This second appeal arises out of the Judgment and Decree dated 04.11.2004 made in A.S.No.113 of 2003 passed by the learned VI Additional Judge, City Civil Court, Chennai confirming the Judgment and decree dated 16.07.2002 passed by the learned V Assistant Judge, City Civil Court, Chennai in O.S.No.3543 of 1986.
2. Brief facts of the case is as follows:-
The suit property was purchased by the Plaintiff from one M.Seeralan on 04.12.1959. The above said property measuring East- West on the North 40 feet, East-West on the South 29-1/2 feet, North-South on the East 50 feet, North-South on the West 30 feet. In the above said property, the plaintiff constructed a house which is Door No.26 approved layout in the year 1967. As per the approved lay out, the plaintiff left 1 feet on the West to his property. The defendant residing on the West to the plaintiff's property, which is Door No.27. The Defendant constructed a bath-room on the North- East corner of his property without leaving any space on the East of his property. On the North, the defendant's property measuring East-West http://www.judis.nic.in 3 20 feet and also fitted tin sheet on the western wall of the plaintiff. Then the plaintiff gave a complaint to the Police, but the defendant took the plea that the plaintiff accepted the defendant's right and also gave written agreement before the Panchayatars, but the plaintiff denied the same. Hence, the plaintiff came forward the suit for declaration and for mandatory injunction.
3.On the other hand, opposing the claim of the plaintiff, the defendants contended that they are no aware of the sale deed dated 04.12.1959. The plaintiff is not in possession and enjoyment of the land given in para-3 of the plaint from the date of purchase. The claim of the plaintiff that he left 1 foot passage on his western boundary is not correct. The defendants put up bathroom in horner of their property and they have not encroached upon the plaintiff's property. The defendants denies the allegations that on 16.11.1985, they try to encroached upon 1 foot passage on the western side of the plaintiff's property and removed the boundary stone. The defendants laid corporation pipe line within his land and not on the plaintiff's property. Likewise, the defendants did not put up any brick pillar construction on the western side wall of the plaintiff's main building. The relief sought for by the plaintiff is unsustainable. The plaintiff himself executed letter http://www.judis.nic.in 4 in the presence of panchayatars and the same will bound on him. The measurement of the property given in the plaint is totally wrong. Thus, the defendants seeks dismissal of the suit.
4. After contest, the trial Court decreed the suit as prayed for. Aggrieved upon that the defendant preferred the appeal before the first appellate Court and after contest, the first appellate Court dismissed the appeal. Hence, the defendant preferred this second appeal. During the pendency of the second appeal, the defendant died. Hence, the LRs of the defendants were impleaded as appellants 2 to 8.
5.At the time of admission, the following substantial question of law was framed by this Court.
1) Whether the first appellate Court was right in holding that the petition under Order 41, Rule 27, 28 and 29 was not maintainable when admittedly deposition and sketch of the Surveyor who inspected the suit property to assist the 2 nd Advocate Commissioner were available on its file?
2. Whether the Courts below were right in placing reliance on Ex.C1 and Ex.C2 when the same was superseded by the subsequent reports of the 2nd Advocate Commissioner viz., Ex.C3 and http://www.judis.nic.in 5 Ex.C4?
3. Whether the Courts below were right in concluding that the defendant had encroached 1' width as described in the B-schedule property when there was no place of evidence to prove the same?
4.Whether the Courts below were right in decreeing the suit solely relying on Ex.C4 dated 19.04.1992, which was subsequent to the period of construction viz., during the year 1972-1975?
6.The learned counsel appearing for the appellants would submit that the first appellate Court failed to consider the petition filed by the defendant under Order 41 Rule 27 CPC for producing Additional evidence and the contention of the appellant in that regard was not properly considered by the first appellate Court. Even though after the remand, new Advocate Commissioner was appointed and he inspected the suit property with the help of Surveyor and filed his report which were marked as Ex.C3 and Ex.C4 and Ex.C1 and Ex.C2 was superseded by the subsequent report. However, the first appellate Court failed to consider Ex.C3 and Ex.C4 properly. Both the Courts below solely relied upon Ex.A14 which was subsequent to the period of construction, namely, 1972 to 1974. The first appellate Court failed to http://www.judis.nic.in 6 appreciate the oral and documentary evidence of the defendant. The appreciation of the evidence is not according to law. Hence, the interference of this Court is warranted. Thus, the appellants seeks to entertain the appeal.
