K.Ayyasamy v. Maheswari

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Date : 30.11.2018

CORAM

THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR Second Appeal No.253 of 2012 & M.P.No.1 of 2012 Mr.K.Ayyasamy ...Appellant/Defendants Vs Mrs.Maheswari ... Respondent/Plaintiff Prayer:- Second Appeal has been filed under Section 100 of C.P.C., against the judgment and decree dated 20.08.2011 in A.S.No.49 of 2010 on the file of the II Additional Subordinate Court, Coimbatore confirming the judgment and decree made in O.S.No.336 of 2005 dated 31.03.2010 on the file of the III Additional District Munsif Court, Coimbatore. For Appellant :

Mr.V.Nicholas For Respondent :

Mr.P.M.Vijayakumar

JUDGMENT

This second appeal has been filed as against the decree and judgment dated 20.08.2011 in A.S.No.49 of 2010 on the file of the II Subordinate Court, Coimbatore confirming the judgment and decree made in O.S.No.336 of 2005 dated 31.03.2010 on the file of the III Additional District Munsif Court, Coimbatore and this second appeal is pending for admission.

2. Originally the suit has been filed for declaration to declare that the petitioner is the absolute owner of the 'B' schedule property and also for mandatory injunction directing the defendant to remove the pandal put up to an extent of 6' x 6' on the western corner of the southern portion of the plaintiff's property.

3. The case of the plaintiff in brief is that the suit property measuring 936 sq.ft. originally owned by one Marudhachalam Mudaliar by virtue of his purchase on 16.01.1996.

Thereafter, he has bequeathed the suit property in favour of his wife Mariammal and his son Krishnamoorthy by Will dated 26.02.1996. Thereafter, the plaintiff's mother and brother sold the property to the plaintiff. The defendant is the owner of the property situated on the south eastern side of the property of the plaintiff. He made an attempt to damage the wall in the western side of the property in the absence of the plaintiff and he has encroached upon 6 x 6 ft on either sides on the western side corner of the southern portion of the plaintiff's property and put up a pandal. The defendant has no right or title over the said property. Hence, the suit for declaration to declare that the plaintiff is the owner of 'B' schedule property and also for mandatory injunction.

4. It is the contention of the defendant that the measurement shown in the document is not correct. The suit property is abutting the north south road lying on the east and the plaintiff has put up a building covering th entire north south length and no space was left on the west of the western side and the vacant land is a poramboke land. Therefore, the plaintiff cannot claim any right over the property. The vacant land running north to south belongs to the defendant and the same is used as a front yard and passage. Hence, prayed for dismissal of the suit.

5. The trial Court has framed the following issues :

1. Whether the plaintiff is the absolute owner of the suit properties?

2. Whether the contention of the plaintiff that the defendant has encroached an extent of 6' x 6' in the suit property is correct?

3. Whether the plaintiff is entitled to a relief of declaration as prayed for?

4. Whether the plaintiff is entitled to a relief of mandatory injunction as prayed for?

5. To what other relief?

and decreed the suit as against which an appeal has been preferred and the first appellate Court also dismissed the appeal and confirmed the decree and judgment of the trial Court.

6. The learned counsel for the appellant vehemently contended that the trial Court has not considered the fact that the measurements given in the Advocate Commissioner's Report has not tallied with the measurement of the suit property. In the original sale deed, measurements have been shown and in the subsequent Will, the measurements totally contrary to the original sale deed has been given. The first appellate Court has not considered the above facts. The disputed property is a poramboke land. The defendant has put up a pandal and used the

same for several years. The trial Court as well as the first appellate Court has not considered these aspects. It is his further contention that without the Commissioner Report being marked, the trial Court relied upon the Commissioner Report and it is also not according to law and hence submitted that there is substantial question of law to be decided in this appeal and hence prayed for admitting the appeal.

7. Heard the learned counsel for the appellant and perused the entire materials available on record.

8. The suit has been laid based on the sale deed followed by the Will executed in favour of the predecessor in title. The plaintiff is none other than the daughter of the original owner who has purchased the suit property. The sale deed, Ex.A.1 dated 16.02.1966 has been marked. The Will also has been marked as Ex.A.2. The contention of the learned counsel for the appellant is that what has not been entitled as per Ex.A.1 could not have been bequeathed by Will Ex.A.2. The trial Court and the first appellate Court has not properly gone into the measurements of the suit property. In this regard, on a perusal of the first appellate Court judgment, the first appellate Court has thoroughly analysed the entire aspects and found how the discrepancies occurred in both the documents. In the earlier document, namely Ex.A.

1, measurements are shown in cubit [Muzham] and at the time of writing the Will, cubit has been converted into feet. The first appellate Court, took note of the fact that the measurements found in Ex.A.1, 26 x 16 cubits has been converted as feet at the rate of 1.5 per cubit [Muzham] and found that there is no discrepancy with regard to the title of the plaintiff. Similarly, the contention of the appellant that the vacant land belong to Government poramboke also is found to be false and has not been established. In fact, the trial Court had relied upon the the Commissioner's Report which was filed with the help of a qualified Taluk Surveyor. The revenue Department had stated that the vacant land is not a Government land at any point of time.

It is curious to note that none of the parties have raised any objections to the Commissioner's Report. Therefore, the trial Court and the first appellant Court considered the report of the Commissioner along with Taluk Surveyor Report and found that the contention of the appellant is not acceptable.

9. It is the further contention of the appellant that the Commissioner report could not be relied upon, cannot be accepted for the simple reason that the Commissioner is the Officer of the Court and he has filed his report and such report always forms part of the records. The Court can very well look into the same without being marked. In view of the above facts, this

Court do not find any substantial question of law for admitting the appeal.

10. Accordingly, this appeal is dismissed and the decree and judgment dated 31.03.2010 of the trial Court made O.S.No.336 of 2005 is confirmed. Consequently, the connected miscellaneous petition is closed. There shall be no order as to cost. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar To

1. The II Subordinate Judge, Coimbatore

2. The III Additional District Munsif, Coimbatore.

Copy to:

The Section Officer, VR Section Officer, High Court, Madras.

+1cc to Mr.Swaminathan Advocate sr.no.82733 +1cc to Mr.V.Nicholas, Advocate sr.no.82491 Second Appeal No.253 of 2012 mg(co) nr 30/01/2019