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IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.V. Karthikeyan, J.
Srinivasan – Petitioner
Versus
K. Latheef (Died) & Others – Respondents
S.A. No. 1608 of 2000
Decided On : 13-07-2022.
Second Appeal - Property Dispute - Civil Procedure Code - Section 100 - O.S.No. 3 of 1995 - A.S. No. 33 of 1996 - S.A. No. 1608 of 2000 - [KEYWORD] - Property Dispute - Civil Procedure Code - Section 100
Fact of the Case:
The plaintiff filed a suit seeking declaration and permanent injunction for a property against the Executive Officer, Town Panchayat, Kangeyam. The trial court dismissed the suit, but the First Appellate Court reversed the decree. The Second Defendant filed a second appeal challenging the First Appellate Court's decision.
Finding of the Court:
The First Appellate Court's decision was set aside, and the trial court's judgment was restored and confirmed.
Issues: The issues included the entitlement of the plaintiff to the reliefs of declaration and permanent injunction, the plaintiff's right over the property abutting the eastern boundary, and the alleged encroachment by the plaintiff over the lands of the 1st defendant.
Ratio Decidendi: The burden of proof was on the plaintiff to prove the measurement of the suit schedule property, and the First Appellate Court was wrong in denying the relief of declaration.
Final Decision: The second appeal was allowed with costs throughout, the judgment and decree in A.S. No. 33 of 1996 were set aside, and the judgment and decree in O.S. No. 3 of 1995 were restored and confirmed.
JUDGMENT :
(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree of the learned District Munsif of Kangayam in O.S.No. 3 of 1995 dated 23.02.1996.)
1. The 2nd defendant, Srinivasan, in O.S. No. 3 of 1995 on the file of the District Munsif Court, Kangeyam is the appellant herein.
2. The said suit was filed by the 1st Respondent, K. Latheef, originally only against the 2nd respondent herein, the Executive Officer, Town Panchayat, Kangayam, seeking declaration that the plaintiff was entitled to the suit property and for permanent injunction restraining the said Executive Officer, Town Panchayat, Kangeyam from interfering with the right of the plaintiff to put up construction in the suit property and to enjoy the same. The appellant herein, Srinivasan, got himself impleaded as the 2nd defendant in the suit and contested the claim of the plaintiff.
3. The suit schedule property was described as land measuring 2536 ¾ sq. ft., with right to build building therein, situated at Natham S. No. 1209 in Kangayem, Erode District.
4. By judgment dated 23.02.1996, the District Munsif, Kangeyam, dismissed the suit. However, by judgment dated 30.04.1999, the Sub Judge, Dharapuram, reversed the decree of the trial court and allowed A.S. No. 33 of 1996 filed by K. Latheef, the plaintiff in the suit.
5. The 2nd defendant, Srinivasan then filed the present second appeal. The second appeal had been admitted on the following substantial questions of law:
“1. Whether the lower appellate court is justified in giving a finding as regards the 2 feet lane on the west of the appellant’s house overlooking that there is no prayer in the plaint regarding the same?
2. Whether the lower appellate court is right in granting the relief of declaration of title to an extent of 2536 sq.ft., of site in favour of the plaintiff, overlooking that the measurements given in the plaint are not proved by actual measurements existing on ground with reference to boundaries on all the four sides ?”
O.S. No. 3 of 1995 (District Munsif Court, Kangeyam):
6. The suit was filed by the plaintiff K. Latheef only against the Executive Officer, Town Panchayat, Kangeyam. Later the 2nd defendant Srinivasan was impleaded. The suit was filed seeking a declaration with respect to the suit schedule property and permanent injunction protecting possession and enjoyment.
7. In the plaint it was stated that the suit property and appurtenant land originally belonged Subramania Mudaliar and Eswaramurthy Mudaliar. Thereafter, there was a partition on 23.02.1962 among the coowners. The suit property and further lands were allotted to Eswaramurthy Mudaliar. The plaintiff claimed to have purchased the suit property from the legal heirs of Eswramurthy Mudaliar by Sale Deed dated 28.11.1984. The plaintiff further claimed that on the eastern boundary, he had left out a lane measuring 2 feet wide and had then built his compound wall. He had also built a latrine and bathroom in the 2 feet wide lane. The plaintiff had submitted a plan for demolition and reconstruction of the old buildings. The plaintiff stated that there was never any public lane appurtenant to his property. Claiming interference while putting up construction, the suit had been filed for declaration and permanent injunction.
8. The 1st defendant, Executive Officer, Town Panchayat, Kangeyam, in his written statement however contended that the plaintiff had encroached by 3 feet on the lane on the eastern boundary and had then put up his compound wall. Further east of the compound wall there is a 2 feet lane. The 1st defendant claimed that they have a right to remove the compound wall and retrieve the 3 feet lane encroached by the plaintiff. It had been further stated that when steps had been taken, the suit had been filed. It was urged that the suit should be dismissed.
9. The 2nd defendant filed I.A. No. 68 of 1995 under Or. 1 Rule 10(2) seeking to be impleaded as a defendant in the suit. The app
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