Madras High Court
Tmt.Revathi vs Kathan on 12 July, 2019
Author: P.T. Asha
Bench: P.T. Asha
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.07.2019
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.145 of 2013
&
M.P.No.1 of 2013
Tmt.Revathi ... Appellant
Vs
Kathan ... Respondent
Prayer: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated
13.07.2011 made in A.S.No.91 of 2010 on the file of Sub Judge,
Mannargudi in reversing the Judgement and Decree dated
30.07.2010 made in O.S.No.173 of 2005 on the file of the
District Munsif, Mannargudi.
For Appellant : Mr.V.Sundararajan
For Respondent : Mr.S.Thiruvenkataswamy
http://www.judis.nic.in
2
JUDGEMENT
The defendant is the appellant before this Court. The Second Appeal arises against a reversing Judgement. The parties are referred to in the same litigative status as in the suit. The plaintiff had come forward with the suit O.S.173 of 2005 on the file of the District Munsif, Mannargudi, for the following reliefs:
“1. To declare the plaintiff's easement right over the suit B Schedule property.
2. To grant a permanent injunction restraining the defendant her men and agent from in any way interfere with the peaceful enjoyment of the suit B Schedule property as pathway:
3. To award cost of this suit, and
4. To grant such other further reliefs as this Hon'ble Court may be deem for under the circumstances of this case in favour of the Plaintiff and thus render justice.” http://www.judis.nic.in 3 Schedule of Properties:
2. The property subject matter of the suit is a pathway described as 'B' schedule and marked as A, B, C and D in the plaint plan.
Plaintiff's Case:
3. It is the case of the plaintiff that the property in question belonged to his father one Krishnaswamy. On his death in the year 2002, the property devolved upon the plaintiff and his brother one Veeraiyan. The plaintiff would contend that he and his brother are enjoying the property jointly and that he has filed the suit as a manager of the Hindu Undivided Family. It is his case that for several decades they have been enjoying the access through the suit pathway to the main road.
4. While so, in the year 1992, there was dispute between the then owner of the suit survey field one Seetharaman and Murugaiyan Pullvarayar regarding the land and passage. The dispute ultimately resulted in a Muchalika being executed in the presence of the Panchayatars in the form of an Affirmation letter dated 30.03.1992.
http://www.judis.nic.in 4 He would contend that this pathway was directed to be used by Krishnaswamy and Somasundaram for the purpose of digging waste and as Cart Track. The said Cart Track is now situate in Survey No.237C-19. It was also his case that the said Somasundaram who is the vendor of the defendant had also signed in the said Muchalika. The specific case was that the original of the Muchalika (Affirmation letter) is on the hands of mediators and the plaintiff who holds a Xerox copy had also undertaken to produce the Will at the time of the Trial.
5. It is the further case of the plaintiff that after sale of the property by Somasundaram to the defendant, the defendant had started blocking the use of the pathway. In fact the document under which the property was sold to the defendant did not contain any reference to this cart track. The plaintiff would submit that the defendant cannot claim exclusive right to the B-Schedule property since the plaintiff also has a right over the same. It is also stated that the plaintiff does not have any alternative pathway. The plaintiff had therefore come forward to file the suit in view of the threat posed by the defendant to declare his easementary right over the pathway and for an injunction.
http://www.judis.nic.in 5 Defendant's Case:
6. The defendant filed her written statement inter alia denying the plaintiff's claim to the suit property. The defendant stated that the plaint plan filed along with plaint is a totally self serving and false document and the property does not exist as shown in the plaint plan. The defendant would also put forward the case that the plaintiff had an alternative pathway on the east and the entrance to his property is also only on the east. The defendant had further contended that at no point of time the suit property was being used as pathway. The defendant would submit that the plaintiff's case that they had an access directly from the main road to the property through pathway which is situate north of the property of Gopala Krishnan is false. The defendant would further contend that the suit is only a counter blast to the defendant refusal to sell their property to the plaintiff. Trial Court:
7. The Trial Court, namely, the District Munsif, Mannargudi had framed the following issues:
http://www.judis.nic.in 6 “1.Whether the plaintiff is entitled to easementary right over the 'B' Schedule property?
2.Whether the plaintiff is entitled to permanent injunction as prayed for?
3.Whether the plaintiff is having alternative access as alleged by the defendant?”
8. The plaintiff had examined himself as P.W.1 and the attesting witness was examined as P.W.2 and three others as P.W.3, P.W.4 and P.W.5. The Advocate Commissioner was examined as P.W.6. Ex.A.1 to Ex.A.5 were marked on the side of the plaintiff and the Advocate Commissioner had marked Ex.C.1 and Ex.C.2. The defendant on her side examined herself as D.W.1 and one Somasundaram, Pithaiyan and Anbu as D.W.2 to D.W.4 and marked Ex.B.1 and Ex.B.2.
