P.NARAYANA PERUMAL (DIED) vs R.ANANDHA PADMANABHAN,
- Court
- Madras High Court
2026:MHC:4453
SA(MD) No. 25 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 27-10-2026
Delivered on : 03-11-2026
CORAM
THE HON'BLE MRS.JUSTICE THIRUMAGAL
CHANDRASEKAR
SA(MD) No. 25 of 2014
CNR:{HCMD010842632014}
and
MP(MD).No.1 of 2014
P.Narayana Perumal (died)
1) N.Vijayalekashmi, D/o.P.Narayana Perumal,
Sekharavilai, Vembanoor Post, Agasteeswaram
Taluk, Kanyakumari District.
..Appellants / plaintiff
Vs
R.Anandha Padmanabhan,
S/o.T.Ramanadar, South Ganapathipuram,
Ganapathipuram Pot, Agasteeswaram Taluk,
Kanyakumari.
.. Respondent / Defendant
Prayer: Second Appeal filed under Section 100 CPC against the
Judgment and Decree dated 05.07.2013 made in A.S.No.79 of 2012 on
the file of the Principal Subordinate Court, Nagercoil reversing the
Judgment and decree dated 19.10.2012 made in O.S.No.161 of 2009 on
the file of the Principal District Munsif Court, Nagercoil, Kanniyakumari.
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For Appellant : Mr. T. Antony Arulraj
For respondent : Mr.R.T.Arivukumar
JUDGMENT
This Second Appeal has been filed against the Judgment and
Decree dated 05.07.2013 made in A.S.No.79 of 2012 on the file of the
Principal Subordinate Court, Nagercoil reversing the Judgment and
decree dated 19.10.2012 made in O.S.No.161 of 2009 on the file of the
Principal District Munsif Court, Nagercoil, Kanniyakumari.
2. The Brief Facts of the case are as follows:
(i). The case of the plaintiffs is that the suit property situated at
Neendakarai ‘B’ Village, Agasteeswaram Taluk, comprised in Resurvey
Nos. 788/1 and 788/2, originally belonged to the first plaintiff, who
acquired title to the same under a registered sale deed. The first plaintiff
executed a settlement deed dated 05.02.2003 in favour of the second
plaintiff. The defendant owns the adjoining property comprised in
Resurvey No. 788/3, situated on the eastern side of the suit property.
According to the plaintiffs, on 02.12.2008, the defendant trespassed into
and encroached upon a portion of the suit property measuring 46.64
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square metres, with a north-south measurement of 8.8 metres on the
eastern and western sides and an east-west measurement of 5.4 metres on
the northern and southern sides. Hence, the plaintiffs instituted the suit
seeking declaration of title, recovery of possession, mandatory injunction
for removal of the encroaching construction and permanent injunction.
(ii). The defendant contested the suit, denying the plaintiffs’ claim
of ownership over the entire extent comprised in Resurvey Nos. 788/1
and 788/2. According to the defendant, as per the resurvey plan and
measurements, the plaintiffs were entitled to only 1½ cents of land and
were in possession of the same on the western side of the defendant’s
property. It was further contended that any additional extent claimed by
the plaintiffs might have been lost during the formation of the new roads
on the western and northern sides of their house. The defendant claimed
to be the owner in possession of 15 cents of land, together with the
building thereon, comprised in Resurvey Nos. 788/3 and 788/10. It was
also contended that the eastern wall of the plaintiffs’ house constituted
the boundary separating the respective properties and that the plaintiffs
had no right, title or possession over the disputed portion. On these
grounds, the defendant sought dismissal of the suit.
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(iii). Before the trial Court, the second plaintiff was examined as
P.W.1 and one N. Sivachandran was examined as P.W.2, and Exs.A1 to
A7 were marked on the side of the plaintiffs. The defendant examined
himself as D.W.1 and marked Exs.B1 to B3. The Commissioner’s report
and plan were marked as Exs.C1 and C2.
