2019 ACJ[APEX COURT JUDGMENTS] VOL NO.1 – 2019 APEXCOURT DIGEST VOLNO.1
9. Suit for removal of encroachment – suit was dismissed by trial court and appeal was also dismissed by the High court on the ground that there was a confusion about the survey
Nos., which K.R.Ramasami had purchased and that the defendants property could not clearly be said to be at the survey Nos. which he had purchased.-
Apex court held that It is clear from the sale deed that property was purchased by K.R.Ramasami from Survey Nos. 156, 109(Part) and 121(Part) admeasuring 1253 Sq. ft. Having purchased this property, what was necessary to be seen is whether the portion allegedly encroached upon by the defandants was part of these survey Nos. – Commissioner’s report dated, 23.11.1990 which clearly suggests that (a)
respondents 1 to 3 are residing in a hut which is in new Survey No. 125/3B2 which corresponds to old survey No. 109/B1 and 121(part); (b) respondents 4 and 5 are occupying survey No. 125/3B2 which corresponds to old survey No. 109/B1(part) and 121(part) and further in a portion which is part of 124/2B which corresponds to old survey No. 156(Part). From the above, it is clear that respondents are residing in survey Nos. purchased by K.R.Ramasami from P.A.P.K.Alagarsamy, i.e, Survey Nos. 156,
109(part)and 121(part). If the High Court had adverted to the Commissioner’s report, it could have avoided the confusion, but it did not. Normally this Court would not enter into area which involves a dispute on facts. However, the finding of fact about identity of the properties is arrived at by not taking into account relevant material, that is Commissioner’s report, which discloses the identity of the properties. We therefore, find that the finding is vitiated and has resulted in miscarriage of justice. We, accordingly, set aside the judgment of the High Court and remand the matter bacto the High Court for fresh consideration.