9. The learned District Munsif, Mannargudi after considering the evidence, both oral and documentary, rendered a finding that the plaintiff had no right to the suit property as they had an alternative pathway on the east of the property. The learned Judge had rejected Ex.A.5, on the ground that the same is a Xerox copy therefore cannot http://www.judis.nic.in 7 be considered. Further the learned Judge had also observed that the document has not been registered and therefore cannot be looked into. The learned Judge therefore dismissed the said suit. Appellate Court:
10. The plaintiff had taken up the Judgement and Decree on appeal to the Subordinate Judge, Mannargudi in A.S.No.91 of 2010. The Subordinate Court, Mannargudi, being the final Court of fact has proceeded to allow the appeal by simply contending as follows:
“,Ug;gjhf Mtzj;jpd; K:ykhfnth rhl;rpaj;jpd; K:ykhfnth epUgpf;fg; glntz;Lk; khw;Wghij ,Ug;gij tHf;fwp"u; Mizauplk; fhz;gpf;ftpy;iy jhth gp bc&oa[y; brhj;ij jtpu thjp mtUila bfhy;iyg;g[wk; tz;o, thfdk; vLj;J bry;y khw;W ghij ,y;iy vd bjhpa tUtjhy; thjp nfhhpa ghij trjp chpik Mtd';fs; K:yk; epUgpf;fg;gl;Ls;sJ/ bjhpatUtjhy; thjp jhthtpy; nfhhpa[s;sthW gp bc&oa[y; brhj;ij bghWj;J tpsk;g[if ghpfhuk; bgw mUfij cilatu; vd;Wk; mij gpujpthjpfs; fpuak; th';fp gpwF milf;f Kaw;rp bra;jhu; vd;gJ bjhpatUfpwJ/ epue;ju cWj;Jf; fl;lis gupfhuk; bgw mUfij vd jPu;t[ fhzg;gLfpwJ/” a reading of this Judgement would reflect the total non-application of http://www.judis.nic.in 8 mind on the part of the Appellate Court and further it is not known as to how the learned Judge has proceeded to allow the appeal. Challenging the said order the appellant is before this Court. Second Appeal:
11. The Second Appeal has been admitted on the following Substantial Questions of Law:
“1.Whether the Court below has erred in granting the relief of easementary right to the respondent in schedule B property without sufficient proof on the side of the respondent to prove that he is the owner of Schedule 'A' property?
2.Whether the Court below had has erred in not seeing that the suit has laid is not maintainable when the respondent himself had claimed that he is the Kartha of Hindu Undivided Family?
3.Whether the suit is bad for non joinder of necessary parties?
4.Whether the respondent has established the right of easement as required under Section 15 of the Indian http://www.judis.nic.in 9 Easements Act?
5.Whether Ex.A.5 is an admissible document and whether the Section 63 and Section 65 of Indian Evidence Act have been follows?” Submissions:
12. Heard, Mr.K.V.Sundararajan, learned counsel for the appellant/defendant. He would submit that the entire case of the plaintiff revolves around Ex.A.5 and also on the ground that the relief claimed is an easement of necessity. He would further argue that the plaintiff who has filed the suit as Kartha had not filed any documents whatsoever to show this status. The learned counsel for the appellant would further submit that the respondent/plaintiff has an alternative pathway and therefore he would not be entitled to a declaration as prayed for. He also drew the attention of this Court to the evidence of P.W.1, plaintiff. The plaintiff would contend that except for Ex.A.5, he does not have any other documents whatsoever to prove his case on easement. The plaintiff has also admitted that in Ex.A.3- sale deed there is no mention about the said pathway. Ex.A.3 is of the year 2000, much prior to the dispute between the parties. He would also http://www.judis.nic.in 10 admit that he has not produced any documents, revenue records or the FMB sketch to show that the suit pathway is a public pathway as contended by him.
13. The counsel would also draw the attention of the Court to the evidence of P.W.2, who is the alleged attestor of Ex.A.5, Muchalika. The witness would categorically admit that he was not aware that original of the Muchalika is with him and the witness is also unable to state the survey number in which the pathway is situate. As regards the evidence of P.W.6, the Advocate Commissioner, the counsel would submit that a mere perusal of the report would clearly show that there is no application of mind on the part of the Advocate Commissioner to independently assess the property and that entire report is based on hear say. Therefore, the Advocate Commissioner's report cannot be relied upon to show that there was a pathway.
