Dismissed

Subramaniam v. C. Nataraj

Madras HC11 Jul 2018SA/172/2007

Case brief

AI extract

What is this about?

This Court dismissed a second appeal challenging a decree awarding bare injunction regarding property measurements. Upholding the lower appellate court, the Court held that registered sale deeds establishing the plaintiff's title measurements prevail over unverified Commissioner reports. Panchayat resolutions were disbelieved as they did not bind the plaintiff.

What did the court decide?

The second appeal is dismissed; the judgment and decree of the Subordinate Judge confirming the lower appellate court's relief are set aside.

Subramaniam Vs C. Nataraj — Property and Title | Madras HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Judgment Reserved on : 26.07.2017

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Judgment Pronounced on : 11.07.2018

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CORAM:

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THE HONOURABLE MR. JUSTICE S.BASKARAN

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S.A.No.172 of 2007 and M.P.No.1 of 2007

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Subramaniam

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... Appellant/Respondent/Defendant

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Vs. C.Nataraj ... Respondent/Appellant/Plaintiff This second appeal has been filed under Section 100 of CPC, against the judgment and decree dated 28.07.2006 made in A.S.No.53 of 2005 passed by the learned Subordinate Judge, Tiruppur, reversing the Judgment and decree dated 29.06.2005 passed by the learned District Munsiff Court, Tiruppur in O.S.No.16 of 2002.

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For Appellant : Mr.K.Balakrishnan For Respondent : Mr.C.Prakasam JUDGMENT

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For Respondent : Mr.C.Prakasam

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This second appeal arises out of the Judgment and Decree dated 28.07.2006 made in A.S.No.53 of 2005 passed by the learned Subordinate Judge, Tiruppur, reversing the Judgment and decree dated 29.06.2005 passed by the learned District Munsiff Court, Tiruppur in O.S.No.16 of 2002.

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Facts of the case in brief is as follows:-

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The suit property was purchased by the father of the plaintiff on 24.05.1995. From the father of the plaintiff, the plaintiff purchased the suit property on 09.02.1996. From the date of purchase, he is in possession and enjoyment of the suit property. The east west measurement of both sides of the suit property is 52 feet. But, the site No.10 situated on the southern side of the suit property belonging to one Subbiah is only 45 feet. Hence, the defendant and others wrongly assume that the plaintiff also is entitled to 45 feet only on the east west of the suit property. From November, 2001 onwards, the defendant and members of the defendant association attempted to

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interfere with the 5 feet x 52 feet on the western portion of the suit property. Again on 1301.2002, the defendant attempt to tress pass into the suit property. Hence, the plaintiff came forward with the suit for bare injunction.

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3.On the other hand, opposing the claim of the plaintiff, the defendant contends that the suit is not maintainable. The suit is filed against the wrong person as the defendant is not the president of Thiagi Kumaran Colony Landlords Association. The defendant is not even the member of the said association. The defendant denies the allegations that himself and so called members of the above said association compel the plaintiff to allow the extent 5 x 52 feet on the western side of the property to be used in common by the association. The plaintiff is hit by the provisions under Order 1 Rule 8 of C.P.C. The property which is situated on the west of the suit property is not a reserved site, but it is site No.8. The suit property in site No.8 is engaged in common by all the residents of the colony. The members of Thiagi Kumaran Industrial workers co-operative society limited were allotted plots as early as 1972 also. The plaintiff has not stated in the plaint as to what was the extent of the area there was in possession of his predecessor from the time when the property was allotted. The area which the plaintiff claims to be is land is in common enjoyment of the residents for nearly 30 years. Further more, originally in the lay out plan, the measurement of the suit property is lesser. But, the plaintiff's father, with the help of Society Officials, created the sale deed with higher measurements. Hence, during the pendency, there was a panchayat, in which the plaintiff agreed to hand over the excess measurement, namely, 5' x 52' to the common purpose. But, he refused to do so. The plaintiff has no title to the extent claimed by him. Hence, the suit has to be dismissed.

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After contest, the trial Court dismissed the suit without costs. Aggrieved upon that the plaintiff preferred the appeal before the lower appellate Court. After contest, the lower appellate Court allowed the appeal and set aside the decree and judgment of the trial Court with costs through out. Aggrieved upon that the defendant preferred the present second appeal.

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5.At the time of admission, the following substantial questions of law were framed by this Court for consideration.

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Whether the east west measurements of the suit property shown in Ex.A1 and Ex.A-2 can prevail over the actual measurements shown in the Commissioner's report and plan?

