Madras High Court
Mr.P.Perumal Pillai (Died) vs Pappammal Alias Pechiammal (Died) on 31 October, 2022
Author: N.Seshasayee
Bench: N.Seshasayee
SA(MD)No.672 of 1996
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.10.2022
CORAM: JUSTICE N.SESHASAYEE
S.A(MD).No.672 of 1996
1.Mr.P.Perumal Pillai (Died) .. Appellant/2nd Respondent/
2nd
Defendant
2.Pathrakali
3.Ganesa Perumal
4.Lakshmipathyth Defendant
5.Valli .... Appellants 2 to 5/6th Defendant
(Appellants 2 to 5 are brought on record as LRs
of the deceased sole appellant Vide order dated
21.06.2012 made in M.P(MD)Nos.1 to 3 of 2009)
Vs.
1. Pappammal alias Pechiammal (Died) ... Respondent No.1/Appellant/
Plaintiff
2. 2.M.Perumal Pillai (Died) .. 2 Respondent/1
nd st
Respondent/
1st
Defendant
3. Pandian ..3rd Respondent/legal heir of
R1-
plaintiff
(R2 died. Memo recorded. Memo presented in court
dated 05.09.2012 Vide order dated 05.09.2012 and made
in M.P(MD)No.1 of 2007 in SA(MD)No.672 of 1996)
(R3 is brought on record as legal heir of the deceased
first respondent Vie order dated 01.06.2012 made in
M.P(MD)Nos.4 to 6 of 2009 in SA(MD)No.672 of 1996)
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SA(MD)No.672 of 1996
Prayer : Second Appeal is filed under Section 100 of Code of Civil
Procedure, against the judgment and decree dated 07.12.1995 in A.S.No.
233 of 1991 on the file of the Subordinate Judge, Tuticorin, modifying the
judgment and decree dated 09.07.1991 in O.S.No.504 of 1990 on the file
of the District Munsif Principal Court, Tuticorin.
For Appellants : Mr.S.Ramesh Alias Ramiah
For R3 : Mr.M.P.Senthil
JUDGMENT
1.1 The second defendant in O.S.No.504 of 1990 on the file of the District Munsif Principal Court, Tuticorin, is the appellant herein. The suit was laid for declaration that the 2nd item of the suit property is a common pathway, and also for a decree for mandatory injunction to direct the defendants to remove certain constructions they have put in the said pathway. 1.2 The trial court partly decreed the suit and granted a decree for declaration but declined to give a decree for mandatory injunction. It may have to be stated that while granting declaratory relief, the trial court did not accede to the prayer of the plaintiff entirely as to the width of the pathway, but gave it for a slightly different dimension. Aggrieved by the decree, the plaintiff preferred A.S.No.233 of 1991 and that came to be allowed. Hence, the second defendant is before this Court. https://www.mhc.tn.gov.in/judis SA(MD)No.672 of 1996 1.3 For narrative convenience, the parties would be referred to by their rank before the trial court.
2. The case of the plaintiff is as follows:
• As indicated in the opening paragraph, the disputed pathway runs north-south and it is described as measuring 11.75 Carpenter Cubic Feet (jr;R KHk;; and henceforth would be referred to as CCF) north- south and 3 CCF east-west. The conversion factor for converting a CCF into a metric feet is 2.75. If so applied, the dimension of the pathway as given in the plaint would be 32.3 feet north-south by 8.25 feet east-west. It is a perfect rectangle. This pathway is said to link the main streets that run both on its north and on the south. .
• The plaintiff's property lies to the east of the pathway. This property was originally belonged to certain Deivanaiammal who obtained it under Ext.A.1, gift deed, dated 22.08.1934. The plaintiff is the daughter of Deivanaiammal. Several years later, Deivanaiammal and her son had executed Ext.A.9 settlement deed dated 30.05.1952 in favour of plaintiff. The plaintiff has her house in this property. This is described as item No.1 in the plaint.
https://www.mhc.tn.gov.in/judis SA(MD)No.672 of 1996 • According to the plaintiff, she has left 3/5 C.C (about 2 feet) to the west of her western wall for discharging her eaves water. Item No.2 pathway starts from the point where this 2 feet provided for discharging eaves water of the plaintiff ends. To the further west of the item 2 pathway lies the properties of the defendants, which they have obtained under Exts.A.2 to A.5.
• The cause of action arose when the defendants put up certain construction on the northern side of the pathway obstructing the pathway when the plaintiff was away from her house,
3. In the written statement, the defendants admitted the existence of a common pathway separating their properties and the property of the plaintiff. They would allege that for discharging eaves water from their property, they had left 1 & 7/8 CCF which when converted will be around 5 ½ and odd feet. So far as dimension of the pathway is concerned, they deny that the width of the pathway on north and south is the same. While it is 3 CCF in south, in the north it narrows down considerably. 4.1 The dispute went to trial. During trial, the plaintiff examined herself as P.W.1 and has also examined her son as P.W.2. For the defendants, the https://www.mhc.tn.gov.in/judis SA(MD)No.672 of 1996 second defendant examined himself as D.W.1. While the plaintiff has produced Exts.A.1 to A.9, the defendants have not produced any documentary evidence.
