The defendants, who suffered a decree at the hands of the Courts below in a suit for permanent injunction and mandatory injunction are the appellants herein. Seeking to reverse them, they have filed the present second appeal, by framing the following substantial questions of law:
(i)Whether the Courts below have rightly appreciated the document Ex.B9 and Ex.B12 and oral evidence of D.W.1 properly before decreeing the suit?
(ii)Whether the Courts below are right in decreeing the suit based on Exs.C1 and C2 commissioner report and plan without appreciating the other evidence when the onus is on the plaintiff to prove his case independently?
(iii)Whether the Courts below are right in decreeing the suit when the plaintiff failed to prove his title to the suit property?
(iv)Whether the Courts below are right in granting mandatory injunction when the plaintiff failed to prove his case independently?
2.The suit has been laid by the plaintiff for the aforesaid relief based upon Exs.A1 and A2. Ex.A1 is the registered partition deed dated 26.05.1959 and Ex.A2 is the sale deed in the name of the plaintiff's father dated 16.10.1950. The appellants made reliance upon Ex.B1.
3.The Courts below decreed the suit based upon the documents filed in Exs.A1 and A2 as well as Ex.B1. Reliance has been made on the evidence of D.W.1, wherein he admits that the sale deed in his favour does not cover Door No.8C and the wall in question. The Courts below have made reliance upon the report of the Advocate Commissioner.
4.Learned counsel appearing for the appellants submits that the Courts below made reliance upon the report of the Advocate Commissioner alone without considering the relevant materials. This Court is afraid the said statement made cannot be accepted for the simple reason that the Advocate Commissioner's report, though a piece of evidence, has to be appreciated along with the other documents coupled with the evidence of D.W.1. When the evidence of D.W.1 is in consonance with the case of the plaintiff, nothing more is required. Both the Courts have decreed the suit based upon the schedule mentioned in the documents filed by the parties.
5.In such view of the matter, this Court does not find any substantial question of law, warranting interference, in exercise of power under Section 100 C.P.C.. Accordingly, the second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
06.02.2017 Index:Yes/No mmi To
1.The Subordinate Judge, Vellore.
2.The Principal District Munsif, Vellore.
M.M.SUNDRESH, J.
mmi S.A.No.82 of 2017 06.02.2017 http://www.judis.nic.in