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Whether Ex.B1 and Ex.B2 is true and binding the plaintiff?

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The learned counsel appearing for the appellant/defendant would submit that the first appellate Court totally relied upon Ex.A-1 and Ex.A-2 and completely ignored Ex.B1 and Ex.B2. The Panchayat Razinamah, which were executed by the plaintiff without any compulsion. In the above said panchayat Razinamah, the plaintiff himself admitted the encroachment made by him more than the actual measurement due to him. But, during trial, he changed his mind and contested the case. The trial Court believed Ex.B1 and Ex.B2 and disbelieved Ex.A-1 and Ex.A-2. In appeal, the first appellate Court disbelieved Ex.B1 and Ex.B2 and relied upon Ex.A1 and Ex.A2. The first appellate Court miserably failed to appreciate the oral and documentary evidence placed before properly and the findings of the lower appellate Court is against law. Hence, interference of this Court is warranted and the appeal has to be allowed.

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7.Per contra, the learned counsel appearing for the respondent/plaintiff would submit that the first appellate Court solely relied upon the registered documents produced by the plaintiff in support of his claim, but the trial Court solely relied upon the oral evidence adduced on the side of the defendant to negative the claim of the plaintiff. It is against the settled principles of law. Hence, the first appellate Court reversed the findings of the trial Court. There is no infirmity or illegality in the findings rendered by the first appellate Court. The substantial questions of law raised by the appellant/defendant before this Court are all not sustainable. Hence, the second appeal has to be dismissed.

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8.I have heard the rival submissions and also perused the materials available on record.

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9.On perusal of the records, it is quite clear that the title of the plaintiff is not disputed by the defendant. The scope of the suit is very limited. Both the plaintiff and defendant and other members of the Society have purchased the house flats from the co-operative housing society. So, they have not denied the title of the plaintiff. They are denying the East-West measurement shown in the sale deed of the plaintiff. According to the plaintiff, he is entitled to 50 feet East- West and 52 feet on the North-South, totally 2600 sq.ft. However, the defendant denied the measurement stated by the plaintiff and contended that the plaintiff is entitled to only 45 feet EastWest and any thing more than that he is not entitled to. Thus, the East-West measurement alone is in dispute. As such, the plaintiff has not come forward with the suit for declaratory relief, since the title of the plaintiff is not denied by the defendant. The defence put forth by the defendant is that the suit is filed only for bare injunction without there being a prayer for declaration of title and the same is not maintainable. However, opposing the same, the plaintiff contends

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that the suit is very well maintainable and the cause of action is clearly stated in the plaint itself

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10.On the side of the plaintiff, to prove his case, he has produced Ex.A1-Sale Deed, dated 20.04.1995 and Ex.A2-sale deed, dated 09.02.1998. He has also produced Exs.A3 to Ex.A7 to prove his possession. Ex.A3 is the pass book issued by the Tiruppur Town Co-operative Society Bank and Ex.A4 and Ex.A5 are the receipt for payment of Electricity charges and Ex.A6 is the receipt for payment of Telephone charges and Ex.A7 is the Rough Sketch. On the side of the defendant, they have produced Ex.B1 and Ex.B2, which are page No.147 of the Resolution as well as the Resolution Book itself. The Court documents, namely, Ex.C1 to Ex.C3 were also marked. Ex.C1 is the Commissioner's report and Ex.C-2 is the Sketch of Surveyor and Ex.C3 is the Rough Sketch of the Commissioner. In the sale deed Ex.A1 and Ex.A2 produced by the plaintiff, the measurement of the suit property is shown as East-West 50 feet and north-south 52 feet, totalling 2600 sa.ft. Against the registered sale deeds, the defendant put forth the case on the basis of Commissioner's report and sketch of surveyor as well as Advocate Commissioner. The defendant who deposed as D.W.1 has stated in his evidence that “m';fPfhpf;fg;gl;l tiuglk; efuhl;rpapYk; cs;sJ/ jdp mYtyhplKk; cs;sJ/ m';fPfhpf;fg;gl;l tiuglj;jpw;f Kuzhf thjpf;F fpuak;; bra;J bfhLf;fg;gl;Ls;sJ/ ehDk; Ch;fhuh;fSk; mt;thW brhy;fpnwhk;/ me;j mry; tiuglj;ij ePjpkd;wj;jpw;F jUtpf;f ehd; eltof;if vLf;ftpy;iy. bghJ trjpf;fhf xJf;fg;gl;l ,lj;jpd; tp!;jPuzk; vt;tst[ vd;W vdf;Fj; bjhpahJ/ jhth brhj;J 9tJ kidahf tiugl;j;jpy; fhl;lg;gl;Ls;sJ/ D.W.2, who is the Tiruppur Municipality Surveyor, has stated in his evidence that “m';fPfhpf;fg;gl;l tiuglj;ijg; ghh;j;Jjhd; eh';fs; rh;nt bra;njhk;/ m';fPfhpfg;gl;l tiugl;jpj;y jhthr; brhj;Jcs;s gFjpapy; mst[fs; ,Ue;jdth vd;W vd;dhy; brhy;y KoahJ/” Both D.W.1 and D.W.2 relied upon the approved lay out plan in their evidence. However, D.W.1, who is the defendant herein, has not taken any steps to produce the original approved layout and failed to summon the same. D.W.1 has stated that he has measured the suit property on the basis of approved lay out. However, he went to the extent of saying, to the question posed to him as to whether the measurement is available in the approved layout, that he cannot say. If the answer is “not able to say”, then naturally there arises a doubt as to how it was possible for him to measure the same on the basis of approved lay out plan without measurement and arrived at the conclusion that the plaintiff has encroached upon 5' x 52' feet. The Surveyor D.W.2 has not properly explained the same. The defendant solely relied upon the oral evidence of D.Ws.1 and 2 in support of their contention, even though Ex.C1 to Ex.C3 were marked. The defendant has not established that the measurement mentioned in Ex.C1 to Ex.C3 was based upon the approved lay out. In such circumstances, Ex.C1 to Ex.C3 are not reliable. Therefore, for the reasons stated above, the plaintiff is having better title than the defendant and the lower appellate Court

