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2025 Supreme(Online)(Mad) 20205
IN THE HIGH COURT OF JUDICATURE AT MADRAS
,
Kasthuri – Appellant
Versus
Gnanasoundari – Respondent
O.S.No.1107/1997 | O.S.No.1108/1997 | A.S.Nos.14/2009 and 9/2010
For the Appellants/Petitioners: Ms.Veena Suresh
For the Respondents: Mr.V.Balamurugan
Lower courts erred in rejecting physical property measurement and relied on incomplete evidence, reversing possession and title principles; possession follows valid title as evidenced by clear sale deeds, mandating dismissal of opposing claims.
Headnote:(A) Civil Procedure Code, Section 100 - Suit for declaration of title and permanent injunction - Concurrent findings of trial and first appellate courts - Evidential reliance on sale deeds, Advocate Commissioner's report, and rough sketches - Appointment and non-appointment of Advocate Commissioner in context of property measurement and identification - Burden of proof of title and possession. (Paras 10, 13-15)
(B) Property Law - Doctrine of possession follows title - Validity and discrepancies in sale deeds - Boundary description and survey measurements - Effect of discrepancies in sale deeds on claim of title and injunction - Apex Court pronouncement on Advocates Commissioner appointment emphasized but not followed by lower courts. (Paras 10, 14, 15)
Facts of the case:
The appellant purchased three suit properties under a registered sale deed dated 03.12.1983 and alleged peaceful possession except interference by respondent who also claimed title over adjacent properties by a registered sale deed dated 21.09.1975. Both parties filed suits for declaration of title and injunction restraining interference with possession. The trial court and first appellate court decreed the suit filed by the respondent and dismissed the appellant's suit relying heavily on Advocate Commissioner's report and disputed sale deeds. Appellant contested the decisions alleging perverse findings and sought appointment of Advocate Commissioner for measuring the disputed land.
Findings of Court:
The second appellate court found that the properties purchased by appellant and respondent are distinct with different boundaries and measurements, with the Advocate Commissioner's report and rough sketches not considered properly by the lower courts. The court held that the dismissal of the appellant's petition to measure the property was erroneous and the entire burden was placed unfairly on the appellant. It observed possession follows title, supported by valid sale deed without discrepancies. Accordingly, the lower courts' decrees were set aside, declaring in favor of the appellant in O.S.No.1107/1997 and dismissing the respondent's suit.
Issues: 1. Whether the findings on possession dating and reliance on certain exhibits were perverse. 2. Correctness of reliance on documents where appellant was not a party for title determination. 3. Whether refusal to appoint Advocate Commissioner was proper in light of Apex Court directions. 4. Maintainability of suit without declaration of title amidst disputed identity of property. 5. Validity of title claims based on sale deeds with boundary discrepancies. 6. Appropriateness of non-suit where survey/measurement was refused.
Ratio Decidendi: The court found lower courts erred in relying on the Advocate Commissioner's report without proper physical measurement and rejected appointment of an Advocate Commissioner without justification, thereby leading to perverse findings. The principle that possession follows title backed by clear sale deeds was re-affirmed, and dispute over boundary descriptions required proper assessment which was denied. The burden was wrongly shifted, mandating setting aside of the previous judgments and decreeing the suit filed by the appellant.
Result: The second appeals allowed. The decree of the trial and first appellate courts setting aside the appellant's suit was reversed. Suit in O.S.No.1107/1997 decreed with costs, and suit in O.S.No.1108/1997 dismissed with costs.
| Table of Content |
|---|
| 1. overview of parties' claims, purchase history, and nature of suits (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. lower courts' decisions and grounds for appeal with legal questions framed (Para 8 , 9 , 10 , 12) |
| 3. analysis of disputed property boundaries, sale deed discrepancies, and evidence evaluation (Para 13 , 14 , 15) |
| 4. final decision allowing appeal, setting aside lower courts' judgments (Para 16) |
JUDGMENT
The appellant, Kasthuri (since deceased) in both these appeals is the plaintiff in O.S.No.1107/1997 and defendant in O.S.No.1108/1997 on the file of the District Munsif Court, Thiruvottiyur. Her legal heirs have been impleaded as appellants 2 to 4. The first respondent, Gnanasoundari (since deceased) is the plaintiff in O.S.No.1108/1997.
2. The suit in O.S.No.1107/1997 was filed for declaration of the plaintiff's title to the suit properties and for a consequential relief of permanent injunction restraining the defendants in the suit from interfering with her peaceful possession and enjoyment of the suit properties.
3. The suit in O.S.No.1108/1997 was filed for the relief of permanent injunction against the present appellant from interfering with her peaceful possession and enjoyment of the suit properties. Both the suits in O.S.Nos.1107/1997 and 1108/1997 were tried jointly by the trial court and the evidence was recorded in common in O.S.No.1107/1997.
4. The case of the appellant / plaintiff in O.S.No.1107/1997 is as follows :
i. The plaintiff is the owner of the suit properties. The plaintiff purchased the suit properties from one Chellammal @ Kanniammal through a sale deed dated 03.12.1983 (Ex.A1) and ever since the date of purchase she has been in possession and enjoyment of the same. When she attempted to put up construction in the suit properties on 25.03.1984, Gnanasoundari (the plaintiff in O.S.No.1108/1997) prevented the plaintiff from putting up any construction. In fact, the plaintiff, Kasthuri had dug up a well and also put up a shed on the northern portion of the suit properties.
ii. One Varadhammal, mother of Chellammal @ Kanniammal purchased 28 cents out of 88 cents in Survey Number 379/3 from one Chellammal through a registered sale deed dated 25.11.1918. Varadhammal also purchased another extent of 35 cents in Survey Number 379/3. Apart from that, she purchased 10 cents in Survey Number 379/1 from one Krishnan Ayengar under a sale deed dated 22.11.1930. Thus, Varadhammal had purchased a total extent of 73 cents and after her death, her daughter Chellammal @ Kanniammal succeeded to her estate. She also mortgaged 73 cents during the year 1975 to Gnanasoundari.
iii.In order to discharge the mortgage loan, Chellammal @ Kanniammal allegdely executed a registered sale deed in respect of 27 cents in favour of the said Gnanasoundari. The sale deed itself is suspicious for the following reasons :
(a)The total extent is more than the actual extent as is seen from the rough sketch filed by Gnanasoundari in the earlier suit in O.S.No.17/1984.
(b)When Chellammal @ Kanniammal had sold only 27cents out of 73 cents the remaining extent of 46 cents was not shown as one of the boundaries in the sale deed.
(c)The sale deed is also silent as to why two separate extents are given when both the items are in the same survey number.
(d)Chellammal @ Kanniammal is an illiterate and she has affixed her thumb impression.
iv. The property purchased by Varadhammal in Survey Number 379/3 measuring 27 cents is on the northern side of the property belonging to Pappathi Ammal, the mother-in-law of Gnanasoundari. The other 35 cents purchased by Varadhammal in Survey Number 379/3 lies immediately to the northern side of Perumal Koil Street. The boundaries and extents given in the sale deed dated 21.09.1975 (Ex.B4) are wrong. Chellammal @ Kanniammal conveyed the remaining 46 cents to the plaintiff, Kasthuri after mentioning all these details through a registered sale deed dated 03.12.1983 (Ex.A1).
v. The plaintiff, Kasthuri also filed a suit in
