J U D G M E N T

Aggrieved over the concurrent findings of the Court below, the unsuccessful plaintiffs have preferred the above Second Appeal. The Second Appeal was admitted on the following substantial questions of law:

Heard. This Second Appeal is admitted onthe following substantial questions of law: a. Whether the Courts below erred indismissing the suit for declaration and permanent injunction in respect of the entire extent covered under Ex.A1 to Ex.A4 and Ex.A16, in the absence of any dispute or denial of title over the suit properties at the instance of the defendants?

b. Whether the Courts below are correct in law, in dismissing the suit on the ground of insignificant variation in the extent stated in the suit schedule and the title deeds marked as Ex.A1 to Ex.A6, Ex.A4, revenue records marked as Ex.A8 to Ex.A11 and the Commissioner's Report and plan marked as Ex.C1 to Ex.C3, particularly in the absence of any dispute as to the identity of the suit properties?

c. Whether the judgments of the Courts below are perverse for dismissing the suit in its entirety by viewing the variations in the extent conveyed and the extent available on land, especially when the Courts are empowered to grant lessor relief in exercise of the powers under Order 7 Rule 7 and Sec.151 CPC?

2.The short facts leading to the suit are as follows:

According to the plaintiffs they derived title to the properties in Old Survey No.18 by virtue of Exs.A1 to A4. The respondents/defendants were attempting to tresspass the same and therefore they filed a suit for declaration and injunction. During the pendency of the suit, the plaintiffs filed an application for appointment of Advocate Commissioner and the Advocate Commissioner after inspection filed a report along with plan on 06.08.2012 which were marked as Exs.C.1 to C.3. The Trial Court after going through the elaborate evidence arrived at a finding that what is available in the old survey number was given Re-survey No.699/1 to 8 shows that there are only 9.43 and ½ acres on ground. The Trial Court has further found that the plaintiffs have filed O.S.No.1484 of 1974 against one Parasurama Gounder and got a decree of title and also filed O.S.No.243 of 1999 against the Government in which also they obtained a decree. Even after having obtained a declaration of title in the previous rounds of litigation they are not entitled to maintain a third round of litigation with regard to declaration of title. Further, Trial Court has categorically found that the Commissioner has filed the report on 06.08.2012 itself showing some encroachment in the property. Inspite of the same, the plaintiffs have not taken any steps for amending the plaint for recovery of possession and continued the suit as per the available pleadings. Therefore, the suit was dismissed as there is no clarity in the extent of properties and relief against the strangers. On appeal, the Lower Appellate Court also confirmed the decreed passed by the Trial Court.

3. According to the appellants/plaintiffs as per Exs.A1 to A4 and A.16, they have clearly proved their title to an extent of 9.26 acres. When they have proved their title, denial of relief of declaration is not sustainable. Further when the defendants do not claim any title there is no dispute as to the identity of the suit property, in view of the report of the Commissioner filed as Exs.C1 to C3. Taking that into consideration, the Trial Court ought to have granted the relief. Even otherwise under Or.7, R.7 r/w Sec.151 of C.P.C the Trial Court must have granted the relief exercising the inherent powers. Therefore, the decree and judgment passed by the Court below is liable to be set aside.

4. I have considered the submissions.

5. As found by the Court below the corresponding Re-survey number for old S.No.18 is R.S.No.699/1 to 8. As per the Government records what is available in R.S.No.699/1 to 8 is 9.43 1/2 acres. Whereas the plaint schedule shows the extent of land in R.S.No.699/1 to 8 as 9.74