Full Judgment Text
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PETITIONER:
SOUNDARARAJ
Vs.
RESPONDENT:
DEVASAHAYAM & ORS
DATE OF JUDGMENT24/10/1983
BENCH:
VARADARAJAN, A. (J)
BENCH:
VARADARAJAN, A. (J)
SEN, A.P. (J)
CITATION:
1984 AIR 133 1984 SCR (1) 497
1983 SCALE (2)846
ACT:
Code of Civil Procedure 1908 Order 47 Rule 1.
Review Petition allowed-High Court setting aside its
own judgment in second appeal, judgments of first appellate
court and trial court, and remanding case for fresh
disposal-Such order-Whether valid and proper-Held High Court
should frame additional issues, call for findings from Trial
Court and dispose of second appeal.
HEADNOTE:
The appellant filed a suit in the District Munsiffs’
Court for demarcating the boundaries of his property from
that of the respondents and for a mandatory injunction
directing the respondents to remove the eaves protruding on
the northern side by reason of which the ’eaves’ water was
falling into his property. The respondents denied that they
encroached upon any portion of the appellants property and
contended that the appellant had with ulterior motive
removed the survey stones in the north-eastern and north-
western side of the respondents’ property and had encroached
upon some portion of their land. It was further contended
that the eaves’ water fell only on their own land and that
the mandatory injunction claimed was not sustainable in law.
An Advocate-Commissioner who was directed to make a local
inspection filed his report. The Trial Court passed a decree
for demarcation of the property by putting up of a boundary
wall within the appellant’s property and also issued a
mandatory injunction directing the removal of portions of
the eaves of the respondents’ buildings. The Trial Court
Judgment was confirmed by the Subordinate Judge in appeal.
In the second appeal to the High Court, a Single Judge
rejected the contention of the respondents that the
measurements in the Commissioner’s report and the markings
contained in his plan were not correct, and dismissed the
second appeal.
When a review petition was filed by the respondents,
the Single Judge noticed that there was an error of
measurement in the Government survey plan and the plan filed
by the Commissioner and opined that there should be a fresh
consideration of the question, set aside his judgment and
the concurring judgments of the first two courts, and
remanded the matter to the Trial Court.
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Allowing the appeal to this court,
498
^
HELD: 1. The single Judge was not fully justified in
allowing the review petition and setting aside not only his
own judgment which had confirmed the concurring judgments of
the first two courts, but also erred in setting aside the
judgments of the first two courts and remanding the suit to
the court of first instance. He should have adopted the more
equitable and just method of framing some additional issues
and calling for findings on those issues from the Trial
Court with liberty to both the parties for adducing
evidence.
[501 H; 502 A-B]
2. The Single Judges’ order in so far as it relates to
setting aside his own judgment in the second appeal is set
aside. The judgment and decrees of the first two courts are
kept in tact. The High Court will frame such additional
issues as may legally arise on the pleadings of the parties
and call for findings thereon from the Trial Court and
dispose of the second appeal after taking into consideration
the findings and the objections of the parties to the
findings. [502 C-D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10083 of
1983.
From the Judgment and Order dated the 8th April, 1983
of the Madras High Court in CMP No. 1368 of 1981 (Review
Petition) in S.A.No. 86 of 1978.
C.S. Vaidyanthan for the Appellant.
T.S. Krishnamoorthi Iyer, S. Balakrishnan and M.K.
Namoodri for the Respondents.
The Judgment of the Court was delivered by
VARADARAJAN, J. This appeal by special leave is
directed against an order of the learned Single Judge of the
Madras High Court, made in C.M.P. No. 1368 of 1983,
reviewing his judgment in Second Appeal No. 86 of 1978 which
he dismissed on 24-7-1981, confirming the judgment in Appeal
Suit No. 135 of 1974 of the learned Subordinate Judge,
Padmanabhapuram who in turn confirmed the judgment of the
learned Principal District Munsif, Padmanabhapuram in
Original Suit No. 365 of 1973. The appellant Soundararaj
filed the suit for demarcating the boundaries of his A
schedule property bearing survey No. 3199 on which his
building stands from the respondents’ B schedule property
bearing survey No. 3153 on which their buildings stand and
for a mandatory injuction directing the respondents to
remove the eaves protruding on the northern side by reason
of which the eaves water was falling into his property.
499
The respondents denied that they encroached upon any
portion of the appellant’s property and contended that he
had with ulterior motives removed the survey stones on the
north eastern and north western sides of survey No. 3153
belonging to them and that after encroaching upon some
portion of road poromboke he is claiming that the actual
area of survey No. 3199 belonging to him is more than the
area as per the settlement. They contended that the eaves
water falls only on their own land and that the appellant’s
claim for mandatory injunction is not sustainable in law.
They further contended that even if it is found that the
eaves water from their buildings falls on the appellant’s
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property he has no right to object to it because they have
acquired the right by prescription to allow the eaves water
from their roof to fall into the property on which it is now
falling.
The parties did not produce their respective title
deeds. The appellant produced the Government Survey Plan
Exhibit A-3. The Advocate-Commissioner who was directed to
make a local inspection and file a report, filed his report
Exhibit C-1 and plans Ex. C-2 and C-3 which were drawn to
scale of 1 inch to 40 links. The respondents did not file
any objection to the Commissioner’s report and plans, while
the appellant filed his objections to them. The appellant
contended before the Trial Court that the plan Ex. C-2
should be accepted for deciding the question of the boundary
of his property whereas the respondents contended that the
plan Ex. C-3 should be accepted as the basis for
determination of the boundary. The Trial Court accepted the
appellant’s contention that the correct measurement of the
diagonal line JC in the Government plan Ex. A-3 is 119 links
and that the measurement given in it as 113 links is wrong.
