Madras High Court
Thomas vs Thiyagarajan on 3 June, 2016
Author: P.Kalaiyarasan
Bench: P.Kalaiyarasan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.06.2016 CORAM THE HONOURABLE MR. JUSTICE P.KALAIYARASAN S.A. No.842 of 2005 1. Thomas 2. Thangamma George ... Appellants / Defendants vs. Thiyagarajan ... Respondent / Plaintiff Second Appeal is preferred under Section 100 of the Code of Civil Procedure against the Judgment and Decree, dated 13.08.2002 made in O.S.No.197 of 1997 on the file of the District Munsif-cum-Judicial Magistrate, Ambattur, as confirmed in the Judgment and Decree, dated 28.01.2004 made in A.S.No.28 of 2002 on the file of the Subordinate Judge, Poonamallee. For Appellants : Mr.P.Premkumar For Respondent : Mr.A.Palaniappan J U D G M E N T
This Second Appeal is filed against the Judgment and Decree, dated 13.08.2002 made in O.S.No.197 of 1997 on the file of the District Munsif-cum-Judicial Magistrate, Ambattur, as confirmed in the Judgment and Decree, dated 28.01.2004 made in A.S.No.28 of 2002 on the file of the Subordinate Judge, Poonamallee.
2. The defendants in O.S.No.197 of 1997 on the file of the District Munsif Court, Ambattur (O.S.No.653 of 1988 on the file of the District Munsif Court, Poonamalee) are the appellants herein.
3. The respondent / plaintiff filed the suit for declaration that he is entitled to have frontage right from 'A' 'B' and 'C' schedule properties through 'D' schedule property and also mandatory injunction, directing the defendants to remove the superstructure in the 'D' schedule property and keep the same as vacant.
4. The parties herein will be referred to according to their rank in the suit.
5. The plaint 'A' schedule property belongs to the plaintiff. 'B' and 'C' schedule properties belong to his brother Sundaramoorthy and sister Mangala. The plaintiff is maintaining all the above properties. The plaintiff, his brother and his sister got these properties from their father through the settlement deeds. As per the approved plan of MMDA, there is 12 feet road on the western side of 'A' schedule and 12 feet road as well as 40 feet road on the southern side of 'B' and 'C' schedule properties. Thus, the plaintiff, his brother and his sister have got right of access to the road. The plaintiff as well as his forefathers have been enjoying the said pathway for several years. The defendants, all of a sudden, put up construction in the pathway, despite the protest by the plaintiff. The construction put up by the defendants, obstructing the pathway of the plaintiff and his brother and sister is shown as 'D' schedule property. Therefore, the suit has been filed.
6. The defendants contend in their written statement that the plaintiff can claim right over the property, which his father actually purchased under the sale deed. His father Loganathan, purchased in S.No.112/B, an extent of 38 cents as shown in the village map. The alleged disputed place is shown as cart track. The defendants' predecessor Vasu encroached several years back and constructed a building. He was in possession of the property, by paying property tax. The defendants purchased the same only from Vasu. EB connection has also been given from the year of construction, i.e., 1985. The defendants have been in possession of the property. There is no cause of action and therefore, the suit has to be dismissed.
7. The trial Court, after raising issues, took oral and documentary evidence of the plaintiff and the defendants. Ex.A.1 to Ex.A.4 were marked on behalf of the plaintiff and the plaintiff was examined as P.W.1. On the side of the defendants, Ex.B.1 to Ex.B.34 were marked and the second defendant was examined, as D.W.1. The Commissioner's Report and plan were also marked as Ex.C.1 and Ex.C.2.
8. The trial Court, after analysing the evidence, both oral and documentary, concluded that the plaintiff is entitled to the pathway as prayed for and obstruction made by the defendants in the pathway should also be removed. Thus, trial Court decreed the suit in favour of the plaintiff.
9. The defendants preferred A.S.No.28 of 2002 on the file of the Subordinate Judge, Poonamallee.
10. The first appellate Court, also re-appreciated the entire evidence and came to the conclusion that no ground is made out, to interfere in the finding and conclusion of the trial Court and dismissed the appeal.
11. The concurrent Judgments of both the courts below is challenged in this Second Appeal.
12. While admitting the Second Appeal, the following Substantial Questions of Law are framed :
"1. Whether the Courts below are correct in not dismissing the suit on the non-joinder of the necessary parties as plaintiffs, especially when the plaintiff is neither authorised by the owners of 'B' and 'C' schedule properties and they were not made as parties ?
2. Whether the Courts below are correct in passing a decree of declaration and mandatory injunction on merit based on incomplete evidence, especially when DW1 was not subject to cross-examination and complete her evidence ?"
13. Heard Mr.P.Premkumar, learned counsel appearing for the appellants as well as Mr.A.Palaniappan, learned counsel appearing for the respondent.
14. The defendants admit in their written statement that in the village map, the disputed property, i.e., plaint 'D' schedule property is shown as cart-track. The only contention of the defendants in the written statement is that they purchased the 'D' schedule property from one Vasu, who encroached the cart-track and constructed the building. According to the defendants, they have been in possession of 'D' schedule property from 1985, by paying property tax and Electricity charges. The suit was filed in the year 1988 and he claims that he was in possession and enjoyment from 1985.
15. The village map is marked as Ex.B.2. The Advocate-Commissioner, in his report, mentions that the trees and constructions are of recent origin. Analysing the evidence in entirety, both the Courts below dismissed the suit.
16. The learned counsel appearing for the appellants would contend that both the Courts below decided the matter on merits, based on incomplete evidence. No doubt, though D.W.1 was examined in chief, he was not cross-examined. Both the Courts below in the Judgment pointed out that in spite of several opportunities given to D.W.1, she did not subject herself for cross-examination and therefore, the matter was decided on merits, after analysing the available documentary as well as oral evidence.
17. It is worth noting the citation of the Hon'ble Supreme Court, Vidhyadhar vs. Mankikrao and another reported in AIR 1999 SC 1441, for the party to the proceedings not offering himself for cross-examination, it has been held by the Hon'ble Supreme Court as follows :
"Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct."
18. Sufficient opportunity was given to the second defendant, who was examined as D.W.1, to subject herself for cross-examination, but she failed to subject her for the cross-examination. As already pointed out, when the defendants admit that encroachment was made in cart-track, there cannot be any improvement, even had she subjected herself for cross-examination. Therefore, the above contention of the learned counsel for the appellants is not sustainable.
19. Another point raised by the learned counsel for the appellants is that brother and sister of the plaintiff, who are the owners of 'B' and 'C' schedule properties have not been added as parties and therefore, the suit is bad for non-joinder of necessary parties.
20. Any member of a joint Hindu family or any person claiming right in common for himself and others, all persons interested in such right shall be deemed to claim under the person, so litigating, under Explanation (6) to Section 11 CPC. Therefore, the suit filed by the plaintiff on his behalf and on behalf of his brother and sister against a trespasser in the pathway property is binding on all the members of the family. The objection on the ground of non-joinder of necessary parties shall be taken at the earliest possible opportunity. In this case, the plea has not been raised in the written statement. Therefore, the contention of the learned counsel for the appellants about the non-joinder of the necessary party is to be brushed aside. Thus, I answer both the Substantial Questions of Law against the appellants and in favour of the respondent.
In the result, this Second Appeal is dismissed. No order as to costs.
03.06.2016 Index : Yes tsvn To
1. The Subordinate Judge, Poonamallee.
2. The District Munsif-
cum-Judicial Magistrate, Ambattur.
P.KALAIYARASAN, J tsvn Judgment in S.A. No.842 of 2005 03-06-2016