Madras High Court
Vasanthamani vs Rangasami Gounder on 4 January, 2019
Author: P.Rajamanickam
Bench: P.Rajamanickam
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON :10.08.2018
PRONOUNCED ON :04.01.2019
CORAM
THE HON'BLE MR.JUSTICE P.RAJAMANICKAM
S.A.No.1311 of 2001
1. Vasanthamani
2. Shanthamani ... Appellants/Defendants
-Vs-
Rangasami Gounder ...Respondent/Plaintiff
PRAYER: Second Appeal is filed under Section 100 of C.P.C, against the
judgment and decree made in A.S.No.29 of 1994 on the file of the Sub-
ordinate Judge, Tiruppur, dated 29.12.2000 confirming the judgment and
decree made in O.S.No.787 of 1987 on the file of District Munsif, Tiruppur,
dated 08.09.1994.
For Appellants : Mr.S.K.Rakhunathan
For Respondent : Set exparte
JUDGMENT
This second appeal has been filed by the appellants/defendants against the judgment and decree passed by the Sub-Judge, Tiruppur in A.S.No.29 of 1994 dated 29.12.2000 confirming the judgment and decree passed by the District Munsif, Tiruppur, in O.S.No.787 of 1987 dated 08.09.1994.
2. The respondent herein has filed a suit in O.S.No.787 of 1987 on the file of the District Munsif, Tiruppur, for permanent injunction to restrain http://www.judis.nic.in 2 the defendants, their men, etc, from dismantling the itteri pathway which runs East-West which is shown as 'ABCD' in the plaint plan. The learned District Munsif, Tiruppur, by the judgment and decree dated 08.09.1994 has decreed the suit as prayed for without costs. Aggrieved by the same, the defendants have filed an appeal in A.S.No.29 of 1994 on the file of the Sub-Judge, Tiruppur. The learned Sub-Judge, Tiruppur has dismissed the said appeal and confirmed the judgment and decree passed by the Trial Court with slight modification. Feeling aggrieved, the defendants filed the present second appeal. For the sake of convenience, the parties are referred to as described before the trial court.
3. The averments made in the plaint are, in brief, as follows:
The suit property is the ancestral property. The total extent of S.No.722 of 2001 was 11.73 acres. Out of 11.73 acres, the plaintiff sold three acres to one Palanisamy Gounder in the year 1968. Thereafter, the plaintiff is in possession and enjoyment of the remaining land and that is the suit property. On the west of the suit property, the defendants' lands are situated and on further west, the Palladam-Udumalpet road runs. From Palladam-Udumalpet road, an itteri pathway runs towards east and reaches the suit property. The said itteri pathway runs East-West to the length of 450 feet and width of 25 feet. The said pathway has been enjoying by the plaintiff and his predecessor for more than 150 years. The plaintiff is using the said itteri pathway by taking carts etc., for reaching the suit property from Palladam-Udumalpet road. Except the aforesaid itteri pathway, no other pathway is available. On 17.02.1984, the http://www.judis.nic.in 3 defendants purchased one acre in S.No.696/3 of Vavipalayam village and 5.51 acres in S.No.697 of the same village from one Venkatammal. In the said sale deed itself, the aforesaid East-West itteri pathway is mentioned.
On the south of the aforesaid East-West itteri pathway, the lands in S.No.696/3 and on the north of the said itteri pathway, lands in S.No.697 are situated. The plaintiff also purchased 25 cents in S.No.697 from the said Venkatammal and subsequently, he sold the said 25 cents to the defendants. The said 25 cents situated on the northern side in S.No.697. In the said 25 cents, there is no cart track, but suppressing the aforesaid facts, the defendants filed a suit in O.S.No.785 of 1987 on the file of the District Munsif, Tiruppur and also filed an I.A.No.2389 of 1997 and obtained interim injunction alleging that the plaintiff herein is claiming cart track in the aforesaid 25 cents. The plaintiff herein has not claimed any cart track in S.No.697 and there is no necessity also. Taking advantage of the interim injunction granted in O.S.No.785 of 1987, the defendants are attempting to dismantle the suit East-West itteri pathway with a view to add the said pathway with their lands. Hence, the plaintiff was constrained to file the above suit to restrain the defendants from dismantling the suit pathway by means of permanent injunction.
