Madras High Court
K.S.Pururaras vs P.N.V.Easwaran on 25 September, 2014
Author: T. Mathivanan
Bench: T.Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25-09-2014 CORAM: THE HONOURABLE MR. JUSTICE T.MATHIVANAN SECOND APPEAL No.906 of 2002 and CMP No.7137 of 2002 K.S.Pururaras .. Appellant vs. 1.P.N.V.Easwaran 2.D.R.Verma 3.P.Balaji 4.V.V.Raman 5.Mogaana Jayaraman .. Respondents Second Appeal is preferred under Section 100 CPC against the judgment and decree dated 20.4.2001 on the file of the III Additional City Civil Court, Chennai and made in A.S.No.169 of 1999, confirming the judgment and decree dated 20.08.1997 on the file of the XIII Assistant City Civil Court, Chennai and made in O.S.No.2889 of 1993. For Appellants : Mr. For Respondents : No Appearance J U D G M E N T
The judgment and decree dated 20.4.2001 and made in A.S.No.169 of 1999 on the file of the learned III Additional City Civil Court Judge, Chennai, confirming the judgment and decree dated 20.8.1997 and made in O.S.No.2889 of 1993 on the file of the learned XIII Assistant City Civil Court Judge, Chennai, have been challenged in this Second Appeal.
2. The defendant in the suit is the appellant, whereas the plaintiffs 1 to 5 are the respondents herein. For easy reference and also for the sake of convenience, the parties to the Second Appeal may hereinafter be referred to as the plaintiffs and defendant wherever the context so require.
3. The suit property has been described in the schedule of plaint as under:-
Property used as common pathway comprised in R.S.No.1147/4 (Part) starting from and in between Door Nos.5 and 17, Lakshmipuram, IInd Street, Royapettah, Madras-14 and passing adjacent Door No.79, Dr.Radhakrishnan Salai and ending at Door Nos.6 to 9 Lakshmipuram IInd Street, Madras-14.
4. According to the plaintiffs, they have been using the suit property as a common pathway, which is said to have been comprised in the abovesaid R.S. Number.
5. Obviously, the alleged common pathway has not been properly described in the plaint schedule. In the alternative, this Court would say that the width and the length of the so called common pathway has not been properly described as envisaged under Order VII, Rule 3 of the Code of Civil Procedure.
6. The plaintiffs seem to have filed the above suit as against the defendant, who is the appellant herein, seeking the following reliefs:-
(A) To grant a decree against the defendant for declaration that the suit pathway is a common pathway;
(B) To grant a decree for permanent injunction restraining the defendant and his men, agents from interfering with the plaintiffs use and injoyment of the common pathway described in the schedule and also for costs.
7. What Rule 3 of Order VII of the Code of Civil Procedure, envisages is where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.
8. A conjoint reading of Order VII, Rule 3 and Order XX, Rule 9 of the Code, makes it clear that in a suit relating to immovable property, the plaint must disclose the identity of the said property without any ambiguity. The identification may either be by boundaries or by numbers of revenue records or settlement or survey records.
9. In Bandhu Das vs. Uttam Charan Pttanaik {AIR 2007 Orissa 24 : 2006 (2) Orissa L.R. 80}, in a suit for declaration of title, there was complete absence of description of suit property. Neither a measurement in relation to settlement map was given nor sketch map was drawn to scale. Even no boundaries or extent of the suit land was mentioned. It was held by the Orissa High Court that the suit was incompetent for want of proper description and sufficient identification of the suit land.
10. No doubt, the Trial Court had decreed the suit as prayed for by the plaintiffs. In the First Appeal preferred by the defendant, the First Appellate Court had, in fact, confirmed the judgment of the Trial Court. In other words, this Court can say that the Courts below have given concurrent finding, declaring the suit property is the common pathway and as such, the defendant has been injuncted from interfering with the enjoyment of the said common pathway.
11. Having been aggrieved by the judgment and decree of the First Appellate Court dated 20.4.2001 and made in A.S.No.169 of 1999, the defendant has preferred the present Second Appeal.
12. This Second Appeal came to be admitted on 19.11.2002 on the following three substantial questions of law:-
(i) Whether the Lower Courts are right in coming to a conclusion that the appeal is incompetent in view of Section 96 (3) of the Code of Civil Procedure?
(ii) Whether the Lower Appellate Court is justified in dismissing the appeal without taking note of the fact that the memo had not been signed by the party and without his knowledge and consent and not binding on him?
(iii) When the plaintiffs themselves have not relied upon the memo filed but had chosen to adduce evidence, whether the Lower Appellate Court is right in holding that it is a consent memo debarring the appellant from prosecuting his right?
