THE HON'B1 v. Sambasivam2. S. Baggiyammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.03.2011CORAM :THE HON'B1LE MR.JUSTICE G. RAJASURIAS.A. NO. 1420 OF 2010 AND M.P. NO. 1 OF 2010Thiruvannamalai Gandhi Nagar CooperativeHouse Building Society Limitedrep. by its Secretary D. ChandrasekaranGandhi NagarThiruvannamalai.. Appellant/PlaintiffVersus1. Sambasivam2. S. Baggiyammal.. Respondents/Defendants Appeal filed under Section 100 of CPC against the Decree andJudgment dated 06.07.2009 made in A.S. No. 5 of 2009 on the file ofDistrict Judge, Thiruvannamalai reversing the decree and judgmentdated 21.08.2008 in O.S. No. 200 of 2002 on the file of theAdditional Subordinate Judge, Thiruvannamalai.For Appellant:Mr. G. RajanFor Respondents:Ms. P.T. Ashafor M/s. Sarvabhauman AssociatesJUDGMENT The parties are referred to here under according to theirlitigative status and ranking before the trial court. 2. A recapitulation and resume of facts which are absolutelynecessary and germane for disposal of the second appeal wound runthus:-(a) The Plaintiff's society filed the suit in O.S. No. 2002 of2002 before the trial court seeking the following reliefs:- "(a) To declare the title of theplaintiff to the 'B' schedule property anddirecting the defendants to surrender vacantpeaceful possession of the 'B' schedule propertyand in default directing delivery through Court.(b)Directing the defendants to remove theconstruction put up by the defendants over the BSchedule property by an order of mandatory https://hcservices.ecourts.gov.in/hcservices/ injunction and in default directing the removalby the office of the Court(c) Granting permanent injunction againstthe defendants from making any permanentconstructions over the 'B' schedule property.(d)Directing the defendants to pay theplaintiff the costs of the suit(Extracted as such)(b) Written statement was filed by the defendants resisting thesuit. (c) Whereupon, the trial court framed the relevant issues.(d) The Secretary of the Plaintiff's Society Chandrasekaranexamined himself as PW1 and Exs. A1 to A6 were marked. On the sideof the defendants, the second defendant Baggiyammal was examined asDW1 and one Elangovan was examined as DW2 and Exs. B1 to B13 weremarked. Exs. C1 to C4 were also marked as Court documents.(e)Ultimately, the trial court decreed the suit as againstwhich, the defendants filed the appeal. The first appellate courtreversed the findings of the trial court and set aside the decree andjudgment passed by the trial court by dismissing the suit, as againstwhich, the plaintiff's society has come forward with this secondappeal on various grounds inter alia to the effect that the firstappellate Court failed to take into account the factual as well aslegal issues. 3.The following substantial questions of law are foundsuggested in the grounds of appeal:-(i) Is not the first appellate Court wrongin refusing to accept the secondary evidencemarked as Ex.A1 to A4 when the plaintiff hasproved and established that the originals werelost as stipulated under Section 65 of the IndianEvidence Act?(ii)Is not the lower Appellate Court wrongin requiring stricter proof of evidence asrequired under Criminal law when the plaintiffhas proved title over the suit property by virtueof Ex.A1 to A6 and shifted the onus to theshoulders of the defendant(iii)Is not the lower Appellate Courtwrong in dismissing the suit when the claim ofthe defendant is in respect of some other surveynumber and not in respect of the suit B Scheduleproperty?(iv)Is not the lower appellate Court wrongin reversing the well considered decree andjudgment of the trial court judgment bymisappreciating, misconstruing and in a exclusion https://hcservices.ecourts.gov.in/hcservices/ of oral and documentary evidence adduced by theplaintiff?(v)Whether the first Appellate Court iscorrect in rejecting the advocate commissionerreport, which has been filed, on the inspectionwith the help of Surveyor and on the basis ofmunicipal sketch and survey record as provided bythe surveyor without any valid reasons?(Extracted as such)4. On hearing both sides, I am of the view that the followingsubstantial questions of law have to be framed for consideration inthis appeal. (i)Whether the first appellate Court was justified in holdingthat the survey number in which the defendants' superstructure issituate is different from the suit property(ii)Whether there is any perversity or illegality in thefindings rendered by the first appellate Court. 5. The pith and narrow of the arguments of the counsel for theplaintiff/appellant can tersely and briefly would run thus:-(a)A mere perusal of the description of the schedule ofproperty and the sketch filed by the advocate commissioner, Ex.C2along with his report, Ex.C1 would exemplify and demonstrate that thefindings of the first Appellate Court is totally perverse andantithetical to the reality existing on ground and therefore he wouldpray for reversing the judgment and decree of the First AppellateCourt and for restoring the judgment and decree of the trial court. 6. Per contra, in a bid to torpedo and pulverse the argumentsas putforth and setforth on the side of the Plaintiff/appellant, thelearned counsel for the defendants/respondents herein would advancehis arguments, which could tersely and briefly be set out thus:-(a)The defendants have been in possession and enjoyment of thesuit property for a pretty long time, so to say, long before theplaintiff's society having allegedly acquired title over the suitproperty by purchasing it from some imaginary owners of the suitproperty(b)The persons, who allegedly sold the suit property in favourof the plaintiff's co-operative society had no ownership at all orthey had no possessory right also and in such case, the trial courtwas wrong in decreeing the suit, whereas, the first appellate Courtrectified the mistake and correctly dismissed the suit filed by theplaintiff's society and therefore interference of this Court is notwarranted in this second appeal.7. Heard