R.Radha Krishnan v. R.Nagarajan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:25.3.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.394 of 1998andM.P.No.1 of 2008R.Radha Krishnan... Appellantvs.R.Nagarajan... Respondent This second appeal is filed against the judgement and decreedated 4.11.1996 passed in A.S.No.203 of 1995 by the District Judge,Coimbatore, modifying the judgement and decree dated 22.9.1995passed by the III Additional District Munsif, Coimbatore, inO.S.No.916 of 1986.For Appellant : Mr.S.Parthasarathy,Sr.counsel for Mr.Govi GanesanFor Respondent : Mr.C.DeivasigamaniJUDGMENTThis second appeal is focussed by the plaintiff, animadvertingupon the judgement and decree dated 4.11.1996 passed in A.S.No.203of 1995 by the District Judge, Coimbatore, modifying the judgementand decree dated 22.9.1995 passed by the III Additional DistrictMunsif, Coimbatore, in O.S.No.916 of 1986, which was filed forpermanent injunction, so as to restrain the defendant frominterfering with the plaintiff's peaceful possession and enjoymentof the suit property and to direct the defendant to vacate the 'B'scheduled property and hand over vacant possession of the same tothe plaintiff. The defendant entered appearance and filed thewritten statement. 2. The trial Court framed the relevant issues. During enquiry,the plaintiff examined himself as P.W.1 along with oneC.A.Ravikumar-Advocate Commissioner as P.W.2 and Exs.A1 to A.14 weremarked. The defendant examined himself as D.W.1 and Exs.B1 to B9were marked. Exs.C1 and C2 were marked as Court documents. https://hcservices.ecourts.gov.in/hcservices/

3. Ultimately, the trial Court decreed the suit as prayed for,as against which, the first appeal A.S.No.203 of 1995 was filed andthe first appellate Court partially allowed the appeal by passingthe order as under:-"In the result the judgement and decree of the trialCourt are confirmed with regard to the relief of permanentinjunction only, with regard to the property shown as A BE F C D in the Commissioner's plan-Ex.C2 and in otherrespects the judgement and decree of the trial Court areset aside and the suit with regard to such claim isdismissed. Taking into consideration of the relationshipbetween the parties, both parties are ordered to beartheir own costs in this appeal."4. Being disconcerted and aggrieved by the judgement and decreeof the first appellate Court, this appeal is focussed by theplaintiff on various grounds and also suggesting the followingsubstantial questions of law:-"1. Whether the rejection of the recited measurements ofthe property settled under Ex.A3 to the plaintiff when thesettlor had the title and possession of the extent, at thetime of the execution of deed, on the basis of theincorrect measurements given in the subsequent settlementdeed Ex.B1 when the settlor had neither ownership norpossession of the excess area is legally sustainable?2. Whether the lower appellate Court has committed anerror of law in the localisation of common passage and thehouses of the Settlor as the eastern boundary for theproperty given under the settlement deed Ex.A3 withoutreference to the admitted existence of a passage south ofthe shop No.1 and running into the area of 1006/2B in theplan Ex.C2 and ignoring the factual