{"id":58533,"date":"2008-02-16T00:00:00","date_gmt":"2008-02-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-ramalingam-servai-vs-r-karuppiah-servai-on-16-february-2008"},"modified":"2018-10-19T10:19:05","modified_gmt":"2018-10-19T04:49:05","slug":"r-ramalingam-servai-vs-r-karuppiah-servai-on-16-february-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-ramalingam-servai-vs-r-karuppiah-servai-on-16-february-2008","title":{"rendered":"R.Ramalingam Servai vs R.Karuppiah Servai on 16 February, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
R.Ramalingam Servai vs R.Karuppiah Servai on 16 February, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 16\/02\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nS.A.No.1138 of 2000\n\n\nR.Ramalingam Servai\t\t... Appellant\/Appellant\/Defendant\n\n\nVs\n\nR.Karuppiah Servai\t\t... Respondent\/Respondent\/Plaintiff\n\n\nPrayer\n\nSecond Appeal filed under Section 100 of the  Code of Civil Procedure,\nagainst the judgment and decree of the learned III Additional Subordinate Judge,\nMadurai, dated 08.10.1999 in A.S.No.128 of 1978 in confirming the judgment and\ndecree of the learned District Munsif, Melur, dated 29.04.1978 in O.S.No.131 of\n1977.\n\n!For Appellant  \t... Mr.S.Subbiah\n\n^For Respondent \t... Mr.P.T.S.Narendravasan\n\n\n\n:JUDGMENT\n<\/pre>\n
\tThis second appeal is focussed as against the judgment and decree of the
\nlearned III Additional Subordinate Judge, Madurai, dated 08.10.1999 in
\nA.S.No.128 of 1978 in confirming the judgment and decree of the learned District
\nMunsif, Melur, dated 29.04.1978 in O.S.No.131 of 1977, but modifying on certain
\naspects, certain findings and the reliefs granted by the trial Court.\n<\/p>\n
\t2. The parties, for convenience sake, are referred to hereunder according
\nto their litigative status before the trial Court.\n<\/p>\n
\t3. Broadly but briefly, narratively but precisely, the case of the
\nplaintiff as stood exposited from the records could be portrayed thus:\n<\/p>\n
\tThe plaintiff filed the suit in respect of three items of the suit landed
\nproperties, so to say, an extent of 14 cents out of 1 acre 18 cents in the first
\nitem, 8 cents out of 2 acres 80 cents in the second item and 9 cents out of 7
\nacres of land in the third item described in the Schedule of the plaint.  The
\nplaintiff sought for declaration of title in respect of all the three items,
\nhowever in respect of first item, he prayed for recovery of possession.  In
\nrespect of items 2 and 3, he prayed for injunction, relying on the registered
\npartition deed dated 20.09.1963, Ex.A.1.  Accordingly, he prayed for decreeing
\nthe suit.\n<\/p>\n
\t4. Per contra, denying and challenging, the allegations\/averments in the
\nplaint, the defendant filed the refutatory written statement; the pith and
\nmarrow of it would run thus:\n<\/p>\n
\tThe allegations and the claims made in the plaint are untenable.  The
\nplaintiff is not entitled to the extents referred to in the plaint.  In the
\npartition deed itself, the southern boundary for 1 acre 18 cents allotted to the
\nplaintiff  (second item), the Ittarai Pathai is not found mentioned.  The
\npathway referred to in the plaint as though it was converted into cart road in
\nS.No.240\/4-A is false.  There is only a small Nadai Pathai running through
\nS.No.240\/4-A and it is not a cart track.  S.No.108\/3 measuring an extent of 1
\nacre and 18 cents being a Nanja land and S.No.108\/2 measuring an extent of 1
\nacre and 26 cents being a Punja land are contiguous areas and constituted the
\njoint family property prior to the said partition.  There were demarcations also
\nby making ridges.  In the partition deed, the extents are referred to in a rough
\nmanner and not mentioned after actually measuring the said two Survey Numbers.
