This second appeal has been filed by the defendants 1 and 2, animadverting upon the judgement and decree dated 29.10.2004 passed by the learned Second Additional Subordinate Judge, Villupuram, in A.S.No.143 of 2003, confirming the judgement and decree dated 24.6.2002 passed by the learned Additional District Munsif, Villupuram, in O.S.No.205 of 1999. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, would run thus:
(a) The first Respondent/plaintiff filed the suit O.S.No.205 of 1999 as against as many as five defendants, seeking declaration and injunction and other consequential relief to effect mutation in the Revenue records on the main ground that the plaintiff purchased the suit property as per Ex.A2-the sale deed dated 3.11.1998 from Samikannu and others.
(b) Whereas the defendants 1 and 2/appellants entered appearance and resisted the suit on the ground that even though the plaintiff is entitled to a different property than the one under the occupation of the defendants, she is unjustifiably making claim over the property under the occupation of the defendants; as per Ex.B1-sale deed dated 3.6.1969, the mother of the defendants 1 and 2-Rathinammal purchased the suit property and accordingly, the defendants prayed for the dismissal 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 and Exs.A1 to A.11 were marked. The first defendant examined himself as D.W.1 along with three others and Exs.B1 to B17 were marked. Exs.C1 to C6 were marked as Court documents.
(d) Ultimately the trial Court decreed the suit, as against which, the defendants 1 and 2 filed the A.S.No.143 of 2003, for nothing but to be dismissed by the first appellate Court, confirming the judgement and decree of the trial Court.
(e) Being disconcerted and aggrieved by the judgements and decrees of both the Courts below, this second appeal is focussed by the defendants 1 and 2 on various grounds.
3. After hearing for some time the arguments on both sides, this Court felt that with the consent of both sides, this matter could be disposed of finally by framing the following substantial question of law:
"Whether both the Courts below correctly understood the demarcation of the boundaries of the plaintiff's property as contemplated in Ex.A2 and rendered their judgements or whether there is any perversity in evaluating the evidence relating to the plaintiff's property?
4. Heard the learned counsel for the appellants/defendants 1 and 2 as well as the learned counsel for the first respondent/plaintiff and the learned Government for R2 and R3 and the learned counsel for R4.
5. The learned counsel for the appellants/defendants 1 and 2 would advance his argument to the effect that the Commissioner's reports would exemplify and demonstrate that he had not property located the plaint scheduled property and demarcated it. Whereas, he simply concentrated on the area where both the parties have dispute and referred it as the suit property; the Commissioner's reports would 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, the plaintiff purchased only the area to an extent of 20 feet East to West, 30 feet North to South, to the East of Mayavan's property; and leaving that property, the plaintiff is unjustifiably laying claim over the suit property, over which, the defendants are only having right.
6. Whereas the learned counsel for the plaintiff would advance his argument to the effect that in commensurate with the boundaries and extent mentioned in Ex.A2 only, the plaintiff is claiming her right and she is in effective possession of it and on the other hand, misunderstanding the extent and boundaries, the defendants 1 and 2 are attempting to encroach upon the plaintiff's property.
7. At this juncture, it is just and necessary to refer to the relevant sale deeds and also detail hereunder the extents as well as the boundaries concerned.
8. Among the four documents, namely, Ex.A2, Ex.A4, Ex.B1 and Ex.B2-the Sale deeds, Ex.B1 is the earliest in point of time, which was executed by Irusappan and others in favour Rathinammal-the mother of the defendants 1 and 2. The following extent and boundaries are found set out in Ex.B1:
S.No.4/9-an extent of 18 feet North to South, 26 feet East to West (468 sq.ft) situated to the East of Muniswamy's vacant site, West of Kannaian's land, South of Dhargamanyam and North of Thamburan's site.
In Ex.A4-the sale deed dated 4.3.1970, executed by Munisamy and others in favour of Samikannu-the vendor of the plaintiff, the following particulars are found exemplified:
20 feet East to West 30 feet North to South totally 60 sq.feet.
