Madras High Court
Marappa Gounder vs Kandasamy Gounder on 2 February, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
In the High Court of Judicature at Madras Dated: 02.02.2012 Coram: The Honourable Mr.Justice V.PERIYA KARUPPIAH Second Appeal No.178 of 2005 Marappa Gounder ... Appellant Versus Kandasamy Gounder ... Respondent Second Appeal filed under Section 100 of C.P.C. against the Judgment and Decree dated 26.02.2003 made in A.S.No.2 of 2003 by the learned Additional District Judge, Fast Track Court No.4, Coimbatore at Tiruppur reversing the Judgment and Decree dated 19.10.2001 made in O.S.No.25 of 1999 by the learned District Munsif, Tiruppur. For Appellant .. Mr.Sanjay Baba for Mr.V.Nicholas For Respondent .. No appearance JUDGMENT
This appeal is directed against the judgment and decree passed by the first appellate court in A.S.No.2 of 2003 in setting aside the judgment and decree passed by the trial Court in O.S.No.25 of 1999 dated 19.02.2001.
2. The appellant is the plaintiff and the respondent is the defendant before the trial court.
3. The facts of the case of the plaintiff / appellant which are necessary for the disposal of the Second Appeal are as follows:-
The suit property was originally belonged to Pattay Gounder ancestrally and after him, the same was enjoyed by his legal heirs without any partition as common property. The plaintiff and the defendant are from common ancestor. The suit property is situated on the eastern side of Udumalai Palladam Main Road. The plaintiff was using the pathway, marked in red ink in the plaint plan, for going over to his property, by walking and during the harvest season, the plaintiff used to take cart and other vehicles through the said cart track to reach his lands. Except the said cart track, there is no other pathway to reach his lands. On 31.01.1999, the defendant had attempted to prevent the plaintiff from taking the harvested maize stem (solai thattai) in the cart through the way, which is marked in green ink in the plaint plan, but the plaintiff had taken his cart overcoming the prevention made by the defendant. The defendant is placing bunches of thorn on the northern side at the cart track so as to prevent the plaintiff to reach his lands from Udumalai Palladam road by using the cart track. The defendant has no right to prevent the plaintiff from using the cart track. The plaintiff has possessory right over the cart track. Hence, the plaintiff has filed this suit for permanent injunction against the respondent / defendant restraining him in any way preventing the plaintiff from using the cart track, which is running in the suit property as detailed in the plaint and for mandatory injunction for removing the bunches of thorn placed on the northern end and for costs.
4. The contentions raised by the defendant would be thus:-
The suit is false, frivolous, vexatious and unsustainable both in law and on facts. The plaintiff is put to strict proof of all the allegations stated in the plaint. The plaintiff never enjoyed any cart track especially the suit cart track and this defendant never obstructed on 31.01.1999. The alleged cause of action is highly false and vexatious. The rough plan is bereft of any details and without any particulars regarding the measurements of the said cart track in respect of its length, breadth and direction and the same is not admitted by this defendant. Since the suit for bare injunction without a prayer for declaration of easementary rights is not maintainable under law or on facts. It is false to say that the alleged suit cart track is in use from time immemorial. The plaintiff is having cart track in the northern side of the suit property. The cart track is also mentioned in the Commissioner Report filed in I.A.No.252 of 2000. This defendant is having property in S.F.590/1 and the sub-division has been effected even in the year 1985. Similarly, the property of the plaintiff has been sub-divided in S.F.No.587 and immediate east of S.F.587 is S.F.587 belonged to his co-sharers. The plaintiff never enjoyed any cart track in S.F.590/1. The defendant is cultivating the properties personally. If at all the plaintiff wants to take carts and vehicles, he could have claim cart track only with his co-sharers i.e., the shares in S.F.589 and this defendant is not liable to provide any cart track as alleged in the plaint. Through a partition deed dated 01.12.1997, 'A' schedule properties attached to the partition deed were allotted to the defendant. Neither after nor prior to the partition, the plaintiff enjoyed any cart track as alleged in the plaint through S.F.590/1. The defendant cultivated cholam crops in his field and the field is surrounded by thorny fence. The plaintiff, immediately after filing of the suit, removed the fence and crops and took the carts over the canal of the defendant and caused substantial loss and damage to the defendant. The plaintiff indulged in this act only to show a cart track during the Commissioner's visit. As the properties are dry in nature, the plaintiff can very well take carts and other vehicles through S.F.587 and 589 and not through 590/1. The plaintiff has not produced any document with regard to their nature of right or claim. Therefore, the plaintiff fails to prove the easement of necessity. Equally it is not correct to claim as there is customary right of easement to the plaintiff in the absence of any documentary evidence. If the cart track really exists from time immemorial, the village records would clearly reveal the same. The plaintiff has no prima facie case. Balance of convenience is fully against the plaintiff. If injunction is granted in favour of the plaintiff, the defendant alone will put to irreparable loss and injury. The plaintiff has not come with clean hands. Hence, the suit may be dismissed with exemplary costs.
