Both the second appeals are arising out of common judgement and decree dated 31.12.2002 made in A.S.Nos.102 of 2001 and 90 of 2002 on the file of the Principal District Court, Kanyakumari at Nagercoil, confirming the judgment and decree dated 26.07.2001 passed in O.S.No.818 of 1987 on the file of the Additional District Munsif Court, Nagercoil and therefore, both Second Appeals are disposed of by this common judgment. The appellant, who lost in both the Courts below, have come out with these second appeals.
2. The appellant in both the second appeals is the plaintiff in O.S.Nos.818 of 1987 and 1115 of 1987 and appellant in A.S.Nos.102 of 2001 and 90 of 2002. The respondents 1 to 4 in S.A.No.1358 of 2003 are the defendants in O.S.No.818 of 1987. The respondents 1 to 3 in S.A.No.1359 of 2003 are the defendants in O.S.No.1115 of 1987.
3. During pendency of the second appeals, respondents 1 and 3 in S.A.No.1358 of 2003 died. Their legal heirs were impleaded as respondents 5 to 13 and 14 to 18 respectively in S.A.No.1358 of 2003.
S.A.No.1358 of 2003 (O.S.No.818 of 1987):
4. The appellant filed O.S.No.818 of 1987 for permanent injunction against the respondents 1 to 4 restraining them from interfering with her peaceful possession over the suit property. According to the appellant, her father purchased the property by the deeds of sale dated 16.12.1110 M.E. (1.8.1935) and 06.12.1110 M.E. (22.7.1935) and from his mother, he got right as per the deed of sale dated 21.07.1093 M.E. (5.3.1928). After their death, appellant and her brother Marianthony Ericks inherited the property. Marianthony Ericks is in Gulf country and appellant is in possession of entire property for herself and on behalf of her brother. During re-survey, patta was issued for lesser area. The respondents have no right or possession of the suit property. From 25.07.1987, the respondents attempted to disturb the possession of the appellant. The respondents and their men attempted to cut and remove the coconut and other trees in the suit property. By the intervention of the appellant and her husband, they went back. As a co-owner of the suit property, the appellant is entitled to maintain the suit for injunction and get a decree for injunction.
5. The respondents 1 to 3 filed written statement denying all the averments made in the plaint and submitted that the appellant has no title or possession of the suit property and the suit property is in possession of the respondents. The description of the suit property, survey number, area, boundaries and identity of the properties are wrong and they denied the same. The sale deeds in favour of the predecessor of appellant are not valid and they did not get any right or possession. After re-survey, no patta was issued to the appellant regarding the property in the possession of the respondents. The old survey numbers and sub-divisions do not pertain to the property of the appellant. The respondents have patta for suit property and are paying tax. The re-survey proceedings are valid and binding and it has become final. The claim of the appellant is barred by law. The property of the appellant's father was sold in the Court auction and appellant's father's right was extinguished. The respondents 1 to 3 sold three coconut trees in the suit property to the village and permitted the village committee to widen the road through the suit property. The appellant has no prima facie case and balance of convenience is not in favour of the appellant.
6. The trial Court framed necessary issues. Before the trial Court, the appellant was examined herself as P.W.1 and one Jerome was examined as P.W.2 and Exs.A1 to A14 were marked. The second respondent himself was examined as D.W.1 and one Peter Margorious was examined as D.W.2 and Exs.B1 to B15 were marked.
7. The learned trial Judge considering the pleadings, oral and documentary evidence, arguments of counsel for parties, decreed the suit by judgment and decree dated 29.03.1989. Against which, the respondents 1 to 3 filed A.S.No.17 of 1989. The first Appellate Court remanded the matter to the trial Court to give an opportunity to the appellant to identify the property as per Exs.A2 to A4 and if necessary, implead Government as party.
8. After remand, the appellant filed an application for amendment to include the prayer of declaration of title and injunction and impleaded the Government as fourth defendant.
9. The respondents 1 to 3 filed additional written statement stating that the appellant is estopped from questioning re-survey proceedings and the correlation. There is no mistake in re-survey and the appellant did not question the same within three years. Originally, the appellant claimed 99 cents and she is now claiming 55 cents. The property in the sale deeds under Exs.A2 to A4 in old S.Nos.14367/4, 14367/5 and 14367/11 are different from the property claimed in the suit. They are lying far away from each other.