The boundaries are found specified as under:-
To the East of Mayavan's property To the West of Kannaiyan's property To the South of Dhargamanyam's Land To the North of Rajagopal Thamburan's property Ex.B2 is the partition deed dated 8.8.1994 emerged between the defendants 1 and 2, namely, Sundaramoorthy and Natarajan, so to say, inter se partition between D1 and D2 and in that the following particulars are found set out:
Out of the total extent, roughly 48 feet East to West and 21< feet North to South, situated to the East of Kannaian's property and to the West of Arunachalam's property, the Western half was taken by Sundaramurthy-D1 and the Eastern half portion was taken by Natarajan-D2.
Ex.A2 dated 3.11.1998 is the relevant sale deed executed by Samikannu and others in favour of Jeyalakshmi-the plaintiff, which reflects the same extent and boundaries as found in Ex.A4.
9. As such, from the bare perusal and plain reading of the above extents and boundaries what one could understand is that Mayavan's property is situated on the extreme West and to the immediate East of Mayavan's property only, the plaintiff's vendor purchased an extent of 20 feet from East to West. Regarding North to South extent there is no dispute.
10. It has to be seen as to whether the Commissioner located the Eastern boundary of Mayavan, as it constitutes the Western boundary of the plaintiff.
11. The learned counsel for the defendants 1 and 2 herein would invite the attention of this Court to the Commissioner's reports-Exs.C1 and C4, found enclosed in the typed set of papers, and develop his argument to the effect that the Commissioner has not chosen to locate the Western boundary of the plaintiff, which constitute the Eastern boundary of Mayavan. However, the Commissioner's reports would project as though to the West of the foundation laid by the defendants 1 and 2, there is a vacant space, which speaks not in the name of any particular individual and they are bamboo bushes found grown. According to the learned counsel for the defendants if that area also is included in the measurement and shown towards the extent of the plaintiff then the dispute will come to an end.
12. The learned counsel for the plaintiff would submit that the so called area wherein bamboo bushes are found grown is also part of the plaintiff's property and the Commissioner also has took into account the said measurement. The Commissioner's report does not reveal that the said area, where the bamboo bushes are found grown, is shown in the extent of the plaintiff, this crucial fact has not been considered by both the Courts below. Put simply the Courts below without keeping a sense of perspective about what the Commissioner had placed before them, simply decided the lis warranting interference by this Court.
13. For the purpose of completion of discussion, en passant, I would also refer to the arguments advanced on both sides regarding the existence of the street on the extreme Eastern side of the properties of the parties and Mayavan's properties on the extreme West of the properties of both sides. On the extreme Eastern side there is one public street and immediately to the West of it one Arunachalam is having his land and to the West of Arunachalam's land the defendants 1 and 2 acquired the property. The fact remains that the said Irusappan-the vendor under Ex.B1 and the said Munisamy-the vendor under Ex.A4 were brothers and they got effected a partition orally and in that Munisamy got the Western portion and Irusappan got the Eastern portion. The fact also remains that the said Munisamy sold his portion to Samikannu and in turn, the latter sold it to the plaintiff. Similarly, Irusappan was the first person to sell his share in favour of Rathinammal-the mother of the defendants 1 and 2 as per Ex.B1. Between Mayavan's land and Arunachalam's land, the disputants own land and in that alone dispute erupted. A fortiori Once Mayavan's Eastern boundary is located then that would constitute the Western boundary of the plaintiff and from there 20 feet should be measured from East to West and consequently, the plaintiff's property should be demarcated and accordingly, judgement should be delivered. For this purpose it is just and necessary to remit the matter back to the first appellate Court with the direction that it shall appoint a Commissioner for carrying out the aforesaid mission with the assistance of the Inspector of Surveyor and after getting such Commissioner's report and sketch, and on hearing both sides, the first appellate Court is expected to decide the matter within a period of four months from the date of receipt of the records.
14. At this stage, both the parties made representation to the effect that the parties are poor and they cannot afford to approach the High Court once again.
15. In the interest of justice I would like to point out that it is open for either the first appellate Court itself or the rival parties herein to approach this Court seeking necessary clarification, if they come across any difficulty in carrying out the order of this Court.
16. The learned counsel for the plaintiff would submit that the expenses relating to the Commissioner's appointment should be borne by the defendants.
17. I am of the view that both the parties should equally bear the cost concerning appointment of Commissioner. Both parties shall appear before the lower Court on 9.6.2009.
18. Accordingly, the second appeal is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
msk To
1.The Second Additional Subordinate Judge, Villupuram
2.The Additional District Munsif, Villupuram