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2025 Supreme(Online)(Mad) 30272

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.N.MANJULA, J
Venkatachalam (died) – Appellant
Versus
Sakunthala – Respondent
S.A.Nos.293 | 294 of 2011 | M.P.No.1 of 2011 | S.A.No.293 of 2011

Advocates:
For the Appellants/Petitioners: Mr.K.Sathiyamoorthy
For the Respondents:Mr.M.Nuzhath Khanam, Mr.J.Yoganandam

Failure to timely challenge or seek reissuance of Commissioner’s report, despite procedural irregularities, leads to its acceptance; measurement of disputed property must be made with surveyor’s assistance; limitation for recovery of possession includes removal of illegal construction.

Headnote:(A) Civil Procedure Code, Order 26 Rule 18 and Order 10 Rule 3 - Reliance on Commissioner’s report for measurement of property - Court's power to appoint Commissioner to measure disputed property - Requirement that Commissioner take assistance of surveyor - Right of parties to be present and examine Commissioner - Adverse inference drawn upon failure to challenge report timely.

(B) Limitation Act - Article 65 - Suit for recovery of possession and mandatory injunction - 12 years limitation from when possession becomes adverse - Construction inside disputed property.

Facts of the case:
Plaintiffs filed suit seeking declaration of title and injunction for removal of alleged illegal construction on ancestral property, claiming ownership via oral partition and purchase deeds. Defendants countered asserting title through earlier sale deed and adverse possession, denying plaintiffs’ claim and asserting prior interim injunction.

Findings of Court:
The appellate court initially relied on the Commissioner's report without surveyor’s assistance and granted relief to plaintiffs. However, higher court set aside judgment ordering fresh measurement by a Commissioner with surveyor’s aid. Limitation period was held satisfactory for plaintiffs’ claim to recover possession, including illegal construction removal.

Issues: Whether the first appellate court rightly relied on the Commissioner’s report lacking surveyor’s measurements; and whether the suit for mandatory injunction was within limitation period.

Ratio Decidendi: Commissioner's report without proper surveyor measurements and presence of parties can be challenged but failure to timely object or seek reissuance results in adverse presumption justifying reliance on the report. The limitation period for recovery of possession encompasses removal of illegal structures.

Result: Second appeals allowed; judgments of first appellate court set aside; directions to appoint Commissioner with surveyor and decide cases afresh.

Table of Content
1. ownership and title dispute over ancestral property and claims of possession. (Para 6 , 7 , 8)
2. assessment of evidence and challenge to commissioner's report reliability. (Para 9 , 10 , 11 , 12 , 13 , 14)
3. validity of commissioner’s report without surveyor assistance and parties’ rights to object. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23)
4. limitation period applicable to suit for possession and injunction. (Para 24 , 25)
5. final ruling ordering fresh commissioner measurement and joint consideration of appeals. (Para 26 , 27 , 28)

COMMON JUDGMENT

The Second Appeal viz., S.A.No.293 of 2024 has been filed to set aside the judgment and decree dated 29.09.2010 passed in A.S.No.19 of 2008 on the file of the Sub Court, Ranipet, reversing the judgment and decree dated 17.12.2007 passed in O.S.No.87 of 2000 on the file of the District Munsif-cum- Judicial Magistrate Court No.I, Walajah.

2. The other Second Appeal viz., S.A.No.294 of 2024 has been filed to set aside the judgment and decree dated 29.09.2010 passed in A.S.No.44 of 2009 on the file of the Sub Court, Ranipet, confirming the judgment and decree dated 17.12.2007 passed in O.S.No.151 of 2000 on the file of the District Munsif-cum-Judicial Magistrate Court No.I, Walajah.

3. Heard both sides and perused the materials available on record.

4. Since the issue involved in both the second appeals are interconnected, these second appeals are decided by this common judgment.

5. For the sake of convenient discussion, the parties are referred as per their rank in the suits as plaintiffs and defendants.

S.A.No.293 of 2011

6. The defendants are the appellants. The plaintiffs have filed the suit against the defendants seeking the relief of declaration of his title in respect of the suit property which is shown as ABCD in the suit plan and consequential permanent injunction along with the relief of mandatory injunction to remove the superstructure constructed by the defendants in the suit property and hand over vacant possession. The trial Court had dismissed the suit and the first appeal filed by the plaintiffs has been allowed and the judgment and decree of the trial Court was set aside and the suit was decreed as prayed. Aggrieved over that, the defendants have preferred this second appeal.

7. The short facts pleaded by the plaintiffs in their plaint are as under :

7.1. The suit property is the ancestral property of the plaintiffs. The 1^st plaintiff's father Narasimma Reddiar and his forefathers were in possession and enjoyment of the same for generations together. The four sons of Narasimma Reddiar viz., the Munusamy, Subramani, Rangasamy (1^st plaintiff) and Chinnasamy have divided the suit property through an oral partition several years ago.

7.2. The 1^st plaintiff purchased the share of Subramani from his widow Kannammal through a registered sale deed dated 17.02.1988. He also purchased the shares of other two brothers as per registered sale deeds dated 05.05.1972 and 16.03.1983. The 1^st plaintiff himself has got one share in the oral partition and along with the purchases he made from other sharers, he became entitled for whole of the suit property and he was in possession and enjoyment of the same as he is a lawful titleholder. Patta has been granted in favour of the 1^st plaintiff under Natham scheme as early as in the year 1992. The patta and the notice issued by the survey department under the Surveys and Boundaries Act were filed by the 1^st plaintiff.

7.3. The 1^st plaintiff has constructed a house in the suit property and living there along with his family members for the past several years. He has also paid kist and water tax to the panchayat in respect of the suit property.

7.4. The defendants are husband and wife. The 1^st defendant has his property on the eastern side of the suit property and the defendants claimed right over a portion, which is shown as ABCD in the suit property, which actually belongs to the 1^st plaintiff. On 08.06.2000, the defendants demoli

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2025 Supreme(Online)(Mad) 30272

IN THE HIGH COURT OF JUDICATURE AT MADRASR.N.MANJULA, JVenkatachalam (died) – AppellantVersusSakunthala – RespondentS.A.Nos.293 | 294 of 2011 | M.P.No.1 of 2011 | S.A.No.293 of 2011

Failure to timely challenge or seek reissuance of Commissioner’s report, despite procedural irregularities, leads to its acceptance; measurement of disputed property must be made with surveyor’s assistance; limitation for recovery of possession includes removal of illegal construction.

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.N.MANJULA, J
Venkatachalam (died) – Appellant
Versus
Sakunthala – Respondent
S.A.Nos.293 | 294 of 2011 | M.P.No.1 of 2011 | S.A.No.293 of 2011