R VADIVELU Vs. KAMALANATHAN ALIAS CHINNAPAIYAN

JUDGEMENT

(1.) THE plaintiff is the appellant. It would be convenient to narrate the facts with reference to the Commissioners plan filed in this case. PQRS is the house belonging to the plaintiff. ADJK is the house of the defendant. THE plaintiff already owns 3 feet west of the western wail PS. He claimed title to the property ABCD by virtue of a purchase under Ex. A-1 in his favour by one Ammani Ammal. THE east-west extent given in Ex. A-1 and the prior document to Ex. A- 1 , is nine yards. What is now claimed is 31 7". THE dispute between the parties arose when the foundation was laid in the portion marked as TV. (This is the mark given by the Appellate judge and is not given by the Commissioner ). THE Trial Court found that the plaintiff has got title to the space TBCV and marked to the west of it. THE defendant claimed 5 feet east of eastern wall AD. THE decree of the trial Court is unintelligible. What the trial Court purported to decree was the declaration of title for the portion TBCD which extends upto the foundation laid by the plaintiff and not beyond it. THE defendant, who was aggrieved, filed an appeal against the judgment and decree of the trial Court. But the learned District Judge was of the view that the plaintiff has absolute title to the entire space shown as ABCD in the Commissioners plan, but as the plaintiff has not chosen to file any cross-appeal in respect of this portion, he dismissed the appeal confirming the judgment and decree of the trial Court. But strangely, the plaintiff has filed this second appeal and It has been admitted by a learned Judge of this Court who formulated the following points for consideration: 1. Whether the lower Appellate Court is right in holding that in spite of title being found in favour of the plaintiff for the entire area comprised in ABCD as shown in the Commissioners plan, the plaintiff will not be entitled to a declaration of his right for the whole of the area extending upto the eastern wall of the defendant,

(2.) WHETHER the lower Appellate Court is right in taking the view that the decree passed by the trial Court cannot he corrected so as to be in conformity with the judgment, on account of the plaintiff not having filed a cross appeal or memorandum of cross objections,