{"id":238948,"date":"2006-12-18T00:00:00","date_gmt":"2006-12-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-palanisamy-gounder-vs-n-palanisamy-on-18-december-2006"},"modified":"2015-11-21T17:33:49","modified_gmt":"2015-11-21T12:03:49","slug":"s-palanisamy-gounder-vs-n-palanisamy-on-18-december-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-palanisamy-gounder-vs-n-palanisamy-on-18-december-2006","title":{"rendered":"S. Palanisamy Gounder vs N. Palanisamy on 18 December, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
S. Palanisamy Gounder vs N. Palanisamy on 18 December, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED:\t18\/12\/2006\n\n\nCORAM:\nTHE HONOURABLE MR. JUSTICE V. DHANAPALAN\n\n\nS.A. No.376 of 1995\n\n\nS. Palanisamy Gounder\t\t.. \t\tAppellant\n\n\nVersus\n\n\n1.\tN. Palanisamy\n\n2.\tNachimuthu Gounder\n\n3.\tMuthammal\n\n4.\tKarupathal\t\t.. \t\tRespondents\n\n\n\n\tSecond Appeal filed under Section 100 of Code of Civil Procedure against\nthe judgment and decree dated 23.12.1994 made in A.S. No.153 of 1993 on the file\nof the District Court, Dindigul Anna District at Dindigul reversing the judgment\nand decree dated 26.08.1993 passed in O.S. No.712 of 1986 on the file of the\nDistrict Munsif, Palani\n\n\n!For appellant\t\t...\tMr. R. Vijayakumar\n\t\t\t\tfor Mr. N. Damodaran\n\t\n^For respondents\t...\tMr. Hemakarthikeyan\n\t\t\t\tfor M\/s. P. Bagyalakshmi\n\n\n:JUDGMENT\n<\/pre>\n
\tThis Second Appeal is directed against the judgment and decree of the
\nDistrict Court at Dindigul-Anna District reversing the judgment and decree of
\nthe District Munsif Court at Dindigul.\n<\/p>\n
\t2.\tThe Original Suit was filed by the first respondent herein in
\nrespect of his 50 cents of agricultural land situate at R.S. No.209\/C in
\nEllapatti Village, Palani Taluk for the relief of declaration of title, recovery
\nof possession and mandatory injunction directing the defendants to form an odai
\nin their land in Survey No.204.\n<\/p>\n
\t3.\tThe plaintiff’s case is that the suit property was inherited by him
\nand his brothers from their ancestors.  The property of the defendants is
\nlocated in the south of the plaintiff’s property in Survey No.204.  There was an
\nodai running through the defendants’ land and six years prior to the filing of
\nthe suit, due to heavy floods, the said odai pushed into plaintiff’s property
\nand consequently, the boundaries of the plaintiff’s property got changed and
\ndefendants encroached 50 cents of the suit property and therefore, he filed the
\nsuit for the reliefs as stated above.  In support of the plaintiff’s case, seven
\ndocuments were marked and two witnesses were examined.\n<\/p>\n
\t4.\tResisting the case of the plaintiff, the third defendant filed a
\nwritten statement which was adopted by the other defendants too.  In the said
\nwritten statement, it was contended that there was no flood as such six years
\nprior to filing of the suit and further, the defendants’ land was 3 ft. higher
\nthan that of the plaintiff’s land and that being the case, there was no
\npossibility for encroachment by the defendants and hence, the suit had to be
\ndismissed.  On the side of the defendants, nineteen documents were marked and
\nthree witnesses were examined.\n<\/p>\n
\t5.\tThe Trial Court, on consideration of the oral and documentary
\nevidence, rejected the claim of the plaintiff that there was heavy flood and
\ncame to the conclusion that since the defendants’ land was 3 ft. higher than the
\nplaintiff’s land, there is no possibility for encroachment by the defendants and
\nholding so,  the Trial Court dismissed the suit.\n<\/p>\n
\t6.\tOn appeal, the first appellate court, differed with the view of the
\nTrial Judge and presumed that the floods would have pushed inside the
\nplaintiff’s land and placing reliance on the report of the Advocate
\nCommissioner, it was of the opinion that 33 cents of land in Survey No.209\/2C is
\nlocated beyond the odai and the same is in possession of the defendant and
\ndecreed the suit in respect of entire 50 cents of the suit property.  As against
