Sundaramoorthy v. Jeyalakshmi & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 22..04..2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.206 of 2007and M.P.No.2 of 20071.Sundaramoorthy2.Natarajan.. Appellants/Appellantsvs.1.Jeyalakshmi2.The District Collector, Villupuram Taluk and District.3.The Tahsildar, Taluk Office, Villupuram,, Villupuram District.4.The Commissioner, Kandamangalam Panchayat Union, Kandamangalam Village, Villupuram Taluk and District..... Respondents/RespondentsThis second appeal is filed against the judgement and decreedated 29.10.2004 passed by the learned Second Additional SubordinateJudge, Villupuram, in A.S.No.143 of 2003, confirming the judgementand decree dated 24.6.2002 passed by the learned Additional DistrictMunsif, Villupuram, in O.S.No.205 of 1999.For Appellants : Mr.S.KrishnasamyFor Respondents : Mr.V.Raghavachari for R1 Mr.R.Muthaiyan,G.A. For R2 and R3 Mrs.R.Revathi for R4 JUDGMENTThis second appeal has been filed by the defendants 1 and 2,animadverting upon the judgement and decree dated 29.10.2004 passed bythe learned Second Additional Subordinate Judge, Villupuram, inA.S.No.143 of 2003, confirming the judgement and decree dated24.6.2002 passed by the learned Additional District Munsif, https://hcservices.ecourts.gov.in/hcservices/ Villupuram, in O.S.No.205 of 1999. For convenience sake, the partiesare referred to here under according to their litigative status beforethe trial Court.2. A summation and summarisation of the relevant facts, which areabsolutely necessary and germane for the disposal of this secondappeal, would run thus:(a) The first Respondent/plaintiff filed the suit O.S.No.205 of1999 as against as many as five defendants, seeking declaration andinjunction and other consequential relief to effect mutation in theRevenue records on the main ground that the plaintiff purchased thesuit property as per Ex.A2-the sale deed dated 3.11.1998 fromSamikannu and others.(b) Whereas the defendants 1 and 2/appellants entered appearanceand resisted the suit on the ground that even though the plaintiff isentitled to a different property than the one under the occupation ofthe defendants, she is unjustifiably making claim over the propertyunder the occupation of the defendants; as per Ex.B1-sale deed dated3.6.1969, the mother of the defendants 1 and 2-Rathinammal purchasedthe suit property and accordingly, the defendants prayed for thedismissal of the suit.(c) During enquiry, the trial Court framed the relevant issues.The plaintiff examined herself as P.W.1 along with two others andExs.A1 to A.11 were marked. The first defendant examined himself asD.W.1 along with three others and Exs.B1 to B17 were marked. Exs.C1to C6 were marked as Court documents.(d) Ultimately the trial Court decreed the suit, as againstwhich, the defendants 1 and 2 filed the A.S.No.143 of 2003, fornothing but to be dismissed by the first appellate Court, confirmingthe judgement and decree of the trial Court.(e) Being disconcerted and aggrieved by the judgements anddecrees of both the Courts below, this second appeal is focussed bythe defendants 1 and 2 on various grounds.3. After hearing for some time the arguments on both sides, thisCourt felt that with the consent of both sides, this matter could bedisposed of finally by framing the following substantial question oflaw:"Whether both the Courts below correctly understood thedemarcation of the boundaries of the plaintiff's propertyas contemplated in Ex.A2 and rendered their judgements orwhether there is any perversity in evaluating the evidencerelating to the plaintiff's property? https://hcservices.ecourts.gov.in/hcservices/

4. Heard the learned counsel for the appellants/defendants 1and 2 as well as the learned counsel for the firstrespondent/plaintiff and the learned Government for R2 and R3 and thelearned counsel for R4.5. The learned counsel for the appellants/defendants 1 and 2would advance his argument to the effect that the Commissioner'sreports would exemplify and demonstrate that he had not propertylocated the plaint scheduled property and demarcated it. Whereas, hesimply concentrated on the area where both the parties have disputeand referred it as the suit property; the Commissioner's reportswould demonstrate and display that to the West of the property,where the defendants laid the foundation, there is a vacant space,which is East of Mayavan's property and as such, as per Ex.A2, theplaintiff purchased only the area to an extent of 20 feet East toWest, 30 feet North to South, to the East of Mayavan's property; andleaving that property, the plaintiff is unjustifiably laying claimover the suit property, over which, the defendants are only havingright.6. Whereas the learned counsel for the plaintiff would advancehis argument to the effect that in commensurate with the boundariesand extent mentioned in Ex.A2 only, the plaintiff is claiming herright and she is in effective possession of it and on the other hand,misunderstanding the extent and boundaries, the defendants 1 and 2are attempting to encroach upon the plaintiff's property.7. At this juncture, it is just and necessary to refer to therelevant sale deeds and also detail hereunder the extents as well asthe boundaries concerned. 8. Among the four documents, namely, Ex.A2, Ex.A4, Ex.B1 andEx.B2-the Sale deeds, Ex.B1 is the earliest in point of time, whichwas executed by Irusappan and others in favour Rathinammal-the motherof the defendants 1 and 2. The following extent and boundaries arefound set out in Ex.B1:S.No.4/9-an extent of 18 feet North to South, 26 feetEast to West (468 sq.ft) situated to the East of Muniswamy'svacant site, West of Kannaian's land, South of Dhargamanyamand North of Thamburan's site. In Ex.A4-the sale deed dated 4.3.1970, executed by Munisamyand others in favour of Samikannu-the vendor of the plaintiff, thefollowing particulars are found exemplified:20 feet East to West30 feet North to Southtotally 60 sq.feet. https://hcservices.ecourts.gov.in/hcservices/ The boundaries are found specified as under:-To the East of Mayavan's propertyTo the West of Kannaiyan's propertyTo the South of Dhargamanyam's LandTo the North of Rajagopal Thamburan's propertyEx.B2 is the partition deed dated 8.8.1994 emerged between thedefendants 1 and 2, namely, Sundaramoorthy and Natarajan, so to say,inter se partition between D1 and D2 and in that the followingparticulars are found set out:Out of the total extent, roughly 48 feet East to Westand 21¼ feet North to South, situated to the East ofKannaian's property and to the West of Arunachalam'sproperty, the Western half was taken by Sundaramurthy-D1 andthe Eastern half portion was taken by Natarajan-D2.Ex.A2 dated 3.11.1998 is the relevant sale deed executed bySamikannu and others in favour of Jeyalakshmi-the plaintiff, whichreflects the same extent and boundaries as found in Ex.A4. 