S.A.No.1359 of 2003 (O.S.No.1115 of 1987):
10. The appellant filed O.S.No.1115 of 1987 against the Government stating that the suit property is a patta land and it is not a Poromboke land. The respondents in S.A.No.1359 of 2003 have no right over the said property. The respondents in S.A.No.1359 of 2003 encroached the suit property and have widened the road on the Eastern and Southern side of the suit property. The appellant issued notice under Section 80 of C.P.C. to the respondents on 10.10.1987 and 03.10.1987. The appellant is entitled to permanent injunction.
11. The respondents filed written statement and stated that the suit property is not a patta land. The respondents have not encroached the land belonging to the appellant. The respondents did not widen the road as alleged by the appellant. If patta land is acquired, the appellant can object to the same.
12. Based on the amended plaint filed in O.S.No.818 of 1987, after remand, the trial Court framed issues on 21.10.1997 and 28.07.2001. The trial Court also framed necessary issues in O.S.No.1115 of 1987. A common trial was conducted in both the suits. On behalf of the appellant, after remand, appellant examined herself as P.W.1 and Exs.A15 to A21 were marked. The second respondent was examined as witness and no additional document was marked. Advocate Commissioner's report and plan were marked as Exs.C1 and C2.
13. The trial Court considering the pleadings, oral and documentary evidence, Commissioner's report and arguments of the counsel for the parties, dismissed both the suits holding that the property in re-survey No.1367/4 is not the property claimed by the appellant as per Exs.A2 to A4 and the claim of the appellant that re-survey conducted is not proper is barred by limitation.
14. Against the judgment and decree dated 26.07.2001, the appellant filed two appeals in A.S.Nos.102 of 2001 and 90 of 2002. The learned first Appellate Judge framed necessary points for consideration and after considering the pleadings, oral and documentary evidence, judgment of the trial Court and arguments of the counsel for the parties, dismissed both the appeals holding that the appellant failed to prove that the suit property is the same property as per Exs.A2 to A4. Against the said judgment and decree, the present second appeals are filed.
15. At the time of admission, following substantial questions of law were framed:
?(a) In the face of the admission of title in favour of the predecessor in interest of the plaintiff regarding the suit property and in the absence of any legal evidence that in a partition that took place earlier the suit property was allotted to the defendants, whether the conclusion of the Courts below that the plaintiff had not established his title, is vitiated by law? In other words, have not the Courts below failed to apply their mind to the admission made, which is a relevant piece of legal evidence while non-suiting the Plaintiff?
(b) Whether the non application of mind of the Courts below to the fact that the plaintiff had in fact filed objections to the Commissioner's report as well as took steps to have the warrant re-issued to the same Commissioner had vitiated these judgments in toto.?
16. The learned counsel appearing for the appellant contended that the appeal in A.S.No.17 of 1989 was remanded by the first Appellate Court by judgment dated 02.03.1990 with specific direction to identify the suit property as per Exs.A2 to A4/sale deeds based on which, the appellant claimed title. Appellant impleaded the Government as fourth defendant and conducted the suit. The Advocate Commissioner was appointed to identify the suit property with regard to Exs.A2 to A4. It is further contended that the appellant gave two memos to the Advocate Commissioner. The Advocate Commissioner did not act as per the memo of instructions given by the appellant and did not identify the suit property as per Exs.A2 to A4. Trial Court as well as the first Appellate Court failed to see that direction given in the order of remand was not complied with. The appellant filed objection to the Advocate Commissioner's report and also filed an application for re- issue of warrant of commission. The Courts below did not consider the objection and application filed by the appellant for re-issue of warrant and erroneously held that the appellant did not file objection to the Advocate Commissioner's report and did not file application for re-issue of warrant. It clearly shows that the non application of mind of the learned Judge. The Courts below failed to see in the remand order, the first Appellate Court has categorically held that the respondents in S.A.No.1358 of 2003 are entitled to only 12 cents. Therefore, he prayed for allowing the second appeals.
