Madras High Court
Palaniyandi Chettiar vs C.Natarajan on 9 January, 2009
Author: S.Tamilvanan
Bench: S.Tamilvanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09/01/2009 CORAM THE HONOURABLE MR.JUSTICE S.TAMILVANAN S.A.(MD).No.1148 of 2000 Palaniyandi Chettiar .. Appellant vs 1. C.Natarajan, Family Manager 2. Arumugham Chettiar .. Respondents Appeal filed under Section 100 C.P.C against the Fair and Decreetal Order, dated 12.01.2000 made in A.S.No.48 of 1995 on the file of the Principal Subordinate Judge, Trichy, confirming the the Judgment and Decree, dated 09.02.1995 made in O.S.No.154 of 1990 on the file of the District Munsif, Musiri. !For Appellant ... Mr.K.Govindarajan ^For Respondents ... Mrs.Krishnaveni for Mr.T.R.Rajaraman for R1 :JUDGMENT
This Second Appeal has been preferred against the Judgment and Decree, dated 12.01.2000 made in A.S.No.48 of 1995 on the file of the Principal Subordinate Judge, Trichy, confirming the Judgment and Decree, dated 09.02.1995 passed in O.S.No.154 of 1990 on the file of the District Munsif, Musiri.
2. The appellant herein was the defendant in the suit. The respondents herein had filed the suit, seeking permanent injunction against the appellant herein in the "C" Schedule property, mandatory injunction to remove the obstructions made in the "B" Schedule of property and consequential other relief.
3. The trial court, considering the evidence both oral and documentary and the arguments advanced by both sides, decreed the suit. Aggrieved by which, the defendant in the suit preferred appeal. The first appellate court, confirming the Judgment and Decree, dismissed the said appeal. Aggrieved by which, this Second Appeal has been preferred.
4. This Court has framed the following Substantial Questions of Law for deciding the Second Appeal.
"1. Whether the learned Appellate Court is correct in dislodging the finding of the trial court that the 6 . feet which is claimed as pathway is beyond 36' and not within 36' as claimed by the plaintiff and respondent has not preferred any cross appeal challenging the said finding ?
2. Whether the suit filed by respondent seeking advance for mandatory injunction on the basis of title is within time especially when even in the year 1976 in the reply notice the appellant had denied the title of the respondent ?"
5. The case of the respondents / plaintiffs is that the plaint "A" Schedule of property and the other properties on the North, were originally belonged to Chidambaram Chettiar, father of the first respondent / first plaintiff, who sold the "A" Schedule property in Natham S.No.311 in Manamedu Village, Musiri Taluk to the father of the appellant / defendant on 16.05.1955 under the sale deed, original of Ex.A.2. As per the sale deed, an extent of 40 feet North-South, 36 feet East-West has been sold in the schedule of property of the said sale deed. It has been further stated that the purchaser Veerappan Chettiar is entitled to use the cart track immediately on the East having 6. feet breadth and 40 feet length belongs to the vendor. The said right conveyed is also part of the sale deed. In view of the averments made in the sale deed, Ex.B.2, original of Ex.A.2, the courts below have found that the respondents are entitled to claim right by virtue of the said sale deed.
6. Mr.K.Govindarajan, learned counsel appearing for the appellant submitted that the appellant's father purchased the property East-West measuring 42 . feet and North-South measuring 40 feet and the eastern most 6 . feet was agreed to to left as pathway to link the East-West road, on the Northern side. According to him, the said 6 . feet East-West and 40 feet North-South is also the subject matter of the sale deed, dated 16.05.1955. In support of his contention, the learned counsel relied on the following decisions:
1. P.Chandrasekharan vs. S.Kanakarajan, 2007 (5) SCC 669
2. Periyanna Gounder vs. Komarasami, 2000 (I) MLJ 431
3. Varadarasu alias Devarasu vs. Malone Veerasamy alias Thanapal, 2003 (1) MLJ 294
4. Chinna Nachiappan vs. PL.Lakshmanan, 2007 (4) CTC 70
5. Dasnam Naga Sanyasi vs. Allahabad Development Authority, AIR 1995 Allahabad 418
7. In the written statement, the appellant / defendant has specifically averred that the said disputed portion 6 . feet East-West and 40 feet North-
South on the East of the "A" Schedule property belongs to the appellant / defendant. It is not in dispute that Veerappan Chettiar, father of the appellant / defendant had purchased "A" Schedule property, which is an extent of East-West 36 feet and North-South 40 feet with the superstructure in Natham S.No.311 of Manamedu Village, Musiri Taluk.
