T. Raju (Deceased) and Others vs S. Kesavan

P.R. Shivakumar, J.—The present second appeal was originally filed by the deceased first appellant who was the sole plaintiff in the suit in

O.S. No. 4404 of 2000 on the file of the trial court. After filing of the second appeal, the first appellant T. Raju died and his LRs have been

impleaded and they have come on record as appellants 2 to 5. The deceased first appellant T. Raju filed the original suit in O.S. No. 4404 of 2000

on the file of the trial Court for recovery of possession of 51 sq. ft. of land described as suit property, which has been shown as G.H.J.K. in the

rough sketch attached to the plaint plan. According to the plaint averment, a total extent of 1207.50 sq. ft. of land belongs to the father of the

respondent and out of the same, he sold 603.75 sq. ft. forming the Northern portion of the suit property to one Karvannan. The said Karvannan in

turn sold the property to the deceased first appellant/plaintiff under a registered sale deed dated 08.02.1996, for a sale consideration of Rs.

1,75,000/- and thus, the plaintiff became the owner of the suit property. After the said purchase, the plaintiff was in possession and enjoyment of

the same. After the purchase, since the deceased first appellant/plaintiff kept it as a vacant site, the defendant who resides in the Southern portion,

encroached upon a portion of the property purchased by the plaintiff and the said encroached portion is shown as G.H.J.K. in the plaint plan,

measuring North-South 3 ft and East-West 17 feet. The deceased first appellant/plaintiff prayed for recovery of possession of the above said land

measuring 51 sq. ft. from the respondent/defendant.

The suit was resisted by the respondent/defendant denying the averment that the respondent/defendant had encroached upon a portion of the

property purchased by the deceased first appellant/plaintiff. The respondent/defendant had contended that the deceased first appellant/plaintiff

purchased a vacant site with North-South measurement of 31.6 ft and East-West measurement of 18 ft which lies on the north of the defendant''s

property and that no portion of the property purchased by the plaintiff was encroached upon as claimed by the plaintiff.

The suit was tried by the trial Court, in which the plaintiff figured as sole witness on his side. He has produced the sale deed dated 29.03.1990

executed by the father of the respondent/defendant in favour of Karvannan and the sale deed dated 08.02.1996 executed by the said Karvannan

in favour of the plaintiff as Exs. A1 and A2. On the side of the respondent/defendant no witness was examined and no document was produced.

An Advocate Commissioner was appointed by the trial Court, whose report and plan were marked as Exs. C1 and C2.

Though the defendant filed a written statement denying the plaint allegation of encroachment upon a portion of the property of the plaintiff, the

defendant has not chosen to file any objection to the Commissioner''s report in which the Commissioner had found that the defendant had

encroached upon the plaintiff''s property to an extent of 42.9 feet. In addition to the commissioner''s report and plan, there is the oral evidence of

PW1, asserting the plaint averments that a portion of property purchased by the plaintiff was encroached upon by the defendant.

The learned trial Judge after holding that the plaintiff had purchased 603.75 sq. ft out of 1207.50 sq. ft. and thus was entitled to 603.75 sq. ft

whereas the defendant was entitled to the balance extent, has simply brushed aside the evidence adduced on the side of the plaintiff and also the

findings recorded by the Advocate Commissioner to the effect that a portion of the plaintiff''s property had been encroached upon by the

defendant. Finding that there is difference in the extent of the alleged encroached portion between the plaint and the Commissioner''s report, which

shows a slight margin of 8-1/2 sq. ft., the Learned trial Judge has chosen to dismiss the suit, holding that the plaintiff had not proved his case that

52 sq. ft. of land belonging to him had been encroached upon by the defendant. The Learned trial Judge has chosen to make an observation that

even after the report of the Advocate Commissioner was filed, the plaintiff failed to amend the plaint regarding the extent of encroached portion

and on that basis also, non suited the plaintiff for the relief sought for.

In the first appeal also, the learned First Appellate Judge took the same view and dismissed the appeal confirming the judgment and decree of

the trial Court. As against the dismissal of the suit in entirety and as against the said judgment and decree of the Appellate Court confirming the

dismissal of the suit, the present second appeal has been filed.

This second appeal has been admitted, accepting the contention of the appellant that the following substantial questions of law have arisen for

determination in the second appeal.

a. Whether the Courts below are right in holding that the plaintiff has not proved his case that the defendant has encroached his property?

b. Whether the Lower Appellate Court erred in law in not appreciating the report of the Commissioner and decreeing the suit at least to the extent

of 42.7 sq. ft.?

c. Whether the Lower Appellate Court erred in holding that the decision reported in AIR 1986 Orissa page 281 is not applicable to the present

case and refusing to grant the relief accordingly?