5. On the basis of the pleadings submitted by both sides, the trial Court had framed necessary issues and additional issues and entered trial. After appraising the evidence adduced on either side, the trial Court decreed the suit filed by the appellant / plaintiff and granted permanent injunction as well as mandatory injunction.
6. The defendant, being aggrieved by the judgment and decree passed by the trial court, preferred an appeal in A.S.No.2 of 2003 before the first appellate court. After hearing both sides, the first appellate court had come to conclusion of reversing the judgment and decree passed by the trial court and dismissed the suit.
7. Aggrieved by the reversal judgment of the first appellate court made in A.S.No.2 of 2003, the plaintiff has challenged the judgment and decree of the first appellate court in this Second Appeal.
8. At the time of admission of the appeal, this Court has formulated the following questions of law:-
"(i) When the reports and plans of the Commissioner clearly establish not only the existence of the suit cart track, but also that there is no other alternative cart track available to the plaintiff whether the lower appellate court is correct in reversing the judgment and decree of the trial court ?
(ii) When the properties belong to a common ancestor of the plaintiff and defendant and as such there is no need to mention the cart track in the documents if any and therefore, the claim of the plaintiff could not be rejected on that ground, whether the lower appellate court is correct in setting aside the decree of the trial court?"
9. Heard Mr.Sanjay Baba, learned counsel appearing on behalf of Mr.V.Nicholas, learned counsel for the appellant. No appearance for the respondent.
10. The learned counsel for the appellant would submit in his argument that the suit was filed by the plaintiff seeking temporary injunction and mandatory injunction against the respondent/defendant from using the cart track by the plaintiff running in the suit property in between S.Nos.587 and 591; 587 and 590/1; 590/2 and 590/1; and 590/3 and 590/1 as detailed in the plaint. He would further submit that the said cart track were utilised by the plaintiff to go over to his lands in S.Nos.590/2, 590/3 and 591 from Udumalai Palladam Main Road. He would further submit that the plaintiff was using the said pathway for going over to his property, by walking and during the harvest season, the plaintiff used to take cart and other vehicles through the said cart track to reach his lands. The suit was filed by the plaintiff since the defendant had prevented the plaintiff from taking the harvested maize stem (solathattai) in the cart and subsequently, the plaintiff had taken his cart overcoming the prevention made by the defendant. He would further submit that the defendant placed bunches of thorn on the northern side of S.F.No.590/1 at the cart track so as to prevent the plaintiff to reach his land from Udumalai Palladam tar road by using the cart track. He would also submit that the trial court had examined the witnesses on the side of the plaintiff and appreciated the evidence produced by the plaintiff and found that the plaintiff was entitled to both permanent injunction and mandatory injunction against the defendant. He would further submit that the trial court had come to the conclusion of accepting the case of the plaintiff, since the defendant while he was examined as DW.1 had accepted Ex.A9 partition deed entered into between themselves, which show the lay of the cart track as detailed by the plaintiff. He would further submit that the defendant had also admitted the cart track passing through the said lands as detailed in the plaint sketch and on the admission made by him that there is no other cart track for the plaintiff, the suit was correctly decreed by the trial court. He would also submit that the first appellate court had erroneously come to a conclusion that the trial court did not understand that there was no reference as to the lay of the cart track adjacent to S.F.No.590/1 and there cannot be any cart track on the northern end of S.F.No.590/1 for the purpose of the plaintiff to reach his lands and reversed the finding of the trial Court. He would further submit that the first appellate court did not appreciate the admission made by DW.1 regarding the existence of the cart track and also the admission that