\nThe plaintiff made encroachments in S.No.240\/4-A belonging to the defendant even
\nin the year 1974.  After setting out other details about the plaintiff’s
\nencroachment and the physical features of the suit properties, the defendant
\nprayed for the dismissal of the suit.\n<\/p>\n
\t5. The trial Court framed the relevant issues.\n<\/p>\n
\t6. During trial, P.W.1 and P.W.2 were examined and Exs.A.1 to A.22 were
\nmarked on the side of the plaintiff.  D.W.1 and D.W.2 were examined and Ex.B.1
\nwas marked on the side of the defendant.\n<\/p>\n
\t7. Ultimately, the trial Court by virtue of the judgment and decree dated
\n29.04.1978, decreed the suit as prayed for.\n<\/p>\n
\t8. Challenging the judgment and decree of the trial Court, the appeal in
\nA.S.No.128 of 1978 was preferred on the file of the Subordinate Judge, Madurai,
\nwhich Court confirmed the judgment and decree of the trial Court with certain
\nmodifications.\n<\/p>\n
\t9. Being aggrieved by and dissatisfied with, the judgments and decrees of
\nboth the Courts below, the defendant preferred S.A.No.209 of 1979 and that this
\nCourt made observations including the one that the suit properties should be
\nlocated by appointing an Advocate Commissioner and thereafter, the first
\nappellate Court has to decide the matter.  An excerpt from the said judgment is
\nextracted hereunder for ready reference:\n<\/p>\n
\t“Thus, the real controversy that arose between the parties is as to
\nwhether the defendant has, in fact, trespassed into item No.1 and is attempting
\nto trespass into Item No.2 and 3 as alleged by the plaintiff.  This would
\nrequire definite clarification  through local investigation by a Commissioner,
\nwho will be in a position to find out as to where exactly the portions allocated
\nto the parties and to which they are entitled lie in the respective survey
\nnumbers by making proper correlation from the boundaries given in the documents
\nand further find out as to whether each of the parties is in occupation of the
\nextent to which he is entitled and as to whether any party is in occupation of
\nportions in excess of what he is entitled to under the documents.”
\nAccordingly, the matter was remitted back to the first appellate Court, which
\nCourt appointed the Advocate Commissioner who visited the suit properties with
\nthe assistance of the Surveyor and other revenue officials and submitted his
\nreport Ex.C.1 along with the sketches, Exs.C.2 to C.4.  Before the first
\nappellate Court, on the side of the appellant\/defendant, Exs.B.2 to B.35 were
\nmarked and on the side of the respondent\/plaintiff, no documents were marked.\n<\/p>\n
\t10. Thereafter, the same first appellate Court, vide judgment and decree
\ndated 08.10.1999, granted the reliefs as under:\n<\/p>\n
\tThe first appellate Court dismissed the appeal confirming the judgment and
\ndecree of the trial Court.  However, in respect of the item No.3, the injunction
\nwas not granted in respect of the 1950 sq links which are found to be under the
\nencroachment of the plaintiff.  However, the judgment would observe that the
\nplaintiff is at liberty to initiate separate legal action in respect of 1950 sq
\nlinks in the third item and injunction was not granted in respect of that area.\n<\/p>\n
\t11. Being aggrieved by, the said judgment and decree of the first
\nappellate Court, the present second appeal has been filed on the following main
\ngrounds among others:\n<\/p>\n
\t12. The judgment and decree of both the Courts below are erroneous.  There
\nis no evidence to prove that the plaintiff is entitled to 62 cents of land.
