Madras High Court
Singaram Chettiar Alias vs Janaki Alias Nachammai on 1 April, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01/04/2008
CORAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA
S.A.No.75 of 2001
1.Singaram Chettiar alias
Muthuraman
2.Vijaya ... Appellants/Appellants/Defendants 1 and 2
Vs
1.Janaki alias Nachammai
represented by her
Power Agent,
Thiagarajan alias Annamalai ...1st Respondent/
Respondent/
Plaintiff
2.Ponnamaravathy Town
Panchayat, represented by
its Executive Officer. ... 2nd Respondent/
Respondent/
3rd Defendant
Prayer
Second Appeal filed under Section 100 of the Code of Civil Procedure,
against the judgment and decree dated 09.08.1999 passed in A.S.No.66 of 1998 by
the learned Additional District Judge cum Chief Judicial Magistrate, Pudukottai,
in confirming the judgment and decree dated 15.11.1996 passed in O.S.No.190 of
1995 by the learned District Munsif, Thirumayam.
!For Appellants ... Mr.V.Sitharanjandas
^For Respondents... No representation.
:JUDGMENT
This second appeal is focussed as against the judgment and decree dated 09.08.1999 passed in A.S.No.66 of 1998 by the learned Additional District Judge cum Chief Judicial Magistrate, Pudukottai, in confirming the judgment and decree dated 15.11.1996 passed in O.S.No.190 of 1995 by the learned District Munsif, Thirumayam.
2. The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.
3. Heard the learned Counsel for the appellants/defendants. Despite printing the name of the respondents, no one appeared.
4. Niggard and bereft of details, the case of the plaintiff as stood exposited from the plaint could be set out thus:
The plaintiff is owning her house to the west of the suit pathway marked as EFCD. The said pathway is linking S.V.Kala Salai situated on the north of the said pathway and the lane situated to the south of the said pathway. The adjacent owners on either side of the pathway are enjoying the said pathway as a common passage. The plaintiff and her predecessors' in title acquired right over it by prescription by having used it as a pathway. As such, the plaintiff is having prescriptive title over the pathway and EFCD pathway was set apart as described in the plaint sketch by the owners of the houses on either side of that pathway even 100 years ago itself. The second defendant is the daughter of the first defendant and they are running a school situated to the west of the said pathway and the school is situated on the north of the plaintiff's house. While so, without any manner of right, the defendants 1 and 2 have chosen to obstruct the said pathway at the ABCD portion situated to the east of the said defendants' school so as to prevent the plaintiff and others from having ingress and egress from S.V.Kala Salai to their respective houses. The said pathway marked as EFCD is maintained by the third defendant. Accordingly, she prayed for declaration and for injunction.
5. Per contra, denying and refuting the allegations/averments in the plaint, the defendants 1 and 2 filed the written statement setting out various averments, the gist and kernel of it, would run thus:
The plaintiff is having no right of pathway over ABCD area mentioned in the rough sketch as it belongs exclusively to the defendants and it formed part and parcel of the school area and it is being used as a playground for the school. ABCD is situated in S.No.194. The defendants are owing their school in S.Nos.194 and 195. There is no easement right over that area by anyone much less by the plaintiff. The plaintiff's contention that she acquired easement by prescription is a misconceived one and absolutely, there is no evidence to that effect. The third defendant, the Panchayat concerned, is not at all maintaining ABCD area. The said area referred to as ABCD is forming part and parcel of the defendants' property which is referred to in the title deeds of the plaintiff. Accordingly, they prayed for the dismissal of the suit.
6. The trial Court framed the relevant issues.
7. During trial, P.W.1 and P.W.2 were examined and Exs.A.1 to A.13 were marked on the side of the plaintiff. D.W.1 and D.W.2 were examined and Exs.B.1 to B.21 were marked on the side of the defendants.
8. Ultimately, the trial Court decreed the suit in toto.
9. Challenging the judgment and decree of the trial Court, A.S.No.66 of 1998 was filed before the Additional District Judge cum Chief Judicial Magistrate, Pudukottai, which Court dismissed the appeal confirming the judgment and decree of the trial Court.
10. Being aggrieved by and dissatisfied with, the judgments and decrees of both the Courts below, the defendants 1 and 2 filed this second appeal on the following grounds inter alia thus:
Both the Courts below fell into error in assuming as though the plaintiff's ancestors had right over ABCD area referred to in the plaint and that they during partition, allotted that lane for being used as a road, forgetting for a moment that ABCD area, at no point of time belonged to the plaintiff and her ancestors; their documents never referred to that area at all. Both the Courts below erroneously held as though the Advocate Commissioner gave a finding that ABCD area also used as part and parcel of the suit pathway for having ingress and egress from S.V.Kala Salai road. In fact, no such finding was given by the Advocate Commissioner at all. Accordingly, they prayed for setting aside the judgments and decrees of both the Courts below.