13. Heard Mr.V.Raghavachari, learned counsel appearing for the appellant/defendant. But the plaintiffs (Respondents 1 to 5) have not chosen to appear either in person or through their counsels when the appeal was taken up for hearing and therefore, they were called absent.
14. After hearing Mr.V.Raghavachari on behalf of the appellant (defendant), this Court finds that it may be expedient to dispose the appeal on merit in the absence of the respondents/plaintiffs.
15. The plaintiffs 1 to 5 are the owners and residents of Flats bearing Door Nos.8, 10, 11, 15 and 16 situate at Lakshmipuram Second Street, Royapettah, Madras-14. Admittedly, these Flats were promoted by one late K.V.Subba Rao, who is none other than the father of the defendant in the year 1964-1965.
16. According to the plaintiffs, the access to the abovesaid Flats is through Lakshmipuram Second Street. The property bearing Door Nos.5 and 17, which is the entry point at Lakshmipuram Second Street, were sold to one V.Subramanian on 27.9.1958, wherein the vendor viz., K.V.Subba Rao had retained the right of pathway as an access to the Flats promoted by him.
17. The plaintiffs have also contended that the defendant himself, as the owner, has sold the property bearing Door Nos.6/23 and 7/23 and new Door No.8, Lakshmipuram Second Street to one Perupu Sreeramamurthy on 5.5.1976 and registered as document No.638 of 1976 from whom the present fifth plaintiff had purchased the property on 10.12.1980, vide document No.2224 of 1980 (Ex.A-8), in which it has been clearly mentioned about the existence of the common pathway starting from point AB of the gate near Door No.17 and closing at point CD where the Door Nos.6 to 9 are situate. They have also contended that they have been using the common lane as the pathway as an easement of necessity apart from the grant for the past 21 years right from the date of purchase in 1973.
18. Therefore, according to the plaintiffs, they have been using the abovesaid pathway for the grant of easement more than the statutory period and therefore, they have prescribed their right under the Easements Act. The cause of action, according to the plaintiffs, was arisen on 6.4.1993, when the defendant had attempted to start digging of holes to enclose a substantial portion of the suit pathway.
19. On the other hand, the defendant had contended in his written statement that right from the first Sale Deed, a common passage of 12 feet width was conveyed with a right of way leading to the gate of Lakshmipuram Second Street and that the said 12 feet pathway runs from Lakshmipuram Second Street to the property abutting the compound wall on the Northern side of his property and upto Lakshmipuram Building II and extends upto the wall of New Woodlands Hotel.
20. He has also contended that the plaintiffs 1 to 4 have the right to use the 12 feet pathway from Lakshmipuram Second Street upto the portion marked in the red sketch and the fifth plaintiff has got the right to use the 12 feet pathway like that of plaintiffs 1 to 4 leading from Lakshmipuram Second Street, marked red and also the portion marked blue on the Western side of the defendants property.
21. According to the plaintiff, only the owners of Lakshmipuram Building II have the exclusive right to use the 12 feet pathway in the sketch annexed herewith. He has also contended that he is not encroaching the 12 feet common pathway. On the other hand, he is putting up a wall only on the boundaries of his property and therefore, he has urged that the suit be dismissed as the plaintiffs are not entitled to get the reliefs sought for by them.
22. The paragraphs 4 and 5 of the plaint assume more importance. In paragraph 4, the plaintiffs have stated that the two water sumps, pumproom etc., are situated in the common pathway leading to Door Nos.6 to 9 which are situate in the South Western corner and comprised in Survey No.1147/4 (Part).
23. In paragraph 5, they have stated that the plaintiffs have been using the suit common pathway as an Easement of necessity, apart from the grant for the past 21 years right from the date of purchase in 1973.
24. The Advocate Commissioner, in his report under Ex.C-1, has also stated about the availability of the road. But what Mr.V.Raghavachari has contended is that the definite boundary as well as the exact measurement of the common pathway have not been described properly in the plaint schedule and therefore, in the absence of proper description of the property, the suit itself is not at all maintainable and liable to be dismissed.
25. In support of his contention, he has placed reliance upon the decision of this Court in Mariappan and others vs. Marudan and others {1999 MLJ (Supp.) 260} wherein the learned Single Judge of this Court has held that the existence of a path running in the property is not at all adverted to in the plaint description nor any plan has been filed whereas in the evidence, it is categorically admitted that there is a pathway. But the plaint description proceeds as though there is no such pathway and that the entire property is in one block. Therefore, ignoring the material circumstance placed before the Court by way of Commissioners Report and the admissions of plaintiff's witnesses, the Court has passed a decree which will become unworkable. There is absolutely no whisper to this aspect at all by the Courts below. In such circumstances, the plaintiffs have come to Court without any definite case and without any definite pleading as regards the boundaries, the location of properties. The vague manner in which B schedule property is described in the plaint would go to show that the plaintiffs have failed to place before Courts satisfactory and sufficient materials.
