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CASE NO.: Appeal (civil) 658  of  2001 Special Leave Petition (civil)  3978     of  2000

PETITIONER: AYYAPPALLY MOHAMMED HAJI & ORS.

       Vs.

RESPONDENT: M.  M.ABDULSALAM & ORS.

DATE OF JUDGMENT:       17/01/2001

BENCH: S.R.Babu, S.N.Variava

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J       J U D G M E N T S.  N.  VARIAVA, J.

     Leave granted.  Heard parties.  This Appeal is against a Judgment dated 5th August, 1998 by which the Second Appeal filed  by the Respondents has been allowed.  Briefly  stated the  facts are as follows:  One Sainabi was the owner of the entire property in respect of which the present suit arises. She  sold a portion of the property to the Respondents by  a registered  Sale  Deed dated 16th April, 1968.  For sake  of convenience  these  properties are referred to as "Plaint  A Schedule   property.   Sainabi  thereafter   sold   to   the Appellants  the  remaining  portion  of the  property  by  a registered  Sale  Deed dated 27th March, 1971.  For sake  of convenience,   these  are  known  as  "Plaint   B   Schedule property".   The Appellants raised construction on "Plaint B Schedule  property".   According  to  the  Respondents  this construction  encroached into "Plaint A Schedule  property". The Respondents thus filed a Suit for a perpetual injunction restraining  the Appellants from encroaching into "Plaint  A Schedule  property" and for removal of the construction  put up  by them to the extent that it encroached into "Plaint  A Schedule  property".   The Appellants denied that  they  had encroached  upon  "Plaint  A Schedule  property".   At  this stage,  it  must be mentioned that in the Plaint, as it  was originally filed, there was no reference to a Plan which had been  attached to the Sale Deed dated 16th April, 1968.   In the Plaint the properties were described by referring to the Schedule to the Sale Deed dated 16th April, 1968.  The Trial Court,  going by the description of the properties given  in the Plaint and on the basis of a report of the Commissioner, dismissed  the suit holding that there was no trespass.  The Respondents  then  filed Appeal No.  179 of 1983.   In  this Appeal  the Respondents applied for amendment of the  plaint to  incorporate  measurements shown in the Plan attached  to the  Sale Deed dated 16th April, 1968.  The Appellate  Court allowed  the Application for amendment and remanded the Suit back  for  trial afresh.  The Appellants filed  Civil  Misc. Appeal  No.   215 of 1984 challenging the Order  of  remand. They  also challenged the Order allowing the Application for

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amendment.   The  Appellate  Court held that  the  amendment should  not have been allowed as a new case was sought to be made  out.  The Appellate Court disallowed the amendment and dismissed the Suit.  Aggrieved by this Order the Respondents filed  C.   A.  No.  2655 of 1986 before this  Court.   This Appeal  was allowed by this Court.  It was, inter alia, held as  follows:  "After hearing learned counsel for the parties we  are  satisfied  that the High Court having come  to  the conclusion  that  the learned Subordinate Judge  should  not have allowed the amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure, the proper course for the High Court to have adopted was to set aside the judgment and order  passed by the learned Subordinate Judge remanding the suit  for re-trial.  The High Court was clearly in error  in dismissing the plaintiffs suit.  It should have remitted the appeal  to the learned Subordinate Judge for hearing  afresh on  merits  on the basis of the pleadings of the parties  as they exist.  (Emphasis supplied)

     The  result  therefore is that the appeal is  allowed. The  judgment  and  order of the High Court  dismissing  the plaintiff’s  suit is set aside and the appeal is remanded to the  court  of  Subordinate  Judge for  decision  afresh  on merits."

     Thus,  it  is  to be seen that the  Order  disallowing amendment  was  upheld.  This Court remanded the case to  be heard  afresh  on  merits on the basis of pleadings  of  the parties  as  they  existed.  These observations  are  in  an Appeal filed by the Respondents against an order disallowing amendment  of  the  Plaint.  To be remembered that  by  this amendment   Respondent   had  sought  to   rely   upon   the measurements  in  the plan.  The observations of this  Court therefore  clearly mean that these measurements could not be looked into.  The Appeal was then taken up for hearing.  The Appellate  Court held that there was encroachment in respect of  portions  shaded Red in a Plan which was marked as  Ext. C-5.    The  Appellants  were   directed  to  remove   those encroachments.   It was held that there was no  encroachment on  the other portions.  As regards other portions the  Suit was dismissed.  The Respondents then filed Second Appeal No. 59  of  1990.  The Appellants filed cross objections in  the second  Appeal.  Both have been disposed off by the impugned Order  dated 5th August, 1998.  By this Order the  Appellate Court’s Order upholds that portion of the Order of the lower Appellate  Court  which holds that there is encroachment  in the  portion  shaded  Red  in   the  Plan  Ext.   C-5.   The directions regarding removal of those encroachments are also upheld.  It has further been held that there is encroachment in  respect  of  the  other   portions  as  claimed  by  the Respondents.  However, instead of directing removal of those encroachments   the  Respondents  have   been  awarded   Rs. 10,000/-   towards   compensation  in   respect   of   those intrusions.   In  coming to these conclusions,  the  learned Judge  has  held  that  even though the  amendment  was  not allowed  the  Court could still look at the Plan annexed  to the  Sale Deed dated 16th April, 1968, as the Plan formed an integral part of the Sale Deed.  Mr.  Krishnamurthy assailed the  Judgment on the ground that once the amendment was  not allowed the Plan could not be looked at.  He further pointed out  the Commissioner’s report and portions of the  impugned Judgment  to  show that if the Plan was not looked at,  then there  was  no encroachment at all.  On the other hand,  Mr. Balakrishnan  has  supported the Judgment.  He submits  that the  Plan  is an integral part of the Sale Deed  dated  16th