\nThere is also no evidence to show that the plaintiff is not in possession of 12
\ncents of land out of his  entitlement under Ex.A.1.  In respect of item 3 of the
\nsuit properties, the first appellate Court was not justified in confirming the
\ndeclaration made by the trial Court.  Only in the suit, if any to be filed by
\nthe plaintiff, the maintainability of the reliefs should be considered and the
\npiecemeal relief granted in respect of item 3 is not sustainable.  Accordingly,
\nhe prayed for setting aside the judgment and decree of both the Courts below and
\nfor dismissing the suit filed by the plaintiff.\n<\/p>\n
\t13. At the time of admitting this second appeal, my learned Predecessor
\nframed the following substantial question of law:\n<\/p>\n
\t“Whether both the Courts below are right in decreeing the portion of the
\nland in respect of which relief has not been sought for by the plaintiff can be
\ngranted?”\n<\/p>\n
\t14. Perused the records and found that instead of the aforesaid
\nsubstantial question of law, the following substantial questions of law are
\nframed:\n<\/p>\n
\t(i) Whether both the Courts below were justified in declaring the right of
\nthe plaintiff in respect of three items of the properties, de hors the finding
\ngiven in the Commissioner’s report and the sketch?\n<\/p>\n
\t(ii) Whether the first appellate Court was justified in relying on the
\nCommissioner’s report and sketch in toto in the absence of supportive evidence?\n<\/p>\n
\t(iii) Whether the first appellate Court was justified in granting
\npiecemeal relief of declaration in respect of item 3 of the suit property after
\nrejecting the part of the prayer for permanent injunction in respect of 1950 sq
\nlinks of land and also while giving liberty to the plaintiff to take separate
\nproceedings for recovery of possession in respect of that portion of the land
\nfrom the defendant and  Whether the judgments and decrees of both the Courts
\nbelow are perverse and liable to be set aside?\n<\/p>\n
\t15. All the points are taken together for discussion as they are
\ninterlinked and interwoven with one another.\n<\/p>\n
The Points:\n<\/p>\n
\t16. The learned Counsel for the defendant drawing the attention of this
\nCourt to the Commissioner’s report Ex.C.1 and sketches Exs.C.2 to C.4, would
\ndevelop his argument to the effect that absolutely there is no finding given by
\nthe Commissioner or by the first appellate Court as to how much extent of land
\nover which the plaintiff is having possession in the first item i.e, S.No.108\/3
\nand that there is only unilateral finding by the lower Court as though the
\ndefendant has been in possession of 60 cents out of which 12 cents of land is
\ndeemed to be the encroached portion.\n<\/p>\n
\t17. The learned Counsel for the defendant would also contend that unless
\nthe extent of land in possession of the plaintiff is proved to be deficient  to
\nan extent of 12 cents, there is no question of ordering delivery of 12 cents in
\nthe first item, would arise at all.  Whereas the learned Counsel for the
\nplaintiff would submit that the Commissioner with the assistance of the Surveyor
\nand Revenue Records located S.No.108\/3 and properly noted the physical features
\nand from that he arrived at the conclusion that the defendant has been in
\npossession on 60 cents of land in excess of 48 cents of his entitlement as per
\nEx.A.1, the partition deed.\n<\/p>\n
\t18. Hence, in such a case, the defendant being in possession of excess
\nland, cannot call upon the plaintiff to prove his possession over the land under
\nhis possession.\n<\/p>\n
\t19. At this juncture, I would like to highlight that peculiar features
\ninvolved in this case.  As per Ex.A.1, the partition deed unassailably and
\nincontrovertibly, the plaintiff and the defendant and their one other relative,
\nare entitled to specific portions in S.No.108\/3 which is referred to in the
\nfirst item of the suit properties.  It is also an admitted fact that the
\nplaintiff, the defendant and  their one other relative, are entitled to 50
\ncents, 48 cents and 28 cents respectively in 1 acre 18 cents of land in
\nS.No.108\/3.\n<\/p>\n
\t20. Furthermore, 50 cents of the share of the plaintiff constitutes the
\nmiddle share in S.No.108\/3.  The perusal of the Commissioner’s report Ex.C.1
\nwould leave no doubt in the mind of the court that the Commissioner measured the
\nentire extent of land in S.No.108\/3 and located it and in that, he also measured
\nthe total extent of land i.e, 1 acre and 18 cents and in that, on the northern
\nportion, the defendant is having right as per Ex.C.4.  Whereas  measuring from
\nnorthern side, to an extent of 48 cents of land alone belongs to the defendant
\nin S.No.108\/3.  However, the Surveyor sketch Ex.C.4 would demonstrate that 12
\ncents of land is in excess on the defendant’s side as per physical features and
\nto the south of the defendant, the plaintiff is having his share and to the
\nsouth of the plaintiff’s share, one other relative’s share is situated.  In such
\na case, there is absolutely the defendant cannot claim more extent of land than
\n48 cents in that S.No.108\/3 as his share.\n<\/p>\n