4.2 The trial court also appointed a Commissioner for local inspection whose report and plan were received on record as Exts.C.1 and C.2. On appreciating the evidence before it, the trial court found that the existence of the pathway but declined to grant a decree for the dimension which the plaintiff asserted. It found that the width of the pathway on south is 8.1 feet and that it narrows down to 4.7 feet in north. For arriving at this conclusion, the trial court essentially relied on Ext.A9, wherein the western boundary is not shown to be the pathway for the entire north-south length but only for a substantial portion on the north, and for the southern portion it is given as third party's properties. This southern portion as per the evidence available on record, has since become the property of the plaintiff. This southern portion also belong to Deivayanaiammal and this she had purchased sometime in 1933, and reference to this comes in Ext.A.9 settlement deed, which Devaiyanaiammal and her sons had executed in favour of the plaintiff. It is in this document, the width of the pathway is given as 3 CCF or 8.25 feet. The trial court has held that the plaintiff has not produced any document to show that the width of the https://www.mhc.tn.gov.in/judis SA(MD)No.672 of 1996 pathway was even throughout the entire north-south length, and hence declined to grant a decree in favour of the plaintiff for 3 CCF wide pathway. However, it granted a decree declaring that the pathway is a common pathway with a width of 4.7 feet on the north and 8.1 feet on the south and consequently declined to grant a decree for mandatory injunction.
5. Aggrieved by the said decree, the plaintiff preferred a first appeal in A.S.No.233 of 1991. The first Appellate Court decreed the suit in entirety, and its line of reasoning indicates that the defendant has not established how he became entitled to the portion constructed by him, allegedly on the pathway. In arriving at this conclusion the first appellate Court has essentially relied on Ext.A9, Ext.A1, A2 to A5 and also the report of the Commissioner to the effect that some new encroachments were found in the pathway and that the width of the pathway ought to be the same throughout, and it granted a decree declaring that the width of the pathway same throughout the entire north-south length, and also a decree granting injunction directing the defendants to remove the encroachments put up by them in the pathway. Hence, this second appeal is filed at the instance of the second defendant.
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6. This Second Appeal is admitted for considering the following SA(MD)No.672 of 1996 substantial question of law:
'The issue being whether the common pathway is having the same width throughout or not, is the lower Appellate Court justified in relying on the recitals under Exts.A.1, A.2 and A.5 ignoring the findings of the Advocate Commissioner who has spoken to the facts on the basis of the ground reality'
7. The dispute is over the width of the pathway and not about the existence of the pathway or its length. The plaintiff seeks a right of pathway over a width of 8.25 ft for the entire length from north to south. The Commissioner however had found that the pathway had a width of 8.1 ft in the south and it gradually narrows down to 4.7 ft. on north. The scope of the dispute narrows down to a short point if the width of the pathway in question is 8.25 ft. as claimed by the plaint, or at least 8.1 ft. as found by the Commissioner and the first appellate court, or is it 4.7 ft on the north as found by the trial court.
8. Heard both sides. The approach of the first appellate court shows that Ext.A1 refers to a pathway, and the Commissioner has shown a new construction put up by the defendants on the northern portion which has narrowed down the width of the pathway, and it required the defendant to https://www.mhc.tn.gov.in/judis SA(MD)No.672 of 1996 explain how in terms of their title documents the defendants are entitled to the portion where they had put new construction.
9. The first appellate court's line of reasoning indicates that it shifted the burden of proof to the defendant and almost presumed that a private pathway such as the one involved in this suit runs in a straight line with identical width at every point. When the plaintiff asserts the existence of a pathway of certain dimension, the burden will be on the plaintiff to establish it where the defendant denies the assertion of the plaintiff. If this thumb rule is applied, then the first appellate court ought to have gone in for materials which the plaintiff has produced to enter its finding, but it did not do it. The trial court at least had done it and found and declared a pathway to the extent it was established by the plaintiff. This fundamental flaw in approach needs a correction.
10. In conclusion, this Court allows the appeal, sets aside the judgement and decree of the first appellate court in A.S.No.233 of 1991, and restore the decree of the trial Court in O.S.No.504 of 1990. No costs. To,
1. The Subordinate Judge, Tuticorin https://www.mhc.tn.gov.in/judis SA(MD)No.672 of 1996
2. The District Munsif Principal Court, Tuticorin.
N.SESHASAYEE. J.
CM S.A(MD).No.672 of 1996 https://www.mhc.tn.gov.in/judis SA(MD)No.672 of 1996 31.10.2022 https://www.mhc.tn.gov.in/judis