Holding

A review cannot be used to overturn the court’s own earlier judgment and the judgments of lower courts without first framing additional issues and obtaining fresh findings from the trial court.

Summary

Soundararaj sued the respondents for demarcation of his property boundary and a mandatory injunction to remove eaves protruding onto his land. The trial court, after accepting the commissioner’s report, decreed a boundary wall and ordered removal of the eaves. Both the subordinate judge and a Single Judge of the Madras High Court affirmed this decree. On a review petition, the Single Judge noticed an alleged measurement error in the government survey plan, set aside his own earlier judgment as well as the judgments of the lower courts, and remanded the matter to the trial court for fresh consideration. The Supreme Court held that the High Court was not justified in overturning its own earlier order and the lower courts’ judgments without first framing any additional issues and obtaining fresh findings from the trial court. Accordingly, the Court set aside the part of the review order that annulled the earlier judgments, directed the High Court to frame any necessary issues, call for findings, and dispose of the appeal thereafter, while allowing the appeal.

Issues considered

Whether a High Court can set aside its own earlier judgment and the judgments of subordinate courts on a review petition.
Whether the High Court should remand the suit to the trial court without framing additional issues and permitting parties to adduce evidence.
Whether the alleged error in the government survey plan necessitates a fresh determination of the boundary line.
Whether the respondents have acquired a prescriptive easement for the eaves projecting onto the appellant’s land.
Whether a mandatory injunction for removal of the eaves is legally sustainable.

Legislation cited

Code of Civil Procedure, 1908s. Order 47 Rule 1

Subjects

boundary demarcationmandatory injunctioneasement by prescriptionreview petitioncivil proceduresurvey plan measurementhigh court jurisdiction

Judgment

. 497

SOUNDAR~RAJ

"·.
DBVASAHAYAM & OR~

October 24, 1983 ' .B
'• .. (A.P. SBN
. AND A. VARAl>ARAJAN,
,,. JJ.]

Codl of Ci•U Procedure 1908 Order 47 Rule J.

Re•iew Petition allowed-Higls Court utting aside· its own judgment in
·;econd appeal, ·judgments of first appel(ate court and trilJI court, and remanding
.a
case for fresh disposal-Such order'-Whether valid and proper-Held High Court
">· should frame · addit/Qnal issu6S, call for finding11 from Trial . Court and dispo1e of
second appeal,

. The appellant filed a suit in the District Munsiffs' Court for demarcating·
the boundaries of his property from tbat of the respondents and for a manda- ·~
tory injunction dtrecting the respondents to _re~ove the eaves prcittoding o'n the.
northern. side by reason of which the ·eaves' water was falling into his-property.
.. The respondents denied that they encroached upon any portion of the appel- · ·
!ant's property and 'contended that . the appellant had with ulterior motive
removed the survey stones in the north·eastern and north-western side of.the-
respondents' property and had encroached upon some portion of their land. .II
It was further contended that the eaves' water fell only on their own land and
that the mandator;y injunction claimed was nQt' sustainable in law. . An
Advocate-Commissioner' who was directed to m_ake a local inspection filed his
. report. The Trial Court passed a decree for · demar~tion of tbe property by
putting up of a boundary wall within the appellant's property and also issued
a mandatory injunction directing the removai of portions of' the eaves of the--
respondents'. bufldings. The Trial Court· Judgment was confi~ed by the • I'
· Subordinate Judge in appeal. ·

II). the second appeal to the High Court, a Single Judge rejected the ·
contention of the respondents that the measurements in the Comqiissioner's
report and.the markinp contained in his plan were not correct, and"dismissed
the second appeal.
.G
. ~

·when a review petition was filed by the respond~nts, the Singie Judge
notici;d that thc:re was an error of measurement in the Government survey plan
• and the plan filed by the Commissioner and opined that there should be a
fresh copsideration of the question, set aside his judgment and the concurdna
judgments of the first two courts, and remanded the matter ·to the Trial H
Court.

Allpwing the appeal to this·Court,
498
~ \. . ~
SUPREME COURT REPORTS (1984] 1 s.c.JL.

HELD : 1. The siQgle Judge was not fully ]ustified in allowing the
review petition and setting aside ·not only his own ju-dgment which had confir-
med the concurring judgments of the first two courts, but also erred in setting
aside the judgments of the first .two courts and remanding .the suit to the court
of first instance. He should have ad<?pted t~e more equitable and just method
of framing some additional issues and.cal.ling for findings on those issues frorl
the'hial Court \Vith liberty to both the parties for adducing evidence.
. [501 H; 502 A-HJ
~
I ..

2. the Single Judges' order ill so far as it relates to setting aside his
own judgment in the· second appeal is .set aside.' The judgment ~nd ~ecrees of
the first two courts are kept in tact. The High Court will frame such addi-
tional issues as may legally arise on the pleadings or the parties and call for
·findings thereon from the.~Trial Court and dispose of the second appeal after
taldng·mto consideration the findings and the objections of the parties to the
. findings. {502 C-D] ,., .