4. The averments made in the written statement are, in brief, as follows:
The plaintiff has filed the above suit with a view to grab the properties of the defendants. The plaintiff is not entitled to any right of way through the defendants' property. It is true that in the defendants' http://www.judis.nic.in 4 documents, itteri pathway is mentioned, but that itself will not give any right of pathway to the plaintiff. In the plaintiff's documents, no where it is stated that he is entitled to a right of pathway through defendants property. It is false to state that the plaintiff and his predecessor have been using the said itteri pathway for more than 150 years. The alleged cart track absolutely belongs to the defendants. They got every right to obstruct the plaintiff from enjoying the same. After getting interim injunction, the plaintiff has created a cart track with the help of the police. The mere creation of the cart track with the help of police and on the strength of interim injunction order will not give any right to plaintiff. The plaintiff's father originally owned the property abetting the Palladam- Udumalpet road up to the suit property in S.No.722/1. Only through the said property, they reached the suit property. Subsequently, they have sold the property which is situated abetting the Palladam-Udumalpet road to one Palanisamy Gounder on 14.10.1968 and in the said document itself, cart track has been mentioned and only through the said cart track, the plaintiff reaches the suit property. Therefore, there is no need or necessity for the plaintiff to have a cart track through the defendants' property. There is no space available in between S.No.696/3 and S.No.697. So the cart track is now created by the plaintiff in land in S.697. It appears that the plaintiff has obtained patta by influencing Tahsildar. The defendants are entitled to 5.76 acres in S.No.697, but the patta shows only the lesser extent. That itself proved the falsity of the plaintiff's case. When there is a dispute with regard to the cart track, suit for bare injunction is not maintainable. The plaintiff ought to have filed a suit for declaration http://www.judis.nic.in 5 and injunction. Therefore, the defendants prayed to dismiss the above suit.
5. Based on the aforesaid pleadings, the learned District Munsif, Tiruppur, has framed necessary issues and tried the suit. During trial, on the side of the plaintiff, the plaintiff examined himself as PW1 and also examined six more witnesses as PW2 to PW7. He has marked Exs.A1 to A26 as exhibits. On the side of the defendants, three witnesses were examined as DW1 to DW3 and they have marked Exs.B1 to B16 as exhibits. The reports and plans filed by the Advocate Commissioner have been marked as Exs.C1 to C5.
6. The learned District Munsif, after considering the materials placed before him, found that the plaintiff is entitled to use the suit pathway and also found that no other pathway is available to reach the suit property except the suit pathway. Accordingly, he decreed the suit as prayed for without costs. Aggrieved by the same, the defendants have filed an appeal in A.S.No.29 of 1994 on the file of the Sub-Judge, Tiruppur. The learned Sub-Judge has partly allowed the said appeal, modified the judgment and decree passed by the trial court and granted permanent injunction only to the extent of the aforesaid East-West itteri pathway on the northern side to the length of 98.4 meter; on the southern side, length of 99.2 meter and width of 4 meter on the western side and 4.2 meter on the eastern side. Feeling aggrieved, the defendants have filed the present second appeal.
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7. This court at the time of admitting the second appeal has formulated the following substantial questions of law:
“1. Whether the suit is barred by the principles of resjudicata in view of the judgment and decree in O.S.No.785 of 1987 on the file of the District Munsif Court, Tiruppur?
2. Whether the plaintiff is entitled to the relief of injunction without seeking a prayer for declaration of the alleged right over the suit property?
3. Whether the courts below are right in decreeing the suit on the ground of right of way by easement by prescription and/or necessity without any pleading or proof whatsoever on the side of the plaintiff?”
8. Even though private notice which was sent by RPAD served on the respondent, he has not appeared either in person or through counsel; Hence, after hearing the arguments of Mr.K.Rakhunathan, the learned counsel for the appellants and perusing the records, the judgment is being passed in this second appeal.
