Legal heirs' inclusion in proceedings remains valid despite procedural defects; boundary disputes resolved based on evidence support for ownership as established in previous deeds.

JUDGMENT :

R. Sakthivel, J.

This Second Appeal is directed against the Judgment and Decree dated December 11, 2019 passed in A.S.No.41 of 2006 by the 'Subordinate Court, Bhavani' ['First Appellate Court' for brevity], whereby the Appeal Suit was partly allowed and the Judgment and Decree dated November 30, 2004 passed in O.S.No.192 of 2001 by the ‘II Additional District Munsif Court, Bhavani' ['Trial Court' for brevity] was partly modified.

2. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit.

TRAJECTORY OF THE CASE

3. The plaintiff filed a Suit for declaration, permanent injunction and mandatory injunction. The Trial Court dismissed the same, challenging which, the plaintiff preferred an appeal in A.S.No.41 of 2006 before the First Appellate Court and the same was dismissed on April 27, 2007. Assailing the Judgment and Decree dated April 27, 2007 of the First Appellate Court, the plaintiff approached this Court vide S.A.No.335 of 2008 (earlier Second Appeal).

3.1. During pendency of the earlier Second Appeal, the sole appellant therein / sole plaintiff passed away and hence, the Respondent Nos.1 to 3 herein were brought on record as his legal representatives vide Order of this Court dated June 13, 2019 made in CMP Nos.11853 to 11855 of 2019 in S.A.No.335 of 2008.

3.2. A learned Single Judge of this Court upon perusing the records and hearing either side, remanded the matter to the First Appellate Court for the purposes set out in Paragraph No.10 of his Judgment in the earlier Second Appeal, which reads thus:

“10.As indicated earlier, this is a case were Commissioner ought to go to measure the property as per the sale deeds of the parties, more particularly that of the plaintiff's. Therefore, this Court remands the matter back to the first Appellate Court, viz.,Subordinate Court, Bhavani, the final Court of facts in our scheme of things, for the following purposes:

(a)To appoint a competent advocate of reasonable standing on the civil side, and also one who is regular to Court, for local inspection, to measure the properties of the plaintiff and the defendant with the assistance of a Taluk Surveyor.

(b)The first Appellate Court shall fix the batta payable to the Commissioner which shall be paid by the plaintiff/appellants. The appellate Court is further directed to address a letter to the District Collector through the Principal District Judge, to ensure that a Taluk Surveyor is made available for assisting the Commissioner.

(c)The parties will be granted one week time to file their objections, if any, and if the Commissioner is required to be cross examined by any of any of the parties, the same shall be done before the first Appellate Court.

(d)The entire exercise shall be completed within a period of three months from 10-07-2019.”

3.3. Upon receiving the Judgment passed in the earlier Second Appeal, the First Appellate Court took the matter on file in its original number i.e., A.S.No.41 of 2006 on July 10, 2019 and proceeded further with the Appeal Suit. Pursuantly, an Advocate Commissioner was appointed, who after inspection, was examined as C.W.1. He marked his Report as Ex-C.7 and Plan as Ex-C.9 along with Surveyor’s Plan as Ex- C.8. Eventually, the First Appellate Court proceeded to partly allow the Appeal Suit by decreeing the Original Suit for declaration, permanent injunction and dismissing it for mandatory injunctio