Madras High Court
J.Angel Mary vs Thanislas on 8 December, 2021
Author: V. Bhavani Subbaroyan
Bench: V. Bhavani Subbaroyan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 08.12.2021
CORAM
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
S.A.(MD) No.773 of 2021
and
CMP(MD) Nos.10334 and 10335 of 2021
J.Angel Mary Appellant
vs.
1. Thanislas
2. Justin
3. Venanjees ..Respondents
Second Appeal filed under Section 100 of CPC against the
judgment and decree dated 08.09.2012 passed in A.S.No.75 of 2015
on the file of the Subordinate Court, Padmanabhapuram, Kanyakumari
District confirming the judgment and decree dated 15.07.2015 passed
in O.S. No.293 of 2013 on the file of the Principal District Munsif,
Padmanapuram.
For Appellant : Mr.C.T.Perumal
https://www.mhc.tn.gov.in/judis
2
JUDGMENT
The present second appeal has been filed against the judgment and decree dated 08.09.2012 passed in A.S.No.75 of 2015 on the file of the Subordinate Court, Padmanabhapuram, Kanyakumari District, confirming the judgment and decree dated 15.07.2015 passed in O.S. No.293 of 2013 on the file of the Principal District Munsif, Padmanapuram.
2. For the sake of convenience, the parties are referred to herein, as per their own ranking, as before the Trial Court.
3.The case of the plaintiff, as per the averments made in the plaint, in short, is as follows :
(i) The plaint 'A' schedule property is having an extent of 1312 cents comprised in Resurvey No.285/21 of Valvachagostam village belongs to her husband and the property belongs to the first defendant who sold the same to one Regin Merit through a sale deed No.1667/2004 of Palliyadi Sub Registrar office including the plaint 'B' https://www.mhc.tn.gov.in/judis 3 Schedule property. Subsequently the husband of the plaintiff purchased the plaint 'A' schedule property and 'B' schedule property through a sale deed No. 4251/2011 and was in possession and enjoyment of the same. 'B' schedule property is the pathway for the 'A' schedule property. The husband of the plaintiff is working in abroad and due to the unexpected unlawful acts of the defendants, the plaintiff filed this suit on behalf of her husband.
(ii) The first defendant is the owner of the adjacent property. The second defendant is the son of the first defendant and the third defendant is the another son of the first defendant and both are adjacent owners. The north eastern side of the plaintiff's husband's property is described as 'B' schedule property, which is a pathway having an average width of four feet which leads to the public pathway and further leads to Mulagumoodu to Marthandam National Highway. A five feet width of concrete pathway goes from east to west direction from the National Highways. The 'B' schedule pathway starts from the public pathway leads to the plaintiff's husband's property. He acquired right over the plaint 'B' pathway by easementary right of grant and prescription as well as title holder. The plaintiff, her husband and his https://www.mhc.tn.gov.in/judis 4 previous title holder have all along been using the 'B' schedule pathway as of right and title. Now the defendants are making attempts to obstruct the plaint 'B' schedule property pathway. While they have no right on 25.11.2013 at about 5.00 p.m., due to the absence of the husband of the plaintiff, the defendants along with his labourers attempted to close the 'B' schedule property pathway, by putting gate and also attempted to construct the compound wall. The same was resisted by the plaintiff by her timely intervention. The plaintiff also gave complaint before the Sub Inspector of Police, Thuckalay, to prevent the illegal activities of the defendant's and they came to the spot and asked the defendants not to obstruct the plaint 'B' schedule property pathway, but they are not amenable to their words and the police advised the plaintiff to seek remedy through civil Court. After filing of this suit and obtained injunction, the first defendant continued the constructions and encroached the 'B' schedule pathway by projecting the sunshade of his building and suppressing the material facts in O.S. No.40 of 2014 and got status quo order and violated the order of the Court. Hence the plaintiff has filed a suit for declaration of title and right of pathway over the 'B' schedule property and for permanent injunction and also for mandatory injunction.
