C VEDACHALAM Vs. B ARUNTHATHI AMMAL

JUDGEMENT

(1.) THIS Second appeal is focussed by the original defendant animadverting upon the judgment and decree dated 03.01.2006 passed in A.S.No.61 of 2005 by the Principal Subordinate Judge, Chengleput, reversing the judgment and decree of the District Munsif-cum-Judicial Magistrate, Thirukalukundram dated 01.04.2005 in O.S.No.101 of 1998.

(2.) THE parties are referred to hereunder according to their litigative status and ranking before the trial Court.

(3.) THE trial Court dismissed the suit on the main ground that the plaintiff did not prove her title to the alleged encroached portion and that the plot was not measured as per the documents of the rival parties. THEre is no knowing of the fact as to how the trial Court could simply give such a finding and express its helplessness. THE trial Court is the Court which is duty bound to arrive at the truth, and if for any reason, the trial Court might find fault with the Advocate Commissioner that he has not executed the warrant properly, then the Court itself should set aside the Commissioner's report and sketch and mandate him to revisit the property and furnish a proper report after measuring it with reference to the documents of both sides. THE method and manner in which the trial Court expressed its helplessness is something unknown to law. In paragraph 6 of the judgment, the trial Court would find fault with the surveyor in not measuring the property with reference to the documents. If really that be so, the trial Court should have given further directions in that regard and got accurate measurements. One significant fact should not be lost sight of. Both sides have not filed any objection to the Commissioner's report. In such a case, there is no knowing of the fact as to how the defendant was allowed to raise objections during trial relating to the measurement effected by the Advocate Commissioner with the help of the surveyor. THE first appellate Court in its judgment would render a finding that the Commissioner submitted his report with the sketch after duly measuring the same. According to him, Ex.C3-the Surveyor's plan reflects the correct measurement and also the encroachment made by the defendant. THE first appellate Court which is the last Court of facts, after analysing the available evidence, both oral and documentary, including the Commissioner's report sketches Exs.C1 to C3 held, that the Commissioner's finding was reliable. Precisely the contention of the defendant was to the effect that the total extent of the property from east to west available with the common vendor was 32 feet and after selling an extent of 16 feet from north to south on the southern side in the said plot area to the defendant, the vendor could not have sold 17 feet from north to south in favour of the plaintiff. As such, there was excess of one foot found mentioned in the document of the defendant.