Andhra Pradesh High Court - Amravati
Tammineni Sankaramma vs Koturu Lakshmi Devi 2 Ors on 24 December, 2019
Author: M. Venkata Ramana
Bench: M. Venkata Ramana
MVR,J
S.A.No.518 of 2001
1
HON'BLE SRI JUSTICE M. VENKATA RAMANA
SECOND APPEAL No.518 OF 2001
JUDGMENT:
This second appeal is directed against the judgment of the Court of learned Additional Senior Civil Judge, Gudur, in A.S.No.12 of 1998 dated 21.09.2000. By this judgment, the appellate Court had reversed the judgment of the Court of learned District Munsif, Sullurpet, in O.S.No.30 of 1992 dated 29.11.1997.
2. The dispute in this case is in respect of a lane admittedly located in between the houses of the appellants (the plaintiffs) and the respondents (the defendants). A plan is appended to the plaint. ABCD marked portion therein is in dispute. The parties as referred to in the suit, shall be considered hereinafter, for convenience.
3. The plaintiff laid the suit to declare that ABCD lane shown in the plan appended to the plaint being the joint passage, belonging to her, the first defendant and the third defendant and to restrain defendants 1 and 2 from interfering with not only ABCD portion of this lane, but also CDEF passage just to the south of ABCD passage and for costs.
4. The case of the plaintiff as seen from the plaint is as follows:
(i) That the plaintiff is the owner of the house bearing Door No. 3-2-153 of Naidupet. Originally this property belonged to two brothers, viz., Sri Badri Ramaiah Chetty and Sri Badri Narayana Chetty. The defendants 1 and 2 are the owners of the house bearing Door No.3-2-151 of Naidupet. It is located to further east of the ABCDEF lane as well as to the house of the plaintiff. The third defendant is the owner of the house bearing Door No.3-2-152 of Naidupet, which originally belonged to the family of two brothers, referred to above. It is covering north eastern MVR,J S.A.No.518 of 2001 2 corner of the house of the plaintiff and immediately to the west of ABCD lane.
(ii) There was a partition under a registered deed dated 17.04.1931 between Sri Badri Ramaiah Chetty and Sri Badri Narayana Chetty. The portion in possession of the plaintiff and the third defendant was allotted to Sri Badri Narayana Chetty under this partition. Eastern boundary of this property is described that it was partly covered by joint passage of their family and Sri Aitha Chenchaiah Chetty and that this passage leads to the road on the north. This passage was being used by the family of the above two brothers to reach their Oil Rotary situated to the south of their house since they were professional oil mongers. The families of Aitha and Badri were using this passage as a scavenging lane also.
(iii) The above two brothers settled the portion consisted of a shop which is now in possession of the third defendant under a registered settlement deed, in favour of Smt.Bodanapu Pushpavathamma D/o.Sri Narayana Chetty, who in turn sold the same to the third defendant. Sons of Sri Badri Narayana Chetty sold the remaining property to the plaintiff under two registered sale deeds dated 19.09.1972 and 27.06.1973.
(iv) While this lane was being used as a joint lane, on account of certain differences and prior litigation, the defendants 1 and 2 threatened to close ABCD & CDEF passage to raise constructions, with an intent to prevent the plaintiff from carrying out any repairs to her house in future and to prevent passage of light and air to the house of the plaintiff in order to harass her. In these circumstances, the plaintiff was constrained to lay the suit.
5. The third defendant remained ex parte and the defendants 1 and 2 contested the suit, filing written statement.
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6. In this written statement, the defendants 1 and 2 admitted the ownership of the property in possession of the plaintiff and that it was originally owned by Badri brothers, referred to above. They also admitted that the property in their possession originally owned by Sri Aitha Chenchaiah Chetty. However, they denied that the passage in question was a joint passage being enjoyed by both the original owners, referred to above. They expressed ignorance in respect of the partition between Badri brothers dated 17.04.1931 and allotment of shares, while describing the passage in question as the joint passage or its mode of enjoyment by them.
