Soundararaj Vs. Devasahayam & Ors
 INSC 161 (24 October 1983)
VARADARAJAN, A. (J) VARADARAJAN, A. (J) SEN,
CITATION: 1984 AIR 133 1984 SCR (1) 497 1983
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.
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
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.
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]
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 waterfalls 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
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 to. 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 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 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 intact 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.