TaxTMI 
TaxTMI 
2021 (8) TMI 1416
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....ent No. 3061 of 1967 from one Chinnasamy Naidu. Actually the said Chinnasamy Naidu was the owner of large extent of land admeasuring 2 acres 31 cents, comprised in Survey No. 98/1 situated at Peravallur, Chennai - 11. He layout the said property and the suit property purchased by the plaintiff is one among the property in the said layout. After demise of the said Chinnasamy Naidu, his manager one Sundaramoorthy, who had taken over the entire lands in the layout and prepared another layout for the very same property and resold the plots which were already sold by the said Chinnasamy Naidu but left unoccupied by the respective purchasers of the properties in various dimensions giving numbers such A21A etc. In the original layout approved by the Tahsildar, there was no such numbering and the row of plots on Loganathan Street, where the schedule property is situated consisted of 60 by 40 plots beginning from plot Nos. A.11 to A.20 and beyond A.20 one plot was left free for developing road and subsequently the same was changed and sold out. In fact, the plot No. A.18 purchased by the first defendant failed to protect the same and half of her plot which was sold out by the neighbour in p....
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....herein. Therefore, the third defendant is the absolute owner of the plot No. A.18 and prayed for dismissal of the suit. 6. On completion of pleadings of the both sides, the Trial Court framed the following issues:- "1. Whether the plaintiff is entitled for the decree to declare that the plaintiff is the owner in title of the property mentioned in the suit schedule of property? 2. Whether the plaintiff is entitled for the recovery of possession from the defendants 1 to 6? 3. Whether the plaintiff is entitled for the permanent injunction as prayed for? 4. To what relief the plaintiff is entitled for?" 7. On the side of the plaintiff, the power agent of the plaintiff was examined as P.W.1 and documents were marked as Ex. A.1 to Ex. A.7. On the side of the defendants, the third defendant was examined as D.W.1 and the documents were marked as Ex. B.1 to B.6. 8. On a perusal of the oral and documentary evidence, the Court below decreed the suit in favour of the plaintiff. Aggrieved by the same, the appellants/defendants 3 to 6 preferred this Appeal Suit. 9. The learned counsel for the first appellant/third defendant submitted that admittedl....
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....e suit property. When the counsel for the defendants 3 to 6 and along with surveyor, the Advocate Commissioner were present in the suit property, the plaintiff or is counsel did not present. After, verifying the plan and after making some measurements, the Surveyor informed to the Advocate Commissioner that the measurements in one part of the said map is not clear and only if a map with clear measurements is given, it would be convenient for him to identify the property. Therefore, there is dispute in respect of identity of the property. Hence, the Advocate Commissioner filed a memo before this Court for passing appropriate orders and directions. He further submitted that the issue in respect of recovery of possession, the Court below framed an additional issue No. 2 dated 08.03.2019. But the Court below failed to answer to the said issue and mechanically decreed the suit as prayed for. Therefore, he prayed for dismissal of the suit. In support of his contentions, he relied upon the unreported judgments are as follows:- (i) O.S.A. No. 141 of 2012 (Himayam Engineers & Builders v. S. Ravichandran & others) (ii) S.A. No. 2033 of 2004 (Lakshmanan v. Veerakathi Chettia....
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....rned counsel for the first respondent/plaintiff. 13. The plaintiff filed the suit for declaration and recovery of possession and he also prayed for permanent injunction restraining the defendants from in any manner, alienating, encumbering, or dealing with or altering the physical features of the schedule mentioned property. Admittedly, the plaintiff purchased land bearing plot No. A.19 from his vendor Rosy George by the registered sale deed dated 04.11.1981 registered vide document No. 5079 of 1981. The plaintiff's vendor Rosy George had purchased the suit property under a layout plan from one Chinnasamy Naidu under the registered sale deed dated 22.09.1967 registered vide document No. 3061 of 1967. Both the sale deeds were marked as Ex. A.2 and A.3 respectively. The copy of the proposed layout was marked as Ex. A.1. Likewise, the first defendant purchased the plot No. A.18 from the very same vendor of the plaintiff's vendor's vendor viz., Chinnasamy Naidu by the registered sale deed dated 28.10.1966 registered vide document No. 4237 of 1966. Thereafter, the third defendant purchased the plot No. A.18 from the first defendant by the registered sale deed dated 03.11.....
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.... suit property and measured the suit property that he finds difficulty in identifying the suit property. The Surveyor asked for a map with clear measurements so that, it would be convenient to identify the property. 16. The relevant portion of the memo dated 16.02.2021 filed by the Advocate Commissioner as extracted hereunder:- "8. After verifying the plaint and after making sum measurements, the Surveyor informed me that since the measurements in one part of the said map was not clear, only if a map with clear measurements was given, it would be convenient for him to identify the property. He gave a written report to that effect and the copy of the same is annexed herewith." Therefore, the plaintiff himself is not clear about his property with regards to it's identity. 17. The learned counsel for the first appellant/third defendant vehemently contended that the additional issues were framed by the Court below on the date of judgment viz., on 08.03.2019 and without giving any opportunity and decided the issues. 18. The additional issues framed by the Court below on 08.03.2019 as follows:- "1. Whether the Court has got power to order amendment of sc....
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.... matter, such an issue cannot be framed and decided by the Court without hearing the parties. 22. In the case on hand, the additional issues were framed by the Court below on the date of judgment viz., on 08.03.2019. No opportunities were given to the parties to the suit. That apart, on the very same day, the Court below passed the impugned judgment and decreed the suit. The Court below also failed to answer the second additional issue with regards to recovery of possession. 23. Insofar as the Power of Attorney, which was marked as Ex. A.6 is concerned, which was executed by the plaintiff in favour of S. Edward Enoch Thompson on 07.07.2008. Admittedly, it was not adjudicated before the concerned registering authority. In this regard, the learned counsel for the appellant/third defendant relied upon the un-reported judgment of this Court in W.P. (MD) No. 3598 of 2016 (S. Saravanan v. District Collector, Pudukkottai), in which it has been held as follows:- "3. This writ petition is dismissed on the main ground that the petitioner has filed the Writ Petition on the basis of the power of attorney executed by his son, who is residing in foreign country, though it has been....