non-existence of anyhouse further west of shop No.1 and non-mentioning of thetinkering shop in Ex.B1 as lying in between the points FGand further extending upto the points OS in Ex.C2 plan ispatently against the evidence and the actual measurementof 10 feet width south of the tinkering shop in planEx.C2?3. Whether the lower appellate Court has committed anerror of law in overlooking the material aspects that thesettlement deed Ex.A3 of the year 1983 long prior to thesettlement deed Ex.B1 in the year 1986 should haveprecedence and binding effect in law and the measurementsin Ex.A3 for the property given under Ex.A3 were withinthe power of the settlor and should override the https://hcservices.ecourts.gov.in/hcservices/ measurements in Ex.B1 and whether the non-appreciation ofthis legal position in a patent error of law leading to aperverse finding and failure of justice?"5. Heard both sides.6. A bare poring over and perusal of the typed set of papersand also considering the arguments advanced on both sides, woulddisplay and demonstrate, evince and expatiate that one AlameluThayammal-the mother of the plaintiff and the defendant purchased aproperty under Ex.A1-the sale deed dated 19.1.1958; subsequently,she purchased the property adjacent to it on the West, as per Ex.A2-the sale deed dated 23.5.1960; thereafter, the said AlameluThayammal executed Ex.A3-Settlement Deed dated 17.6.1983 in favourof the plaintiff and Ex.B1-the Settlement Deed dated 13.6.1986, infavour of the defendant. What transpires from the scrutiny of therecords would run thus:-In Ex.A1-the sale deed the extent as well as the boundaries, isfound mentioned as under:@nfh hpo nfh rg;hpo nfh jh fzgjp fpuhkk; fr 220 y; $p/tp/fpUc&;za;ah;lay out y; nfhak;gj;Jhh; Kdprpgy; lt[d; giHa thh;L 6 g[J thh;L 8fhe;jpg[uk; 3 ep tPjp nky;g[uk; !;nuzpapy; T.S.No.11/2007 y; vz; ,ju 23 eP tPl;ow;Fk; Kd; thrYf;Fk; (tlf;F) vd; ,ju 42 eP tPl;ow;Fk;(fpHf;F) 100 mo fpHnky; nuhl;ow;Fk; (bjw;f;F) 3 eP bjd;tly; tPjpf;Fk;(nkw;F) ,jd; kj;jpapy; tlg[uk; fpHnky; mo 89 bjd;g[uk; fpHnky; mo88/1-2 fpHg[uk; bjd;tly; mo 38/1-2 nky;g[uk; bjd;tly; mo 36/ ,e;jmst[s;s 7/1-2 brz;l; $hfh g{uht[k; ,ijj; bjhl;Lj; bjd;g[uj;jpy;c& vz; ,ju 23eP tPl;ilr; nrh;e;j fhypaplj;jpy; tlg[uj;jpy; fPH;nuhl;oy;3eP tPjp or;Rf;f';fpypUe;J nkw;nf fpHnky; mo 34 1-2 mstpYs;sfpHnky; RtUk; c& Rtw;wpy;nghl;oUf;Fk; tlf;F thry;tpy;iyf;filfSk; c& 34/1-2 mo mWjpapypUe;J bjw;nf js;sp bjd;tly;3/1-2 mo mfyj;jpYk; fpHnky; 34/1-2 mo ePsj;jpYs;s ,lj;ija[k;nrh;j;Jf;fl;oapUf;Fk; tlf;Fg; ghh;j;j 2 nghh;c&d; tpy;iyf;filfSk;c& 34/1-2 mo mstpd; nky;g[uj;jpy; mWjpapypUe;J tlf;nf js;sp bjd;tly;mo 3/1-2 mo mstpYs;s nkw;nf nghFk; Rtw;spy; 8/3-4 mo fpHnky;Rtw;wpd; kPJ bghUe;jp cah;j;jp Rth; itj;J $d;dy; itf;fhky; nfhg;g[g; nghl;Lf; bfhs;Sk; (fl;olk;) ghj;aKk; bfhLj;jpUf;fpnwd;/ vd; ,ju 23 eP tPl;od; gpwtpiljz;zPh; tifawh ,e;j fpua tPl;od; tHpahf 100mo nuhl;od; Kdprpgy; rhf;filapy; ngha; fyf;Fkgo jh';fs; $yjhiutpl;L tpl ntz;oaJ/ c& 3 eP tPjp or;Rf;f';fpypUe;J nkw;nf 77/3-4 momst[ tiua[s;s fpHnky; RtuhdJ vdf;Fk; ckf;Fk; bghJthf https://hcservices.ecourts.gov.in/hcservices/ ghj;jpag;gl;lJ// / / / /@In Ex.A2-the sale deed the following boundaries are foundspecified.