both sides. First I would like to extract thedescription of the property given in the plaint, which would runthus:- https://hcservices.ecourts.gov.in/hcservices/ SCHEDULE OF PROPERTY'A' ScheduleTiruvannamalai Town II Ward BlockT.S. No. 196/1 0.66 CentsT.S. No. 196/20.48 Cents'B" Schedule Tiruvannamalai Town II Ward Vth Block1.T.S. No. 196/1 (Now 196/1A) 3154Sq.ft., bounded by North of 40 feet road; Southof S.No. 185 & Director of Agriculture office;East of S.No. 186/13 belonging to plaintiff andWest of S.No.196/2A (item 2)2.T.S. No. 196/2 (Now 196/2A) 1017Sq.ft., bounded by West and North of 40 feetRoad. South of S.No. 185 and Director ofAgriculture office; East of 196/1A (Item 1).Both items marked in the plan (Extracted as such)8. The description given in the schedule of property of theplaint has to be perused with reference to Ex.C2, the sketch filed bythe commissioner and also the description given in Ex.B10, theapplication filed by the defendants seeking No Objection from theTahsildar to obtain electricity connection. Along with thatapplication, Ex.B10, the defendants enclosed the copy of thesettlement deed dated 28.05.2002. According to the defendants, theygot their property as per said Settlement deed dated 28.05.2002. Theschedule of property, as contained in the settlement deed would runthus:-"brhj;J tpguk;jpUtz;zhkiy uP/o/ jp/kiy rg;/O nrh;e;j fhe;jp efh; 9tJbjUtpy; 185y; cs;s fhyp kida[k; tPLk;/ nuhl;Lf;F (nk) jp/kiyTl;Lwt[ tPL fl;Lk; r';fj;jpw;F brhe;jkhd ,lj;jpw;F (fp). tptrhamYtyfj;jpw;F (bj) nuhl;Lf;Fk; (t)/ ,jd; kj;jpapy; fP/nkrhjpahnu t/bj rhjpaw 33 rJuo 2640 mstpy; fhyp kid ,jpy;cs;s fhiu tPLk; ,e;j brl;oy;bkz;l;Lf;F rk;ge;jg;gl;ljhFk;(Emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/

9. The property contained in the settlement deed refers toT.S. No. 185. It is quite obvious that the property is situated tothe North of Survey No. 196/1A and 196/2A over which the plaintiff'ssociety is claiming right and title. Whereas, in the settlementdeed, even though survey number 185 is referred to, in fact, it issituated to the north of the plaintiff's property, however, the fourboundaries therein in Ex.B10 would show that the actual subjectmatter of settlement is situated to the East of the plaintiff's land;wherefore, absolutely, there is no coherence whatsoever with regardto the property over which the defendants are claiming right underthe settlement deed. In fact, the defendants claim right only to theland situate in the East of plaintiff's land, but the advocatecommissioner gave a clear finding that the area situate to East ofthe plaintiff's property is under the occupation of Public WorksDepartment as such it is crystal clear that owing to misconception,Ex.B10 itself emerged among the relatives and it is nothing but aself-serving document brought about during the year 2002 so as to layclaim over the plaintiff's land. The first appellate Court failed totake into consideration this important aspect and simply held asthough the defendants are occupying the property as per thesettlement deed dated 28.05.2002, which cannot be held to be correct.No doubt, the original sale deeds in favour of the plaintiff were notfiled, but certified copies were filed. In order to make the recordsstraight, the plaintiff society also filed an application in M.P. No.1 of 2010 pending the present second appeal to receive six documentsout of which document Nos. 5 and 6 are not relevant. In view of thefact that the documents sought to be filed by the plaintiff's societyare certified copies of the documents and 2 out of 6 documents areoriginals, I am of the view that the documents sought to be filed asadditional documents have to be allowed to be produced even at thisstage of second appeal. The reasons found set out for filing theadditional documents at the stage of second appeal are that thosedocuments got mixed up with other documents in the co-operativesociety. In any event, there is no doubt about the fact that thosedocuments are registered original documents and copies of thedocuments were already marked. Therefore, M.P. No. 1 of 2010 isallowed and the additional documents are marked as Exs. A7 to A12 onthe side of the plaintiff/appellant in continuation of the documentsEx.A1 to A6 already marked during trial.10. The judgment to be passed in this appeal is a judgment inpersonem and not a judgment in rem. A comparison of Ex.B10 with thatof the sale deeds produced on the side of the plaintiff/appellantwould make the point clear that those sale deeds emerged long priorto Ex.B10. To the risk of repetition and pleonasm, but without beingtautologous, I would like to point out that Ex.B10 does not refer tothe suit property at all, however, the defendants are in occupationof the suit property, which has been clearly located by the advocatecommissioner. Ex.B11 simply refers to Survey No. 185 and a hut https://hcservices.ecourts.gov.in/hcservices/ situated thereon, but that in no way is connected with the suitproperty. It is quite obvious that the said Ex.B11 is an unreliabledocument issued by the Tahsildar as it runs counter to Ex.B10 and thesettlement deed 28.05.2002 as well as the report of the advocateCommissioner. As such, without any rhyme or reason, the firstAppellate Court went to the extent of holding that the place in whichthe defendants are having their hut is not situate in the suitproperty, which is incorrect and therefore, the substantial questionsof law are answered in favour of the plaintiff/appellant. Thejudgment and decree passed by the first appellate Court is set asideand the judgment and decree of the trial Court is restored. 11. Accordingly, the second appeal is allowed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarrshTo1. The District Judge, Thiruvannamalai.2. The Additional Subordinate Judge, Thiruvannamalai.3. The Section Officer,V.R.Section, High Court, Madras.1 cc To M/s.Sarvabhuaman Associates, Advocate, SR.20688.1 cc To Mr.G.Rajan, Advocate, SR.20807.SA No. 1420 of 2010 GV(CO)RVL 20.04.2011