http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: SOUNDARARAJ

       Vs.

RESPONDENT: DEVASAHAYAM & ORS

DATE OF JUDGMENT24/10/1983

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) SEN, A.P. (J)

CITATION:  1984 AIR  133            1984 SCR  (1) 497  1983 SCALE  (2)846

ACT:      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.

HEADNOTE:      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 law. 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

    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]

JUDGMENT:      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 water falls  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

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 toto. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

    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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

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 in tact 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. 503