K.Palanisamy S/O. Late v. K.Jeyakumar

IN THE HIGH COURT OF JUDICATURE OF MADRAS

Judgment Reserved on : 17.08.2017 Judgment Pronounced on : 28.04.2018

CORAM:

THE HONOURABLE MR. JUSTICE S.BASKARAN S.A.No.1264 of 2014 and M.P.No.1 of 2014 K.Palanisamy ..Appellant/1st defendant. Vs.

1.K.Jeyakumar ..1st respondent/2nd Plaintiff 2.Sampoornam 3.P.Sankar ..Respondents 2 and 3/ Defendants 2 and 3 PRAYER:

This second appeal is filed under Section 100 of CPC, against the judgment and decree dated 06.03.2014 passed by the learned I Additional Subordinate Judge, Erode, in A.S.No.56 of 2013, confirming the Judgment and Decree dated 27.06.2013 passed by the learned II Additional District Munsif Court, Erode in O.S.No.469 of 2010.

For Appellant : MR.Babu Rangasamy For Respondents : Mr.S.Kaithamalai Kumaran for R-1 M/s.D.Kanga Sundaram for R-2

JUDGMENT

The above second appeal arises out of the Judgment and Decree dated 06.03.2014 passed by the learned I Additional Subordinate Judge, Erode, in A.S.No.56 of 2013, confirming the Judgment and Decree dated 27.06.2013 passed by the learned II Additional District Munsif Court, Erode in O.S.No.469 of 2010.

2. Brief facts of the plaintiff's case is as follows:- The Plaintiffs are father and son. The suit property which originally belonged to one Karuppana Gounder and his son, the first defendant herein. They sold the said property of 30 cents to the first plaintiff on 04.11.1980. After that the first plaintiff and his son the second plaintiff along with another son one Sankar have partitioned the property as well their other properties on 15.12.2006. In the above said partition Deed, with regard to the suit property, out of 30 cents, 5 cents was allotted to the first plaintiff and as such, 25 cents was allotted to the second plaintiff as 'C' Schedule. The above said property is situated adjacent to the property of the defendant.

As per the terms of partition, the 1st Plaintiff is to enjoy the 5 cents till his life time and thereafter, the same will devolve on the 2nd plaintiff. Hence, the 1st Plaintiff implead himself in the suit. In the above said Partition, the 'B' Schedule property was allotted to Sankar/3rd defendant herein, another son of the 1st plaintiff. The wife of the 1st plaintiff is the 2nd defendant. As per the terms of partition dated 05.12.2006, the 1st plaintiff is entitled to entire 'A1' schedule and he is to enjoy the 'A2' Schedule property till his life time and thereafter, the same will devolve upon the 3rd defendant Shankar.

During resurvey S.F.No.1310A of Avalpoondurai Village in which the suit property of 30 cents is situated was reassigned as R.W.No.304/2 of Avalpoondurai Village. In the revenue records also, the names of the Plaintiffs is mentioned and the Partition deed dated 15.12.2006 was acted upon. Due to escalation in the land value, the 1st defendant who is having property adjacent to that of suit property is attempting to encroach on the suit property. Hence, the Plaintiff requested the 1st defendant to measure the property in order to fix the "F" line in between the properties of the Plaintiffs and the 1st defendant. But the 1st defendant is not willing and making attempts to encroach upon the suit property. Hence, the plaintiff came forward the suit for mandatory injunction for fixing 'F' line, to demarcate the same and also for the relief of permanent injunction. During the pendency of this suit, the first plaintiff died and wife of the first plaintiff and their another son impleaded as defendants 2 and 3 since they have no share in the suit property. Hence, the suit.

3. On the other hand, according to the first defendant, the first plaintiff purchased the suit property from the father of the first defendant and the same is not disputed. It is also admitted that there are some dispute between them, since there is no demarcation of the property between them. The first defendant further contended that on the northern side of the suit property, the property belonging to one Deivasigamani who

purchased the property from one Natchimuthu Gounder who is the brother of the first defendant's father is available. Without impleading the said person, fixing of 'F' line of demarcation of the property is not possible. Hence, the said Deivasigamani is necessary party to the suit. Thus, the suit is bad for nonjoinder of necessary parties. Hence, the suit is to be dismissed.

4. After contest, the trial Court modified the prayer of the Plaintiffs and decreed the suit. Aggrieved upon that the first defendant preferred the first appeal. After contest, the first appellate Court confirmed the findings of the trial Court. Hence, the first defendant preferred the second appeal before this Court.

