{"id":183406,"date":"2008-03-04T00:00:00","date_gmt":"2008-03-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/subbammal-died-vs-velliammal-on-4-march-2008"},"modified":"2019-02-21T01:23:30","modified_gmt":"2019-02-20T19:53:30","slug":"subbammal-died-vs-velliammal-on-4-march-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/subbammal-died-vs-velliammal-on-4-march-2008","title":{"rendered":"Subbammal (Died) vs Velliammal on 4 March, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Subbammal (Died) vs Velliammal on 4 March, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 04\/03\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nS.A.No.1190 of 2000\n\n1.Subbammal (died)\n\n2.Esaki Ammal\t\t... Appellants\/Respondents\/Plaintiffs\n\n\n(2nd appellant is brought on record as the legal representative of the deceased\nfirst appellant as per the Memo dated 08.02.2008 filed by the Counsel for the\nappellants.)\n\nVs\n\n\nVelliammal\t\t... Respondent\/Appellant\/Defendant\n\n\n\nPrayer\n\nSecond Appeal filed under Section 100 of the  Code of Civil Procedure,\nagainst the judgment and decree dated 24.01.2000 passed in A.S.No.101 of 1994 by\nthe learned Principal Sub Judge, Tirunelveli, in  reversing the judgment and\ndecree dated 30.08.1994 passed in O.S.No.729 of 1987 by the learned Principal\nDistrict Munsif, Tirunelveli.\n\n!For Appellants\t\t... Mr.R.S.Ramanathan\n\n\n^For Respondent\t\t... Mr.K.Srinivasan\n\n\n:JUDGMENT\n<\/pre>\n
\tThis second appeal is focussed as against the judgment and decree dated
\n24.01.2000 passed in A.S.No.101 of 1994 by the learned Principal Sub Judge,
\nTirunelveli, in  reversing the judgment and decree dated 30.08.1994 passed in
\nO.S.No.729 of 1987 by the learned Principal District Munsif, Tirunelveli.\n<\/p>\n
\t2. The parties are referred to according to their lititgative status
\nbefore the trial Court for clarity sake.\n<\/p>\n
\t3. Narratively but pithily, the case of the plaintiffs as stood exposited
\nfrom the plaint could be portrayed thus:\n<\/p>\n
\t(i) The plaintiffs and the defendant are neighbours.  The plaintiffs are
\nowing their plot and house to the south of the defendant’s plot and house, as
\ndescribed in the first schedule of the plaint.  The second schedule of the
\nplaint refers to 1 ft of vacant land which forms part of the plaintiffs’ plot on
\nthe northern side of their northern wall.\n<\/p>\n
\t(ii) According to the plaintiffs, the second scheduled property forms part
\nof the first scheduled property as it is situated in S.No.227.  The third
\nscheduled property refers to another 1 ft of property in one other S.No.229 to
\nthe north of S.No.227 which belongs to the defendant.  The defendant is the
\npurchaser of the suit property vide sale deed dated 30.09.1975, Ex.B.1.  The
\nplaintiffs during  the year 1975 were not aware what was contained in Ex.B.1.\n<\/p>\n
\t(iii) However, during the year 1979, when they came to know about the
\nmisdescription affecting the plaintiffs’ right as found incorporated in Ex.B.1,
\nEx.A.1, the legal notice was issued by the plaintiffs to the defendant calling
\nupon him to make corrections in the sale deed and that he should not based on
\nsuch erroneous description lay claim over the plaintiffs’ first and second
\nschedule of the property described in the plaint.\n<\/p>\n
\t(iv) Thereupon, elders intervened and Ex.A.4, emerged which is an
\nagreement between the plaintiffs and the defendant whereby the latter agreed not
\nto raise construction in the second and third schedules of the properties in the
\nevent of the defendant demolishing the existing structure and raising new
\nconstruction.\n<\/p>\n
\t(v) However, giving a go-bye to his promise, he started putting up new
\nconstruction including the third schedule of the property which necessitated the
\nplaintiff to file the suit seeking the following reliefs:
\n\t“1) declaring the plaintiffs’ title, interest and right to the 2nd
\nschedule property,\n<\/p>\n
\t2) granting injunction restraining the defendant, her men, servants,
\nemployees, agents and assigns etc from interfering with the peaceful possession
\nand enjoyment of the 2nd schedule property by the plaintiffs,\n<\/p>\n
\t3) granting injunction restraining the defendant, her men, employees,
\nservants, agents, and assigns etc, from putting up any construction in the 3rd
\nschedule property in view of the 3rd schedule property in view of the agreement
\ndated 21.07.1980,\n<\/p>\n
\t4) granting mandatory injunction directing the defendant to remove the
\nconstruction if any such as latrine, bathroom, septic tank, loft and any other
\nconstructions in the 2nd and 3rd schedule properties within a fixed period and
\nin default to do the same through the Court,\n<\/p>\n
\t5) awarding costs of this suit, and\n<\/p>\n
\t6) granting such other reliefs as the Honourable Court may deem fit and
\nproper in the circumstances of this case and render justice.”\n<\/p>\n
\t4. Per contra, denying and disputing, the allegations\/averments in the
\nplaint, the defendant filed the refutatory written statement; the warp and woof
\nof it, would run thus:\n<\/p>\n
\tEx.A.4 is not a genuine document and it was brought about by coercion and
\nundue influence.  The plaintiffs are having no right over either the second
\nscheduled property or the third scheduled property as described in the plaint.