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1008'3 of
1933.

n. From the Judgment and Order dated the 8th April, 1983 ·o f the
¥ · _ ?tfadras High Court in CMP No. 1368 of 1981 (Review Petition) in
S.A.No. 86 of.1978. .

C.S. Vaidya!fthan for the Appellant.·

~- T.S. Krishnamoorthj ly.er, S. Ba!akrishnan and M.K. Namoodri
for the Respondents.

The Judgment of the Court was delivered by

,.
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VARADARAJAN, J. This apeal by special 'leave is directed against
an order ·of the learned Single Ju:dge of· the Madras High Court,
made in C.M.P. No. 1368 of 1983, reviewing his judgment i:o Sepond
Appeal No. 86of1978 which he dismissed on 24-7-J98J, ·confirming
the judgment in Appeal Suit No. 135 of 1974 of the learned. Subordi-
nate Judge, Padmanabhapuram who in turn confirmed the judgment
of the learned Principal _District Munsif, Padmanabhaputam in
Original Suit No. 365of1973. The appellant Soundararaj filed the
suit for demarcating the. boundaries of his ~A schedule property bearing
survey No. 3199 on which his buildinz stands from the rt:spondents'
B schedule . property bearing survey No. 3153 on vihich theil ·
~.I . buildings stand and for a mandatory injuction d.irecting the respon-
dents to remove the eaves profruding on the northern sid·~ Qy reason ·
of which the·eaves water was falli~g ~nto h!s prope!1Y· . .~
SOUNDARARAJ v. DEVASAHAYAM (VDradarajan, J.) 499

;(
The respondents denied that they encroached upon any portion

.
of the appellant's property and contended that he had with ulterior
motives removed the survey stones on the . north eastern. and north
western sides of survey No. 3153 belongmg· to them and that after·
encroaching upon some portio.n of road poromboke he is claiming
that the actual area of survey No. 3J99 belonging to him is more
than the area· as per the settlement. They contended that the eaves B
water falls only on their own land and that the appellant's claim for
mandatory injunction is not sustainable in law. They further con•
tended that even if it is found that the eaves water from their buildings
falls on the appellant's property he bas tio right to object to it
because they have acquired the right· by prescription to allow the
eaves water from their roof t'o fall into the property on which it ls c
<;· . now falling.

The parties did not produce their respective title ·deeds. The.
appellant produced the Government Survey Plan Exhibit A.·3. The
Advocate-Commissioner who was directed to make a local inspection 'o
and file a report, filed llis report Exhibit C· 1 and plans Ex. C-2 and
C-3 which were drawn ·to scale of l· inch to 40 links. The respon·
dents. did not file any objection to. the Commissioner's report and
plans, while the appellant filed his objections to them. The appellant
contended before the Trial Court· .that the plan Ex. C-2 should be
accepted for deciding the question of the boundary of his property B
whereas tlie respondents conte~ded that the plan Ex. C73 should be
accepted as the basis for determination of the boundary. The Trial
Court accepted the appellant's contention that the correct measure-
ment of the diaganal line JC in the Government plan Ex.' A-3 is 119
links and that the measurement given in it as 11'3 links is wrong. ·
The learned District Munsif took his own measurements by using a
scale and was convinced on an inspection of the plan•that the plan
'
Ex. C-2 is .·the correct l)asis for deten:qining the ·boundary line and
that the demarcating line for survey No: .3153 belonging to the
respondents is JR and not JQ on the north and ZI and IJ on .the
other side, in Ex. C-2 .. As regards the eaves the learned District
·Munsif found that the northern and western eaves of \he respondents'
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building protruding into the appellant's property as indicated in ·the
plan Ex. C-t should be shortened as indicated in Ex. C-2 and that
the respondents have not perfected any right of easement by pres-
cription. In this view the lea~ned District Munsif passed a decree
· for demarcation of the appellant's property by putting np· a boundary·
' wall to a height of 7 feet immediately west of ZI an<:I on JJ and JR,
soo SUFRHMB COURT REPORTS (1984] 1 ~.C.R.

within the appellant's prorerty and for a mandatory . injunction
A directing the removal of portions of the eaves of the respondents'
buildings west of ZI and IJ and north of JR.
-
The first appellate court's judgment has not been made avai• ,!,,
!able in the records before us. But it is seen from the judgment of ~
I
-8 the learned Single Judge of the '.High Court in the second appeal
...
·that the learned Subordinate Judge had confirmed the Trial Court's
judgment and decree in toto. In the second appeal the boundary
fixed by the Trial Court on the Western side was acceptable to both
(
.
the parties and the dispute was only with regard to the demarcation
of the bbundary line on the other ·side of the respondent's pr'operty.
c The respondents~ contention in the second appeal was that tbe
mesnrement given in Ex .. C-3 should be accei>ted and not those given
in Ex. C-2, a contention which did not find favour with either the
Trial Court ,,r the first appellate · court. The lea med Single Judge
negatived. the respondents' contention in that regard observing
D thus :