9. As such, from the bare perusal and plain reading of the aboveextents and boundaries what one could understand is that Mayavan'sproperty is situated on the extreme West and to the immediate East ofMayavan's property only, the plaintiff's vendor purchased an extentof 20 feet from East to West. Regarding North to South extent thereis no dispute. 10. It has to be seen as to whether the Commissioner located theEastern boundary of Mayavan, as it constitutes the Western boundaryof the plaintiff. 11. The learned counsel for the defendants 1 and 2 hereinwould invite the attention of this Court to the Commissioner'sreports-Exs.C1 and C4, found enclosed in the typed set of papers, anddevelop his argument to the effect that the Commissioner has notchosen to locate the Western boundary of the plaintiff, whichconstitute the Eastern boundary of Mayavan. However, theCommissioner's reports would project as though to the West of thefoundation laid by the defendants 1 and 2, there is a vacant space,which speaks not in the name of any particular individual and theyare bamboo bushes found grown. According to the learned counsel forthe defendants if that area also is included in the measurement andshown towards the extent of the plaintiff then the dispute will cometo an end.12. The learned counsel for the plaintiff would submit that theso called area wherein bamboo bushes are found grown is also part ofthe plaintiff's property and the Commissioner also has took into https://hcservices.ecourts.gov.in/hcservices/ account the said measurement. The Commissioner's report does notreveal that the said area, where the bamboo bushes are found grown,is shown in the extent of the plaintiff, this crucial fact has notbeen considered by both the Courts below. Put simply the Courtsbelow without keeping a sense of perspective about what theCommissioner had placed before them, simply decided the liswarranting interference by this Court.13. For the purpose of completion of discussion, en passant, Iwould also refer to the arguments advanced on both sides regardingthe existence of the street on the extreme Eastern side of theproperties of the parties and Mayavan's properties on the extremeWest of the properties of both sides. On the extreme Eastern sidethere is one public street and immediately to the West of it oneArunachalam is having his land and to the West of Arunachalam's landthe defendants 1 and 2 acquired the property. The fact remains thatthe said Irusappan-the vendor under Ex.B1 and the said Munisamy-thevendor under Ex.A4 were brothers and they got effected a partitionorally and in that Munisamy got the Western portion and Irusappan gotthe Eastern portion. The fact also remains that the said Munisamysold his portion to Samikannu and in turn, the latter sold it to theplaintiff. Similarly, Irusappan was the first person to sell hisshare in favour of Rathinammal-the mother of the defendants 1 and 2as per Ex.B1. Between Mayavan's land and Arunachalam's land, thedisputants own land and in that alone dispute erupted. A fortioriOnce Mayavan's Eastern boundary is located then that would constitutethe Western boundary of the plaintiff and from there 20 feet shouldbe measured from East to West and consequently, the plaintiff'sproperty should be demarcated and accordingly, judgement should bedelivered. For this purpose it is just and necessary to remit thematter back to the first appellate Court with the direction that itshall appoint a Commissioner for carrying out the aforesaid missionwith the assistance of the Inspector of Surveyor and after gettingsuch Commissioner's report and sketch, and on hearing both sides, thefirst appellate Court is expected to decide the matter within aperiod of four months from the date of receipt of the records. 14. At this stage, both the parties made representation to theeffect that the parties are poor and they cannot afford to approachthe High Court once again. 15. In the interest of justice I would like to point out that itis open for either the first appellate Court itself or the rivalparties herein to approach this Court seeking necessaryclarification, if they come across any difficulty in carrying out theorder of this Court.16. The learned counsel for the plaintiff would submit that theexpenses relating to the Commissioner's appointment should be borneby the defendants. https://hcservices.ecourts.gov.in/hcservices/

17. I am of the view that both the parties should equally bearthe cost concerning appointment of Commissioner. Both parties shallappear before the lower Court on 9.6.2009. 18. Accordingly, the second appeal is disposed of. No costs.Consequently, connected miscellaneous petition is closed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar mskTo1.The Second Additional Subordinate Judge, Villupuram2.The Additional District Munsif, Villupuram3.The District Collector, Villupuram Taluk and District.4.The Tahsildar, Taluk Office, Villupuram,, Villupuram District.5.The Commissioner, Kandamangalam Panchayat Union, Kandamangalam Village, Villupuram Taluk and District. Copy to The Section Officer, VR.Section, High Court, Madras.+ 1 cc to M/s.V.Raghavachari,Advocate,SR.17010+ 1 cc to Mr.S.Krishnasamy,Advocate,SR.16942+ 1 cc to Government Pleader,(Civil Suits)SR.16734S.A.No.206 of 2007KJ(CO)EM/8.6.09