(iv). On considering the oral and documentary evidence the trial
Court decreed the suit, granting the reliefs of declaration, recovery of
possession, mandatory injunction and permanent injunction in favour of
the plaintiffs. Aggrieved by the said judgment and decree, the defendant
preferred an appeal and the same was allowed.
3. Challenging the judgment and decree of the first appellate Court,
the appellants / plaintiffs have preferred the present Second Appeal.
4. The Second Appeal was admitted on the following substantial
questions of law:-
a) Whether a decree can be given in favour of the
defendant on the basis of a field map?
b) Whether not the non-production of correlation
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report relied on by the defendant is fatal to his case?
c) Whether the exhibits Al and A2 required to be
proved as they are ancient as per Section 90 of the
Evidence Act?
d) Whether the judgment of the lower appellate
court is vitiated for havirig failed to take into account the
production of the patta and kist receipt in favour of the
plaintiff/appellant?
e) Whether not the non examination of revenue
officials by the defendant is fatal to the proof of his
claim?
f)Whether the defendant has proved his possession
which is admissible under the provisions of law?
5. Heard Mr. D. Rajkumar, learned counsel appearing for the
appellants and Mr. K. T. Arivukumar learned counsel appearing for the
respondent and perused the materials available on record.
6. The appellant / first plaintiff purchased the suit property,
measuring an extent of 2½ cents comprised in Survey Nos.788/1 and
788/2, under two registered sale deeds, namely, Exs.A1 and A2.
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Subsequently, he settled the said property in favour of her daughter, the
appellant / second plaintiff, under the registered settlement deed dated
05.02.2003, marked as Ex.A3. On the eastern side of the suit property
lies the property belonging to the respondent/defendant, comprised in
Survey Nos.788/3 and 788/10, measuring an extent of 15 cents.
7. The case of the appellants/plaintiffs is that, on 02.12.2008, the
respondent / defendant trespassed into their property and encroached
upon an extent of 46.64 square metres, measuring 8.8 metres on the
northern and southern sides and 5.4 metres on the eastern and western
sides. Though the appellants / plaintiffs had purchased 2½ cents under
Exs.A1 and A2, the physical extent available in Survey Nos.788/1 and
788/2 was found to be only approximately 1¼ cents as per the resurvey
measurements. Alleging that the respondent / defendant had encroached
upon the remaining portion and put up a construction thereon, they
instituted the suit seeking declaration of title, recovery of possession,
mandatory injunction and permanent injunction.
8. Per contra, the respondent / defendant contended that the
appellants / plaintiffs were entitled to only a lesser extent as per the
resurvey records and that the remaining extent might have been lost due
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to the formation of roads on the western and northern sides of their
property. He further claimed that the disputed portion formed part of his
property.
9. During the trial, an Advocate Commissioner was appointed to
inspect and measure the property. The Commissioner, with the assistance
of a licensed surveyor, inspected the property on 27.06.2009 in the
presence of both parties and measured the properties on the basis of the
respective title deeds as well as the resurvey plan.
10. As per the title deeds, the Commissioner identified the
plaintiffs' property as AIJD, measuring an extent of 2.453 cents, and the
defendant's property as IGHJ, measuring an extent of 2.500 cents.
11. As per the re-survey plan, the combined extent available in
Survey Nos.788/1 and 788/2 was only 1.265 cents, whereas Survey
No.788/3 was found to contain 3.696 cents. The Commissioner has
further stated that the plaintiffs' old tiled-roof building was situated in the
portion marked as AEFD and the defendant's newly constructed concrete
building was situated in the portion marked as EGHF. The disputed
portion was specifically identified as EIJF in the Commissioner's plan.
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12. The aforesaid measurements assume considerable significance.
There is a deficiency of 1.188 cents in the plaintiffs' survey fields when
compared with the extent of 2.453 cents identified under their title deeds.