7.The learned counsel appearing for the respondent/plaintiff would submit that both the Courts below have relied upon the documents of title as well as the revenue records and local body records produced by the plaintiff as well as the appellants/defendants solely relied on Ex.B1, which is not tenable under law. Hence, both the Courts below have rightly negatived the claim of the defendant and accepted the plea of the plaintiff. The grounds put forth by the appellants/defendants are not sufficient to interfere with the findings of the Courts below. Hence, the appeal is sought to be dismissed.
8.I have heard the rival submissions and also perused the materials available on record.
9.On perusal of the records, it is clear that the plaintiff and the defendants are adjacent land owners. The real dispute between the plaintiff and defendant is with regard to one feet breadth space on the http://www.judis.nic.in 7 west of plaintiff property, which is allegedly encroached upon by the defendants. However, the defendant oppose the case on the ground that the plaintiff has accepted the rights of the defendant in the Panchayat and also executed an agreement before the Panchayatdars and the same will bind upon them. On considering the plea of both parties, the scope of the suit is very limited. The specific allegations on the side of the plaintiff is that the defendant encroached upon the plaintiff's property and hence the suit.
10.Now the point for consideration is that as to whether the defendant has encroached or not?
11.On the side of the plaintiff, the plaintiff has produced Ex.A1 to Ex.A20 to prove his case. Out of 20 documents, Ex.A1, Ex.A9 and Ex.A14 are the relevant documents to decide the issue. Ex.A1 and Ex.A9 are the Sale Deed and Ex.A14 is the approved layout. The plaintiff has also produced Ex.A2 Rough Sketch which is annexed with the plaint. Admittedly, both the plaintiff and defendant are the adjacent land owners. The plaintiff took steps to measure the properties of both parties so as to find out which claim is true. Hence, the trial Court appointed an Advocate Commissioner and he after http://www.judis.nic.in 8 inspecting the suit property along with the Surveyor, filed his report which is marked as Ex.C1 and Ex.C-2. In Ex.C1 and Ex.C2, it is stated that the defendant has encroached upon the plaintiff's suit property. On the basis of the same, the trial Court decreed the suit as prayed for and on appeal by the defendants, the first appellate Court also confirmed the findings of the trial Court. Aggrieved over the concurrent finding of the Courts below, the defendant has come forward with this second appeal on the ground that his petition for additional evidence was not accepted by the first appellate Court and the Courts below gave much importance to Ex.C1 and Ex.C2 than Ex.C3 and Ex.C4 which is not proper. However, as far as the contention with regard to Order 41 Rule 27 CPC petition, the first appellate Court framed issue as Point No.4, i.e., “epy msitaiu TLjy; rhl;rpakhf tprhhpf;f cj;jputplntz;Lkh/” and the first appellate Court answered the same by negativing the claim of the appellants on the ground that the appellants has not produced any acceptable reasons or materials to examine the surveyor and dismissed the plea of the defendant/appellant.
12.On the side of the appellant, the learned counsel has relied on a ruling reported in 2007 (3) CTC 59 in T.TAMILASARAN Vs. AROKKIASAMY AND OTHERS and in S.N.HASAN http://www.judis.nic.in 9 ABUBUCKER Vs. KOTTIKULAM STREET MOHIDEEN PALLIVASAN THERKKU MOHIDEEN PALLIVASAN, NIRVAGI MUTHERU COMMITTEE THROUGH ITS SECRETARY M.S.BUHARI AND ANOTHER in 2001 (1) LAW WEEKLY, wherein it is held that merely allowing additional documents to be received is different from proving additional documents through proper method of evidence. In this case, the first appellate Court negatived the Order 41 Rule 27 Petition on the ground that the appellant miserably failed to prove the admissibility of documentary evidence sought to be produced in support of his claim. In such circumstances, seeking permission for receiving of additional evidence must be based upon admissibility of documents and the purpose for which he is going to let in additional documents must be stated by the party concerned and the Court is to be convinced to accept his claim. However, the appellants herein has not produced any acceptable reason to receive the additional evidence. Hence, the claim was negatived by the Courts below as the said property was already measured by a qualified surveyor with the help of Advocate Commissioner and if really the appellant was aggrieved over the Advocate Commissioner's report, he can very well file the petition to appoint another commissioner to inspect the property with the help of another surveyor. However, he has not done so. Further, http://www.judis.nic.in 10 the Advocate Commissioner appointed by the first appellate Court has also filed his report. As such, without examining the Surveyor or the newly appointed Advocate Commissioner, seeking permission to examine the previous surveyor who deposed in other suit in O.S.No.4386 of 1999 will not give any proper evidence and the same is unnecessary. Hence, the first appellate Court negatived the claim of the appellants. The reason adduced by the first appellate Court for the same is appropriate. Hence, the contention raised by the appellants in this regard is not acceptable and the same is to fail.
