Madras HC Restores Decree Letting Daughter Recover 46.64 Sq M From Neighbour, Citing Matching Shortfall And Excess In Survey Fields

The plaintiffs claimed title to 2½ cents in Survey Nos. 788/1 and 788/2 under registered sale deeds, with the first plaintiff later settling the property on the second plaintiff.

They alleged that the defendant, whose adjoining property lay to the east, encroached on 46.64 square metres and sought declaration, recovery of possession, mandatory injunction and permanent injunction.

The trial court decreed the suit, but the first appellate court reversed that decree.

In the second appeal, the High Court considered the Commissioner’s measurements, which showed a deficiency in the plaintiffs’ survey fields and a corresponding excess in the defendant’s Survey No. 788/3.

Under Section 100 of the Code of Civil Procedure, a second appeal concerns substantial questions of law.

Section 90 of the Indian Evidence Act, 1872 permits a court, where the statutory conditions are satisfied—including that a document is at least 30 years old and comes from proper custody—to presume its execution and attestation.

A Field Measurement Book or resurvey record may assist in identifying boundaries and measurements, but does not itself confer title or enlarge the ownership conveyed by registered documents.

Revenue records do not independently establish title, though they may corroborate possession and enjoyment.

The Commissioner’s plan and measurements showed that the plaintiffs’ survey fields contained 1.265 cents against 2.453 cents identified under their title deeds, while Survey No. 788/3 contained 3.696 cents against the defendant’s deed-based extent of 2.500 cents; the corresponding shortfall and excess supported the plaintiffs’ encroachment claim.

The defendant’s reliance on resurvey measurements could not establish title to the excess, and he produced neither the correlation report nor evidence from a competent revenue official explaining the resurvey.

The court also treated the patta and kist receipts as corroborative evidence and found no convincing proof that the plaintiffs’ missing extent had been lost to road formation.

Considered together with the registered deeds and the Commissioner’s identification of the disputed area, the evidence established the plaintiffs’ claim; the first appellate court had failed to assess that material properly.

It allowed the second appeal, set aside the first appellate court’s judgment and decree, and restored the trial court’s decree; there was no order as to costs, and the connected miscellaneous petition was closed.