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K.Subramaniam v. P.Karuppananadar - Second Appeal No.414 of 1997  RD-TN 612 (20 February 2007)
In the High Court of Judicature at Madras
The Honourable Mr.Justice A.C.ARUMUGAPERUMAL ADITYAN Second Appeal No.414 of 1997
2. K.Ramasamy ..Appellants Vs
4. Ramasamy Gounder
5. S.Palanisamy ..Respondents This second appeal is filed against the judgment and decree dated 29.10.1996 made in A.S.No.16 of 1996 on the file of the Court of Additional Subordinate Judge,Erode confirming the decree and Judgment in O.S.No.704 of 1990 on the file of the Court of the first Additional District Munsif, Erode, dated 3.8.1995. For Appellants : Mr.M.M.Sundaresh For Respondents : Mr.A.K.Kumarasamy JUDGMENT
This appeal has been preferred against the Judgment and decree in A.S.No.16 of 1996 on the file of the Court of Additional Subordinate Judge, Erode. The plaintiffs who have lost their case before the Courts below are the appellants herein. The suit is for mere injunction in respect of the eastern fence in R.S.No.245/5 which is shown as "BC" in the plaint plan(EX C2).
2. The averments in the plaint in brief sans irrelevant particulars are as follows: The suit property originally belonged to the plaintiffs and their brother Kolandasamy. The total extent of the plaint suit survey No. 158 in Kulavillakku Village of Erode Taluk is 4.05 acres. The plaintiffs and their brother Kolandasamy were entitled to undivided
4. On the above pleadings, the trial Court has framed five issues for trial. On the side of the plaintiffs, 2nd plaintiff has examined himself as P.W.1 and exhibited Exs P1 and P2 on their side. 5th defendant has examined himself as D.W.1 and no documents were marked on the side of the defendants. A Commissioner was appointed and he has filed his report EX C1 and plan Ex C2.
5. On the basis of the evidence both oral and documentary available before the trial Court, the learned trial Judge has come to a conclusion that the plaintiffs are not entitled to any relief asked for in the plaint and consequently dismissed the suit without costs. Aggrieved by the findings of the learned trial judge, the plaintiffs have preferred an appeal in A.S.No.16 of 1996 on the file of the Court of Additional Subordinate Judge, Erode and the learned first appellate Judge has also dismissed the appeal thereby confirming the decree and judgment of the learned trial Judge. Hence, against the concurrent findings of the Courts below, the plaintiffs have been before this Court by way of second appeal.
6. The substantial question of law involved in this appeal is " Have not the Courts below erred in holding there should have been the appointment of the Commissioner to fix the boundaries between the lands of the respective parties , especially when there is no necessity to do so?"
7. The Point: The learned first appellate Judge has dismissed the appeal preferred by the plaintiffs only on the ground that the plaintiffs have failed to produce any document to show that "BC" fence situate on the east of the plaintiffs' survey No.245 belongs to the plaintiffs. Before the trial Court, the plaintiffs have produced Ex P1 document to show that they have mortgaged the plaint survey number property on 2.1.1976 in favour of one Ramasamy Gounder , S/o of Rasiyappa Gounder. But on a perusal of Ex A1 will go to show that there is no mention about the"BC" fence in the said document. 7a) P.W.1 in his evidence in the cross examination has also admitted that only to show the suit fence belongs to the plaintiffs,he has produced Ex P1 mortgage deed. But at the same time, he would admit that in Ex P1, there is no mention about the "BC fence. A Commissioner was appointed to note down the physical features of the suit property. The Commissioner has filed Ex C1 report and Ex C2 plan. 7b) The learned counsel appearing for the appellants relying on Ex C1 Commissioner's report would contend that "BC" fence on the east of the plaint schedule property belongs to the plaintiffs. At the outset, we cannot give much importance to Ex C1 Commissioner's report because only under misconception that the suit property is a cart track, the learned Commissioner has proceeded with his work and filed the report. But actually, the suit property is a fence marked as "BC" in the rough sketch(Ex C2) on the eastern side of suit survey number 245/5. At paragraph 4 of his report Ex C1, the Commissioner has observed that there is a fence dividing the plaintiffs and defendants property which has been marked as "m M** and that there are old aged trees along the fence" mM** to Ex C2. From the above said observation, we cannot come to a conclusion that the fence marked " mM** in Ex C2 belongs to the plaintiffs as rightly observed by the Courts below. 7c) In support of his contention, the plaintiffs have examined one Somasundaram as P.W.2 who would depose to the fact that " mM** fence is between the lands of the plaintiffs and the defendants on the eastern side and would also depose that the suit is in respect of cart track and the fence, which is not even the case of the plaintiffs. He would admit that there is another suit pending in respect of cart track which leads from Minnapalayam road to the plaintiffs suit survey number property on the south of the suit property. P.W.2 in a way of improving the case of the plaintiffs would depose that he saw when the defendants cutting neem tree of the plaintiffs which was standing on the fence" mM**. But there was absolutely no pleadings in the plaint that a neem tree on the fence"BC" was cut by the defendants in the presence of P.W.2. 7d) The 5th defendant was examined as D.W.1 who would depose that without giving any notice to the defendants, the Commissioner has visited the property and filed Ex C1 report and Ex C2 plan. But in his evidence that after taking steps to set aside the Commissioner's report and plan, the defendants have filed the application and the same was dismissed by the trial Court. According to D.W1, the suit fence" " mM** as shown in Ex C2 is in survey No. 246 and not in survey No. 245. The plaintiffs have not filed any document before the trial Court to show that the disputed fence"BC" comes within the suit survey Number property and even before the trial Court they have not filed any survey plan to show that the disputed fence"BC" (as per rough sketch) comes within the suit survey number property. In the plaint, the plaintiffs would urge that there was an attempt made by the defendants on 20.6.1990 to cut the "BC" fence but this is not even spoken to by P.W.1 in his evidence. P.W.2 says that one of the defendants had cut the neem tree but there is no averment in the plaint to that effect that the defendants have cut and removed a neem tree in the said fence. Under such circumstances, as rightly held by the Courts below, the plaintiffs have failed to prove that there was an attempt made by the defendants to trespass into the plaint schedule property by medelling with "BC"fence and that there was no need to grant an order of injunction in favour of the plaintiffs.
8. The learned counsel appearing for the appellants relying on a decision reported in S.Palanisamy Gounder-vs-N.Palanisamy and three others(2007(1) CTC 611) and contended that on the basis of the Commissioner's report, a decision cannot be arrived at by the Court. In the said dictum, it has been observed by the learned Judge of this Court that the trial Court has considered the oral and documentary evidence and has rendered a decision and that the appointment of an Advocate Commissioner by the trial Court is only to guide the Court in arriving at a proper conclusion and that the trial Court has not entirely relied on the Advocate Commissioner's report to arrive at a decision and even in that dictum, there was no order of remand to the trial Court to re-consider the Commissioner's report and plan. So the contention of the learned counsel appearing for the appellants that the matter may be remitted to the trial Court for fixing the "BC" fence cannot hold any water. The facts in the abovesaid dictum will not be applicable to the present facts of the case. So I do not find any reason to interfere with the well considered findings of the learned first appellate Judge .The point is answered accordingly.
9. In the result, the appeal is dismissed , confirming the decree and Judgment in A.S.No.16 of 1996 on the file of the Court of Additional Subordinate Judge, Erode, with costs. sg
1. The Additional Subordinate Judge,
2. The First Additional District Munsif, Erode.
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