Arumugam (Died) v. Soundarammal(Died)

JUDGMENT

The present second appeal is filed by the plaintiff against the Judgment and Decree dated 23.01.2009 passed in A.S.No.52 of 2008 on the file of the Subordinate Court, Ramanathapuram, confirming the Judgment and Decree dated 27.03.2008 passed in O.S.No.16 of 2002 on the file of the District Munsif Court, Ramanathapuram.

¶2The plaintiff in the suit is the appellant herein and the defendant in the suit is the respondent herein. Pending suit appeal the plaintiff and defendant died and their legal heirs are impleaded as parties. For the sake of convenience, the parties are referred as plaintiff and defendants, as per the ranking in the suit.

¶3The suit is filed for declaration injunction restraining the defendants from interfering in the suit property. The suit was dismissed, aggrieved over Appeal Suit was filed by the plaintiff and the same was dismissed. Hence the present second appeal is preferred. The present second appeal was admitted on the following substantial questions of law: "A) Whether the Courts below are right in dismissing the suit of the appellant when he establishes the existence of suit lane through the report of the Advocate Commissioner? B) Whether the Courts below are right in dismissing the suit of the appellant when his vital right to the water would be lost when the suit is not decreed?"

4.The brief facts as stated in the plaint is that the suit property was purchased through sale deed, dated 08.01.1993 marked as Ex.A1 wherein the measurement and the four boundaries are stated as under: "nrhj;J tpguk; ,uhkehjGuk; upb> ,uhkehjGuk; b> i\ jhYfh> ,uhkehjGuk; 2 epu; ,iz rhu; gjptfk; Njtp gl;lzk; F&g; Njtpgl;lzk; fpuhkj;jpy; i\ fpuhkk;> ru;Nt ek;gu; 321/1f;F GQ;ir nkhj;j tp];jPu;zk; 2.41.0 n`f;NlUf;F Vf;fu; 5 Ie;J> nrd;L 95y; jw;Nghija rg;btp\d;gb ru;Nt ek;gu; 321/1.A-f;F GQ;ir tp];jPu;zk; 2.09.5 n`f;NlUf;F Vf;fu; 5 Ie;J nrd;L 17-y; jq;fSf;F fpiuak; nfhLj;jpUg;gJ tlgf;fk; eLg;Guk;> 15 ek;gu; gpshl; 1 xd;Wf;F tlGuk; fpoNky; mb 66 mWgj;jhW njd;Guk; fpoNky; mb 66 mWgj;jhW> fPo;Guk; njd;tly; mb 62 mWgj;jp ,uz;L> Nky;Guk; njd;tly; mb 59> Ik;gj;njhd;gJ msTs;sJf;F nkhj;jr; rJu mb 3993 f;F nrd;L 9 rJu mb 69 xd;gJ nrd;Lk;> mWgj;njhd;gJ rJu mbAk; ehd;Fkhy; tpguk; tlf;F ... nuj;jpdk; Nru;it njd;de;Njhg;G fpof;F ... rj;jpuj;jpw;F ghj;jpakhd i\ ru;Nt vz;.321/1A-d; gFjpg; GQ;ir njw;F ... i\ rj;jpuj;jpw;Fg; ghj;jpakhd ru;Nt vz;.321/1A-d; gFjpg; GQ;ir Nkw;F... vq;fshy; tplg;gl;bUf;Fk; fpoNky; 10 gj;J mb mfyKs;s njd;tlNyhba nghJg;ghijAk; rj;jpuj;Jf;F ghj;jpakhd i\ ru;Nt vz;. 321/1A-d; gFjpg; GQ;irAk; ,jw;Fs;gl;lJ. i\ epyk; tptrhaj;Jf;F yhaf;fpy;yhj kid epyk;. Nky;fz;l fpiuar; nrhj;jpd; jw;fhy kjpg;G &.27512.00"

¶5In the measurement, it is stated that on the Northern side, East-West Road is 66 feet, on the Southern side East West Road is 66 feet, on the Eastern side North South Road is 62 feet and on the western side North South Road is 59 feet. The plaintiff is claiming the aforesaid extent based on the sale deed 08.01.1993. On the other hand, the defendant has claimed that the small strip of portion belongs to him. In fact, the defendant has claimed on the southern end boundary of the defendant property, wherein he has planted palm trees. Since there is dispute in measurement of the property, therefore, this Court appointed an Advocate Commissioner afresh. In the Advocate Commissioner's report, the following sketch is shown:

¶6As on the field the plaintiff is in enjoyment of 60.36 feet on the eastern side. As per FMB, on the eastern side 61.02 feet is there for Survey No. 321/14. But as per the sale deed, 62 feet was sold to the plaintiff. Likewise on the western side, on the field, the plaintiff is in enjoyment of 57.31 feet. As per the FMB, the plaintiff is entitled until the 58 feet but as per the sale deed, an excess of 1 feet is granted, thereby, 59 feet was granted to the plaintiff.