5. At the time of admission, the following substantial question of law was framed by this court in this appeal. A) Whether the Courts below are right in decreeing the suit when the suit is barred by limitation as per Sec.14 of the TamilNadu Survey and Boundaries Act, 1923 that any person aggrieved by the determination of any boundary shall institute the suit within 3 years from the date of notification under Sec.13 to set aside or modify the said determination, when the re-survey was done long back and the plaintiff having failed to prefer any appeal or suit within the time frame contemplated in the Act?

6. The learned counsel appearing for the appellant would submit that as per Section 14 of the Tamil Nadu Survey and Boundaries Act, 1923, the suit is barred by limitation, since the plaintiff failed to prefer the suit to set aside or modify the determination of the boundary, within 3 years from the date of Notification u/s.13 of the said Act. The re-survey was done long back, but, the plaintiffs failed to prefer any appeal or suit within the time contemplated in the Act. The learned counsel appearing for the appellant further would contend that the suit property have to be measured and 'F' line will have to be fixed only from the lands of Deivasigamani, whose land is situated on the northern side of the suit property and without impleading the said Deivasigamani, the suit is not maintainable. The learned counsel for the appellant further contends that the trial Court moulded the relief without pleadings. The plaintiff sought for a relief of fixing 'F' line, but the trial Court decreed the suit for fixing the boundary. The above said

relief granted by the trial Court and confirmed by the first appellate Court are not sought by the plaintiff and more over it is against the pleadings as well as prayer of the plaintiff. The above said moulding of Prayer by the court below is against the law. Hence, interference is warranted and seeks to entertain the appeal.

7. Per contra, the learned counsel appearing for the respondents would submit that the trial Court modified and granted only lesser relief and the Court is empowered to grant such lesser relief. Hence, it is contended that there is no infirmity in the findings of the Courts below. Therefore, the appeal is sought to be dismissed.

8. I have heard the rival submissions and also perused the materials available on record.

9. The Plaintiffs are father and son. On perusal, it is clear that the plaintiffs have come forward with the suit for fixing the 'F' line by way of mandatory injunction and for permanent injunction. The suit property measuring 30 cents was purchased on 04.11.1980 as per Ex.A.1 Sale deed by the first plaintiff and the same was sold by the father of the first defendant as well as 1st defendant is not challenged. Further, there is no dispute with regard to the title between the plaintiff and the first defendant. The real dispute between the plaintiffs and first defendant is with regard to the boundaries. Even though, in the sale deed Ex.A1, the specific boundaries were mentioned, the Plaintiffs are not able to find out the real boundary in between them.

Because, out of 1 acre 20 cents, 30 cents were sold to the first plaintiff and the remaining 10 cents is with the first plaintiff's family. Since the father of the defendants one Karupanna Gounder, the vendor of Plaintiffs is not only his only legal heir is made the 1st defendant. The above said fact was clearly and categorically admitted by the first defendant as D.W.1. The first defendant specifically admitted that v';fSf;Fk; thjpf;Fk; ,ilna mj;J ,y;yjhjhy; gpur;rpid Vw;gLfpwJ vd;why; rhpjhd;/ So, the dispute between the plaintiff and the first defendant is admitted. The plaintiff have also sought for fixing boundary between them with regard to the suit property only. It is not the case of the first defendant that the entire family property belongs to them, the same is still joint and not identifiable.

If it is so, the claim of the first defendant is tenable but, here there is no such dispute.

the boundary line, but, mistakenly the trial Court used the word as moulded relief instead of granting lesser relief. The plaintiff has not sought for fixing boundary for entire property belonging to his vendor and then to fix the boundary to the suit property. The plaintiff sought for fixing boundary in between their property and the first defendant property. Hence, the trial Court decreed the suit by granting lesser relief. The first appellate Court has also confirmed the finding of the trial Court.

10. On the side of the Defendants, the first defendant who deposed as D.W.1, has admitted that the real dispute is only with regard to the boundary between them. In this appeal they have raised the substantial question of law as to whether granting of lesser relief against the pleadings is sustainable. The plaintiff sought for fixing the boundaries, but mistakenly used the words 'F' line. The real contention between the plaintiff and the first defendant is only with regard to the boundary of the suit property. The plaintiff never questioned the 'F' line fixed under the Survey and Boundaries Act,1923. If only the plaintiff questioned the same, the limitation question will arise. As per the pleadings and evidence of the plaintiff, they have not questioned the boundaries fixed by the authorities under the Survey and Boundaries Act, 1923. So, Sections 13 and 14 of the said Act has no relevancy as far as the relief claimed by the plaintiff is concerned.

