IMPORTANT POINT
The duty of the First Appellate Court to record findings on all issues of law and facts, the admissibility of documentary evidence, and the application of res judicata.

JUDGMENT :

(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure to set aside the Judgment and Decree dated 27.06.2019 made in A.S. No.37 of 2015 on the file of the II Additional Subordinate Judge, Coimbatore and confirming the Judgment and Decree dated 26.03.2015 made in O.S. No.580 of 1995 on the file of the III Additional District Munsif Court, Coimbatore.)

1. The second defendant who suffered concurrent findings before the trial Court as well as the First Appellate Court also, is the appellant.

2. The parties are described as per their litigative status before the trial Court.

3. The first respondent herein, as plaintiff, filed the suit for a direction to remove the encroachment and unauthorised construction put up by the defendants 1 to 3 in the 'A' schedule property, and for handing over possession of ‘B’ schedule property to the plaintiff. A relief of permanent injunction restraining defendants 2 and 3 was also sought for to prevent them from putting up any further construction in the suit property.

4. The second defendant filed a written statement stating that he was the owner of site No.106 and the plaintiff had earlier filed O.S. No.1647 of 1992, against the third defendant and the said suit was dismissed for default. The first defendant also filed a suit in O.S. No.358 of 1994 and succeeded in obtaining the decree against the plaintiff. The first defendant has constructed superstructure in his property, after obtaining approval from the town panchayat. According to the second defendant, there was no encroachment as alleged.

5. The second defendant filed an additional written statement stating that revenue records reflected that the lands as Natham lands and therefore, the plaintiff has failed to establish his title to the suit property. The amendment sought for by the plaintiff was barred by limitation and suit was liable to be dismissed.

6. The trial Court came to a finding that the second defendant had encroached into site No.105, which belong to the plaintiff. Before the trial Court, an Advocate Commissioner was also appointed and the Commissioner has filed his report, which has been marked as Exhibits C1 to C3. The second defendant has filed his objections and sought for re-inspection, however, the same was rejected by the trial Court and the said order became final. The First Appellate Court also relying on the findings of Advocate Commissioner held that there was an encroachment in site No.105 and proceeded to dismiss the appeal.

7. Aggrieved by the concurrent findings rendered by the Courts below, the second defendant has come up by way of the present Second Appeal.

8. On 21.01.2020, the above Second Appeal has been admitted on the following two substantial questions of law:

“a) Whether the failure to consider the oral and documentary evidence by both the Courts below is not perverse and contrary to law?

b) Whether the Courts below were right in only relying upon Exs.C1 to C3, to grant a Decree without properly appreciating the evidentiary value of Exs.C1 to C3 and by failing to consider the weighty oral and documentary evidence on record.”

9. I have heard Mr.K.Surendranath, learned counsel for the appellant and Mr.S.Mukunth, learned Senior Counsel appearing for M/s.Sarvabhauman Associates, learned counsel for first respondent. I have also gone through the pleadings, oral and documentary evidence adduced by the parties before the trial Court and also judgments of the Courts below.

10. The learned counsel for the appellant would submit that there is no dispute with regard to the plaintiff’s ownership of site No.105 and the ownership of site No.106 being with the second defendant who had purchased the same from the first defendant. The 'B' schedule portion described in the plaint is the alleged encroached area into site No.105. According to the learned counsel for the appellant, the Advocate Commissioner ought to have taken the approved layout sketch and measured the properties from the boundaries o