9. Question Nos.1 to 3:
Learned counsel for the appellants/defendants has submitted that the courts below erred in holding that the plaintiff is entitled to the right of pathway in the defendants' property. He further submitted that the courts below erred in holding that the suit for bare injunction is maintainable http://www.judis.nic.in 7 without seeking relief of declaration. He further submitted that the courts below failed to consider that there is no pleading or evidence to show that the plaintiff is entitled to use the defendants' property as cart track. He further submitted that the courts below failed to note that if the plaintiff has right of way by prescription, the question of easement of necessity will not arise and in any event, the plaintiff has neither proved nor pleaded easement of necessity. He further submitted that the Courts below failed to note that in so far as the question of cart track is concerned, the same has been already decided in O.S.No.785 of 1987 and therefore, the same would operate as resjudicata. He further submitted that the courts below failed to note that in O.S.No.785 of 1987, the plaintiff herein took the stand that he is entitled to the cart track in the southern portion of S.No.697 and that after contest the suit was decreed in favour of the defendants herein. He further submitted that after loosing the said suit, the plaintiff has taken a different stand in the present suit by claiming cart track in between S.Nos.697 and 696. He further submitted that the courts below failed to consider that the plaintiff himself has given up the claim of cart track in S.No.697 which absolutely belongs to the defendants. He further submitted that the courts below failed to note that it is the admission of the plaintiff that he had purchased 25 cents in the northern border of S.No.697 as he wanted direct access to his lands and it would establish that the plaintiff never had any access to his property through the suit itteri. He further submitted that the courts below failed to note that the plaintiff was also owning land in S.No.698 and through the said land, he can reach his lands situated in S.No.722/1 from Palladam- http://www.judis.nic.in 8 Udumalpet road. He further submitted that the plaintiff purchased 25 cents in the northern portion of S.No.697 to have access to his lands and this would show that the case of easement by prescription cannot be substantiated or accepted. He further submitted that the courts below failed to note that the Advocate Commissioner's report would show the existence of an alternative cart track. He further submitted that the first appellate court erred in rejecting the application filed by the defendants in I.A.No.910 of 1995 to receive additional written statement and I.A.No.946 of 1995 to receive additional documentary evidence and therefore, he prayed to allow the second appeal and set aside the judgments and decrees passed by the courts below.
10. The present suit has been filed by the respondent seeking permanent injunction to restrain the appellants herein from dismantling the East-West itteri cart track which is shown as 'ABCD' in the plaint plan. According to the plaintiff, the said pathway is situated in between the S.Nos.696/3 and 697/1 to the length of 450 feet and width of 25 feet.
11. It is seen from Ex.B9 (certified copy of the judgment passed in O.S.No.785 of 1987 on the file of the District Munsif, Tiruppur) that the appellants herein/defendants have filed a suit in O.S.No.785 of 1987 against the respondent herein/plaintiff seeking permanent injunction. In that suit, the appellants herein have stated that out of 5.76 acres situated in S.No.697 of Vavipalayam village, they have purchased 5.51 acres under a registered sale deed dated 17.02.1984 from one Venkatammal. They http://www.judis.nic.in 9 further stated that the remaining 25 cents in the aforesaid Survey Number has been purchased by the respondent herein only for the purpose of cart track to reach the suit property in the present suit and subsequently, he has sold the said 25 cents to them and thereafter, he made attempts to lay cart track in the said 25 cents and hence, they have filed the said suit against him seeking permanent injunction. The learned District Munsif after full trial has decreed the said suit in favour of the appellants herein and granted permanent injunction against the respondent herein.
12. The learned District Munsif, instead of trying both the suits jointly, has disposed of the suit in O.S.No.785 of 1987 separately. Subsequently, the learned District Munsif has disposed of the suit in O.S.No.787 of 1987. It is seen from the judgment passed by the trial court in O.S.No.787 of 1987 that the appellants herein have argued that in view of the judgment passed in O.S.No.785 of 1987 dated 25.01.1994, the subsequent suit i.e., O.S.No.787 of 1987 is barred by the principle of resjudicata, but the trial court has rejected the said contention on the ground that in O.S.No.785 of 1987, no specific issue was framed and considered in respect of itteri pathway and hence, the judgment passed in O.S.No.785 of 1987 will not operate as resjudicata. The first appellate court also held that since the appellants/defendants have purchased the property in S.No.697 only on the north of East-West itteri pathway, the judgment passed in O.S.No.785 of 1987 cannot be used in favour of the appellants/defendants.
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13. On perusal of the judgment passed in O.S.No.785 of 1987, it appears that the appellants herein have taken a stand that the respondent herein had purchased 25 cents of lands from one Venkatammal in S.No.697 on the northern side and subsequently, he sold the said 25 cents to them and thereafter, he tried to lay a cart track in the said 25 cents. The learned District Munsif, taking into consideration of the field measurement plan of the said S.No.697 came to the conclusion that there is no cart track in S.No.697 and accordingly, decreed the said suit as prayed for. Whereas, the respondent herein has filed the present suit i.e., O.S.No.785 of 1987 stating that there is a iterri pathway from north-south Palladam-Udumalpet Main Road and runs towards east and the said iterri pathway is situated between S.No.696/3 and 697/1 and therefore, the aforesaid judgment will not operate as resjudicata.