11. The next point raised by the defendant is that the nonjoinder of necessary parties, namely, the adjacent property owner Deivasigamani admitted the real dispute is between the plaintiff and the first defendant alone. While fixing the boundary through the surveyor with the help of revenue records by adopting the procedure contemplated in the Survey and Boundaries Act, the Surveyor will fix the boundary between the plaintiff and the first defendant by ascertaining the suit property. For which, the property of so called Deivasigamani is not necessary as he is no way connected with the Plaint dispute between the Parties to the suit. The first defendant while deposing as D.W.1 admitted that there exist a dispute between the parties to the suit with regard to the boundaries.

In such situation, impleading of said Deivasigamani as a party to the proceedings is unwarranted and it will only create another litigation without any cause of action. As such, the pleadings and prayer in the suit clearly reflects that the real dispute between the plaintiff and the first defendant is only boundary dispute and the said Deivasigamani is no way necessary party to the proceedings. Hence, the plea of the non-joinder of necessary parties raised by the appellants is not sustainable.

12. The last question of law raised by the defendant is that without pleadings, granting the moulded relief of fixing boundary line by the courts below is not justifiable. The plaintiff came forward with the suit seeking mandatory injunction for fixing the 'F' line between the property of both Party. The trial Court as well as the first appellate Court granted the lesser relief of fixing the boundary line between the property of both party. Originally, the Plaintiff has sought for appointment of Commissioner to fix 'F' line in between the properties of the Plaintiffs and 1st defendant on the basis of title deed dated 04.11.1980.

But the trial court did not entertain the said relief but granted the lesser relief of fixing the boundary line between the property of both parties on the basis of available pleadings and evidence let in by the Plaintiffs. Admittedly, the suit property and the property of the 1st defendant are lying adjacent to each other. It is also clear from the evidence of P.W.1 and 2 that they are in possession and enjoyment of the suit property. Likewise, D.W.1 also admitted that the 1st Plaintiff and after his demise, his legal heirs are in possession and enjoyment of the suit property and he is not claiming any title over the same. D.W.1 also admitted that in respect of demarcation, there is dispute between themselves and the Plaintiffs regarding the boundary between the parties.

Admittedly, the suit property was conveyed by the 1st defendant and his father to the Plaintiffs under Ex.A.1-Sale deed with specific boundaries. As such, it is clear that the dispute is only in respect of boundary in between the properties of the Plaintiffs and the defendants. As such, considering the material on record, the courts below held that the Plaintiffs are entitled for lesser relief of fixing the boundaries instead of the relief sought for in the suit viz., fixing the 'F' line. Apparently, the court below are empowered to identify and grant lesser relief than the one sought for by the Plaintiffs and accordingly, the same is granted on the basis of the evidence let in by both sides. As such, this court finds no error or infirmity in the conclusion arrived at by the courts below in that regard.

Therefore, there is no need or necessity for any further proceedings for fixing the boundaries. Hence, this question of plea also not sustainable.

13. From the above discussion, it is clear that the trial Court as well as the first appellate Court after analysing both oral and documentary evidence came to the correct conclusion and there is no ground made out for interference of the same. Further more, the substantial question of law raised by the Appellant is already considered and answered in detail by the court below itself. Thus, for the reasons stated above, the substantial question of law raised in the appeal is answered against the appellant/1st Defendant and the appeal has to fail. The Point is answered accordingly.

14. In the result, the second appeal is dismissed. No costs. The Judgment and Decree dated 06.03.2014 passed by the learned I Additional Subordinate Judge, Erode, in A.S.No.56 of 2013 is hereby confirmed. Consequently, connected MP is closed. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar rrg/nvsri To

1. The I Additional Subordinate Judge, Erode.

2. The II Additional District Munsif Court, Erode.

3. The Section Officer, V.R.Section, High Court, Madras. ( 2 copies) +1cc to M/s.Babu Rangasamy Associates, S.R.No.32114 +1cc to M/s.A.K.Kumarasamy, Advocate, S.R.No.32026 S.A.No.1264 of 2014 VSN-II(CO) SSM(04/01/2019)