13.The contention of the appellant is that the Court below ought not to have relied on Ex.C1 and Ex.C2, the Commissioner report filed by the earlier Commissioner, as the same was superseded by the second Commissioner report and sketch marked as Ex.C3 and Ex.C4. The appellant also pointed out that in the second Advocate Commissioner report Ex.C3, it is stated as follows:-
“4.At the time of my inspection, the measurement of the plaintiff's property bearing Door No.26, Appaswamy Mudali Street (No.334/2 according to Old Survey Plan) on the northern side facing Appaswamy Mudali Street from East to West is 29' 5”. The are on the southern side from the east to west measures about 11'. The http://www.judis.nic.in 11 area on the eastern side of the plaintiff's property is about 80' from North to south.” Relying on the same, the appellant/defendant contends that the same ought to have been accepted by the Courts below. However, it is pointed out that the first Commissioner report, the property was measuring on the basis of sale deed and approved lay out and nothing is stated by the defendant that the measurement given in the first Surveyor report is in correct. Further, it is pointed out that the measurement given in Ex.C3 and Ex.C4 is not in accordance with the measurements of the patta. Further, the plaintiff has produced Ex.A1 Sale Deed in respect of suit 'A' schedule property, which includes the 'B' schedule property also. In the suit, Ex.A1 Sale Deed, the measurement of the property and also the boundaries is specifically given. Further, the East of Ex.A1 property is purchased by the plaintiff as per Ex.A9. In Ex.A14, the plan approval also it is mentioned that to the West and South of the plaintiff's house property path way is provided. The same is evidenced by the evidence of P.W.2 and Ex.A11 produced by him. At the same time, the defendant has purchased the property under Ex.A10, wherein, the extent is given as 2100 sq.ft.
Including the property which to the west of plaintiff's property. The extent of property purchased by the plaintiff is 2100 sq.ft. and the same is evidenced by Ex.A18 Judgment in O.S.No.6792 of 1986 and http://www.judis.nic.in 12 Ex.A19 Decree and Ex.A20 Final decree passed in the said suit. In the said circumstances, it is pointed out that the measurement given in Ex.B2 Sketch as well as extent 2385 sq.ft. mentioned in Ex.A13 on the basis of patta cannot be relied upon. It is clear from the same that the plaintiff has not given up his right on the property west of his house. As stated earlier, the measurement given in the first Commissioner Report is not stated to be incorrect by the defendant. Further, the defendant is relying upon Ex.B1 which is Panchayat agreement in support of his contention. However, Ex.B1 is not accepted by the plaintiff and he has also denied the signature and stated that Ex.B1 was not executed with full consent. If really, the defendant was having property till the end of the western wall of the plaintiff, he need not have relied upon Ex.B1. As such, mere production of disputed document Ex.B1 alone will not bind upon the plaintiff. As far as the claim over the immovable property is concerned,Ex.B1 is not admissible in evidence. Therefore, both the Courts below ignored the said Ex.B1 document and relied upon Ex.A1, Ex.A9, Ex.A14 as well as Ex.C1 and Ex.C2. To contradict and disprove the same documents, on the side of the defendant no piece of evidence is produced. Thus, it is clear that the defendant has not substantiate his claim and as such, views from any angle, the findings of the Court below cannot be said http://www.judis.nic.in 13 to be erroneous and in correct. As such, no ground is made out to set aside the findings of the Courts below. Therefore, for the reasons stated above, this Court concluded that the substantial question of law raised in this appeal is devoid of merits and the same is answered against the appellants/defendants. In view of the above said discussion, it is concluded that the appeal cannot be entertained and the point is answered accordingly.
14.In the result, the second appeal is dismissed. No costs. The Judgment and decree dated 04.11.2004 passed in A.S.No.113 of 2003 by the learned VI Additional Judge, City Civil Court, Chennai, is hereby confirmed.
24.08.2018 rrg To
1.The VI Additional Judge, City Civil Court, Chennai.
2.The V Assistant Judge.
City Civil Court, Chennai.
http://www.judis.nic.in 14 S.BASKARAN,J., rrg Judgment in S.A.No.1182 of 2005 24.08.2018 http://www.judis.nic.in