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2012 Supreme(Mad) 2405
Madras High Court
M. SATHYANARAYANAN, J.
Iyyankutty
Versus
Vasanthakumari
S.A.(MD)No.106 of 2012
Decided On : 13-06-2012
For the Appellant:J. Anandhavalli, Advocate.
For the Respondent:V.M. Balamohanthambi, Advocate.
The main legal point established in the judgment is the importance of considering oral and documentary evidence in property disputes and the need for proper adjudication of the issues involved.
Headnote:
Property Dispute - Ownership - Adverse Possession - [Property Dispute] - [Transfer of Property Act, Section 54] - The court discussed the ownership of the disputed property, the claim of adverse possession, and the appointment of an Advocate Commissioner to measure the properties in question. The court emphasized the importance of oral and documentary evidence in deciding the case and remanded the matter for proper adjudication.
Fact of the Case:
The plaintiff filed a suit to declare ownership of a property and for a mandatory injunction to remove an offending construction. The defendant denied the plaintiff's entitlement and claimed ownership of the property. The trial court decreed the suit, but the lower appellate court set aside the judgment and remanded the matter for further evidence.
Finding of the Court:
The court found that the lower appellate court's reliance on the earlier Commissioner's report without considering oral and documentary evidence resulted in prejudice to both parties. It framed a substantial question of law and remanded the matter for proper adjudication.
Issues: The issues included the ownership of the property, entitlement to a decree of mandatory injunction, adverse possession, and the relief the plaintiff was entitled to.
Ratio Decidendi: The court emphasized the importance of considering oral and documentary evidence in property disputes and highlighted the need for proper adjudication of the issues involved.
Final Decision: The second appeal was allowed, the judgment and decree of the lower appellate court were set aside, and the matter was remanded for proper adjudication.
1. The plaintiff was successful before the trial Court and lost before the lower appellate Court, is the appellant.
2. The appellant/ plaintiff filed a suit in O.S.No.271 of 1987 on the file of the Principal District Munsif, Padmanabhapuram, against the respondent/defendant praying for a judgment and decree to declare that in respect of the suit property measuring 3/¾th cents in resurvey No.295/6 at Thumbacode Village, Kanyakumari District, he is the owner of the said property and for mandatory injunction directing the respondent/defendant to remove the offending construction put up on the said property. It is averred by the appellant/plaintiff that the plaint schedule property in Survey No.295/6, at Thumbacode Village, Kanyakumari District having an area of 3 ¾th cents with the superstructure thereon and the compound wall was purchased by him by means of a registered sale deed dated 12.01.1981 (Ex.A.1). Thereafter, he is in possession and enjoyment of the southern compound wall. The appellant/plaintiff would further submit that originally the compound wall was constructed with granite stones with a height of six feet and the thickness of the said wall is 1 ¼th feet and the wall is aged about 35 to 45 years. From the date of purchase of the property (Ex.A1), the appellant/plaintiff is in possession and enjoyment of the property and its compound wall. The respondent/defendant started claiming the title to the property which lies south of the suit property in resurvey No.295/7. Taking advantage of the fact that the appellant/plaintiff is working in foreign country, namely Oman, the respondent/defendant raised a height of the scheduled property to 3 feet by putting up construction and the said construction is also projecting about 9 inches north of the schedule property.
3. According to the appellant/plaintiff, the respondent/defendant has no right whatsoever in respect of the suit compound wall in question and since his title and possession is disputed by the respondent/defendant, he came forward to file the said suit.
4. The respondent/ defendant has filed a written statement denying the averments made therein stating that the appellant/plaintiff is not entitled to the whole of the property in resurvey of 295/6 as he has purchased only 3 ¾ cents with the superstructure thereon. The respondent/defendant would further state that there is a compound wall on the eastern side only and on the northern side in the front portion, there is a small compound wall. There is no compound wall at all on the northern limits and the appellant/plaintiff did not purchase the compound wall and consequently, there is no compound wall for the appellant/plaintiffs house site on the southern side. The respondent/defendant specifically took a stand that the alleged compound wall is only on the northern wall or the defendant's house and the southern limit of the plaintiff's property is a small drainage channel and the compound wall of the plaintiff of the eastern is only 25 feet and further that neither the plaintiff nor his purchasers were in possession of the suit compound wall.
5. It is also stated by the respondent/defendant that he has purchased the total eight cents including the building and he is the owner of the property in the schedule property and that he has not raised the height of the schedule property and also did not make any construction as alleged in the plaint. Therefore, the respondent/defendant prayed for the dismissal of the suit.
6. The trial Court on consideration of the pleadings, framed the following issues:-
“1. Whether the suit property belongs to the plaintiff?
2. Whether the plaintiff is entitled for a decree of mandatory injunction?
3. Whether the defendant has the title by adverse possession?
4. To what relief the plaintiff is entitled?”
7. During the course of the trial, the plaintiff himself examined as P.W.1 and Exs.A.1 to A.7 were marked. On the side of the defendant, D.W.1 to D.W.3 were examined and Exs.B1