17. In support of his contention, he has relied upon the judgment reported in AIR 1979 MADRAS 173 in (Krishnaswamy Reddiar v. Muthu Reddiar), wherein in para-8, it is held as follows:
?8. The learned Counsel for the respondent would however contend that the view taken by the Court of first instance that Kumudavalli lost her French nationality as a result of her marriage with an Indian national has rightly been set aside by the Appellate Court by its judgment dated 18th March, 1971 and that in any event the said finding having become final as a result of the defendant not having preferred any effective appeal against the remit order wherein that finding was given, it is no longer open to him to canvass the correctness of that finding. Mohan, J. has not dealt with this aspect of the matter. He only dealt with the question as to the form of marriage. He accepted the finding rendered by the Trial Court that the marriage was in Brahma form and not in Asura form. On the question of the form of marriage, we are satisfied on a close scrutiny of evidence that the marriage was conducted in Brahma form and that if the personal law applicable to French nationals were to apply. Venkatakrishna Reddiar as the sole heir of Kumudivalli would succeed to her properties. Thus unless the appellant succeeds in setting aside the finding given by the appellate Court in the remand order at the earlier stage that Kumudavalli has not lost her French nationality as a result of her marriage to Venkatakrishna Reddiar he cannot succeed to the properties. The question is whether the appellant can question the said finding rendered by the appellate Court in its remit order at the earlier stage in this appeal which arises out of the judgment rendered by the Trial Court after remand. We are of the view that Section 105(2) of the Code of Civil Procedure will stand in the way of the appellant questioning the correctness of those findings in this appeal. Section 105(2) of the Code of Civil Procedure is as follows:
?Notwithstanding anything contained in Sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.? Order 43 Rule 1(u) has provided for an appeal against an order under Rule 23 of Order 41, remanding a case, where an appeal would lie from the decree of the appellate Court. Therefore the appellant herein should have filed an appeal against the order of remand passed by the Appellate Court on 18th March, 1971, if he was aggrieved against the findings rendered in the remit order. The appellant not having appealed against the said remit order the bar under Section 105(2) came into operation and the appellant is precluded from disputing its correctness in the subsequent stages of the same proceedings. It is well-established that the finality given under Section 105(2) to an order of remand which is appealable but which has not in fact been appealed against, will apply to the findings rendered in the order of remand as well. In this case the remand was based on the finding that Kumudavalli had not lost her French nationality as a result of her marriage with an Indian national. That finding has become final. It is not, therefore, open to the appellant to question that finding in this appeal arising out of the said order of remand directing a fresh disposal of the suit after giving a finding on the form of the marriage alone.?
18. Per contra, the learned counsel for the respondents in S.A.No.1358 of 2003 submitted that the appellant has come out with specific case that the property covered by Exs.A2 to A4 is the property in re-survey No.1367/4. It is for the appellant to prove her case. The appellant has taken a contradictory stand that re-survey was not conducted properly and if proper re-survey is conducted, it will show that the property covered by Exs.A2 to A4 are situate in R.S.No.1367/4. The appellant contended that no notice was issued to her with regard to re-survey. At the same time, appellant admits that she knew about re-survey, which was done in the year 1965 to 1970. It is further submitted that the appellant did not challenge the re-survey within three years of re-survey and get the mistake rectified. In addition to that, appellant has not given correct description of the property to the schedule to the plaint. The survey number, extent and boundaries are wrong.
19. The appellant filed the suit only on 30.07.1987 for permanent injunction in respect of 99 cents. Subsequently, by amendment sought for declaration of title with regard to 55 cents only. The appellant has stated that 5 cents of land alone was taken for widening the road. The appellant also stated that she is not aware of extent of land taken by the Government for widening of road. The Advocate Commissioner executed warrant of commission properly and he has measured the property covered by Exs.A2 to A4 with the help of surveyor. The appellant has not proved that the properties covered by the three sale deeds are lying in one lot. As per the measurement of the property, the properties are not a single land. The first Appellate Court, while remanding the suit to the trial Court for fresh trial, has held that the appellant has to prove her case and cannot succeed on the weakness of respondents' case. After remand, the appellant did not take any steps to identify the property and it is only the respondents 1 to 3, who took steps for appointment of Advocate Commissioner to identify the property. The Courts below properly appreciated the facts and all the materials available on record and have given cogent and valid reasons for dismissing the suits and first appeals. There is no error on law and there is no substantial questions of law arising in the second appeals. Therefore, he prayed for dismissal of the second appeals. In support of his contention, he has relied upon the following judgments:
(i) Civil Appeal No.562 of 2003, dated 13.05.2011, in (Rangammal v. Kuppuswami & Another), wherein para-11 and 13 are extracted hereunder:
?11. We have heard learned counsel for the parties at length and on a consideration of their submissions in the light of the judgments and orders of the courts below, specially the High Court, we are clearly of the view that the High Court as also the Courts below have clearly misconstrued the entire case of the plaintiff as well as the respondents and tried it contrary to the pleadings. The High Court has recorded that ?the present suit which was filed in the year 1982, is after 31 years? i.e. after 31 years of the execution of the sale deed dated 24.02.1951. But it can be instantly noticed that the High Court has fallen into a crystal clear error as it has patently and unambiguously missed that the suit had not been filed by the appellant Tmt.Rangammal as she was the 2nd defendant who was later impleaded in the suit but the partition suit had been filed by the plaintiff-Kuppuswami- respondent No.1 herein against his brother the 2nd respondent-Andivelu-1st defendant which was a suit for partition of the property but while doing so he included and asserted title to the property in the schedule of the plaint which admittedly had fallen into to the share of the appellant's deceased- father which devolved upon her after the death of her father, mother and brother who died unmarried. But it is the plaintiff/respondent No.1 who came up with a case in the plaint that this property was transferred for legal necessity by the so-called legal guardian of the appellant by executing a sale deed on 24.02.1951 in favour of the respondents predecessors who were father and uncle of the plaintiff and 1st defendants/respondents herein.