\nThe description as found set out in Ex.B.1, the sale deed in favour of the
\ndefendant is genuine.  There is no right of passage beyond the northern wall of
\nthe suit property to an extent of 1 ft.  Accordingly, she prayed for the
\ndismissal of the suit.\n<\/p>\n
\t5. The trial Court framed the relevant issues.\n<\/p>\n
\t6. During trial, P.W.1 was examined and Exs.A.1 to A.12 were marked on the
\nside of the plaintiffs.  D.W.1 was examined and Ex.B.1 was marked on the side of
\nthe defendant.  Ex.C.1 was marked as a Court document.\n<\/p>\n
\t7. Ultimately, the trial Court decreed the suit.\n<\/p>\n
\t8. Challenging the judgment and decree of the trial Court, the defendant
\nfiled the appeal in A.S.No.101 of 1994 before the Principal Sub Court,
\nTirunelveli, which Court reversed the judgment and decree of the trial Court
\nafter appointing an Advocate Commissioner during the appellate stage and placing
\nreliance on the report submitted by the Commissioner.\n<\/p>\n
\t9. Being aggrieved by and dissatisfied with, the judgment and decree of
\nthe first appellate Court, this second appeal has been filed by the plaintiffs
\non the grounds inter alia thus:\n<\/p>\n
\tThe first appellate Court erroneously rejected Ex.A.4 on the ground of
\nwant of registration and payment of stamp duty.  Ex.A.4 is merely an agreement
\nbetween the two neighbours and it is admissible in evidence.  The first
\nappellate Court erred in giving a finding that the attestors to Ex.A.4 were not
\nexamined, ignoring the fact that P.W.1 is one of the attestors to Ex.A.4.  The
\nhusband of the defendant deliberately avoided from entering into the witness
\nbox, even though, he happened to be one other attestors of Ex.A.4.  The Advocate
\nCommissioner  who was appointed at the appellate stage, did not measure the suit
\nproperty properly. Even though the defendant candidly admitted that there is
\ndispute relating to two and half feet to the northern portion of the defendant’s
\nproperty, nonetheless that fact was not considered either by the Commissioner or
\nby the first appellate Court.  Accordingly, they prayed for setting aside the
\njudgment and decree of the first appellate Court and for restoring the judgment
\nand decree of the trial Court in decreeing the suit.\n<\/p>\n
\t10. At the time of admitting this second appeal, my learned Predecessor
\nframed the following substantial question of law:\n<\/p>\n
\t“Whether the construction placed on Ex.A.4 by the lower appellate Court is
\nsustainable in law or it is a misconception as the lower appellate Court had
\nproceeded on the assumption as if Ex.A.4 creates an interest in immovable
\nproperty?”\n<\/p>\n
\t11. Heard both sides.\n<\/p>\n
\t12. The learned Counsel for the plaintiffs placing reliance on the grounds
\nof appeal and drawing the attention of this Court to the Commissioner’s report
\nand also Ex.A.4 would develop his argument to the effect that the first
\nappellate Court without giving due opportunity to the plaintiffs to cross-
\nexamine the Commissioner and the Surveyor, out and out relied upon the
\nCommissioner’s report and the sketch Exs.C.2 and C.3 respectively and passed the
\njudgment and that approach of the first appellate Court is erroneous.  Whereas
\nthe learned Counsel for the defendants would support the finding given by the
\nfirst appellate Court by advancing argument to the effect that the first
\nappellate Court after considering that the Commissioner appointed by the trial
\nCourt was not allowed to execute the mission and that he submitted his report
\nwhich was of no use to either side, did choose to appoint the fresh Advocate
\nCommissioner at the appellate stage, who visited the suit property along with
\nthe Surveyor and filed the report and sketch.\n<\/p>\n
\t13. The learned Counsel for the defendant also would highlight that there
\nis nothing on record to highlight as to what mistake the Commissioner appointed
\nby the first appellate Court committed in arriving at his conclusion or in
\nmeasuring the respective properties.\n<\/p>\n
\t14. The unassailable and indubitable propositions both factual and legal,
\nhave to be set out thus:\n<\/p>\n
\tThe onus of proof is on the plaintiffs to prove their case.  However, the
\nplaintiffs are having no document of title to prove the actual extent, for which
