SOUNDARARAJ versus DEVASAHAYAM & ORS.

Citation: [1984] 1 S.C.R. 497 · Decided: 24-10-1983 · Supreme Court of India · Bench: A.P. SEN · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SOUNDAR~RAJ 
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DBVASAHAYAM & OR~ 
October 24, 1983 ' 
.. (A.P. SBN AND A. VARAl>ARAJAN, JJ.] 
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Codl of Ci•U Procedure 1908 Order 47 Rule J. 
. 497 
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 
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, 
.B 
.a 
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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-
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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 
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· Subordinate Judge in appeal. 
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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. 
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·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 
Court. 
Allpwing the appeal to this·Court, 
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498 
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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 
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] 
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1008'3 of 
1933. 
From the Judgment and Order dated the 8th April, 1983 ·of 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.· 
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T.S. Krishnamoorthj ly.er, S. Ba!akrishnan and M.K. Namoodri 
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for the Respondents. 
The Judgment of the Court was delivered by 
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 fil

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