there was no other cart track for the plaintiff to reach his lands. He would also submit that the plan submitted by the Commissioner was not considered by the first appellate court and the presence of thorny bunches put at the cart track was also not considered. He would also submit that if those points were considered by the first appellate court it would confirm the judgment and decree passed by the trial court. He would also submit that the judgment and decree passed by the first appellate court is perverse, since it had not considered the important points to decide the appeal, but had come to a conclusion without the support of evidence, which would be amounting to a perverse decision. He would further submit that the judgment of the trial court should not have been set aside by the first appellate court as there were no reasons put forth by the first appellate court. He would also submit that the categorical admission by DW.1, that during harvest season and ploughing seasons the suit cart track would be used as detailed in the plaint was correct, would demolish the case of the defendant and on that aspect itself, the suit was decreed by the trial court which should not have been reversed. He would, therefore, request the court to interfere and set aside the judgment of the first appellate court and to restore the judgment and decree passed by the trial court and thus, the Second Appeal may be allowed.
11. I have perused the records. I have also given anxious thoughts to the arguments advanced by the learned counsel for the appellant / plaintiff.
12. The suit has been laid by the appellant / plaintiff for the following reliefs:
a) permanent injunction against the respondent/ defendant restraining him in any way preventing the plaintiff from using the cart track, which is running in the suit property as detailed in the plaint;
b) mandatory injunction for removing the bunches of thorn placed on the northern end; and
c) costs.
13. The said suit was decreed by the trial court as prayed for by the plaintiff. However, the first appellate court had reversed the finding on the reason that the partition deed executed in between the defendant and others in Ex.A9 does not show the existence of cart track on the northern side of S.F.No.590/1 and since the said land was allotted to the father of the defendant and no cart track was found in S.No.590/1, the decree passed by the trial court was found not correct. It is patent that the lower appellate court did not consider other reasons for the trial court to come to the conclusion of decreeing the suit. The point insisted by the learned counsel for the appellant / plaintiff was that the plaintiff had asked for permanent injunction that the defendant should be restrained from preventing the plaintiff using the cart track during the season of ploughing and harvesting and in other seasons to go by walk to the lands of the plaintiff as detailed in the plaint sketch. The trial Court had categorically based its finding that the defendant, while he was examined as DW.1, had categorically admitted that there was a cart track to go over to the plaintiff's lands as detailed in the plaint during the harvest season and ploughing season and was used as pathway to go by walk to the lands of the plaintiff in various survey numbers and therefore, it was convinced to grant permanent injunction in favour of the plaintiff. Apart from that the plaintiff was also granted with mandatory injunction, since the defendant was putting bunches of thorns in the cart track on the northern part of S.F.No.590/1, which is belonging to the defendant. As regard the reference to the cart tracks in various survey numbers mentioned in the partition deed Ex.A9, there is no reference as to cart track in the land in S.F.No.590/1. However, on a careful perusal of the evidence of DW.1, I could see that the defendant has categorically admitted about the suit cart track, which runs as follows:-
"tHf;Fiuapy; tHf;F tz;oj; jlj;jpy; mWtil fhy';fspYk;. cHt[ fhy';fspYk; tz;oapd; K:yk; brd;W tUtjhf Fwpg;gpl;Ls;shh;fs; vd;why; rhp jhd;/"
The said categorical admission made by the defendant was simply ignored by the first appellate court while reversing the judgment and decree passed by the trial court. The said reason put forth by the first appellate court is not sufficient to interfere with the well considered findings of the trial court.