The learned District Munsif took his own measurements by
using a scale and was convinced on an inspection of the
plans that the plan Ex. C-2 is the correct basis for
determining the boundary line and that the demarcating line
for survey No. 3153 belonging to the respondents is JR and
not JD on the north and ZI and IJ on the other side, in Ex.
C-2. As regards the eaves the learned District Munsif found
that the northern and western eaves of the respondents’
building protruding into the appellant’s property as
indicated in the plan Ex. C-2 should be shortened as
indicated in Ex. C-2 and that the respondents have not
perfected any right of easement by prescription. In this
view the learned District Munsif passed a decree for
demarcation of the appellant’s property by putting up a
boundary wall to a height of 7 feet immediately west of ZI
and on IJ and JR
500
within the appellant’s property and for a mandatory
injunction directing the removal of portions of the eaves of
the respondents’ buildings west of ZI and IJ and north of
JR.
The first appellate court’s judgment has not been made
available in the records before us. But it is seen from the
judgment of the learned Single Judge of the High Court in
the second appeal that the learned Subordinate Judge had
confirmed the Trial Court’s judgment and decree in toto. In
the second appeal the boundary fixed by the Trial Court on
the Western side was acceptable to both the parties and the
dispute was only with regard to the demarcation of the
boundary line on the other side of the respondent’s
property. The respondents’ contention in the second appeal
was that the measurement given in Ex. C-3 should be accepted
and not those given in Ex. C-2, a contention which did not
find favour with either the Trial Court or the first
appellate court. The learned Single Judge negatived the
respondents’ contention in that regard observing thus:
"In the first place the finding that is impugned
is purely factual in character and it does not involve
any question of law. On this simple ground, the
contention of the appellants deserves to fall and the
appeal could well be dismissed. Even otherwise I find
on merits, the appellants do not have a case at all.
The trial court as well as the lower appellate court
have chosen to place reliance on Exhibit C-2 rather on
Exhibit C-3 because the measurements given in Exhibit
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C-2 tally with the measurements given in Exhibit A-3,
the survey plan. It is common ground the measurements
given in Exhibit C-3 do not tally. The appellants who
now assail the correctness of the measurements giving
in Exhibit C-2 have not filed any objection to the
Commissioner’s report and the markings contained in
Exhibit C-2 before the trial court. Having regard to
these factors, it is not open to the appellants now to
contend that the Commissioner’s report and the markings
contained in Exhibit C-2 are not correct......."
Consequently it follows that there is no justification
whatever to interfere with the findings recorded
concurrently by the courts below.
501
Regarding the eaves the learned Single Judge rejected
the respondents’ contention observing thus:
"The counsel for the appellants then stated that
it will cause hardship to the appellants if they were
to remove a portion of their eaves projecting into the
land of the respondents and also to close the doorways
opened by them. This is not a relevant factor for
consideration in the appeal. Once it is found that the
appellants are not entitled to any space of land beyond
the line JR, they are not entitled to have their eaves
projecting into the respondents’ land or to open any
doorways leading into his land."
With these observations the learned Single Judge
dismissed the second appeal with no order as to costs.
But when the review petition filed by the respondents
came up before the learned Single Judge he noticed the error
in the measurement of the diagonal line JC in the Government
survey plan Ex. A-3 pointed out by the Trial Court and
opined that in view of that mistake there should be a fresh
consideration of the question whether Ex. C-3 or Ex. C-2
merits acceptance because Ex. C-2 has been found by the
first two courts to be more acceptable on the ground that
the measurements given therein tally with those given in Ex.
A-3. The learned Judge further opined that the parties who
had not chosen to produce their title deeds for some reason
or other should be called upon to produce them, and that
there was substance in the respondents’ contention that the
survey stone at the northern limit of their property bearing
survey No. 3154 has been removed and that its position
should be fixed and measurements taken from that point for
determining the boundary of the appellant’s property on the
northeast at the point X or Point E. The learned Judge
further opined that as regards the projecting eaves the
question is of adverse possession for a period of 12 years
which is for acquisition of right to moveable property and
not the larger period relating to acquisition of a right of
easement, overlooking the fact that the parties and all the
courts until the review petition was filed understood the
case to be only one of easement
After hearing the learned Counsel of the parties we are
satisfied that the learned Single Judge was not fully
justified in allowing the review petition and setting aside
not only his own judgment which
502
had confirmed the concurring judgments of the first two
courts but also of the opinion that the learned Judge erred
in setting aside the judgments of the first two courts and
remanding the suit to the court of first instance without
adopting the more equitable and just method of framing some
additional issues, if any, strictly arising on the pleadings
and calling for findings on those issues from the Trial
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Court with liberty to both the parties for adducing
evidence. Under the circumstances of the case we allow the
appeal in part and confirm the learned Single Judges’ order
only in so far as it relates to setting aside his own
judgment in the second appeal but set aside that order in
other respects keeping in tact the judgments and decrees of
the first two courts. The High Court will frame such
additional issues as may legally arise on the pleadings of
the parties and call for findings thereon from the Trial
Court as mentioned above and dispose of the second appeal
after receipt of the findings in the light of those findings
and judgments of the first two courts already rendered and
the objections, if any, which may be filed by the parties to
the findings. It is desirable that a fresh mind is brought
to bear on the questions involved in the second appeal after
receipt of the findings. The matter will go back to the High
Court for fresh disposal in accordance with the law as
indicated above. The costs shall abide the result. The
parties are directed to appear before the High Court on
November 17, 1983.
N.V.K. Appeal allowed.
503