Chinnathambi Muppar v. Kesava Muppar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 08.01.2016
CORAM:
THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Second Appeal No.441 of 2015 and M.P.No.1 of 2015
1. Chinnathambi Muppar
2. Irusappa Udayar Muppar .. Appellants/Defendants.
-Vs1. Kesava Muppar
2. Govindha Muppar .. Respondents/Plaintiffs SECOND APPEAL filed under Section 100 of Code of Civil Procedure against the judgment and decree dated 09.03.2004 made in A.S.No.111 of 2003 on the file of the Principal District Judge, Villupuram in so far as reversing the judgment and decree dated 25.10.2002 made in O.S.No.5 of 2002 on the file of the II Additional District Munsif, Ulundurpet.
For Appellants :
Mr.M.Dhandapani For Respondents : Mr.T.Gandhi - - -
J U D G M E N T
The defendants in O.S.No.5 of 2002 on the file of the learned II Additional District Munsif, Ulundurpet are the appellants and the respondents are the plaintiffs in the suit. The said suit was filed for declaration of title and for permanent injunction restraining the defendants from in any manner interfering with the plaintiffs peaceful possession and enjoyment over the ''B'' Schedule property. By decree and judgment dated 25.10.2002, the trial court dismissed the suit. As against the same, the plaintiffs filed an appeal in A.S.No.111 of 2004 on the file of the Principal District Judge, Villupuram. By decree and judgment dated 09.03.2004, the lower appellate court allowed the appeal, set aside the decree and judgment of the trial court and decreed the suit as prayed for. As against the same, the defendants have come up with this Second Appeal.
2.
The case of the plaintiffs in brief is as follows:
There are two items of properties described as ''A'' and ''B'' schedule properties. According to the plaintiffs, the ''B'' schedule property forms part of ''A'' schedule property. Further, according to the plaintiffs, ''A'' schedule property (including ''B'' schedule) was purchased by the 1st plaintiff from one Thangavel Moopar by means of a registered sale deed dated 15.11.1972 for a valuable consideration of Rs.1000/-. Thangavel Moopar is none else than the father of the defendants. According to the plaintiffs, on the east of the ''A'' schedule property, a public street is situated. After purchasing the vacant site from Thangavel Moopar, the 1st plaintiff constructed a house on the said property. While so constructing, according to him, the ''B'' schedule property was left as a lane for his use.
On the west of the ''A'' schedule property, the remaining property in the same survey number was retained by the defendants' father. The defendants have got terraced house on the said property. But the defendants are claiming as though this ''B'' schedule property which is a lane forms part of the defendants property. According to the plaintiff, since the ''B'' schedule property forms part of the land purchased by the 1st plaintiff from Thangavel Moopar, the defendants cannot claim either title or any other right over the same. With these allegations, the plaintiffs filed the present suit for the above reliefs.
3.
In the written statement, the defendants took the plea that the ''B'' schedule property does not form part of the property purchased by the 1st plaintiff from Thangavel Moopar. It forms part of the property which was retained by Thangavel Moopar and thus, the suit property absolutely belongs to the defendants and the same is in possession and enjoyment of the defendants.
4.
Based on the above pleadings, the trial court framed appropriate issues. In order to prove the case, on the side of the plaintiffs, two witnesses were examined and as many as 6 documents have been exhibited. On the side of the defendants, two witnesses were examined and as many as 11 documents have been marked. Having considered all the above, the trial court dismissed the suit which was reversed by the lower appellate court. That is how the defendants are before this Court with this Second Appeal.
5.
In this Second Appeal, after having heard the learned Counsel on either side and after perusing the records, this Court finds that the following substantial question of law arises for consideration:
''Whether the lower appellate court was right in holding that the ''B'' schedule property forms part of the property purchased by the 1st plaintiff from Mr.Thangavel Moopar in the
absence of any measurement of the respective properties so as to fix the boundary line?''
6.
When this Second Appeal came up for hearing on 16.12.2015, it is tacitly admitted by the learned Counsel on either side that there is no dispute in respect of the extent of the property sold away by Thangavel Moopar to the 1st plaintiff. According to the sale deed, the east west length of the property purchased by the 1st plaintiff is 32 feet. Similarly, the remaining portion owned and possessed by the defendants measures 21 feet east west. Therefore, the question before this Court is as to whether the ''B'' schedule property forms part of the defendants property or that of the plaintiffs property. In order to ascertain the said fact, this Court suggested that an Advocate Commissioner to be appointed so that the property could be measured with the help of a certified surveyor so as to do justice to the parties. Both the counsel agreed for the same. 7.
Accordingly, one Mr.P.Sowndra Rajan, Advocate, Ulundurpet Bar Association was appointed as an Advocate Commissioner with a direction to measure the suit property with the help of a qualified surveyor and submit a report in respect of the location of the ''B'' schedule property. Accordingly, the Commissioner after notice to both the parties and in the presence of them with the help of the surveyor measured the suit property on 26.12.2015. He has submitted a report along with a plan prepared by the Surveyor showing the ''B'' schedule property.
8.
Today, when the matter was taken up, the learned Counsel on either side made endorsement expressing no objection for receiving the said report of the Commissioner and the Sketch as additional evidence as per Order 41 Rule 27 of CPC. 9.
In my considered view, in order to do justice between the parties, it is absolutely necessary for this Court to receive these two documents as additional evidence since there is no dispute regarding the correctness of these two documents. Accordingly, these two documents are received and marked as Ex.C.1 and Ex.C.2 respectively.
10.
Relying these documents, the learned Counsel on either side would submit that in the ''B'' schedule property only 1⁄2 feet (east west) forms part of the plaintiffs property and the rest forms part of the defendants property. Thus, the lane in the suit property partly belongs to the plaintiffs and partly belongs to the defendants as detailed in the plan submitted by the Advocate Commissioner. The learned Counsel on either side would further submit that the decree of the lower appellate court can be modified in accordance with the said Commissioner's Sketch as the parties have got no objection as they have
accepted the same. Accordingly, I am inclined to modify the decree and judgment of the lower appellate court. 11.
In the result, the Second Appeal is partly modified in the following terms:
1.
It is declared that in the ''B'' schedule property, the 1st plaintiff has got right only for eastern portion measuring east west 1⁄2 feet and north south 34 3⁄4 feet and the western portion of the same belongs to the defendants as mentioned in the Advocate Commissioner's Sketch; 2.
Accordingly, the defendants are restrained from interfering with the eastern portion of ''B'' schedule property measuring east west 1⁄2 feet and north south 34 3⁄4 feet; and 3.
It is directed that the Advocate Commissioner's sketch shall form part of the decree.
No costs. Consequently, connected Miscellaneous Petition is also closed.
tsi -s/d- Assistant Registrar(CS-V) True Copy Sub-Assistant Registrar To 1.The Principal District Judge, Villupuram.
2.The II Additional District Munsif, Ulundurpet. + 1 cc to Mr.T.Gandhi, Advocate SR 1723 + 1 cc to Mr.M.Dhandapani, Advocate SR 1575 tej(co) prk5/2 S.A.No.441 OF 2015