14. It is the dictum of the Hon'ble Apex Court that the first appellate court should be very careful in interfering with the judgment and decree passed by the trial court in a well considered manner. It is held in the judgment of Hon'ble Apex court reported in (2007) 4 SCC 163 (Chinthamani Ammal vs. Nandagopal Gounder and another) that the facts decided by the trial court should not normally be disturbed by the first appellate court unless there is a grave error in the said finding. The relevant portion found in para 19 runs as follows:
"19. In Madholal Sindhu v. Official Assignee of Bombay (AIR 1950 FC 21) it was observed:
"It is true that a judge of first instance can never be treated as infalliable in determining on which side the truth lies and like other tribunals he may go wrong on questions of fact, but on such matters if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at, the appeal court should not lightly interfere with the judgment."
15. The judgment of this Court reported in (2007) 1 MLJ 499 (Kamireddi Sattiaraju and Kamireddi Mangayamma(died) ..Vs.. Kandamuri Boolaeswari) would also be helpful for the present case. The dictum laid down by this Court would be thus:-
"27. In the recent decision of the Supreme Court reported in 2002 (2) LW 399 (supra), the Supreme Court has set out the legal position as under in paragraph 15:
"15.Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these statutory guidelines shall be in the forefront of the mind of the Court. The trial Court, which had the added advantage of recording the evidence and seeing the demeanour of the witnesses considered the relevant facts and reached a conclusion. The appellate Court should not have reversed that decision regarding these facts, and, in our view, the appellate Court seriously flawed in its decision. Therefore, we hold that the respondent is not entitled to a decree of specific performance of the contract."
28. In the light of the above decision of the Supreme Court in 2002 (2) LW 399 (supra), when we consider the impugned judgment of the learned Single Judge, we are of the view that the trial Court, which had the advantage of observing the demeanour of P.W.1 in the course of recording the evidence and in whose opinion, the claim of the respondent/plaintiff was not to have been lightly interfered with by the learned Single Judge."
16. This view is also followed in the judgment of this Court reported in 2010 -2 LW 851 (Manoharakumari ..vs. Anitha and another) " 28. Observing that when the finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, in 2008 (3) CTC 528 (Jagdish Singh v. Madhuri Devi), in the Supreme Court held as follows:-
"25. .... the Appellate Court is expected, nay bound, to bear in mind a finding recorded by the trial Court on oral evidence. It should not forget that the trial Court had an advantage and opportunity of seeing the demeanour of witnesses and therefore, trial Court's conclusions should not normally be disturbed. No doubt, the Appellate Court possesses the same powers as that of the original Court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial Court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial Court in appraisal of evidence is erroneous, contrary to well-established principles of law or unreasonable."
Therefore, the reasons attributed by the first appellate court for interfering with the judgment of the trial court is not satisfactory. Thus, the first appellate court's view, that the judgment of trial court is not a well considered one, is not in accordance with the principles laid down by the Hon'ble Apex Court. Therefore, it has become necessary for this Court to interfere with the judgment and decree passed by the first appellate court as it is not in accordance with law. Moreover, the existence of cart track and other pathway as claimed and detailed by the plaintiff in the plaint sketch were also found by the Commissioner in all his three reports and three sketches. The said existence of cart track and the pathway were depending upon the agricultural seasons which were not considered by the first appellate court, but it had simply rejected the claim of the plaintiff without any reason. Therefore, I could see that the finding of the first appellate court is perverse and therefore, it is liable to be interfered.
17. For the foregoing reasons, the appeal is allowed and the judgment and decree of the first appellate court are set aside and the judgment and decree of the trial court are restored. No costs.
mra To
1. The Additional District Judge, Fast Track Court No.4, Coimbatore at Tiruppur.
2. The District Munsif, Tiruppur