8. Both the parties have admitted the sale deed, Ex.B.2, dated 16.05.1955 executed by Chidambaram Chettiar, father of the first respondent in favour of Veerappan Chettiar, father of the appellant / defendant. Therefore, the averments in the said document is not in dispute. In the registered sale deed, with reference to the schedule of property, it is clearly stated that the father of the appellant had purchased the house site, measuring North-South 40 feet and East-West 36 feet in Natham S.No.311. The vendor, Chidambaram Chettiyar, father of the first respondent has given only the right of pathway in respect of a cart track available on the east of the said property, measuring 6 . feet East-West and 40 feet North-South. Therefore, it is clear that the right conveyed under the sale deed, so far as the said 6 . feet East-West and 40 feet North-South cart track is concerned is only a pathway right, it cannot be an absolute right, as claimed by the appellant / defendant. As per the sale deed, the father of the first respondent has stated that he was the owner of the property in respect of the cart track on the east of the property, conveyed by him. In such circumstances, the defendant is not entitled to claim absolute right in the said property, which is specifically stated as pathway right in the cart track, so as to put up any construction.
9. Advocate-Commissioner was appointed by the trial court, who inspected the property, filed his report and sketch, which were marked as Ex.C.1 and Exs.C.2 to C.4. As per the Commissioner's Report and Plan, there is an encroachment in the cart track stated in the schedule of property of the sale deed, Ex.B.2, wherein the defendant has put up masonry construction of steps to his building. The Advocate-Commissioner has given measurements for the encroached construction made in the aforesaid cart track on the east of the property purchased by the father of the appellant / defendant.
10. As per Ex.B.2, sale deed, the appellant / defendant is entitled to claim absolute right in the house site, measuring North-South 40 feet and East- West 36 feet. It is not in dispute that the said property is in possession and enjoyment of the appellant / defendant. So far as the cart track on the eastern side of the said property is concerned, only a limited right was conveyed to him by the vendor, namely the father of the first respondent, whereby he is entitled to use the cart track to an extent of 6 . feet East-West and 40 feet North-South as pathway. In such circumstances, he cannot claim any absolute right to put up any construction therein. Veerappan Chettiar, father of the appellant / defendant and the appellant were entitled to right of user of the cart track, which cannot be made an absolute right, even by way of claiming adverse possession.
11. The learned counsel appearing for the respondents submitted that the appellant is not entitled to put up any construction in the cart track, since he had limited right of user, as per the sale deed, Ex.B.2. In support of her contention, the following decisions were cited :
1. Kandasamy vs. Kolandasamy, 2006 (1) MLJ 68
2. Rama Gowda (D) by Lrs. vs. M.Varadappa Naidu (D) by Lrs. & Anr, 2004-3-
LW 143
12. The Hon'ble Supreme Court in the decision, P.Chandrasekharan vs. S.Kanakarajan, reported in 2007 (5) SCC 669 has held that interpretation of a document, which goes to the root of the title of a party, gives rise to a substantial question law, as per Section 100 of the Code of Civil Procedure. It is not in dispute that the recitals contained in a document was held to be involving a substantial question of law, when the findings are based on misreading of evidence or so perverse, that no reasonable person of ordinary prudence could take the said view.
13. In Hero Vinoth vs. Seshammal, reported in 2006 (5) SCC 545, the principles relating to Section 100 CPC has been summarized by the Hon'ble Apex Court as follows :
"(i) An inference of fact from the recitals or contents of an document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in constructing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-
recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
14. In the decision, Varadarasu alias Devarasu vs. Malone Veerasamy alias Thanapal, reported in 2003 (1) MLJ 294, this Court held that the documents produced on the side of the plaintiffs in the said case, being self-serving documents, the lower appellate court therein was in error in placing reliance on them, as supporting the case of the plaintiffs and decided that the finding of the lower appellate court was clearly vitiated by application of wrong tests and on the basis of conjectures and assumptions.