\nthat judgment and decree of the lower appellate court, the present Second
\nAppeal.\n<\/p>\n
\t7.\tOn 20.03.1995, this Court admitted the appeal on the substantial
\nquestion of law as to whether the Commissioner’s Report was the proper document
\nto be read by the Court below, when especially the Commissioner did not identify
\nthe exact extent which the plaintiff owns in S.No.209\/2C.\n<\/p>\n
\t8.\tMr. R. Vijayakumar, learned counsel appearing for the appellants has
\nstrenuously contended that the mere consideration of a portion of the report of
\nthe Advocate Commissioner for deciding the main issue between the parties is not
\nproper, more particularly when the Commissioner has failed to identify the exact
\nextent of the suit property.  He has further contended that the appellate court
\nhas not considered Ex.B.1, the partition deed and also Ex.A.4, the partition
\ndeed subsequently entered into between the first respondent and his brother in
\nits true perspective and it has failed to note that the first respondent and his
\nfamily members were allotted an extent of 3.20 acres in Survey No.209\/2C out of
\na total extent of 6.43 acres and in the subsequent partition deed under Ex.A.4,
\nthe extent of the property is mentioned as 3.90 acres and the first respondent
\nhas miserably failed to prove the acquisition of excess of 70 cents of land in
\nthe said survey number and therefore, the appellate court’s decision in not
\nconsidering the above facts has vitiated the entire findings.\n<\/p>\n
\t9.\tIt is the further argument of the counsel for the appellant that
\nthere is no evidence let in by the first respondent except his own oral evidence
\nand that of P.W.2 to prove his contention that the odai which was running
\nbetween his land and the appellant’s land had changed the course of his portion
\nof land in Survey No.209\/2C and in that view of the matter, the appellate court
\nhas erred in relying on the contention of the first respondent without any
\nclinching evidence.  The learned counsel has also relied on the oral evidence of
\nP.Ws.1 and 2 who have categorically admitted the existence of odai in
\nS.No.209\/2C for more than 15 years and even before the coming into existence of
\nExs.B.1 and A.4 .\n<\/p>\n
\t10.\tMr. Vijayakumar has further contended that the surplus water
\navailable in the pools situated in Survey No.204 is running further towards
\nwestern end of the pool and the same has been entering into S.No.209\/2C where
\nthere is an odai running in South-North direction and which is joining at point
\nA and running further and joining East-West odai at point B in the
\nCommissioner’s Plan.   Further, another odai is coming from the far western side
\nand joining the odai at point XY line in the Commissioner’s Plan which facts
\nwould disclose that the said East-West odai is existing for a long time at
\nSurvey No.209\/2C and would also belie the contention of the first respondent as
\nif the odai which was running through the Survey No.204 was shifted to Survey
\nNo.209\/2C six years back due to floods.\n<\/p>\n
\t11.\tYet another submission made by Mr. Vijayakumar is that the finding
\nof the appellate court in holding that the appellant has failed to plead adverse
\npossession is erroneous when admittedly he had no occasion to plead the same as
\nthe first respondent had failed to come to the court with clean hands as found
\nby the Trial Court.   He has further submitted that the appellate court has
\nfailed to see that due to act of God, the odai has changed its course for more
\nthan 100 years back and is running in Survey No.209\/2C and it is not an act of
\nthe appellant and hence, the discretionary relief of mandatory injunction shall
\nnot be granted to the first respondent.\n<\/p>\n
\t12.\tPer contra, Mr. Hemakarthikeyan, learned counsel for the respondents
\nhas resisted the contentions put forth by Mr. Vijayakumar and has contended that
\nthe odai which was running in Survey No.204 in defendant’s land, at some point
\nof time, might have pushed inside the land of the first respondent\/plaintiff and
\nthe appellate court has rightly relied on the report of the Advocate