14. The respondent/plaintiff claims iterri pathway based on the recitals found in Ex.A1 to Ex.A3. Ex.A1 is the certified copy of the sale deed dated 17.02.1984 executed by one Venkatammal in favour of the appellants herein. In the said document, two items were sold, the first item is 1 acre of land situated in S.No.696/3 of Vavipalayam Village. As per the said document, the total extent of S.No.696/3 is 19.35 acres, out of which, the appellants herein had purchased 1 acre in the north-south corner. For the said land, boundaries are mentioned as east of south-west road, north of Rangasamy Gounder land, west of Muthusamy Gounder land, south of east-west iterri road. The second item is measuring 5.51 http://www.judis.nic.in 11 acres situated in S.No.697 of the same Village. In the said document, it is stated that the total extent of S.No.697 is 5.76 acres, out of which, 5.51 acres sold to the appellants herein.
15. In the said document, while giving boundaries, it is stated that the aforesaid property is situated on the north of the aforesaid east- west iterri road. Further, it is stated that on the same date, on the southern side in the aforesaid property, 25 cents were sold to the respondent/plaintiff herein. As already stated that the total extent of S.No.697 is 5.76 acres, out of which, 5.51 acres were sold to the appellants herein and remaining 25 cents were sold to the respondent herein. Therefore, the aforesaid iterri does not run in S.No.697. Further, from the description given to item No.1, it cannot be inferred that the aforesaid east-west itteri is only in S.No.696/3.
16. Ex.A2 is the registration copy of the sale deed executed by one Saraswathi Bai in favour of Venkatammal, who is vendor of the appellants herein dated 26.07.1946. In the said document, it is stated that S.No.696 contains a total extent of 25 cents, out of which, in the north-south corner, 1 acre land was sold to the said Venkatammal. It is stated that the said 1 acre land is situated on the east of north-south road; north of the land of Rangasamy Gounder; west of the land of Muthusamy Gounder, south of east-west itteri road. So, it is clear that the aforesaid east-west itteri road runs only in S.No.696. Through the said document, the properties situated in S.No.697 was also sold to the said Venkatammal. It http://www.judis.nic.in 12 is stated that S.No.697 contains 5.76 acres and the entire extent is sold through the said document. Ex.A3 is the certified copy of the sale deed executed by one Venkatasamy gounder and his son in favour of Saraswathi Bai dated 31.01.1943. In the said document also, the same kind of recitals are found. Therefore, it is clear that the aforesaid east- west iterri road runs only in S.No.696 and not in S.No.697.
17. Ex.B6 is the patta relating to S.No.697/2 issued on 26.10.1985 under the UDR Scheme. In the said document, it is stated that S.No.697/2 contains 04.0 ares i.e., 10 cents. The said document shows that joint patta has been issued in favour of the appellants herein, the respondent herein and also one Muthusamy Gounder. Ex.B7 is also a patta issued under the UDR Scheme dated 25.10.1985, in which, it is stated that patta is granted in respect of S.No.697/1 measuring 2.29 hectares i.e., 5.66 acres and the said patta was given in favour of the appellants herein. A combined reading of Exs.A1 to Ex.A3 and Ex.B6 and Ex.B7 would clearly show that the aforesaid iterri road has been shown in S.No.696 and subsequently, under UDR Scheme, S.No.697 has been sub- divided and the aforesaid iterri road has been mentioned as S.No.697/2. In any event, the existence of the aforesaid east-west iterri road cannot be disputed because even in Ex.A1, sale deed dated 31.11.1943, the aforesaid iterri road has been clearly mentioned. In the Commissioner's report also, it is clearly stated that the said iterri road is in existence. Though in the Commissioner's report and plan, it is stated that the aforesaid itteri road lies in S.No.697 on the south, it appears that the http://www.judis.nic.in 13 Advocate Commissioner has not measured S.No.696 also, that too, with reference to Ex.A1 to Ex.A3 and revenue records.
18. It is also to be pointed out that the recitals of Ex.A1 to Ex.A3 would clearly show that the aforesaid east-west itteri road was never sold. The appellants/defendants also have purchased their properties only excluding the said east-west iterri road. So, they cannot claim exclusive right over the said east-west itteri road. Taking into consideration of all the aforesaid facts, the Courts below have rightly held that the respondent/plaintiff is entitled to use the said itteri pathway. In the said factual concurrent findings, this Court cannot interfere. Accordingly, the substantial questions of law are answered against the appellants/defendants.
19. In the result, the second appeal is dismissed. No costs.
04.01.2019 Index:Yes/No Internet: Yes/No gv/dna To
1. The Sub-ordinate Judge, Tiruppur.
2.The District Munsif, Tiruppur, http://www.judis.nic.in 14 P.RAJAMANICKAM,J.
Gv/dna Pre-Delivery Order made in S.A.No.1311 of 2011 04.01.2019 http://www.judis.nic.in