"In the first place the finding that is impugned is
purely factual in character and it does not involve any
question of law. On this simple ground, the contention
of the appellants deserves to fall and the a]'.lpeal could well
E
be dismissed. Even otherwise I find on merits, the appel-
lants do not have a case at all. . The trial court as well as
the lower appellate court have chosen to place reliance on
Exhibit C-2 rather on Exhibit C-3 because the measure·
· ments given in Exhibit C-2 tally 'with the measurements
given" in Exl:iibit A-3, the survey plan. It is common
ground the measurements given in Exhibit. C-3 do not
tally. lfhe appellants who now assail the correctness of
the measurements givin in Exhibit C-2 have not filed any
objection to the · Commissioner's report and the markings
contained in Exhibit C-2 before the trial court. Having
G
regard to these factors, it is not open to the appeliants
now to contend that the Commissioner's report and the
markings contained in Exhibit C-2 are not correct .. , ..... -"
,
H Consequently it follows that there is no justification whatever to.
interf~re with tl1e findiugs recorded· concurrently by the courts
l;lelow,
•
SOUNDARA.RAJ v. DIVASAHAYAM (Varadarajan, J.) 501

Regarding the eaves' the learned Single Judge rejected the
respondents' contenti9n observing thus :

"The counsel for the appellants then stated that it
will cause hardship to the appellants if they were to
remove a poriion of their eaves projecting into the land
of the respondents am! also to. dose the uoorways opened
B
by them. This is not a relevant factor for consideration
in the appeal. Once it is found that the appellants are
. not entitled to any space of l~nd beyond the line JR, they
are not entitled to have their eaves projecting into the
respondents' land or to open ·any doorways leading into
·his land," c
'.F With these observations the learned Single Judge dismissed the
second appeal wit~ no order as to costs.

But when the review petition filed by the respondents came up
before the learned _Single . Judge.he noticed the error in the measure- D
ment of the diagnol line JC in the Government survey plan Ex. A-3
pointed out by the .Trial Court and· opined that in view of that •
mistake there should be a fresh consideration of the question whether
Ex. C-3 or Ex. C-2 merits. acceptance because Ex. C-2 has been
found by the first two courts to he more acceptable on the ground
E
that the measurements given 'therein ta!ly with those given in Ex. A-3.
The learned Judge further opined' that the partic; who had not chosen
to produce their title deeds for some reason or other should be called
upon to produce them, and that there was substance. in the respon·
dents' contention that the survey stone at the northern limit of their
·property bearing survey No. 3154 has been removed and that its F
position should be fixed and measurements taken froip that point for
determining the boundary of the appellant's property on the north-
east at the point X or Point E. The learned Judge further opined
that as regards the ·projecting eaves the question is of adverse posses-
sion for a period of 12 year~ which is for acquisition of right to
moveable property and not the larger period relating to acquisition
of a right of easement, overlooking the fact that the parties and all
the courts until the review petition was filed understood the _case to
be only_on<l'of easement.

After hearing the learned Couns.el of the parties we are satisfied H
that the learne.d Single Judge was not fully justified iti allowing tho
review petition and setting aside not only his own judgment which
. '
•
502 SUPREME COURT REPORTS [1984) I s.c.R.

had confirmed the concurring .judgment~ of the first two courts out
also of the opinion that \he learned Judge erred in setting aside the
judgments of the fi;st two courts and remanding the suit to the court,
of first instance without adopting t!ie inore equitaqle and just method
of framing some additional 'issues, if any, strictly arising on the
pleadings and calling for findings on those issues from the Trial
·B Court with liberty to both the parties for adducing evidence. · U~der
the circumstances of the. case we allow the appeal .in part and confirm
the learned Single Judges' order only in so far as it relates to setting
aside his own judgment in the second appeal but set aside that order ·
in other respects keeping in tact the judgments and decrees ·of the .
first two .courts. The High Court will frame .such additional issues
c as may legally arise on the pleadings of the parties and call for find-
ings thereon from the Trial Cou~. as mentioned above and dispose
of the second appeal after receipt of the findings in the light of those
'findings and judgments of. the first two courts already rendered and
the objections. if any, which may be filed by the parties to the find·
Ji) ings. It is .desirable that a fresh mind is brought t,o bear on the
questions involved in the second appeal after receipt of the findings.
The matter will go back to the High <;:ourt for fresh disposal in
accordance with the law as indicated above. The co,ts .shall abide
the result. The parties are directed to appear before the High Court
on November 17, 1983.

N.V.K. Appeal allowed. ·.~
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