\nCommissioner which says that beyond the odai, 33 cents of land in Survey
\nNo.209\/2C is located and the same is in possession of the defendant.\n<\/p>\n
\t13.\tThe learned counsel for the respondents has argued that the first
\nrespondent\/plaintiff had inherited the ancestral suit property as also his
\nbrothers and vide Ex.A.4 dated 30.08.1980, the partition deed, the suit property
\nin Survey No. 209\/2C was allotted to the respondent\/plaintiff and an odai which
\nwas running through the defendant’s land had pushed inside the plaintiff’s land
\ndue to heavy floods and thereby, the boundaries got changed and the defendant
\nhad encroached 50 cents of the suit property.  Hence, the plaintiff prayed for
\ndeclaration of possession and also for mandatory injunction and the well-
\nconsidered and reasoned decision of the lower appellate court has to be
\nconfirmed by dismissing the appeal.\n<\/p>\n
\t14.\tHaving carefully considered the rival submissions made by the
\ncounsel on either side, let me proceed to deal with the substantial question of
\nlaw involved in this appeal.\n<\/p>\n
\t15.\tAdmittedly, there are two partition deeds, viz., Ex.B.1 dated
\n08.03.1979 and Ex.A.4 dated 30.08.1980.  It is seen that there is no explanation
\non the side of the plaintiff for the accretion of 70 cents and there is no
\nproper evidence to prove the title over 50 cents of the suit property.\n<\/p>\n
\t16.\tThe plaintiff himself who was examined as P.W.1 has categorically
\nadmitted that only an extent of 33 cents of his property has been encroached.
\nThe Advocate Commissioner also has pointed out that only 33 cents of the land is
\nlocated beyond the odai.  Further, P.W.2, the plaintiff’s vendor has also
\nadmitted that the said odai has been in existence for more than 15 years and the
\ndefendant’s land is higher than the plaintiff’s land by about 3 ft.  This would
\nonly go to prove that the land of the plaintiff was not at all encroached.  That
\napart, there was no oral or documentary evidence to show that there was heavy
\nflood six years prior to the filing of the suit to prove the plaintiff’s case.
\nEven the Advocate Commissioner is not able to identify the extent of 33 cents of
\nland.  The defendants have categorically denied the title and possession of the
\nplaintiffs in their written statement and therefore, the entire burden is upon
\nthe plaintiff to prove his case and he has not explained the discrepancy between
\nthe extent found in Ex.B.1 and Ex.A.4 i.e. the partition of the property is to
\nthe extent of 3.20 acres but the plaintiff’s claim is that it is 3.90 acres.  In
\nthe absence of any evidentiary value to prove the claim of the plaintiff, the
\nclaim for declaration of title and recovery of possession and also mandatory
\ninjunction cannot be sustained, especially when P.W.2 has stated that the odai
\nhas been in existence in the same position for the last 15 years and the
\npossibility of shifting of boundaries due to floods also has not been proved by
\nthe plaintiff.\n<\/p>\n
\t17.\tIn respect of plea of adverse possession, the finding of the
\nappellate court in holding that the appellant has failed to plead adverse
\npossession is erroneous when admittedly he had no occasion to plead the same as
\nthe first respondent had failed to come to the Court with true facts and
\nacceptable evidence.  This is because, the contention of the counsel for the
\nappellant that due to the act of God, the odai has changed its course several
\ndecades back and is running in Survey No.209\/2C and it is not because of the act
\nof the appellant and therefore, there is no necessity to plead such adverse
\npossession, is only justifiable and convincing.  In that view of the matter, the
\nfinding of the Trial Court is acceptable especially when there was no occasion
\nfor the plaintiff to plead such adverse possession.\n<\/p>\n
\t18.\tIt is seen that the Commissioner, in his report, has pointed out
\nthat the ridges on either side of the odai have been made up of pucca wall and
\nhas further observed that 33 cents of land is beyond the odai in S. No.209\/2C.