Similarly, there is an excess of 1.196 cents in Survey No.788/3 when
compared with the defendant's entitlement of 2.500 cents identified by
the Commissioner. The corresponding deficiency and excess in the
adjoining survey fields lend considerable support to the case of the
appellants / plaintiffs regarding the alleged encroachment.
13. The Field Measurement Book sketch is relevant for identifying
the survey boundaries and measurements. However, it cannot, by itself,
confer title or enlarge the extent of ownership beyond that conveyed
under the registered documents. The respondent / defendant cannot claim
the excess extent found in Survey No.788/3 merely on the basis of the
resurvey measurements without establishing his title to the same.
14. Further, though the respondent/defendant relied upon the
resurvey records, he has not produced the correlation report relied upon
by him to establish the identity and correlation of the old and new survey
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numbers. Nor has he examined any competent revenue official to explain
the basis of the resurvey measurements. Though such non-production and
non-examination may not, by themselves, be fatal in every case, they
assume significance in the present case, particularly when the appellants /
plaintiffs have established their claim under registered title deeds and the
Commissioner's report discloses a corresponding deficiency and excess in
the adjoining survey fields.
15. With regard to Exs.A1 and A2, the applicability of Section 90
of the Indian Evidence Act, 1872, depends upon the documents having
completed 30 years at the time of their production and being produced
from proper custody. Subject to satisfaction of these requirements, the
Court may draw the statutory presumption regarding their execution and
attestation. The documents have also to be considered along with Ex.A3
settlement deed and the other evidence on record.
16. The appellants / plaintiffs have also produced patta and kist
receipts in support of their claim. Though revenue records do not
independently confer title, they are relevant corroborative evidence
regarding possession and enjoyment. The first appellate Court ought to
have considered these documents along with the registered title deeds and
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the Commissioner's report.
17. The contention of the respondent / defendant that the appellants
/ plaintiffs had lost the remaining extent due to the formation of roads on
the western and northern sides is also unsupported by convincing
evidence. The Commissioner inspected the property and measured the
same with reference to the available survey boundaries. Therefore, the
respondent / defendant's contention cannot be accepted merely on the
basis of an assumption.
18. It is true that the Commissioner has not separately measured the
defendant's property in Survey No.788/10. Nevertheless, the
measurements recorded in respect of Survey No.788/3, read along with
the title deeds and the Commissioner's plan, provide relevant material for
determining the disputed boundary. The omission to measure Survey
No.788/10 does not, by itself, invalidate the entire Commissioner's report.
19. The Commissioner has specifically identified the buildings and
the disputed portion as EIJF in the plan. These physical features,
considered along with the registered title deeds, revenue records and the
corresponding deficiency and excess in the adjoining survey fields,
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support the appellants / plaintiffs' case. The respondent / defendant has
failed to establish any independent title or lawful entitlement to the
disputed portion merely by relying upon the resurvey measurements or
the existence of his construction.
20. The first appellate Court, while reversing the judgment of the
trial Court, failed to properly appreciate the documentary evidence and
the material particulars contained in the Advocate Commissioner's report
and plan. In view of the foregoing discussion, this Court finds that the
appellants/plaintiffs have established their title under Exs.A1 to A3 and
their entitlement to the reliefs claimed in the suit. The findings of the first
appellate Court are therefore liable to be set aside.
21. In the result, the Second Appeal is allowed. The judgment and
decree passed by the first appellate Court are set aside and the judgment
and decree passed by the trial Court are restored. There shall be no order
as to costs. Consequently, the connected Miscellaneous Petition is closed.
03-11-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
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T. RAJAPRABA
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To
1. The Principal Subordinate Court, Nagercoil.
2. The Principal District Munsif Court, Nagercoil, Kanniyakumari
District.
3. The Section Officer,
VR Section,
Madurai Bench of Madras High Court
Madurai.
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THIRUMAGAL CHANDRASEKAR, J.
T. RAJAPRABA
SA(MD) No. 25 of 2014
and MP(MD).No.1 of 2014
03-11-2026
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