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2017 Supreme(Mad) 3685
IN THE HIGH COURT OF JUDICATURE AT MADRAS
V.M. VELUMANI, J.
ANTHONIAMMAL @ PANKAJAM - APPELLANT
Vs.
XAVIER FRANCIS FERNANDES (DIED) - RESPONDENT
S.A. (MD) Nos. 1358 and 1359 of 2003
Decided On : 05-06-2017
For the Appellant : Ms. N. Krishnaveni
For the Respondent: Mr. T. Arul, Mr. C. Selvaraj
Headnote:
Code of Civil Procedure, 1908 - Section 80, 105(2) - Suit decree - Declaration of title and injunction and impleaded the Government - Possession of entire property for herself and on behalf of her brother - Intervention of the appellant and her husband, they went back - Appellant is entitled to maintain the suit for injunction and get a decree for injunction - Property of the appellants father was sold in the Court auction and appellants fathers right was extinguished - Held, Contention of the learned counsel for the appellant that the Courts below erred in holding that the appellant has not filed any objections to the Commissioners report and has not filed an application for re-issue of warrant and thereby entire judgment is vitiated has no force - Report of the Advocate Commissioner is only to assist the Court - Court can take into consideration the report of the Advocate Commissioner and come to the conclusion and decide the issue in the suit or reject the Advocate Commissioners report - It is clear that the boundaries given to schedule to the plaint are not correct - Appellant is unable to state how much land was taken by the Government for widening of the road - Respondents have produced the extract of land survey register, re-survey plan in respect of re-survey - Substantial questions of law are answered against the appellant - Decrees and judgments passed by both the Courts below do not warrant any interference and the same are hereby confirmed - Petition dismissed.
V.M. Velumani, J.
Both the second appeals are arising out of common judgement and decree dated 31.12.2002 made in A.S. Nos. 102 of 2001 and 90 of 2002 on the file of the Principal District Court, Kanyakumari at Nagercoil, confirming the judgment and decree dated 26.07.2001 passed in O.S. No. 818 of 1987 on the file of the Additional District Munsif Court, Nagercoil and therefore, both Second Appeals are disposed of by this common judgment. The appellant, who lost in both the Courts below, have come out with these second appeals.
2. The appellant in both the second appeals is the plaintiff in O.S. Nos. 818 of 1987 and 1115 of 1987 and appellant in A.S. Nos. 102 of 2001 and 90 of 2002. The respondents 1 to 4 in S.A. No. 1358 of 2003 are the defendants in O.S. No. 818 of 1987. The respondents 1 to 3 in S.A. No. 1359 of 2003 are the defendants in O.S. No. 1115 of 1987.
3. During pendency of the second appeals, respondents 1 and 3 in S.A. No. 1358 of 2003 died. Their legal heirs were impleaded as respondents 5 to 13 and 14 to 18 respectively in S.A. No. 1358 of 2003.
S.A. No. 1358 of 2003 (O.S. No. 818 of 1987):
4. The appellant filed O.S. No. 818 of 1987 for permanent injunction against the respondents 1 to 4 restraining them from interfering with her peaceful possession over the suit property. According to the appellant, her father purchased the property by the deeds of sale dated 16.12.1110 M.E. (1.8.1935) and 06.12.1110 M.E. (22.7.1935) and from his mother, he got right as per the deed of sale dated 21.07.1093 M.E. (5.3.1928). After their death, appellant and her brother Marianthony Ericks inherited the property. Marianthony Ericks is in Gulf country and appellant is in possession of entire property for herself and on behalf of her brother. During re-survey, patta was issued for lesser area. The respondents have no right or possession of the suit property. From 25.07.1987, the respondents attempted to disturb the possession of the appellant. The respondents and their men attempted to cut and remove the coconut and other trees in the suit property. By the intervention of the appellant and her husband, they went back. As a co-owner of the suit property, the appellant is entitled to maintain the suit for injunction and get a decree for injunction.
5. The respondents 1 to 3 filed written statement denying all the averments made in the plaint and submitted that the appellant has no title or possession of the suit property and the suit property is in possession of the respondents. The description of the suit property, survey number, area, boundaries and identity of the properties are wrong and they denied the same. The sale deeds in favour of the predecessor of appellant are not valid and they did not get any right or possession. After re-survey, no patta was issued to the appellant regarding the property in the possession of the respondents. The old survey numbers and sub-divisions do not pertain to the property of the appellant. The respondents have patta for suit property and are paying tax. The re-survey proceedings are valid and binding and it has become final. The claim of the appellant is barred by law. The property of the appellant's father was sold in the Court auction and appellant's father's right was extinguished. The respondents 1 to 3 sold three coconut trees in the suit property to the village and permitted the village committee to widen the road through the suit property. The appellant has no prima facie case and balance of convenience is not in favour of the appellant.
6. The trial Court framed necessary issues. Before the trial Court, the appellant was examined herself as P.W.1 and one Jerome was examined as P.W.2 and Exs.A1 to A14 were marked. The second respondent himself was examined as D.W.1 and one Peter Margorious was examined as D.W.2 and Exs.B1 to B15 were marked.
7. The learned trial Judge considering the pleadings, oral and documentary evidence, arguments of counsel for parties, decreed the suit by judgm