\nThe Commissioner, further went on to observe that he was not able to identify
\nthe location of 33 cents of land.  What is to be seen is whether the report of
\nthe Advocate Commissioner gives the exact location of the extent of 33 cents to
\ndecide the case of the plaintiff.\n<\/p>\n
\t19.\tIt is to be noted here that Order 26, Rule 9, CPC empowers
\nappointment of a Commissioner for local investigation, even if the prayer for
\nsuch appointment has not come from the parties and in such a case, the Court
\nitself can appoint a Commissioner.  The Commissioner, so appointed, has to do
\nlocal investigation at an early stage of litigation when the controversy is as
\nto identification, location or measurement of the land or premises or object and
\nhis report would serve the Court merely for the appraisal of the situation and
\nfor a better understanding of the evidence of parties and  it can be never be a
\nbasis of a judgment.\n<\/p>\n
\t20.\tOn the other hand, it would also be relevant in this context to
\ndiscuss on the aspect as to whether the Commissioner’s report can be interfered
\nwith. In the opinion of the Privy Council, in Chandan Mull vs. Chaimanlal
\nreported in AIR 1940 PC 3, in paragraph 6, it was held as under:
\n\t“Interference with the result of a long and careful local investigation
\nexcept upon clearly defined and sufficient grounds is to be deprecated.  It is
\nnot safe for a Court to act as an expert and to overrule the elaborate report of
\na Commissioner whose integrity and carefulness are unquestioned, whose careful
\nand laborious execution of his task was proved by his report and who had not
\nblindly adopted the assertions of either party.”\n<\/p>\n
\t21.\tAs per the above ruling, where the Commissioner has taken careful
\nand painstaking efforts to measure the metes and bounds and physical features of
\nthe disputed portion and is involved in a laborious task of preparing his
\nreport, the scope of interfering with his Report is limited.  But, in the
\ninstant case, the Advocate Commissioner has not even been able to identify the
\nlocation of 33 cents of land.  Therefore, the finding of the lower appellate
\nCourt relying on his report, which is without identification, location and
\nmeasurement of the metes and bounds and physical features of the 33 cents of the
\nplaintiff’s property, to interfere with the findings of the Trial Court, in my
\nopinion, needs to be carefully looked into.  This is because as per the settled
\nlaw, the Commissioner’s Report can be used only as a guiding factor in the
\nprocess of decision-making and can never be used as the basis of decision-
\nmaking.  When the Trial Court has rightly taken into consideration the oral
\ndeposition of witnesses and other documentary evidence and the circumstances of
\nthe case, the lower appellate Court has held erroneously, by placing reliance on
\nthe report of the Advocate Commissioner, thus, interfering with the well-
\nrendered findings of the Trial Court. When the primary object of appointing an
\nAdvocate Commissioner is to guide the Court in arriving at a proper conclusion
\nand when that primary object remains unfulfilled, the lower appellate court
\nshould have certainly not relied on his report in coming to its conclusion and
\nthe substantial question of law as to whether the Commissioner’s Report was a
\nproper document to be read by the court below, is answered in negative.\n<\/p>\n
\t22.\tIn that view of the matter, I am of the firm view that the lower
\nappellate court was totally unjustifiable in interfering with the decree of the
\ntrial court based on the report of the Advocate Commissioner and I would rather
\ngo to the extent of saying that it committed a serious error of law in that
\nregard.  As such, the judgment of the lower appellate court is set aside; the
\njudgment and decree of the Trial Court in dismissing the suit is confirmed and
\nas such, the appeal stands allowed.  No costs.\n<\/p>\n
cad<\/p>\n
To<\/p>\n
1.\tThe District Court, Dindigul<\/p>\n
2.\tThe District Munsif Court, Palani<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court S. Palanisamy Gounder vs N. Palanisamy on 18 December, 2006 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18\/12\/2006 CORAM: THE HONOURABLE MR. JUSTICE V. DHANAPALAN S.A. No.376 of 1995 S. Palanisamy Gounder .. Appellant Versus 1. N. Palanisamy 2. Nachimuthu Gounder 3. Muthammal 4. Karupathal .. Respondents Second Appeal filed […]<\/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-238948","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nS. Palanisamy Gounder vs N. 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