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has rightly relied upon Ex.A1 and Ex.A2, which are acceptable evidence to prove the title of the plaintiff as well as the measurement. Thus, Ex.A1 and Ex.A2 will certainly prevail over the Ex.C1 to Ex.C3 Commissioner's report and plan, which were not suppress by the defendant with the measurement based upon any public document, namely, field measurement book(FMB). Thus, the first appellate Court has rightly come to the conclusion with regard to Ex.A1 and Ex.A2 and relied upon them to upheld the claim of the plaintiff.

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11.Regarding Ex.B1 and Ex.B2 is concerned, the first appellate Court disbelieved the same, for which, the reason adduced is that the plaintiff and defendant were not arrayed as parties in those documents. The plaintiff has signed under the caption Natarajan, in Ex.B1 and B2, so the first appellate Court has rightly disbelieved the same. There is no material on the side of the defendant with regard to Ex.B1 and Ex.B2 to believe the same as true and correct one. Further more, mere panchayat Resolution is not sufficient to prove the rights of the parties. As far as any immovable property is concerned, the registered document alone is legally valid document. If really the claim projected by the defendant is true, the defendant and the members of the society could have taken steps as per law to compel the plaintiff to re-convey the excess measurement of the land to the society, but they have not done so. Hence, the findings of the first appellate Court is certainly appropriate with regard to Ex.B1 and Ex.B2, that they said documents will not bind the plaintiff. The reason adduced by the first appellate Court for disbelieving the case of the defendant is legally acceptable one. For the reasons stated above, the substantial questions of law raised by the appellant /defendant are answered against them. Therefore, viewed from any angle, the judgement and decree passed by the first appellate Court does not warrant any interference at the hands of this Court and the second appeal is devoid of merits. Thus, the appeal cannot be entertained and the same has to fail. The point is answered accordingly.

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12.In the result, the second appeal is dismissed. No costs. The Judgment and decree dated 28.07.2006 passed in A.S.No.53 of 2005 passed by the learned Subordinate Judge, Tiruppur, are hereby confirmed. Consequently, connected M.P. is closed.

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//True Copy//

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Sub Assistant Registrar

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rrg To 1.The Subordinate Judge, Tiruppur 2.The District Munsif Court, Tiruppur. 3.The Section Officer/Record Clerk, VR Section, High Court, Madras. +1cc to Mr.K.Balakrishnan, Advocate sr.no.45058 +1cc to Mr.C.Prakasam, Advocate sr.no.45580 S.A.No.172 of 2007

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vba(co) nr 21/01/2019

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Subramaniam v. C. Nataraj

Case brief

What is this about?

What did the court decide?

Subramaniam v. C. Nataraj

Case brief

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