https://www.mhc.tn.gov.in/judis 5
4. Resisting the claim made by the plaintiff, the defendants filed a detailed written statement contending interalia that the third defendant in this suit as plaintiff has filed another civil suit in O.S. No. 40 of 2014 before the District Munsif Court, Padmanabhapuram against certain persons. In the above suit, the plaintiff has claimed relief for permanent injunction against the defendants from drawing electric line and water supply line to the building situated in the property of defendants 1 and 2 in R.S. No.285/21A of Valvachagostam Village through or over any portion of the suit property including the permitted pathway to defendants 1 and 2 in R.S.No.285/8 of Valvachagostam Village through or over any portion of the suit property including the permitted pathway to defendants 1 and 2 in R.S. No.285/8 of Valvachagostam Village. The property is having an area of 6 cents in R.S. No.285/8 belongs to the first defendant and in the property an area of 0.250 cents in the 'B' schedule property.
5. It is the further contention of the defendants that the third defendant also got title, possession and enjoyment over the property, as per the settlement deed No.1181 dated 14.05.2013 executed by his father, who is the first defendant. The said property is a house and https://www.mhc.tn.gov.in/judis 6 house site of the third defendant. The first defendant got title, possession over the property through the partition deed No. 1485/1984. In the said partition deed, 'B' scheduled property stated in that deed was allotted to him and he was in possession and enjoyment as per the settlement deed dated 14.05.2013 in favour of the third defendant. The first defendant is also having property to an area of 5.5 ares in R.S. No.285/21. The property lies adjacent to the previous property on the west and on the south. Due to the repeated request of his close relative by name A.Regin Merit he has sold an area of 5.312 cents on the western portion of the said property to him. The area sold to him was sub divided as 21A and the area left to the first defendant was marked as 21 B. As the property sold is not touching the public pathway available on the north, the first defendant has permitted the purchaser Mr.A.Regin Merit to walk or pass through the western side of the property in R.S. No.285/8. The said permission was granted to the purchaser to walk or passes through the said property and the same will not confer any title or possession over any portion of the suit property.
https://www.mhc.tn.gov.in/judis 7
6. Further, after purchase, the plaintiff and her husband also used the pathway provided in the suit property in R.S. No.285/8 for the property in R.S. No.285/21A. In the plot left out as R.S.No. 285/21B, the second defendant has put up his building as his own even though the title over the property is vested with his father. The first defendant also permitted the second defendant and his family members to walk or pass through the pathway provided to Regin Merit. The said right to walk or pass through the said property is not transferable and the said Regin Merit is not competent to execute the sale deed transferring the right to walk or pass through the property in R.S.No.285/8. In the above circumstances, the plaintiff and her husband are attempting to draw electric line and water pipe connection to their property in R.S. No.285/21A through the property in R.S. No.285/8. If electric line and the water connection to be given through the patta land of the first defendant the permission is necessary. As per the settlement deed dated 14.05.2013, the third defendant is having perfect title over the entire suit property. The plaintiff and her husband are not having any manner of title over the property. The third defendant did not grant any permission or no https://www.mhc.tn.gov.in/judis 8 objection letter to the Tamil Nadu Electricity Board or TWAD Board. Now the plaintiff and her husband are attempting to put another building in their property and also attempting to draw E.B connection and water connection through the disputed property. They can draw the same from the existing building. The authorities of Tamil Nadu Electricity Board had visited the suit property on 23.01.2014 for the purpose of giving E.B connection to the plaintiff. As such the authorities of the TWAD Board also visited the suit property on 30.01.2014 for the purpose of giving water connection. If the proposed attempt of the plaintiff and her husband are not stopped, it will cause huge damage to the third defendant and prayed for dismissal of the suit as they have got no right over the same.