¶7On perusal of the 1st Advocate Commissioner's report and the present Advocate Commissioner's report, (X) marked portion in the 1st Advocate Commissioner's report would indicate palm trees planted by the defendant. In the said Advocate Commissioner's report, there is a space between the B-C. Likewise, there is a space in between C-D on eastern side and one Kovalan was in enjoyment of the property. A strip from C-D until (X) marked portion belongs to the plaintiff. Even the present Advocate Commissioner's report also says there is a lane on the northern boundary of the plaintiff's lane. However, the revenue records shows that a portion is classified as anadheenam, that is why in the FMB sketch on the western side 1 feet from 59 feet is shown as anadheenam. Likewise, in the eastern side from FMB, it is 1.02 feet until 62 feet and in the FMB, it is shown as anadheenam.

¶8Therefore, this Court is of the considered opinion that in the sale deed, the excess portion is sold to the plaintiff, which is classified as anadheenam, which the plaintiff is not entitled to. The plaintiff is entitled to on the western side until 58 feet which coincides with the FMB sketch on the eastern side. The plaintiff is entitled to 61.02 feet which coincides with the FMB sketch. This Court is of the considered opinion that admittedly the plaintiff is entitled to land but not the extent the plaintiff is claiming but a lesser extent as explained supra. Consequently the plaintiff is entitled to declaration and injunction for the extent as stated supra. Therefore, the substantial questions of law are answered in favour of the plaintiff to the extent stated supra.

¶9Since, the plaintiff is no more, the legal heirs of the plaintiff shall be entitled to the property as stated supra.

¶10With the above said observations, the second appeal is disposed of. The Judgment and Decree dated 23.01.2009 passed in A.S.No.52 of 2008 on the file of the Subordinate Court, Ramanathapuram and the Judgment and Decree dated 27.03.2008 passed in O.S.No.16 of 2002 on the file of the District Munsif Court, Ramanathapuram is modified as stated supra. No costs.

23.10.2024 Index : Yes / No NCC : Yes / No Tmg TO:

¶1Subordinate Court, Ramanathapuram.

¶2District Munsif Court, Ramanathapuram.

3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

S.SRIMATHY, J.

Tmg S.A.(MD)No.361 of 2009 Dated:

23.10.2024

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23.10.2024 CORAM: THE HONOURABLE MRS.JUSTICE S.SRIMATHY 1.Arumugam (Died) 2.Rakkammal 3.Ramakrishnan 4.Banumathi 5.Jeevanandem 6.P.Radhalaxmi 7.Venthamarai Selvi ... Appellants (Appellants 2 to 7 are brought on record as LRs of the deceased sole appellant as per Court order dated 14.09.2018 in CMP(MD)No.5563 of 2018 in SA(MD)No.361 of 2009) /Vs./ 1.Soundarammal (Died) 2.Vellaisamy (Died) 3.Rukmani 4.Nagajothi 5.Kalidasan 6.Suseela 7.Senthil 8.Ramu ...Respondents (R1 deceased memo USR No.3353/14 is recorded vide order dated 04.09.2014 made in SA(MD)No. 361 of 2009) (Respondents 6 to 8 are brought on record as LRs of the deceased 2nd respondent vide Court order dated 09.08.2023 made in CMP(MD)Nos.4084 to 4086 of 2019 in SA(MD)No.361 of 2009) P RAYER : Second Appeal filed under Section 100 of the Civil Procedure Code, aggrieved by the Judgment and Decree dated 23.01.2009 made in A.S.No.52 of 2008 on the file of the Subordinate Court, Ramanathapuram, confirming the Judgment and Decree dated 27.03.2008 made in O.S.No.16 of 2002 on the file of the District Munsif Court, Ramanathapuram. For Appellants : Mr.S.Vellaichamy R1 and R2 : Died (Steps taken) For R3 to R5 : Mr.K.N.Thampi For R6 : M/s.Suseela For R7 : Mr.Senthil For R8 : Mr.Ramu Advocate Commissioner : Mr.K.Pragash Ganapathy *****