Though the respondent was served with notice, he has not taken care to enter appearance either in person or through a counsel to contest the

appeal. The arguments advanced by Mr. R. Thamodaran learned counsel for the appellants were heard.

The learned counsel for the appellants submitted that though the plaintiff''s plea that a total extent of 51 sq. ft. with the measurement of 3 ft

North-South and 17 ft East-West had been encroached upon by the defendant was held to be not fully substantiated by the commissioner''s report

and plan, which shows that a lesser extent, namely 42-1/2 sq. ft alone had been encroached upon by the defendant, the Courts below ought to

have held the plaintiff entitled to the relief in respect of the said lesser extent and that the Court below ought not to have dismissed the suit in

entirety. This Court, upon perusing the records, comes to the conclusion that the above said contention made by the learned counsel for the

appellants is plausible and cannot be rejected as untenable.

It is an established Principle of law which has also been repeatedly reiterated, that when a larger relief has been sought for by a party to the suit

or the relief is sought in respect of a larger property and the court finds him to be entitled to such a relief to a lesser extent or to a lesser relief, then

the court could mould the relief and grant a lesser relief or the relief in respect of the lesser portion provided the portion in respect of which the

relief is granted shall be precisely ascertainable. Framing of question No. ''c'' as substantial question of law seems to have been made based on the

contention of the appellant that the lower appellate court''s refusal to grant the relief sought for by the plaintiff was not in consonance with the ratio

decided in the case reported in Managobinda and Others Vs. Brajabandhu Misra, and it was against the principle laid down therein. In

Managobinda and Others Vs. Brajabandhu Misra, , it has been held that the power of the court to grant a relief larger than what has been claimed

is circumscribed by Order VII Rule 7 CPC and the said restriction will not apply to the grant of a lesser relief than the one sought for by the

plaintiff. The following are the observations made in the said judgment:-

Where the plaintiff has come with a claim of larger relief but is found entitled to a lesser one, in appropriate case the suit need not be dismissed and

such lesser relief may be granted to him if it is found to be just and proper and further such reliefs are not wholly inconsistent with the original claim

nor takes the defendant by surprise so as to deprive him of the opportunity to lead any evidence to the contrary.

In this case, as per the plaint averments and the evidence of PW1 and also as per the Commissioner''s report and plan, the East-West

measurement of the encroached portion, which lies on the North of the defendant''s house, measures 17 ft. The plaintiff has come forward with the

prayer for recovery of 51 sq. ft. on the premise that the North-South measurement of the encroached portion is 3 ft. The East-West measurement

of the encroached portion is claimed to be 17 ft, which corresponds to the finding of the Advocate Commissioner. As such, there cannot be any

doubt regarding the fact that the defendant has encroached upon a portion which lies on the north of his house. The same is the northern part of the

plaintiff''s property and such encroached portion measures 17 ft on the East-West. So far as the North-South measurement of the encroached

portion is concerned, the plaintiff has stated it to be 3 ft, whereas the learned Advocate commissioner has not given the north-south measurement,

but he has furnished the extent of the encroached portion and east west measurement. With the said particulars found in the Commissioner''s

report, the north south measurement of the encroached portion can be easily worked out. If the area is divided by the east-west measurement, the

North-South measurement will be 2-1/2 ft. Therefore, the encroached portion is clearly ascertainable. When such is the case, the courts below are

not justified in totally rejecting the claim of the plaintiff and dismissing the suit in toto. The Court below ought to have held that the deceased first

appellant/plaintiff is entitled to recovery of 42-1/2 ft of land whose measurements shall be east-west 17 ft and north south 2-1/2 ft. Since the court

below have not chosen to do so, this Court does not have any hesitation in coming to the conclusion that all the questions are to be answered in

favour of the appellants, with the result that the judgments and decrees of the courts below are liable to be interfered with. Accordingly, the second

appeal is allowed. The decree passed by the trial Court, which was confirmed by the appellate court dismissing the suit in its entirety is set aside.

The suit is decreed in part, granting the relief of recovery of possession of 42-1/2 ft with the measurement of 17 ft east-west and 2-1/2 north-south

alone. Considering the fact that the defendant/respondent has not chosen to enter appearance to contest the second appeal before this Court and

also considering the peculiar facts and circumstances of this case, this Court deems it proper to direct the parties to bear their respective costs

throughout. Consequently, connected miscellaneous petition is dismissed.