7. In their written statement, the defendants 1 and 2 also admitted settlement of a part of property in favour of Smt.Badanapuri Padmavathamma under a registered settlement deed dated 07.02.1956. They further admitted purchase of the property by the plaintiff under two registered sale deeds dated 19.09.1972 and 27.06.1973 from the descendants of Sri Badri Narayana Chetty. They denied that a part of the property purchased by the plaintiff was left by her as passage for effecting repairs and for passage of free air and light. It is further stated that none of the documents of the plaintiff show the passage in dispute as a joint lane nor that the plaintiff has any right thereto. It is further stated that ABCD passage is the exclusive property of the second defendant and her predecessors in interest and that the plaintiff had already filed a suit in O.S.No.75 of 1993 on the file of the Court of District Munsif, Gudur, which earlier was instituted in O.S.No.121 of 1985 on the file of the Court of learned District Munsif, Sullurpet, with reference to CDEF portion of this passage and its further continuation towards south. Thus, questioning the right, title and interest to ABCD passage as a joint passage of the plaintiff, the defendants 1 and 2 sought dismissal in the suit.
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8. Basing on the above pleadings, the trial Court settled the following issues for trial:
1. Whether the plaintiff is entitled to the declaration and injunction as prayed for?
2. To what relief?
9. At the trial, the husband of the plaintiff was examined as P.W.1, and a mason, who alleged to have had attended the construction work for the plaintiff as P.W.2, while relying on Ex.A1 to Ex.A3. The second defendant examined himself as D.W.1 on behalf of defendants 1 and 2 and they relied on Ex.B1 to Ex.B5.
10. Upon considering the material and the evidence, learned District Munsif, Sullurpet, basing on the recitals in Ex.A3 covering the partition between Badri brothers, held that the disputed passage remained a joint passage among the predecessors-in-interest of the plaintiff as well as the defendants, while rejecting the contention of the defendants 1 and 2, as their exclusive passage. Thus, the suit was decreed as prayed.
11. Against it, the defendants preferred an appeal as stated above. Learned appellate Judge did not agree with the findings so recorded by the learned trial Judge, observing that the ground situation as remained on the date of Ex.A3 could not have continued for the later period and thus held that it could not be a sound basis to consider the passage in dispute as a joint lane among these parties. Thus, predominantly observing, rejecting the reasons assigned by the learned trial Judge, accepting the contentions of the defendants 1 and 2, allowed the appeal and consequently dismissing the suit. Aggrieved thereby, the present second appeal is preferred.
12. Basing on the material, this Court settled only one question of law basing on ground No.10 in the memorandum of appeal, as under:
MVR,J S.A.No.518 of 2001 5 "The Appellate Court grievously erred in relying on Exs.B1, B2 and B4 and holding that the passage is exclusive passage for Respondents."
13. The defendants are not represented by any advocate nor choose to contest this appeal. Arguments are submitted by Sri M.Ravindranadh Reddy, learned counsel, on behalf of the appellant supporting reasons assigned by learned trial Judge while seriously questioning the nature of the judgment of the appellate Court, relying on Ex.A3. Thus, it is requested to allow this second appeal.
14. Now, the following points arise for determination:
1. Whether ABCD/CDEF passage is a joint or common passage for the purposes of the plaintiff and the defendants?
2. Whether the plaintiff is entitled for declaration as sought including permanent injunction as prayed?
3. To what relief?
15. Admittedly, there is a passage running north-south between the houses of the plaintiff as well as the third defendant on one hand and the houses of the defendants 1 and 2 on the other. It is ABCD/CDEF passage. It runs in between the police lane on the south and the 'Bazar' Street on the north. Location of this passage along with the houses of these parties as depicted in the plan appended to the plaint, is an admitted situation in this case.
16. In this backdrop, the burden is on the plaintiff to establish and prove that this passage is a joint passage meant for their purposes as well as of the defendants. Mere existence of such lane cannot lead to any inference or a presumption that it is a joint passage meeting the requirements of all the parties to the suit.
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17. When this prima facie requirement is established by the plaintiff, the burden then shifts to the defendants to prove contra, that this passage is exclusive lane meant for the purposes of their houses.
18. The husband of the plaintiff as P.W.1 deposed in respect of the case set up by them, at the trial. The main plank of the claim of the plaintiff is the partition among two brothers belonging to Badri family, viz., Sri Badri Ramaiah Chetty and Sri Badri Narayana Chetty, evidenced by a registered partition deed, a registration extract of which is Ex.A3. This partition is dated 17.04.1931. The properties belonging to their family were divided in between these two brothers. There is a reference in 'B' schedule of Ex.A3 of a residential house, which was in occupation of these brothers. The boundaries of this house, particularly having regard to the context for reference in this case is eastern boundary, being a joint wall belonging to the residential house of these two brothers and that of Sri Aitha Chenchaiah Chetty as well as a pathway leading to the road. This road is described as the northern boundary of this house in Ex.A3. The contention of the defendants 1 and 2 is that this path way is not described as a joint passage meant for the residential house of the Badri brothers and that of Aitha family. Learned trial Judge predominantly relied on these recitals in Ex.A3.