14. That apart, even according to the Advocate commissioner, it is only a foot path that is available in the B-Schedule property and not a Cart Track as pleaded by the plaintiff. He would further contend that under Ex.A.5, there are other parties involved and there is a passing http://www.judis.nic.in 11 of consideration of Rs.1,000/-, which requires the document to be registered and in the absence of such registration the same cannot be looked into. He would invite the attention of this Court to the Judgements reported in 56-LW-279 – S.Kr.M.Subramanyam Chettiar Vs. Meyyammai Achi and others and 2015 (6) CTC 793 – Rakesh Mohindra Vs. Anita Beri and others.
15. Mr.S.Thiruvenkataswamy, learned counsel appearing for the plaintiff/respondent would seek to support the Appellate Court Judgement by contending that Somasundaram, vendor of the defendant who was examined as D.W.2 had admitted the existence of the pathway during his cross examination.
16. Heard the submissions of the counsels and perused the documents. From the arguments of both the counsels, it is clear that the plaintiff has come forward with a specific case that right to the pathway emanates only from Ex.A.5, Muchalika. A reading of Ex.A.5, Muchalika would show that there is no clarity as to the property which has been proposed to be used as pathway. The deed would recite that the agreement is with reference to a 74 X 15 feet space proceeding http://www.judis.nic.in 12 from the Needamangalam road, proceeding northward towards the residential portions and this pathway has to be used by the signatories to Ex.A.5 and apart from that, also by one Murugiyan Pulavarayar, Krishna Swamy Pulavarayar and Somasundara Vaniyar as well as by one Pappammal. In fact, none of them have signed this documents. The document also proceeds on the footing that in exchange of property between one Thangarasu Pulavarayar and Sevu Pulavarayar a consideration of Rs.1,000/- is paid. Therefore the agreement is one for consideration of a sum over and above Rs.100/-. The said document deals with immovable property. Therefore, it is compulsorily registrable under Section 17 of the Registration Act and without registration, the said document cannot be entertained in evidence and looked into for any purpose. Therefore, the plaintiff cannot claim any right based on this document.
17. In the Judgement reported in 56-LW-279 – S.Kr.M.Subramanyam Chettiar Vs. Meyyammai Achi and others, the Court has held has follows:
“With respect, however, having regard to the http://www.judis.nic.in 13 provisions of S.2, Cl.6 and S.17 of the Registration Act there can be, in my opinion, no doubt that it is correct. In S.2, Cl.6 'immoveable property' is stated to include “rights to ways”, and in S 17 (1) Sub-Cl.(b) it is enacted that “non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property shall be registered. Under S.2 Cl.6 for the purposes of the Indian Registration Act rights of way are immoveable property. A document therefore which creates a right to or interest in immovable property.”
18. As explained, the document purports to give a right of way and once there is a right of property coupled with consideration, the document is compulsorily registrable. The Honourable Supreme Court in the Judgement reported in 2015 (6) CTC 793 – Rakesh Mohinidra Vs. Anita Beri and others has further observed as follows:
“17.The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relied upon such documents in spite of best efforts, unable to produce the same which is http://www.judis.nic.in 14 beyond their control. The party sought to produce secondary evidence must establish for the non-production of Primary Evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted.”
19. In the instant case, from a perusal of the Advocate Commissioner's plan, it is seen that next to the property of the plaintiff there is a pathway on the eastern side and therefore it has to be declared that in front of the plaintiff's property there is a pathway. The witnesses have all stated that there is no opening on the rear portions of the plaintiff's property into the suit pathway. From a reading of Ex.A.5, though not admissible in evidence, there is no mention of the pathway turning to the east after proceeding northwards. The pathway in issue is the portion which runs West – East on the northern side of the property which belongs to Gopala Krishnan. On the southern end of the defendant's property, Ex.A.5 does not make any reference to the said pathway. The plaintiff has made his claim only on the basis of this document. Further the plaintiff has not chosen to make all the parties to Ex.A.5 a party to the http://www.judis.nic.in 15 suit hence the suit is bad for non-joinder of necessary parties.
Therefore this Court is of the opinion that the plaintiff has failed to prove his right to the said pathway and the Appellate court has also not applied its mind to the evidence available on record to sustain its Judgement. No reason whatsoever has been given by the Appellate Court as to why the Judgement and Decree of the Trial Court is set aside. The questions of law are answered in favour of the defendant. In view of the above, the Second Appeal is allowed. The Judgement of the Subordinate Court, Mannargudi in A.S.No.91 of 2010 is set aside and the Judgement and Decree of the District Munsif, Mannargudi, in O.S.No.173 of 2005 is confirmed. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is also closed.
12.07.2019 kan Index : Yes/No Speaking order/non-speaking order To
1.The Subordinate Judge, Mannargudi.
2.The District Munsif, Mannargudi.
http://www.judis.nic.in 16 P.T.ASHA, J., kan S.A.No.145 of 2013 & M.P.No.1 of 2013 12.07.2019 http://www.judis.nic.in