@nfhaKj;Jhh; hpo nfh rg;hpo c& jhYf;fh fzgjp fpuhkk;jpU!;ny ,dhk; rh;nt 219 be fhyp nfhaKj;Jhh; Kdprpgy; 8 tJ thh;Lfhe;jpg[uk; 4 be tPjpapy; Rg;gz;z ft[z;lh; tPl;Lf;F tlf;F bjd;tly; 4 be nuhl;Lf; fpHf;F fpHnky; 100 mo nuhl;Lf;F bjw;F Rg;g[ yc&;kp mk;khs; fpUc&;z ma;ahplk; tpiyf;F th';fp nghl;oUf;Fk;lhl;g[f;Fk; j';fs; filfSf;Fk; nkw;F ? K.Venkatesalu Naidu- ,jd; kj;jpapy; ,Ug[uKk; bjd;tly; 65 3-4 tlg[uk; ? nky;nfhl;oypUe;J fpHnkyo 48 1-4 bjd;g[uk; nky; nfhl;oypUe;J fpHnky; 481-2 ,e;j ,lKk; mjw;Fs; fl;oapUf;Fk; fl;ol';fs; tifauht[k; / / // //@However, in Ex.A3-the settlement deed as well as Ex.B1-thesettlement deed, even though Exs.A1 and A2 are found referred torespectively as antecedent title deeds to those deeds, the extentsdo not tally, so to say the extents from East-West direction do nottally. 7. It is an indubitable and indisputable fact that the AdvocateCommissioner appointed by the lower Court simply visited the suitproperty and without the assistance of the Surveyor measured it andsubmitted Ex.C2-the Sketch along with Ex.C1-the report. To theshock and surprise of this Court, both the Courts below have notconsidered the fact as to how Alamelu Thayammal was justified inspecifying more extent in Ex.A3 and Ex.B1-the settlement deeds overand above the extents found specified in Ex.A2 and Ex.A1-therespective antecedent deeds.8. The logic and the ratiocination adhered to by the trialCourt has to be looked askance at, in view of the facts thatAlamelu Thayammal happened to be the common owner as per the twoSale deeds namely Ex.A1 and Ex.A2, wherein the extents are as foundreferred to as above, nonetheless she executed the respectiveSettlement Deeds, viz., Ex.A3 and Ex.B1, without specifyinggenerally as though she acquired title over those properties by someantecedent title deeds, but she had chosen to specify clearly andcategorically, unambiguously and plainly that for Ex.A3 and Ex.B1,their respective antecedent title deeds were only Ex.A2 and Ex.A1.As such, the scope of Ex.A3 and Ex.B1 got restricted by Ex.A2 andEx.A1. 9. At least the first appellate Court should have thought fit https://hcservices.ecourts.gov.in/hcservices/ to get the area located as per Ex.A1 and Ex.A2 on ground andaccordingly should have decided the rival disputes of the parties,but it had not done so. Hence, I am of the considered opinion thatthe trial Court was not justified in simply deciding the lis on thesole point that Ex.A3 was anterior in point of time to Ex.B1. Withthis finding I would like to set aside the judgement of the firstappellate Court and remit the matter back to the first appellateCourt with the following direction:The appellate Court shall appoint a Commissioner,with the mission to visit the spot and measure the areasconcerned with the help of a qualified Government Surveyorand locate the extents as per Ex.A1 and Ex.A2 anddemarcate the same and accordingly decide the case, afterhearing both sides on merits and pass a reasoned judgementafresh. Both the parties shall appear before the Court on30.4.2009." The second appeal is disposed of accordingly. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarMskTo1.The District Judge, Coimbatore2.The III Additional District Munsif, Coimbatore+1cc to Mr.C.Deivasigamani, Advocate Sr 9751+1cc to Mr.K.Goviganesan,Advocate Sr 9792SSR(CO)km/18.4.S.A.No.394 of 1998