\nthey are entitled to and they relied on the revenue records only.  According to
\nthem, the plaintiffs are entitled to a plot of land in S.No.227 and not in
\nS.No.229.  Ex.A.3 is the admitted Government Plan relating to the S.Nos.227, 229
\nand 228.  In this case, it is evident and apparent that a street is running from
\nnorth to south to the west of S.Nos.227 and 229.  The land in S.No.228 is
\nsituated to the east of S.No.229.  In fact, S.No.227 is situated to the south of
\nboth S.Nos.229 and 228.  There is no dispute between the plaintiffs and the
\nowner of the plot in S.No.228.  However, the dispute is between the defendant
\nwho is admittedly the owner of S.No.229 and the plaintiffs who are admittedly
\nthe owner of S.No.227.  Hence, in this case, relating to the right over the
\nplots covered under thos respective survey numbers are concerned, absolutely
\nthere is no dispute.  The plaintiffs are not claiming any ownership right over
\nS.No.229 except for 1 ft as described in the third schedule of the plaint.\n<\/p>\n
\t15. Similarly, the defendant is not claiming  any right in the plot in
\nS.No.227.  The Advocate Commissioner appointed at the appellate stage, with
\nreference to survey stones and after cross verifications, located the boundaries
\nrelating to the aforesaid survey numbers concerned, which the first appellate
\nCourt held after due discussions as done correctly.  The dispute here is not
\nbetween the owners having plot areas in one and the same survey number.  But, it
\nis the case as already set out supra, the plaintiffs are entitled to the land in
\nS.No.227 and the defendant is entitled to the land in S.No.229.  As such, the
\nCommissioner as per Ex.C.3, located the respective survey numbers and submitted
\nhis report.\n<\/p>\n
\t16. It is the grievance of the plaintiffs that had the survey numbers been
\nmeasured properly, then the claim of the plaintiffs over the second schedule
\nproperty which forms part of S.No.227, could have been located correctly and
\nbecause of erroneous measurements, it could not be done so.\n<\/p>\n
\t17. Hence, it is just and necessary to look into Exs.C.2 and C.3
\nthoroughly.  Ex.C.3, the sketch, reflects the averments in Ex.C.2 the report.
\nHad really 1 ft of the land as contemplated in the second schedule of the plaint
\nis situated in S.No.227 itself, then certainly there will be an “L” shape land
\nprojecting towards north and it would not be in alignment with the southern
\nboundary of S.No.228.\n<\/p>\n
\t18. The learned Counsel for the plaintiffs would  point out that the plot
\nof the plaintiff itself is slanting and not exactly rectangular in shape.  No
\ndoubt, obviously Exs.A.3 and C.3 refer to the said fact.\n<\/p>\n
\t19. The Commissioner’s report would reveal that he took pains to cross
\nverify the survey stones and thereupon alone, he fixed it.  As has been
\nhighlighted by the learned Counsel for the defendant,  the plaintiffs have not
\nfiled any objections before the first appellate Court as against the
\nCommissioner’s report and sketch and furthermore, even in the appeal grounds
\nthere is no specification as to how the measurement effected by the Commissioner
\nis erroneous.  Simply because the Commissioner and the Surveyor were not
\nexamined before the first appellate Court, this Court cannot remand the matter
\nto the first appellate Court so as to give opportunity for the plaintiffs to
\ncross-examine them and elicit out certain facts.  If at all, there is any error
\nin the Commissioner’s report, then naturally he could be subjected to cross-
\nexamination.  Virtually, Ex.C.2 is the Commissioner’s report wherein he even set
\nout the methodology adopted by him unlike in other reports, nonetheless no
\nobjections emerged from the side of the plaintiffs.\n<\/p>\n
\t20. Hence, I am of the considered opinion that no defect in the
\nmeasurement effected by the Commissioner could be traced.\n<\/p>\n
\t21. The learned Counsel for the plaintiffs would submit that under Order
\n41 Rule 27 of the Code of Civil Procedure, additional evidence by way of
\nappointing of the Commissioner and receiving report should not have been
\nresorted to without adhering to proper procedure.\n<\/p>\n
\t22. I am of the opinion that the appointment of Commissioner even at the
\nfirst appellate stage is governed by Order 26 of the Code of Civil Procedure.