7. Additional written statement was also filed by the defendants stating that there was illegal construction as alleged in the plaint and also the present construction were made after filing of the suit. The plaintiff is not competent to challenge or question the constructions put up as alleged. The plaintiff or her husband is not having any manner of exclusive title and possession over the suit property. The plaintiff can walk through the suit property on the permission of the defendants. A https://www.mhc.tn.gov.in/judis 9 person permitted or allowed to walk cannot have exclusive title and possession over the suit property and they cannot have relief of mandatory injunction. He further submitted that if at all any right is given to the plaintiff by the said Regin Marit that will not confer any right over them and only permission was given to the plaintiff vendor to walk through.
8. Before the trial Court, the plaintiff was examined as PW.1 and Exhibits A1 to A7 were marked. Commissioner's report and plan were marked as Ex.C.1 and Ex.C.2. One Stella Mary was examined as PW.2 and through her no exhibits were marked. On the side of the defendant first defendant was marked as DW.1 and Ex.B.1 was marked through him.
9. On the basis of the rival pleadings made on either side, the trial Court, after framing necessary issues and after evaluating both the oral and documentary evidence, had dismissed the suit.
10. Aggrieved by the Judgment and Decree passed by the trial Court, the plaintiff, as appellant, had filed an Appeal Suit in A.S. No.75 https://www.mhc.tn.gov.in/judis 10 of 2014, on the file of the Subordinate Court, Padmanabhapuram, Kanyakumari District. The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, had dismissed the appeal and thereby confirmed the Judgment and Decree passed by the trial Court.
11. Challenging the said concurrent Judgments and Decrees passed by the Courts below, the present Second Appeal has been preferred at the instance of the plaintiff, as appellant.
12. The learned counsel appearing for the appellant / plaintiff would submit that the Court below has failed to consider that there was a pathway in 'B' schedule property, which has not been identified by the appellant which is against both the documentary and oral evidence. Further the court below has erroneously come to the conclusion that Ex.A2 does not convey absolute right over the 'B' schedule property to the appellant and they also failed to note that Ex.A.2 wherein pathway right of the property was purchased for consideration of Rs.100/- by the husband of the plaintiff was not taken into account. Further the Court below failed to admit the evidence of https://www.mhc.tn.gov.in/judis 11 DW1 that the pathway right in the 'B' schedule property is conveyed to the vendor of the plaintiff through Ex.A.1. The courts below placed much reliance on Ex.C1 and C2, which is not on sound legal principles. Hence, the learned counsel prays for setting aside the Judgments of the courts below by allowing the appeal.
13. This Court paid its anxious consideration to the submission made by the learned counsel for the appellants / plaintiff and also carefully perused the materials placed on record.
14. Originally the suit was filed by the plaintiff seeking for the relief to declare his title and right of pathway over plaint the 'B' scheduled property by grant and prescription and to restrain the defendants from making obstructions in the plaint 'B' Schedule properties and also for mandatory injunction, to dismantle the projected building in the plaint 'B' schedule pathway.
15. The case of the plaintiff is that the plaint 'A' schedule property is having an extent of 5.312 cents comprised in Resurvey No. 285/21 of Valvachagostam village belongs to her husband. The plaint https://www.mhc.tn.gov.in/judis 12 'B' schedule property is the pathway for the 'A' schedule property. Originally, both 'A' and 'B' Schedule property belonged to the 1st defendant, who sold the same to one Regin Merti through the sale deed No.1667/2004 of Palliyadi Sub Registrar office, for valid consideration. Subsequently the husband of the plaintiff purchased the plaint 'A' and 'B' schedule properties through a sale deed No. 4251/2011. The first defendant is the owner of the adjacent property. The defendants 2 and 3 are the sons of the first defendant. The north eastern side of the plaintiff's husband's property is described as 'B' schedule property, which is a 4 feet pathway, which leads to the public pathway and further leads to Mulagumoodu to Marthandam National Highway. The plaintiff's husband acquired right over the plaint 'B' schedule pathway by easementary right of grant, prescription as well as title holder. On 25.11.2013 at about 5.00 p.m., due to the absence of the husband of the plaintiff, the defendant attempted to put up gate and compound wall, obstructing the compound wall. The same was resisted by the plaintiff and filed a suit and getting an order of injunction. But, the first defendant continued the construction and encroached the 'B' schedule pathway.
