THIMMAPPA GOUNDER Vs. KARNAN

JUDGEMENT

(1.) THE Appellant/Plaintiff has projected this instant Second Appeal as against the judgment and decree dated 25.01.2002 in A.S.No.2007 of 2001 passed by the learned Principal District Judge, Coimbatore in confirming the Judgment and decree dated 10.09.2001 in O.S.No.90 of 1999 passed by the learned District Munsif, Mettupalayam.

(2.) THE First Appellate Court viz., Learned Principal District Judge, Coimbatore while passing the judgment in A.S.No.207 of 2001 on 25.01.2002 has inter alia observed that ......?In this case, as seen from the evidence the suit properties and adjacent properties remain fallow and there was no actual cultivation. THErefore, possession should follow title more or less. THE defendant has proved that he is entitled to 1.20 acres on the southern side of Plaintiff's properties i.e., Item-1, which alone is available with him, whether he sold to third party or not. Thus the oral evidence of PW2 also fails to advance the case of title, as well as possession. THE Commissioner who is examined as PW3 has spoken, really in favour of the defendant, seeing the reality and there is nothing wrong etc.,? and further opined that as per the measurement also, the Appellant/Plaintiff is having the extent which he is entitled, whereas the defendant is not having the extent, which his father had purchased and the extent will come correctly if the disputed portion is included. THE iron fence also was of the recent origin, could be seen from the Commissioner's report which is not denied. THErefore, the Respondent/Defendant and his father was enjoying the property as per the extent available, as per Ex.B2 and at present, the Respondent/Defendant is having only the remaining extent, excluding the portions sold as per the measurement, over which the Plaintiff cannot claim any right and resultantly dismissed the appeal with costs.

(3.) AT the time of admission of the Second Appeal, this Court has formulated the following substantial questions of law for consideration:- ?When the written statement was filed after the report of the Commissioner appointed in the suit at the instance of the Respondent/Defendant and the Courts below mainly relied on these reports and plans and as such evidence has been let in (Report and plan) without reference to the pleadings, whether the Courts below are correct in negativing the claim of the Plaintiff on the basis of the said report and plan." The Contentions, Discussions and Findings on Substantial Question of Law:-