11. At the time of admitting this second appeal, my learned Predecessor framed the following substantial question of law:
"1.Whether the Courts below are correct in holding that the plaintiff is entitled to the right of easementary right to the suit property when the defendant claims right to the suit property in anterior point of time under Ex.B.1 dated 22.09.1918?"
12. It is obvious that as per Section 100 of the Civil Procedure Code, at the time of hearing the second appeal, this Court has got the power to re-frame the substantial question of law. Accordingly, I am of the considered opinion that the substantial question of law has to be re-framed as under:
"(i) Whether both the Courts below were proper in placing reliance on Exs.A.1 to A.4 and A.13 in giving a finding that ABCD portion marked in the sketch is referred in those documents even though there is no such reference at all?
(ii) Whether both the Courts below were right in holding that the Advocate Commissioner's report refers to the ABCD area as pathway even though there is no such finding by the Commissioner?
(iii) Whether the findings in the judgments and decrees of both the Courts below are perverse?"
13. All the points are taken together for discussion as they are interlinked and interwoven with one other.
The Point:
14. At the outset itself, I would like to observe that a mere perusal of the judgments and decrees of both the Courts below would clearly demonstrate that they misdirected themselves without even having taken care to peruse the relevant documents namely Exs.A.1 to A.4 and A.13 in the light of Ex.B.5, the extract of the Town Survey settlement which contains the co-relation statement of the old survey numbers with the new survey numbers.
15. It is admittedly the case of the plaintiff that ABCD area shown in the sketch is situated to the east of the defendants' school. Whereas ABEF area is shown as situated to the south of ABCD area. The plaintiff's house is abutting ABEF area only. It is not the case of the plaintiff that the plaintiff's ancestors owned any land situated to the east of the defendants' school building. The records would highlight that A A2 D1 D area in the sketch is covered under S.No.195 and ABCD area is covered under S.No.194.
16. Ex.B.5 would clearly highlight that new S.Nos.193 and 194 are co- related to old S.Nos.108 and 504. It has to be seen as to whether those old Survey Numbers co-related to the new S.Nos.193 and 194, were referred to in Exs.A.1 to A.4 and A.13.
17. A mere perusal of it, would at once make the point clear that none of those old survey numbers are referred to in those documents of the plaintiff's ancestors and in such a case, both the Courts below misdirected themselves in assuming and presuming as though the plaintiff's ancestors owned the old S.Nos.108 and 504 also and that portion has been allotted for road purpose. What actually the plaintiff's ancestors did was that in old S.Nos.120 to 124, and other numbers, they owned lands and they got themselves partitioned as per Ex.A.13 and in that, an extent of 12-1-0 kuzhies was allotted for road purpose and that in no way connected with the old S.Nos.108 and 504 which are co-related to S.Nos.193 and 194 over which the plaintiff is having right.
18. In fact, the plaintiff's documents, Exs.B.1 and B.2 would clearly refer to the old S.No.108. It is therefore crystal clear that the block of land situated to the south of S.V.Kala Salai road belonged to the defendants' ancestors. Whereas the property situated to the south of the defendants' land belonged to the plaintiff's ancestors and in the land which is situated to the south of the plaintiff's land, there was partition among the plaintiff's ancestors and in that, they left an area marked as ABEF area to be used as a pathway and there is no reference to ABCD area and there could not also be any reference to ABCD as a pathway in Ex.A.13 or in Ex.A.1 to A.4. The plaintiffs ancestors never owned any land on the immediate south of S.V.Kala Salai, but ABCD area is situated to the immediate south of S.V.Kala Sali. This distinction has not been noted by both the Courts below and they were allowed themselves to be sidetracked by certain references in Ex.A.13 about the common pathway. As such, the findings of both the Courts below are perverse warranting the interference of this Court.
19. The plea of acquisition of easementary right by prescription is once again a misconceived one. The onus of proof is on the plaintiff to prove her case and there should have been clear and clinching evidence to show that for twenty years, she used the ABCD area, openly, uninterruptedly and peacefully as pathway and acquired easementary right by prescription. The maxim "Nec vi, nec clam, nec precario." [Not by violence, stealth or permission.] is also applicable.