19. Ex.A1 and Ex.A2 are the registration extracts of the title deeds dated 27.06.1973 and 19.09.1972 where under the plaintiff is admittedly the owner of the residential house in her possession on the date of the suit.
20. On behalf of the defendants, P.W.1 was cross-examined with reference to Ex.A1 to Ex.A3. The husband of the plaintiff as P.W.1 deposed that as per Ex.A2 sale deed, the eastern boundary is shown as the lane in between the houses sold to him and to that of Sri Kanamarlapudi MVR,J S.A.No.518 of 2001 7 Kotaiah Chetty, who is the vendor of defendants 1 and 2. P.W.1 further stated in cross-examination for the defendants that there is no mention in Ex.A2 that the aforesaid lane is a joint lane. He further stated that similar boundaries are stated in Ex.A1, as in Ex.A2.
21. P.W.1 further stated in cross-examination admitting the location of the house of the third defendant as reflected in the plaint plan. In that context, he further stated in cross-examination that he did not have a right in respect of the suit lane towards north-east, since the house of the third defendant is located. This statement elicited in cross-examination from P.W.1, refers to ABCD portion of the lane and it is explicit from the plaint plan. This statement of P.W.1 cannot be discarded as an inadvertent step, when it is reflecting that this witness was conscious of giving such answer in cross-examination. The reason is that he has specifically referred to the property of the third defendant, which is to the immediate west of this part of the lane described ABCD. Therefore, any amount of significance and importance has to be attached to it. It goes to prove that he and his wife did not have any right to this portion of lane ABCD. In view of this statement of P.W.1, the relief of declaration sought in the suit since confined only to ABCD portion of this passage, is questionable.
22. Further statement of P.W.1 in cross-examination for the defendants 1 and 2 is that there is no outlet from his house into the suit lane. Had there been any window or door or any aperture opening into the suit lane from the house of the plaintiff, it would have definitely supported her version of joint nature of this lane. The very conduct of the plaintiff, having a wall all along with lane towards east as can be culled out from the evidence on record is a definite indicator that he or P.W.1 had never used this lane as joint lane and that they were conscious of the fact that they have no right to this lane.
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23. Even if there are any stray acts of entering into this lane for the purpose of maintenance of this house or for repairs or construction, they cannot in any manner be construed as their assertion of joint possession and enjoyment of this lane. Thus, the version of P.W.1 at the trial particularly from the statements elicited in cross-examination drives the last nail into her case. It is sufficient to hold that the plaintiff failed to discharge her burden in this respect.
24. In view of the above circumstances, effect of the recitals in Ex.A3 itself is lost. Further they do not clearly indicate that this passage remained a joint or common passage for the plaintiff or the defendants. Ex.A1 and Ex.A2 are later documents, which are derivative in nature, so far as title conferred on the plaintiff is concerned. Any recitals therein when the recitals in Ex.A3 themselves stand rejected, cannot have any bearing. Therefore, reliance placed by the learned trial Judge on Ex.A3 as well as recitals therein, cannot enure to the contention of the plaintiff.
25. As already stated, burden to establish the nature of this passage being on the plaintiff and when the plaintiff failed in that respect, it is not necessary for the defendants 1 and 2 to establish, as a matter of fact, as to nature of this passage. Existence of this passage itself being not in dispute as an appurtenant incidence to the property in their occupation, they cannot be called to establish that this passage is meant for their exclusive use.
26. However, the material on record makes out that this passage is being used as an access to the road leading to railway station in the north and to the road, which is southern lane known as police lane in the south. It is to be noted that it is case of neither of the parties that this lane is dedicated for public use. An argument seems to have been projected in MVR,J S.A.No.518 of 2001 9 the first appellate Court that the plaintiff has prescriptive right and as an easement to make use of this passage. But, as rightly observed in the judgment of the appellate Court, it was neither pleaded nor any evidence was let-in in the trial Court in this respect. Therefore, such contention of the plaintiff was rightly rejected by the learned appellate Judge.
27. Ex.B1 registration extract of the settlement deed dated 09.02.1956 in favour of Smt.Pushvathamma D/o.Sri Badri Narayana Swamy Chetty. The original of it is the document of title of one of the predecessors of the third defendant, to the property held by her. Recitals in Ex.B1 also refer to eastern boundary being the lane belonging to Sri Kanamarlapudi Kotaiah Chetty. It did not reflect that the predecessors-in-title of the plaintiff had any right of use of this passage.
