npottery fabrication business.  The learned counsel for the plaintiff would
\ncorrectly raise the point that had really the defendant been letting his
\ndrainage and rain water into it, the plaintiff could not have used the disputed
\nproperty for drying the potteries.\n<\/p>\n
\t16. No doubt, Ex.A.2 would refer to a rectangular area, but here the
\nsketch shows “L” shape area.  The defendant is trying to argue that the disputed
\narea in that “L” shaped area should be completely severed away from plaintiff’s
\narea as in Ex.A.2 and it should be treated as pathway.  Such an argument could
\nnot be countenanced because the boundary do tally as already cited supra and in
\nsuch a case the Judgment and Decree of the trial Court should not have been
\ninterfered with by the I Appellate Court.\n<\/p>\n
\t17. Accordingly, the first substantial question of law is answered that
\nthe    first appellate Court has erred in law in dismissing the suit for
\ninjunction on the assumption that necessary property description is not given in
\nschedule of property. Consequently the second question of law does not arise
\nbecause the lower Court does not give any finding that the defendant was in
\npossession of the suit property.  In fact the first appellate Court gave a
\nfinding the disputed area was never used by the defendant for drainage purpose.
\nInfact the evidence of D.W.2 is quite against the case of  the
\ndefendant.  The third substantial question of law is answered to the effect that
\nthe first appellate Court was wrong in discarding the material evidence viz.
\nExs.A.2, B.2, C.1 and C.2 and it misunderstood Commissioner’s report and sketch.\n<\/p>\n
\t18. Accordingly, the Second Appeal is allowed setting aside the decree and
\njudgment of the first appellate Court and the decree and judgment of the trial
\nCourt are restored.  In the facts and circumstances of the case, there is no
\norder as to the costs.\n<\/p>\n
sj<\/p>\n
To<\/p>\n
1.The Subordinate Judge, Karur.\n<\/p>\n
2.The District Munsif, Karur.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Dhandapani vs Murugesan on 6 February, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06\/02\/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Second Appeal No.343 of 2000 Dhandapani … Appellant Vs Murugesan … Respondent Prayer Second Appeal filed against the Judgment and Decree dated 08.09.1999 made in A.S. No.58 of 1998 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-176873","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nDhandapani vs Murugesan on 6 February, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dhandapani-vs-murugesan-on-6-february-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dhandapani vs Murugesan on 6 February, 2008 - 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