\nOnce, the Advocate Commissioner measured the suit property and submitted his
\nreport, it will become the part of the records and for the purpose of clarity
\nsake, the report and the sketch were marked as Exs.C.2 and C.3.  In such a case,
\nI could not countenance the aforesaid plea raised on the side of the plaintiffs.\n<\/p>\n
\t23. The contention of the plaintiffs is to the effect that Ex.A.4 was
\nwrongly interpreted and considered by the first appellate Court.  Ex.A.4 is
\nfound written in a piece of paper which was not stamped earlier.  However, at
\nthe time of marking it, stamp duty and penalty were collected by the trial
\nCourt.\n<\/p>\n
\t24. The learned Counsel for the plaintiffs would cite the decision in
\nHindustan Petroleum Corporation Ltd., v. M.Rose<\/a> reported in (2007) 6 MLJ 468 and
\ndevelop his argument to the effect that Ex.A.4 is not  bad for want of
\nregistration.  However, the first appellate Court misunderstood the said fact.\n<\/p>\n
\t25. I am of the considered opinion that Ex.A.4, ex facie and prima facie,
\ndoes not attract registration for the foregoing reasons.  In fact, according to
\nthe plaintiffs, the first and second scheduled properties belonged to them and
\nas per Ex.A.4, the right of the plaintiffs was not transferred from the
\ndefendant to the plaintiffs in respect of the first and second items of
\nproperties.  In respect of third item of property which admittedly belongs to
\nthe defendant, there is also no transfer of interest from the defendant to the
\nplaintiffs.\n<\/p>\n
\t26. What are all agreed under Ex.A.4 is that the defendant simply
\nundertook that in the event of the defendant raising some new construction, he
\nwould leave 1 ft in his own land, and as such, according to the plaintiffs,
\nconsensus was arrived at between the two neighbours without any transfer of
\ninterest in any of the immovable properties referred to supra.  Unless any
\ninterest in immovable property worth more than Rs.100\/- is involved in any
\ndocument, the question of invoking Section 17 of the Registration Act would not
\narise.  Hence, I am of the considered opinion that Ex.A.4 is not bad for want of
\nregistration and the stamp duty and penalty also have been collected.  Then, the
\nquestion arises whether Ex.A.4 is an enforceable document.  The learned Counsel
\nfor the defendant would contend that it has been brought about by practising
\ncoercion and undue influence, whereas the learned Counsel for the plaintiffs
\nwould submit that after issuance of Ex.A.1 and after the intervention of elders,
\nEx.A.4 emerged, wherein P.W.1 and the defendant’s husband happened to be the
\nattestors.\n<\/p>\n
\t27. However, the learned Counsel for the defendant would highlight that
\nP.W.1 himself who happened to be the son-in-law of the first plaintiff, would
\nsubmit that he did not see the defendant signing the document.\n<\/p>\n
\t28. Be that as it may, once the plea of the defendant is to the effect
\nthat it was brought about by coercion and undue influence, it is of little
\nsignificance whether the attestors had seen the parties signing it or not.  The
\nmain legal issue is as to whether Ex.A.4 is an enforceable document.  Put
\nsimply, the neighbours at one point of time, entered into some agreement in the
\nform of Ex.A.4.  Whether it is an enforceable document in stricto sensu in the
\neye of law.  There should be consideration for any agreement.  In the case of
\neasement to light and air, there is pre-existing right on the part of the
\nbeneficiary under such agreement relating to the right to light and air.  But,
\nhere so far, the third schedule property is concerned which admittedly belongs
\nto the defendant, Ex.A.4 does not demonstrate that such third schedule property
\nshould be kept vacant for easement of light or air to be enjoyed by the
\nplaintiffs.\n<\/p>\n
\t29. The plaintiffs’ contention is that it could also be taken as an
\neasement for the purpose of ingress and egress to the place to the north of his
\nnorthern wall, along with the second schedule property, so as to white wash and
\nrepair the said wall.  But, no such thing is found spelt out in Ex.A.4 that
\nEx.A.4 was intended to be used as a common area for both the plaintiffs and the
\ndefendant.\n<\/p>\n
\t30. As such, I am of the considered opinion that Ex.A.4 which emerged
\nsubsequently to Ex.A.1 notice, is not legally enforceable, once it is found that
\nthe plaintiffs themselves are having no area to the north of the northern wall
\nof their properties. The finding of the first appellate Court would clearly