12. .. ..
13. Therefore, it is more than apparent that when the plaintiff/respondent came up with a case of execution of sale deed on 24.02.1951 for half of the schedule property/disputed property alleged to have been sold out for legal necessity which had fallen into the share of appellant Rangammal, the burden clearly lay on the plaintiff/respondent No.1 to discharge that the sale deed executed by Kumara Naicker to his own son and nephew Arumuga Gounder in regard to the share which had admittedly fallen into the appellant share Rangammal who was a minor, was sold for the legal necessity. But this burden by the trial Court was wrongly cast upon the appellant/Rangammal to discharge, although, it is well-settled that the party who pleads has also to prove his case.?
(ii) 1992 0 AIR(Mad) 242 in (R.Durairaj v. Seethalakshmiammal and Others), wherein in para-9, it is held as follows:
?9. .. .. It is the fundamental principle in the law of pleadings that no amount of evidence can be looked upon in support of a plea having no foundation in the pleading, and a decision of a case cannot be based on grounds outside the pleadings. If the first plaintiff had pleaded that she has spent for the marriage and what amount she has spent and what are the items of expenses for which she spent, the first defendant would have had an opportunity to meet this case of her's by filing a written statement. In this position only because she has stated in the course of her evidence that she has spent for the marriage a decree cannot be passed in her favour. The trial Court itself has found that the first plaintiff as P.W. 1 has not produced accounts for the marriage expenses incurred by her for the marriage, and she has not stated what in the quantum of jewels she has given to her daughter. The lower Court has further found that the first plaintiff (P.W. 1) has admitted that the marriage was celebrated at the house of the bridegroom and the expenses of the marriage was borne by the bridegroom. In this state of evidence the trial Court just stating that taking into consideration the status of the parties and other circumstances, has granted Rs.20,000/- as the amount spent for jewels and a sum of Rs. 5,000/- for other marriage expenses. Thus apart from there being no pleadings, the evidence also is not sufficient to come to a conclusion that she has spent any definite amount either for jewels or for other expenses. Thus viewed, the finding of the trial Court that she has spent R
S. 20,000/- for jewels and Rs. 5,000/- for expenses cannot be sustained. Here it may be relevant to note that as per
S. 20 of the Hindu Adoptions and Maintenance Act besides father, mother also is bound to maintain her daughter.?
20. Learned counsel for the fourth respondent in S.A.No.1358 of 2003 and respondents in S.A.No.1359 of 2003 submitted that the respondents have not encroached the suit property and did not widen the road as alleged by the appellant. The Courts below have rightly rejected the claim of the appellant. In support of his contention, he has relied on the judgment reported in AIR 1982 Orissa 86 in (Rama Subudhi and Others Vs. Bhagirathi and Others), wherein in para-9, it is held as follows:
?9. The difficulty of the decree-holder however, is on the second point. The description of the land as given in the plaint, the decree and the execution petition is quite vague and uncertain. The land is described as "Plot No. 1108 A. 0.523". Admittedly, Plot No. 1108 'comprises an area of 0.535 acre. The decree directs delivery of possession of a portion of the land, that is, 0.523 acre. The remaining portion of 0.012 acre was not the subject matter of the suit. The portion measuring 0.523 acre has not been specified by boundaries or a sketch map. In the absence of sufficient particulars, it is difficult to fix up its identity. Order 7, Rule 3 C.P.C. provides that where the subject matter of the suit is immovable property the plaint shall contain a description of the property sufficient to identify it and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or particulars. Order 20, Rule 9, C.P.C. also provides that where the subject- matter of the suit is immovable property, the decree shall contain a description of such property sufficient to identify the same. In the present case, the decree-holder claims delivery of possession in respect of a portion of the plot. There is however, nothing to show from which side of the plot he is entitled to take possession. It is difficult to understand why the executing court appointed a commissioner for demarcation of the land when it has not been specified in the decree. It is not open to the executing court to divide the plot and deliver possession of any specific portion. It would be impossible to demarcate and deliver possession of any: specific portion unless its identity is known. Mr. P. C. Misra who appeared for the respondent-decree-holder in this court when confronted with the situation could not satisfactorily meet the point.?