28. Similarly, Ex.B2 dated 15.11.1954, a sale deed executed by Sri Aitha Chenchaiah Chetty and two others in favour of Sri Kanamarlapudi Kotaiah, S/o.Sri Kanamarlapudi Venkata Narasimha Chetty of whom, there is a reference in Ex.P1, in relation to the eastern boundary also confirms this fact. It refers to the western boundary of the property covered by it, as the residential house of Sri Badri Narayana Chetty apart from a joint compound wall of the vendors there under as well as Sri Badri Narayana Chetty.
29. Ex.B3 is the registration extract of the sale deed, under which Smt.Lakshmi Devi (the first defendant) had purchased the property from Sri Kanamarlapudi Venkata Narayana Chetty and Sri Subbaiah Chetty S/o.Sri Kanamarlapudi Kotaiah Chetty, which reflects the transfer of title in favour of the first defendant, of the property in her possession. In the presence of the recitals in Ex.B1 and Ex.B2, when the sale covered by Ex.B3 derives its strength from them, it need not be considered again.
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30. Ex.B4 is a registration extract of the sale deed dated 07.11.1968, under which Smt.Pushpavathamma sold the property covered by Ex.B1 to the husband of the 3rd defendant viz., Sri Devisetty Srinivasulu Setty. The eastern boundary of this property is similar as described in Ex.B1 and Ex.B2.
31. A careful consideration of recitals in Ex.B1 and Ex.B4 did make out what has been claimed in defence by the defendants 1 and 2, is appropriate. The second defendant as D.W.1 has clearly set out in his deposition about these transactions as is pleaded in their written statement. His testimony reflects that they have raised a house consisting of first and second floors in the property in their occupation.
32. Another suit pursued by the plaintiff in O.S.No.75 of 1993 in respect of CDEF portion of this passage ended in dismissal, as seen from Ex.B5. There is no material as to whether the above suit was sought to be revived by the plaintiff. Nevertheless, it is not the defence of the defendants 1 and 2 that the present suit stood barred by Order IX Rule 9 CPC even though one of the reliefs relates to the property concerned to the above suit, viz., CDEF portion of this passage.
33. Thus, on a careful consideration of the entire material, when defence set up by the defendants 1 and 2 is proper, not only from the documentary evidence placed by them but also from the testimony of P.W.1, viz., the husband of the plaintiff himself, learned appellate Judge was justified in recording his findings in setting aside the judgment of the learned trial Judge.
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34. The question of law formulated for the purpose of this second appeal is with reference to justification for the appellate Court to reverse the findings of the trial Court.
35. When material on record is concerned in such perspective, in the considered opinion of this Court, there is complete justification for the appellate Court in recording such findings in favour of defendants 1 and 2 and to hold that this lane, namely, ABCD/CDEF running to the west of the property of the defendants 1 and 2, is the lane being used by them. Occasional use of this lane by others including the plaintiff cannot in any manner take away its nature and which is otherwise meant for the use of this premises belonging to defendants 1 and 2.
36. Learned trial Judge, as rightly observed by the first appellate Court had misdirected himself in construing the effect of documentary evidence on record as well as the oral evidence. Absolutely, there is no consideration of the admissions of P.W.1, which have fatal effect on the claim of the plaintiff in the judgment of the trial Court.
37. Therefore, the judgment of the appellate Court has to be confirmed and learned appellate Judge has rightly interfered with the decree and judgment of the trial Court.
38. Therefore, in the light what is stated above, the plaintiff is not entitled for declaration as sought. Thus, this point is held.
39. POINT No.2: In view of the findings on point No.1, question of granting a permanent injunction sought by the plaintiff cannot arise. Particularly, when the very case of the plaintiff is that the lane in dispute is a joint passage, in the back ground of the material on record in this case, such a relief cannot be availed by her.
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40. Therefore, this point is also held in favour of the defendants and against the plaintiff.
41. POINT No.3: In view of the findings on points 1 and 2, this second appeal has to be dismissed confirming the decree and judgment of the appellate Court in reversing the decree and judgment of the trial Court. There shall be no order as to costs. Interim orders, if any, stand vacated. Pending petitions, if any, stand closed.
____________________ M. VENKATA RAMANA, J Dt:24.12.2019 Rns MVR,J S.A.No.518 of 2001 13 HON'BLE SRI JUSTICE M. VENKATA RAMANA SECOND APPEAL No.518 OF 2001 Date:24.12.2019 MVR,J S.A.No.518 of 2001 14 Rns