\nhighlight that the plaintiffs are having no right to the north of the said wall
\nand in such a case, Ex.A.4 is found to have been emerged out of some
\nmisconception.  Then the question arises as to whether such a document which
\nemerged out of misconception, could be pressed into service by the plaintiffs as
\nagainst the defendant and whether the Court could enforce it.  The answer at
\nonce is an emphatic ‘No’.\n<\/p>\n
\t31. The learned Counsel for the plaintiffs would also submit that the
\nfirst appellate Court has fallen  into error in paragraph No.10 of its judgment,
\nto the effect that the southern part of the roof of the defendant’s house rests
\nupon the northern wall of the plaintiffs’ house.\n<\/p>\n
\t32. The learned Counsel for the plaintiffs would expound and explain that
\nonly to the extent of at the most, 4 or 5 ft that projection over the pial of
\nthe defendant’s house is resting on the said wall.  The remaining part of the
\nextent of 1 ft in the second schedule is vacant till the end;  on the eastern
\nside also, the eastern wall of the defendant touches only the said northern wall
\nand that cannot be taken as though the second schedule of property was totally
\nunder the occupation of the defendant.\n<\/p>\n
\t33. At this juncture, I would like to point out that it is not the
\nquestion of mere projection resting on the said wall or the eastern wall of the
\ndefendant simply touching the said northern wall, but it has to be found out
\nwhether the second schedule area is in S.No.227 or in S.No.229.\n<\/p>\n
\t34. The preponderance of probabilities would govern the adjudication in
\ncivil cases.  Here, while considering the probabilities, such projection resting
\non the northern wall of the plaintiffs and the eastern wall touching that
\nnorthern wall demonstrates that there was no such second schedule property and
\nit is an illusory one.  Had there been any right of the plaintiffs over the
\nsecond schedule property, then there is nothing to show as to why the plaintiffs
\nhave not prevented such constructions by taking legal action for removal.\n<\/p>\n
\t35. Furthermore, it is the case of the plaintiffs that at the time of
\nemergence of Ex.A.4, there was measurement at the instance of both sides by the
\nSurveyor.  Absolutely, there is no reference to such a fact in Ex.A.4.  The
\nSurveyor who allegedly measured the suit property has not prepared any
\nproceedings of it and the parties were not given with any sketch or findings  by
\nthe Surveyor.  Admittedly, the said Surveyor who allegedly measured at the time
\nof the emergence of Ex.A.4 was not examined before the trial Court.\n<\/p>\n
\t36. Hence, considering all these facts, a fortiori, there is nothing to
\nprove that the said second schedule property lies in S.No.227 and the second
\nschedule property could be located only in S.No.229 over which the plaintiffs
\nadmittedly are having no right.\n<\/p>\n
\t37. Hence, in these circumstances, I am of the considered opinion that
\nthere is no possibility of remanding the matter to the first appellate Court to
\nfurther probe into the matter and the first appellate Court au curant with law
\nand fact correctly by considering the pros and cons reversed the judgment and
\ndecree of the trial Court which did not decide  au fait with all these facts
\nwhich this Court dealt with.\n<\/p>\n
\t38. Accordingly, the substantial question of law is answered to the effect
\nthat even though the appellate Court gave a finding that Ex.A.4 is bad for want
\nof registration, I am of the considered opinion that Ex.A.4 cannot be taken as
\nbad for want of registration, but it is an unenforceable document.\n<\/p>\n
\t39. In the result, there is no merit in this second appeal and
\naccordingly, the same is dismissed, confirming the judgment and decree of the
\nfirst appellate Court.  No costs.\n<\/p>\n
rsb<\/p>\n
To<\/p>\n
1.The  Principal Sub Judge, Tirunelveli.\n<\/p>\n
2.The Principal District Munsif, Tirunelveli.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Subbammal (Died) vs Velliammal on 4 March, 2008 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 […]<\/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-183406","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSubbammal (Died) vs Velliammal on 4 March, 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\/subbammal-died-vs-velliammal-on-4-march-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Subbammal (Died) vs Velliammal on 4 March, 2008 - 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