https://www.mhc.tn.gov.in/judis 13
16. The case of the defendants is that the third defendant in this suit as plaintiff had filed another suit in O.S. No.40 of 2014 before the District Munsif Court, Padmanabhapuram. In the above suit, the plaintiff has claimed relief for permanent injunction against the defendants from drawing electric line and water supply line to the building situated in the property of defendants 1 and 2 in R.S. No. 285/21A of Valvachagostam Village. The 1st defendant got title and possession over the said property through the partition deed executed in between him and his brothers in the year 1984. The property is having an area of 6 cents in R.S. No.285/8 and the property an area of 0.250 cents in the 'B' schedule property belonged to the first defendant. On request of the close relative Regin Merit, he has sold an area of 5.312 cents on the western portion of the said property to him. The said property was sub divided as 21 and the area left to the 1st defendant was marked as 21B. As the said property sold is not touching the public pathway available on the north, the 1st defendant permitted the said Regin Merit to walk or to pas through the western side of the property in R.S.No.285/8 and the same also noted in the sale deed in favour of the Regin Merit. Subsequently, the said Regin Merit sold the property purchased in R.S.No.285/21A to the husband of https://www.mhc.tn.gov.in/judis 14 the plaintiff on 28.12.2011. After the said purchase, the plaintiff and her husband are also using the pathway provided in the property in R.S.No.285/8. The permission given to the Regin Merit to walk on the western side of the property is not transferable. That property is shown as suit 'B' schedule property. Now the plaintiff is attempting to draw electric line and water pipe connection to be given through the patta land of the first defendant.
17. On perusal of the materials, it is seen that the dispute between the parties is only with respect of 'B' schedule pathway. Ex.A1 is the sale deed, executed in favour of one Regin Merit along with pathway right through the western side of the property in R.S.No. 285/8. Through Ex.A1, sale deed, the said Regin Merit has not purchased any specific portion as pathway. Ex.A2 is the sale deed through which, the said Regin Merit has conveyed specific portion as pathway in R.S.No.285/8 having an extent of 0.250 square links, having 4 feet width. The contention of the defendant is that the 1st defendant has not conveyed any specific portion in the property in R.SNO.285/8 and the pathway right given to the plaintiff's husband and his vendor is only permissive one. The plaintiff's husband claimed https://www.mhc.tn.gov.in/judis 15 right over the specific portion in R.S.No.285/8 stating that he acquired right over the 'B' schedule property by grant, prescription and also claiming title over the said property. When a person claiming title over a property then he cannot claim easementary right over the said property. To claim an easement by prescription, according to Section 15 of the Indian Easement Act, the plaintiff is required to plead and prove that he was in peaceably, openly and interrupted enjoyment of the right for a period of 20 years ending within 2 years next before the institution of the suit. Admittedly, the property was purchased by the plaintiff's vendor in the year 2004 and before that both A and B schedule property was in the hands of the 1st defendant. In such circumstances, plaintiff cannot claim that she and his vendor used the pathway for the past 20 years and the claim of plaintiff over B schedule property on the ground of easement by prescription fails.