15. In the decision, Periyanna Gounder vs. Komarasami, reported in 2000 (I) MLJ 431, this Court has held that the principles to be borne in mind with regard to the easementary right are well-settled. It is necessary that the plaintiff should establish his case as required by law before he can claim a right of easement over the land. Section 15 of the Easements Act provides that where a right of way has been peacefully and openly enjoyed by any person claiming title thereto as an easement and as of right, without interruption for twenty years, the right would be established.
16. The aforesaid decisions are not applicable to the facts and circumstances of the case. Since the courts below have not misinterpreted the averments of the document, Ex.B.2 and the plaintiffs have not claimed any easementary right in the property. The appellant / defendant cannot claim any right more than the right conveyed under Ex.B.2, sale deed. As per the sale deed, in the cart track measuring East-West 6 . feet, North-South 40 feet, on the east of the property purchased by him. Only easement by grant has been conveyed by the vendor. As it is easementaryright by grant by the owner of the property, 20 years enjoyment is not required. As per the document, Ex.B.2, only the appellant is entitled to use the cart track as an easementary right by grant. The appellant / defendant has not given any easementary right in favour of his vendor or his successor, the respondent herein. The easementary right cannot create absolute right by way of adverse possession, because both the rights cannot go together.
17. The learned counsel appearing for the appellant / defendant submitted that even in the year 1976, the first respondent / first plaintiff had sent a legal notice, for which the appellant / defendant sent his reply, Ex.A.6.
18. In the decision, Rame Gowda (D) by Lrs. vs. M.Varadappa Naidu (D) by Lrs. & Anr, reported in 2004-3-L.W. 143, the Three Judge Bench of the Hon'ble Apex Court has laid down the following tests which may be adopted as a working rule for determining the attributes of settled possession :
"(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period.
(ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and
(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession."
19. In the decision, Kandasamy vs. Kolandasamy, reported in 2006 (1) M.L.J. 68, this Court rejected the contention raised by the appellants therein on the allegation that the property therein was not properly described, since there were documents filed by the plaintiff to show the description of the cart track and the same indicates the cart track, which was the subject matter of the said suit.
20. In this case also the property in dispute is specifically stated in the sale deed, Ex.A.2, which is on the east of the property, measuring 40' x 36' purchased by the appellant / defendant. The right given under the sale deed by the vendor is only a limited right of user of the cart track. The right of easement by grant cannot be extended as an absolute right, for which, he must have given up the earlier right, like the principle 'onces a mortgage always mortgage'. the person having easementary right by grant cannot claim absolute right, without giving up the right, similarly, the appellant / defendant cannot shift the burden on the respondent / plaintiff, saying that he constructed the building long back and acquired title to the property, namely, the portion of the cart track specified in the sale deed. The appellant / defendant, who has got only the easementary right in the disputed cart track, who has no right to put up any superstructure in the said land. As the said encroachment is against the sale deed and the easementary right given under the sale deed, hence, the said act has to be construed as illegal.
21. The sale deed, Ex.A.2 is an undisputed document by both the parties, whereby only easementary right has been given to the purchaser, namely, the appellant / defendant. Since the right conveyed under the undisputed document is clear, I am of the view that the suit is not affected, as there is no prayer for declaration of title to the property.
22. On the above facts and circumstances, I am of the view that the finding of the courts below is correct in holding that the pathway described in the sale deed, Ex.A.2 is only immediately on the east of the property sold to the appellant / defendant and accordingly, answer the first substantial question of law against the appellant and in favour of the respondents.
23. As per the sale deed, there is no dispute with regard to the right of the parties. It is clear that the appellant / defendant was conveyed only an easementary right in the cart track and therefore, the prayer for mandatory injunction is legally sustainable, as there is no dispute with regard to the title of the property and accordingly, I answer the second substantial question of law against the appellant and in favour of the respondents.
24. I am of the view that there is no illegality, perverse finding, leading to miscarriage of justice, so as to warrant the interference of this Court in the Second Appeal, hence, the Second Appeal fails.
25. In the result, confirming the Judgment and Decree passed by the courts below, this Second Appeal is dismissed. However, there is no order as to costs.
tsvn To
1. The Principal Subordinate Judge Trichy.
2. The District Munsif Musiri.