21. The learned Special Government Pleader submitted that respondents in S.A.No.1359 of 2003 did not encroach and widen the road as alleged by appellant. If the patta land had been taken over for laying road, the appellant ought to have made a claim for compensation.
22. Heard both sides and perused the materials available on record.
23. The main contention of the learned counsel for the appellant is that in the judgment dated 02.03.1990 made in A.S.No.17 of 1989, the first Appellate Court remanded the suit for fresh trial permitting the appellant to identify the property as per Exs.A2 to A4, based on which, the appellant claimed title to the suit property. The appellant gave two memos of instructions to the Advocate Commissioner to execute warrant of commission. The Advocate Commissioner ignored the said memos and did not measure the property based on Exs.A2 to A4. The Advocate Commissioner measured the property only based on re-survey, which according to the appellant is not correct.
24. From the Commissioner's report, it is clear that the Taluk Inspector of Survey identified the properties in Re-survey Nos.1366/5, 1368/3, 1368/8 and 1368/12. As per the plan prepared with the help of the Taluk Sub-Inspector of Survey, it is clear that the property in old S.Nos.14367/4 and 14367/5 are re-numbered as re-survey No.1366/5 and old S.No.14367/11 is re-numbered as re-survey Nos.1368/3, 1368/8 and 1368/12.
25. From the plan submitted by the Advocate Commissioner, it is seen that these three properties are not situated in a single lot and it is not situated in re-survey No.1367/4.
26. The appellant has filed objections to the Advocate Commissioner's report. The Advocate Commissioner was examined in Court and was cross- examined by the counsel for the appellant. The appellant has not produced any document to show that the properties covered by Exs.A2 to A4 are in fact situate in re-survey No.1367/4. The appellant alleges that re-survey was not properly conducted and re-survey numbers given are not correct. She also contends that if proper re-survey is conducted, it will be found that the properties covered by Exs.A2 to A4 are situate only in re-survey No.1367/4. The appellant admits that she was aware of re-survey. She also admits that re-survey was conducted long back and patta was issued for lesser extent after re-survey. There is nothing on record to show that the appellant has taken any steps to rectify the defects in re-survey. Admittedly, re-survey was done in the year 1965 to 1970 and the appellant filed the suit on 30.07.1987. Even in the suit, appellant has not challenged the re-survey proceedings. The contention of the learned counsel for the appellant that the Courts below erred in holding that the appellant has not filed any objections to the Commissioner's report and has not filed an application for re-issue of warrant and thereby entire judgment is vitiated has no force. The report of the Advocate Commissioner is only to assist the Court. The Court can take into consideration the report of the Advocate Commissioner and come to the conclusion and decide the issue in the suit or reject the Advocate Commissioner's report.
27. The appellant has come out with the specific case that the property covered by Exs.A2 to A4 measuring 99 cents are situate in single lot and it is in re-survey No.1367/4. The appellant has failed to substantiate her case by any acceptable evidence. From the evidence of P.W.2, it is clear that the boundaries given to schedule to the plaint are not correct. The appellant is unable to state how much land was taken by the Government for widening of the road. The respondents have produced the extract of land survey register, re- survey plan in respect of re-survey No.1367 and kisth receipts.
28. In view of the above fact, I hold that there is no error of law in the judgment passed by both the Courts below. The appellant having failed to substantiate her case the properties covered by Exs.A2 to A4 are properties in Re-survey No.1367/4 is not entitled to take advantage of admission of respondents that predecessor in title of appellant had right over the properties covered by Exs.A2 to A4. The substantial questions of law are answered against the appellant. The decrees and judgments passed by both the Courts below do not warrant any interference and the same are hereby confirmed. The second appeals are liable to be dismissed and they are hereby dismissed.
29. In the result, Second Appeals are dismissed. The decrees and judgments passed by both the Courts below are hereby confirmed.
There is no order as to costs.
Consequently, connected Miscellaneous Petition is closed.
To
1.The District Collector, Kanyakumari District, At Nagercoil.
2.The Divisional Engineer, Highways and Rural Nagercoil.
3.The Block Development Officer, Rajakkamangalam Panchayat Union, Pazhavila..