20. The concept 'acquisition of right by prescription' is found dealt with elaborately in the decision of the Honourable Apex Court P.T.Munichikkanna Reddy v. Revamma reported in (2007) 6 Supreme Court Cases 59 and that judgment can be taken as a precedent for understanding the proving of acquisition of easement by prescription also. An excerpt from the aforesaid decision, would run thus:
"34. The law in this behalf has undergone a change. In terms of Articles 142 ans 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Bibi Sakina in the following terms: (AIR required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found." (See also M. Durai v. Muthu (2007) 3 SCC 114 : (2007) 2 Scale 309.)
35. The aforementioned principle has been reiterated by this Court in Saroop Singh v. Banto stating: (SCC p. 340, paras 29-30) "29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC 376.)
30. 'Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita (2004) 1 SCC 271, SCC para 21.)"
36. In Mohammadbhai Kasambhai Sheikh v. Abdulla Kasambhai Sheikh this Court held: (SCC p. 386, para 4) "But as has been held in Mahomedally Tyebally v. Safiabai the heirs of Mohammedans (which the parties before us are) succeed to the estate in specific shares as tenants-in-common and a suit by an heir for his/her share was governed, as regards immovable property, by Article 144 of the Limitation Act, 1908. Article 144 of the Limitation Act, 1908 has been materially re-enacted as Article 65 of the Limitation Act, 1963 and provides that the suit for possession of immovable property or any interest therein based on title must be filed within a period of 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. Therefore, unless the defendant raises the defence of adverse possession to a claim for a share by an heir to ancestral property, he cannot also raise an issue relating to the limitation of the plaintiff's claim."
37. The question has been considered at some length recently in T. Anjanappa v. Somalingappa wherein it was opined: (SCC p. 577, para 21) "21. The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable."
(See also Des Raj v. Bhagat Ram (2007) 9 SCC 641 : (2007) 3 Scale 371 ; Govinammal v. R.Perumal Chettiar (2006) 11 SCC 600 : JT (2006) 10 SC 121.) ...
40. There is another aspect of the matter, which cannot be lost sight of. The right of property is now considered to be not only a constitutional or statutory right but also a human right.
41. Declaration of the Rights of Man and of the Citizen, 1789 enunciates right to property under Article 17:
"since the right to property is inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid".
42. Moreover, the Universal Declaration of Human Rights, 1948 under Sections 17(i) and 17(ii) also recognises right to property:
"17. (i) Everyone has the right to own property alone as well as in association with others.
(ii) No one shall be arbitrarily deprived of his property."
21. There are catena of decisions to the effect that simply by utterance of words, they are acquired the right of easement by prescription, it cannot be countenanced as true. In fact, the Commissioner's report which has been very much relied on by both the Courts below does not enure to the benefit of the plaintiff, because the Commissioner clearly gave a finding that from his observation, he could not notice that the said pathway is being used actively as pathway at all.
22. I am at a loss to understand as to how both the Courts below arrived at the conclusion that ABCD area is also forming part of the pathway. What the Commissioner has observed there, was that ABCD area is a vacant area and anybody could walk over it and it is being used as a pathway and the Commissioner had no power to give a finding that it is being used as a pathway or not.
23. Adding fuel to the fire to the case of the plaintiff, the third defendant Panchayat clearly and categorically without mincing words came forward with the case that ABCD area is not under their control and they did not maintain it as road at all. In such a case, it is not known as to how both the Courts below could ignore such a categorical statement by the public authority relating to ABCD area. Whereas the plaintiff would baselessly contend that the third defendant is maintaining it as pathway. But, Ex.B.16 would speak to the contrary and it has given a death-knell to the case of the plaintiff.
24. Based on the alleged acquisition of easementary right by prescription, if the public authorities brought it under their control as a public pathway or if any road has been laid at least by the users concerned, at least there would be some evidence for presuming that it might have been used as a pathway. But, absolutely there is no iota or shred of evidence in that regard and no evidence has been let in to prove that for about twenty years, that ABCD area has been used as a pathway by the plaintiff or any owners having houses on either side of ABEF area.
25. A fortiori, I could held that the plaintiff's case is not at all true and correct. The substantial question of law No.(i) is answered to the effect that both the Courts below were not proper in placing reliance on Exs.A.1 to A.4 and A.13 in giving a finding that ABCD portion marked in the sketch is referred in those documents even though there is no such reference at all. The substantial question of law No.(ii) is answered to the effect that both the Courts below were not right in holding that the Advocate Commissioner's report refers to the ABCD area as pathway even though there is no such finding by the Commissioner. The substantial question of law No.(iii) is answered to the effect that the findings in the judgments and decrees of both the Courts below are perverse.
26. In the result, this second appeal is allowed, setting aside the judgments and decrees of both the Courts below. No costs.
rsb To
1.The Additional District Judge cum Chief Judicial Magistrate, Pudukottai.
2.The District Munsif, Thirumayam.