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April,  1968  and  thus  could be looked  into  even  though amendment  was refused.  He further submits that even if one does  not look at the Plan and proceeds only on the basis of the  description of the property as given in the Plaint,  it is  established that there was encroachment in the  portions shaded Red in the Plan Ext.  C-5.  He submitted that this is a finding of fact which has been confirmed in Second Appeal. He  submits  that  there is no error in this  finding.   Mr. Balakrishnan points out, as regards the other portions, that the  Courts  have found that the only encroachment was  that some  sun-shades and certain drain pipes have been put on  a wall  belonging  to the Appellants and that these abut  into Respondents’  property.   He  submitted   that  instead   of directing removal of the sun-shades and drain pipes a sum of Rs.   10,000/-  has  been given  towards  compensation.   He submitted  that, therefore, there is no error in  sustained. the  impugned  Judgment and the same should be We have  read the  pleadings.   We  have   looked  at  the  Commissioner’s Reports.  We have also seen the descriptions of the property as given in the two Sale Deeds and the schedules to the Sale Deeds.   In  our  view, the learned Judge was not  right  in holding  that  even  though  the  amendments  had  not  been permitted  the  Plan  annexed to the Sale  Deed  dated  16th April,  1968 could be looked at.  In so holding the  learned Judge  has ignored the directions of this Court, wherein  it was categorically directed that the matter is to be heard on the  basis of the pleadings of the parties as they  existed. On  the pleadings as they existed, there was no reference to the  Plan.   Of course, there is reference to the Sale  Deed dated  16th April, 1968.  However in this Sale Deed there is discrepancy between the description of the property as given in  the Schedule to the Sale Deed and the description  given in  the  Plan annexed to the Sale Deed.  In the  Plaint  the Respondents/Plaintiffs   had  chosen  to   rely   upon   the description  as given in the Schedule to the Sale Deed dated 16th   April,   1968.    Once   the   Respondents/Plaintiffs themselves  chose  not to rely upon the measurements as  set out in the Plan annexed to that Sale Deed, and their attempt to  belatedly  rely on the same was disallowed, it  was  not open  to them to thereafter rely on those measurements.   To allow  them  to  do  so would be  to  ignore  the  categoric direction  of this Court that the hearing was to be on basis of the pleadings as they existed.  It must also be mentioned that  if one goes by the description given in the  Schedules to  the two Sale Deeds, then there is no discrepancy in  the two  Sale Deeds.  However, if one takes the measurements  in the  Plan  annexed to the Sale Deed dated 16th April,  1968, then  there  would be discrepancy in the description of  the properties  as  sold to the Respondents and the  Appellants. For  this  reason  also the measurements given in  the  Plan could not be looked at.

     If  the measurements given in the Plan are not  looked then  one  has  to proceed on the basis of  the  description given  in  the Schedule to the Sale Deed dated  16th  April, 1968.   Having  seen the same we are in full agreement  with the  finding  of  the lower Appellate Court  that  there  is encroachment  in respect of the portion marked in Red in the Plan  Ext.   C-5.  The lower Appellate Court has given  very cogent  and  correct reasons for coming to this  conclusion. We  are in full agreement with those reasons.  On the  basis of the description as given in the Schedule to the Sale Deed dated  16th  April,  1968, there is no encroachment  in  any other  portion  of  "Plaint A Schedule property".   To  that

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extent the findings in the impugned Judgement, arrived at by relying  upon  the  Plan annexed to the Sale  Deed  are  not correct.   As  there  is no encroachment in respect  of  the other   portions   there  was  no   question   of   awarding compensation of Rs.  10,000/- to the Respondents.  Therefore the portion of the impugned Judgment wherein it is held that there  is  encroachment  on  other  portions  and  by  which compensation  is  awarded requires to be and is  set  aside. However  the  portion  upholding  the Decree  of  the  lower Appellate  Court is maintained.  Accordingly, the Appeal  is partly  allowed  to the extent set out  hereinabove.   There will be no Order as to costs.