26. On coming to the instant case on hand, the specific stand taken by the defendant is that the plaintiffs 1 to 4 have the right to use the 12 feet pathway from Lakshmipuram Second Street upto the portion marked red in the sketch and that the fifth plaintiff has got right to use the 12 feet as that of the plaintiffs 1 to 4, leading from Lakshmipuram Second Street, marked red and also the portion marked blue on the Western side of the defendants pathway.
27. It is also his stand that the plaintiffs, as the owners of Lakshmipuram Building II, have the exclusive right to use the 12 feet pathway shown blue in the sketch annexed to the plaint.
28. On perusal of the judgment of the Trial Court, it is crystallised that an endorsement was made by the learned counsel for the defendant, who was appearing on his behalf before the Trial Court, on the reverse of the plaint wherein he has stated that the defendant has no objection in the plaintiffs' using the 12 feet common pathway leading from Lakshmipuram Second Street to Lakshmipuram Building I. The pathway will be used as common by the plaintiffs and the defendant. The defendant may be allowed to construct a boundary wall leaving 12 feet common pathway on the side and backside of the building.
29. It is also revealed that after making such an endorsement, the defendants counsel has also filed a memorandum on 11.8.1997, wherein he has stated that the defendant has no objection in the plaintiffs using the 12 feet common pathway as shown in Ex.P-3 leading from Lakshmipuram Second Street to Lakshmipuram Building I and Lakshmipuram Building II and that the defendant be allowed to construct a boundary wall leaving the 12 feet common pathway on the side and at the back side of the building.
30. Though the judgment was passed by the Trial Court as per the endorsement made by the defendants counsel as well as on the basis of the Memorandum filed on his behalf, in the operative portion of the judgment, the Trial Judge has failed to mention the exact measurement of the suit common pathway in width.
31. The learned First Appellate Court Judge has also, while confirming the judgment of the Trial Court, made the same mistake, failing to mention the exact measurement in width of the common pathway. But in the grounds of Memorandum of the Second Appeal, the appellant (defendant) in ground No.4, has stated that the Courts below have failed to see that the plaintiffs themselves did not rely upon the Memo and had adduced evidence. Consequently, the Memo could not be construed as a foundation for passing of a decree. Further, the endorsement made by the defendants counsel was without the consent and knowledge of the appellant (defendant) and as such, is not binding on the appellant. But this Court, on an harmonious reading of the judgment of the Trial Court as well as the First Appellate Court, with the endorsement made by the learned counsel for the defendant as well as the Memorandum, finds that the fourth ground raised by the appellant (defendant) in the appeal Memorandum is absolutely wrong and not able to be countenanced because as afore-stated, his definite stand is that the plaintiffs, being the owners of Lakshmipuram Building II, have the exclusive right to use the 12 feet width pathway.
32. Since the defendant has taken a definite stand that right from the first Sale Deed, a common passage of 12 feet width was conveyed only as a road leading from gate of Lakshmipuram Second Street, Mr.V.Raghavachari, learned counsel appearing for the plaintiffs, has submitted that let the plaintiffs (respondents) not interfere with the right of passage of the appellant (defendant) in respect of the 12 feet width pathway. He has also submitted that if the 12 feet width pathway is restricted, the appellant could not have any objection.
33. Keeping in view of the submissions made by Mr.V.Raghavachari, this Court finds that the judgment of the Trial Court as well as the First Appellate Court are liable to be modified, as detailed hereunder:-
The plaintiffs, being the owners of their respective Flats, are entitled to use the 12 feet width common pathway as shown in Ex.P-3, leading from Lakshmipuram Second Street to Lakshmipuram Building I and Lakshmipuram Building II. Similarly, the appellant (defendant) may be allowed to construct a boundary wall leaving 12 feet common pathway on the side and at the back side of the building.
34. Accordingly, the Second Appeal is allowed in part with costs. In so far as the prayer in plaint A portion is concerned, it is declared that the 12 feet width pathway is a common pathway. In so far as the prayer in plaint B portion is concerned, since the cause of action has not been proved, the suit is liable to be dismissed with costs on the defendant. Consequently, connected miscellaneous petition is closed.
25-09-2014
Index : Yes/No.
Internet : Yes/No.
Svn
To
1.III Additional City Civil Court,
Chennai.
2.XIII Assistant City Civil Court,
Chennai.
T. MATHIVANAN, J.
Svn
S.A.No.906 of 2002
25-09-2014