S.A. No. 1460 of 1999. Case: Ramu and Ors. Vs Samuel Nadar. High Court of Madras (India)

Case NumberS.A. No. 1460 of 1999
CounselFor Appellant: M. Muruganantham for V. Raghavachari, Advs. and For Respondents: R. Muralidharan, Adv.
JudgesM. Sundar, J.
IssueCode of Civil Procedure, 1908 (CPC) - Sections 100, 96
Judgement DateMarch 16, 2017
CourtHigh Court of Madras (India)


M. Sundar, J.

  1. This second appeal turns on a very short point and a narrow compass.

  2. For appreciating the judgment which this Court proposes to deliver in this second appeal, a thumb nail sketch of the facts needs to be stated and I do so under the caption 'Factual Matrix' infra.

  3. Factual Matrix:

    "(i) The dispute is between one D. Ramu and one Samuel Nadar, who own adjacent properties. D. Ramu is the sole plaintiff in the Trial Court and Samuel Nadar is the sole defendant in the Trial Court. Therefore, besides referring to them by name, this Court also refers to them as plaintiff and defendant (based on their respective ranks in the Trial Court) for the sake of convenience and clarity.

    (ii) Adjacent properties which now belong to the plaintiff and defendant were originally owned by one Durairangam Pillai. While the plaintiff had purchased his property from one son and two daughters of Durairangam Pillai vide Sale Deed dated 26.04.1994 (Ex. A1), the defendant had purchased his property from Durairangam Pillai, his wife Krishnaveni and son Jagadheesan in and by a sale deed dated 04.09.1976 (Ex. A2).

    (iii) An extent of vacant land admeasuring 608 sq.ft. lying in between the abovesaid adjacent properties is the subject matter of dispute and it is the 'suit land'.

    (iv) The sketch annexed to the plaint, is extracted herein below for a better and ready appreciation of the suit land in dispute. The sketch is as follows:

    (v) That portion of the above sketch that is shown with lines running across the property is the land admeasuring 608 sq.ft. lying between the plaintiff and defendant's properties, which is the subject matter of dispute herein. To be noted, 'plaintiff' is written in the sketch in the suit, plaintiff's property is not shown and most importantly it is not to scale.

    (vi) It is the admitted case of the defendant that in the above said Sale Deed dated 04.09.1976 (Ex. A2) under which he purchased his property, the measurement of the boundaries in terms of length and breadth are incorrect and that an error has crept in.

    (vii) The plaintiff, would canvass that whenever the boundaries alone will prevail.

    (viii) Broadly inter alia on the above issue, parties went for trial.

    (ix) Plaintiff filed the suit being O.S. No. 837 of 1994 on the file of the Additional District Munsiff Court, Cuddalore with a prayer for declaration and for consequential permanent injunction qua, the suit land (608 sq.ft. of land lying between the plaintiff's and defendant's properties as referred to supra)

    (x) On behalf of the plaintiff, plaintiff examined himself as P.W.1 and one Mr. Kumar, a Photographer was examined as P.W.2. The defendant (Samuel Nadar) examined himself as D.W.1. Exhibits A1 to A16 were marked on behalf of the plaintiff and Exhibits B1 and B2 were marked on behalf of the defendant. Besides this, an Advocate Commissioner was appointed and his report and sketch were marked as Exhibits C1 and C2. The Trial Court after full fledged contest and trial, dismissed the suit, primarily on the ground that a conjoint reading of Ex. A2 Sale Deed (Sale Deed dated 04.09.1976 being defendant's Title Deed) and Ex. B2 being a sketch of the suit property filed by the defendant shows that the vendors of the plaintiff did not have any right whatsoever to convey the suit property being 608 sq.ft. of land. The main reason for the Trial Court to say so is that in Ex. A1 Sale Deed being Sale Deed dated 26.04.1994 which is the plaintiff's Title Deed, there is a reference to a registered Will dated 24.09.1978 said to have been executed by Durairangam Pillai but the said Will never saw the light of the day as it was not filed or exhibited before the Court.

    (xi) Aggrieved, plaintiff carried the matter in appeal by way of a Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC, for brevity). The appeal is A.S. No. 107 of 1995 on the file of the Sub Court, Cuddalore.

    (xii) The First Appellate Court, after a detailed hearing, dismissed the first appeal confirming the non suiting of the plaintiff by the Trial Court.

    (xiii) The First Appellate Court dismissed the first appeal primarily on the ground that Durairangam Pillai's son Jagadheesan who is the...

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