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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G.K. ILANTHIRAIYAN, J.
Chakkarabani and Another – Appellants
Versus
Gopal Gounder (deceased) and Others – Respondents
S.A. No. 1806 of 1998, C.M.P. No. 4962 of 2018
Decided On : 09-01-2020
Civil Procedure Code, 1908 - Section 100 - Rule 27 - Order 41 - Terms of the exchange deed - Suit schedule property in favour of plaintiffs - Plaintiffs filed suit for declaration and permanent injunction - property originally belonged to defendants - Plaintiffs and defendants entered into exchange deed - As per terms of exchange deed suit property was allotted to plaintiffs and some other properties of plaintiffs were given to defendants - In exchange deed suit property mentioned in schedule and properties belonging to plaintiffs mentioned in schedule - suit property originally comprised in Survey and total extent was cents - Out of cents plaintiffs were given under exchange deed to an extent cents - In cents there is common well belonging to plaintiffs and defendants - Remaining cents are belonged to defendants – Held, First appellate court reversed findings of trial court on ground that boundaries mentioned in on either side of portion which was allotted to plaintiffs lands of second plaintiff are situated - On north of said portion remaining land of defendants is situated - On east side of said portion it is mentioned that land of owner - Krishna - From those boundaries appellate court found that plaintiffs were allotted portion marked as is nothing but rough plan annexed along with written statement - Whereas which is marked on behalf of plaintiffs clearly shows that after exchange deed which was marked as there was sub division in Survey - Insofar as plaintiffs are concerned their share was sub divided as Survey admeasuring cents - Survey sketch clearly shows that portion shown as shape and not in rectangle shape as found by first appellate court - First appellate court completely relied upon which is nothing but rough sketch produced by defendants - Except this document defendants did not produce any of documents to show that common well situated in land admeasuring one cent as well as portion allotted to plaintiffs is in a rectangle shape - In pursuant to exchange deed sub division was made and accordingly common well is situated in extent of cents and remaining property admeasuring cents was allotted to defendants - Further suit is filed for plaintiffs share alone and there is no dispute about extent of property as cents - Findings of first appellate court is perverse and without any material - Only on strength suit filed by plaintiffs was dismissed as such findings of first appellate court cannot be sustained as against plaintiffs and plaintiffs are entitled for declaration and injunction in respect of suit schedule property – Appeal allowed
JUDGMENT :
G.K. ILANTHIRAIYAN, J.
Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 22.07.1998, in A.S. No. 23 of 1997 on the file of the Additional District Judge, Tiruvannamalai reversing the judgment and decree dated 30.12.1996 in O.S. No. 414 of 1988 on the file of the District Munsiff Court, Tiruvannamalai.
1. The second appeal is directed as against the judgment and decree dated 22.07.1998, in A.S. No. 23 of 1997 on the file of the Additional District Judge, Tiruvannamalai reversing the judgment and decree dated 30.12.1996 in O.S. No. 414 of 1988 on the file of the District Munsiff Court, Tiruvannamalai.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.
3. The case of the plaintiffs in brief is as follows:-
4. Resisting the same, the defendants filed written statement and submitted that the suit property belonged to the defendants and the plaintiffs have got the same by way of exchange deed dated 02.05.1983. The total extent of 54 cents comprised in 50/1E, in which common well situated within the area of one cent. The remaining property admeasuring 53 cents belongs to the defendants. In the said common well, the second plaintiff entitled to 1/3 share and the defendants are entitled to 2/3 share. Under the exchange deed, the plaintiffs were given 30 cents and the remaining 23 cents retained by the defendants including north western projecting portion of the suit property. The boundaries of the property which was allotted to the plaintiffs mentioned in the exchange deed. The defendants also filed rough plan along with the written statement and accordingly the portion marked as ABCDEF for the total extent comprised in Survey No. 50/1E, the property which was given to the defendants shown as BCDE. The property retained by the defendants marked as ABEF. Accordingly, the plaintiffs are enjoying the property admeasuring 30 cents, which is marked as BCDE and accordingly the ridge was also formed in the east western direction. Thereafter, oral partition took place between the defendants in the year 1984. The first defendant was allotted 2/3 share in the common well and also the northern 23 cents in survey No. 50/1E and other properties were allotted to the share of the second defendant:
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