18. Further, it is seen from the records that the plaintiff has filed the suit without getting any power of attorney from her husband and it could be deduced from her evidence, which reads as follows:-
“ehd; ,e;j tof;if 02.12.2013 y; jhf;fy;
nra;Njd; vd;why; Qhgfkpy;iy. tof;fpd; 'V' gl;bif vdJ fzthpd; ngahpy; cs;s nrhj;J https://www.mhc.tn.gov.in/judis 16 MFk;. tof;F V gl;bifr; nrhj;J vdJ fztUf;F chpikg;gl;l nrhj;J vd;whYk; vdf;F ve;j chpikAk; fpilahJ vd;why; rhpjhd;. ,e;j tof;if jhf;fy; nra;Ak; rkak; vdJ fzthplkpUe;J mjpfhug;gj;jpuk; vJTk;
thq;ftpy;iy vd;why; rhpjhd;. tof;F jhf;fy;
nra;Js;s mjpfhug;gj;jpuj;ij vdJ fzth; rTjp mNugpahtpy; ,Ue;J mDg;gp je;jhh;. ,e;j tof;F jhf;fy; nra;ag;gl;Ls;s tptuk; vdJ fztUf;F njhpAk;. vdJ fzth; CUf;F te;jpUe;j rkak;
mjpfhug; gj;jpuk; ,q;F itj;J vOjpj; juhjjw;F VjhtJ fhuzk; cz;lh vd;why; mth;
Rfk;; ,y;yhky; CUf;F te;jpUe;jhh;. mth; 15 ehl;fs; kUj;Jtkidapy; mDkjpf;fg;gl;bUe;jhh;.
vdJ fzth; jdJ ngahpy; ,Uf;Fk; nrhj;J rk;ge;jkhf tof;F elj;Jtjw;fhf tof;fpy;
jhf;fy; nra;Js;s mjpfhug;gj;jpuj;ij je;jhh;. Tof;F nrhj;J tof;F jhf;fy; nra;Ak; rkak;
vdJ fzthpd; nrhj;J vd;gjhy; mtuJ
mjpfhug;gj;jpuk; ,y;yhkYk; ve;j
chpikAk; ,;y;yhky; jhf;fy;
nra;Js;sjhy; ,e;j tof;F epiyf;fj;jf;fjy;y
vd;why; rhpay;y. vdJ fzthpd;
mjpfhuk; ,y;yhky; ehd; tpsk;Gif ghpfhuk;
Nfl;L jhf;fy nra;Js;s ,e;j tof;F
epiyf;fj;jf;fjy;y vd;why; rhpay;y”
19.As per Order 3 Rule 1 C.P.C., the suit must be in the name of the party, who is entitled to legal character and right to the property and the plaint must be signed by a power of attorney. But, in this https://www.mhc.tn.gov.in/judis 17 case, the said procedure was not followed. That being the position, the suit filed by the plaintiff to declare the right of her husband over the schedule properties is not maintainable and the plaintiff is not entitled for the relief of declaration.
20. Ex.C1 and Ex.C2 are the Commissioner's Report. On perusal of Ex.C1 and Ex.C2 makes it clear that the extent of B schedule property is shown as 506 square links. This clearly shows that the extent of B schedule pathway is not property identified by the plaintiff.
As per the Commissioner's report, the length of B schedule pathway is 17 meters and the width is 1.2 meter. If measurement is taken to, then the extent of 'B' schedule property will come to 506 square links and not 0.250 square links. That being the case, the vendor of the plaintiff's husband has not purchased the pathway right showing any specific width and length and extent. When the plaintiff claims mandatory injunction, she has to establish the extent of B schedule property in a proper manner, which the plaintiff has not done, as could be seen from the records.
https://www.mhc.tn.gov.in/judis 18
21. In view of the forgoing discussions, this Court is not of the view that the findings rendered by the trial court and upheld by the first appellate Court, do not warrant any interference of this Court, as the findings given on the issues framed by the Courts below as well as specifically taken up by this Court to reach the root of the controversy, appears to be based upon correct appreciation of oral as well as documentary evidence. Hence, the present appeal fails and is dismissed, accordingly. No costs. Consequently connected miscellaneous petitions are closed.
08.12.2021 Index: Yes/No. Internet: Yes/No. aav Note: In view of the present lock down owing to COVID 19 pandemic, a web copy of the order may be utilised for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned. To
1. The Subordinate Court, Padmanabhapuram, Kanyakumari District .
2. The Principal District Munsif, Padmanapuram https://www.mhc.tn.gov.in/judis 19 V. BHAVANI SUBBAROYAN, J.
aav S.A.(MD) No.773 of 2021 and CMP(MD) Nos.10334 and 10335 of 2021 08.12.2021 https://www.mhc.tn.gov.in/judis