\t21. The learned Counsel for the defendant would argue that if it is found
\nthat in S.No.108\/3, there is excessive land, then in such an event, the
\nplaintiff would not be justified in enjoying the excess area more than his share
\nof 50 cents.\n<\/p>\n
\t22. The learned Counsel for the plaintiff would at once stress upon the
\nfact that the plaintiff claims only 50 cents of land in S.No.108\/3 in the middle
\nportion as per the partition deed Ex.A.1 and not anything more and a fortiori,
\nit could be held that even while demarcating and delivering possession at the
\nexecution stage, the same could be ascertained and accordingly, 12 cents of land
\nas found by the plaintiff should be allotted to the plaintiff, so that the
\nplaintiff would be able to have 50 cents of land as his share.  Accordingly,
\nsuch a view on the plaintiff’s side is reasonable and could be upheld.  It is
\ntherefore clear that in this factual situation, Hence, absolutely there is no
\nnecessity to interfere with the findings of the first appellate Court.\n<\/p>\n
\t23. Relating to item No.2, the learned Counsel for the plaintiff would
\nsubmit that the defendant is not focussing this second appeal relating to item\n<\/p>\n
2.<\/p>\n
\t24. Relating to item No.3 is concerned, I could see considerable force in
\nthe submission made by the learned Counsel for the defendant that both the
\nCourts below were not justified in granting piecemeal relief by simply declaring
\nthe right of the plaintiff over 1950 sq links with the finding that it is under
\nthe encroachment of the defendant.\n<\/p>\n
\t25. It is a trite proposition of law that the Civil Court while granting
\nrelief should not simply grant relief in piecemeal.  No doubt, the first
\nappellate Court consciously felt that the prayer of the plaintiff relating to
\nitem No.3 was not fully justified, even though it felt that the plaintiff is
\nhaving right over that extent of 1950 sq links under the defendant’s occupation
\nand in such circumstances, instead of granting the relief of declaration, the
\nfirst appellate Court in the interest of even handled justice could have simply
\ndirected the plaintiff to initiate fresh proceedings in laying claim over the
\nextent of 1950 sq links from the defendant and pray for all reliefs including
\nthe relief of declaration and recovery of possession.  Out of misconception of
\nfacts, the relief relating to third item was formulated and prayed setting out
\ncertain set of facts.  Accordingly, the declaratory relief and the injunction
\nrelief relating to the item No.3 are not sustainable.\n<\/p>\n
\t26. Accordingly, the substantial question of law No.(i) is decided to the
\neffect that both the Courts  below were justified in declaring the right of the
\nplaintiff in respect of the first item of the suit properties and not in respect
\nof the third item of the suit properties.  The substantial question of law
\nNo.(ii) is decided to the effect that the first appellate Court was justified in
\nrelying on the Commissioner’s report and sketches in toto as there was evidence
\nsupporting such conclusion.  The substantial question of law No.(iii) is decided
\nto the effect that the first appellate Court was not justified in granting
\nrelief in piecemeal in respect of third item after rejecting the prayer for
\npermanent injunction in respect of 1950 sq links of land.\n<\/p>\n
\t27. In the result, the second appeal is partly allowed as under:\n<\/p>\n
\t(i) In respect of the item No.1 is concerned, out of the total extent of 1
\nacre and 18 cents in S.No.108\/3, as per Ex.A.1, on the northern portion, the
\ndefendant shall be allotted 48 cents and to the south of the defendant’s
\nportion, the plaintiff shall be allotted 50 cents and to the south of the
\nplaintiff’s portion, the remaining 20 cents of land shall be allotted to the
\nother sharer as per Ex.A.1.\n<\/p>\n
\t(ii) Relating to item No.2, the judgments and decrees of both the Courts
\nbelow are confirmed.\n<\/p>\n
\t(iii) Relating to item No.3 is concerned, the prayer of the plaintiff
\nshall stand dismissed without prejudice to the plaintiff’s right to pray for
\ndeclaration and for recovery of possession and for other incidental reliefs and
\nat that time, the Court concerned shall be at liberty to decide on merits.
\nHowever, the observation made by the first appellate Court that the plaintiff is
\nat liberty to initiate proceedings shall hold good.  No costs.\n<\/p>\n
rsb<\/p>\n
To<\/p>\n
1.The III Additional Subordinate Judge, Madurai.\n<\/p>\n
2.The District Munsif, Melur.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court R.Ramalingam Servai vs R.Karuppiah Servai on 16 February, 2008 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 […]<\/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-58533","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nR.Ramalingam Servai vs R.Karuppiah Servai on 16 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\/r-ramalingam-servai-vs-r-karuppiah-servai-on-16-february-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"R.Ramalingam Servai vs R.Karuppiah Servai on 16 February, 2008 - 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