Madras High Court
Kothanda Naidu vs Adhikesavalu on 11 February, 2021
Author: T. Ravindran
Bench: T. Ravindran
S.A..Nos.1026, 1027 & 1028 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.02.2021
CORAM
THE HONOURABLE MR. JUSTICE T. RAVINDRAN
S.A.Nos. 1026, 1027 & 1028 of 2009
and
M.P.No.1 of 2009
S.A. No.1026 of 2009
1. Kothanda Naidu
S/o. Ramasamy Naidu
2. Rajammal
3. Mahendiran
4. Savithri
5. Maheswari
6. Sankar ... Appellants
Vs.
1. Adhikesavalu
2. Jayarama Naidu
3. Sumahi ... Respondents
S.A. No.1027 of 2009
1. Kothanda Naidu
S/o. Ramasamy Naidu
2. Mahendiran
Vs.
1. Adhikesavalu
2. Jayarama Naidu
3. Sumahi ... Respondents
Page 1 of 15
https://www.mhc.tn.gov.in/judis/
S.A..Nos.1026, 1027 & 1028 of 2009
S.A. No.1028 of 2009
Mahendiran ...Appellant
vs.
Sumathi ...Respondent
Common Prayer: Second Appeals filed under Section 100 of the Civil
Procedure Code against the judgment and decree of the learned
Subordinate Judge, Thiruvallur, dated 13.10.2008 made in A.S. Nos.85,
86 and 87 of 2007, partly allowing the appeal and modifying the
judgment and decree of the learned District Munsif, Thiruvallur dated
17.07.2007 made in O.S. Nos.474 of 1992 , 161 of 1994 and 172 of
2003
For Appellants : Mr. S. Sarvanakumar
for M/s. M. Sudhakar
in all the second appeals
For Respondents : Mr. N. Udaya Kumar
in all the second appeals
COMMON JUDGMENT
The Second Appeals in S.A. Nos.1026, 1027 and 1028 of 2009 are directed against the common judgment and decree dated 13.10.2008 passed in A.S. Nos.85, 86 and 87 of 2007 on the file of the Subordinate Page 2 of 15 https://www.mhc.tn.gov.in/judis/ S.A..Nos.1026, 1027 & 1028 of 2009 Court, Thiruvallur, partly allowing the appeal modifying the common judgment and decree dated 17.07.2007 passed in O.S.Nos.474/1992, 161/1994 and 172/2003, on the file of the District Munsif Court, Thiruvallur.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.
3. The O.S. No.474/1992 has been laid for the reliefs of declaration, permanent injunction and mandatory injunction. The O.S. Nos.161/1994 and 172/2003 have been laid for the relief of permanent injunction.
4. The abovesaid three suits have been jointly tried by the trial Court and common evidence had been recorded in O.S. No.474/1992 and in support of the plaintiffs' case P.W.1 was examined and Exs.A1 to A7 were marked. On the side of the defendants, D.W.1 was examined and Exs.B1 to B9 were marked. Exs. C1 to C6 were marked. Page 3 of 15 https://www.mhc.tn.gov.in/judis/ S.A..Nos.1026, 1027 & 1028 of 2009
5. On an appreciation of the materials placed on record, both oral and documentary, and the submissions put forth by the respective parties, the trial court was pleased to grant the relief in favour of the plaintiffs only in respect of the 20 feet width pathway shown in red colour in the plaint and accordingly granted the reliefs of declaration, permanent injunction and mandatory injunction with reference to the abovesaid extent of pathway in favour of the plaintiffs and in tune with the abovesaid determination, accordingly, barring the abovesaid extent of of 20 feet width pathway as declared in O.S.No.474/1992, granted the reliefs of permanent injunction sought for by the plaintiffs in O.S. Nos.161/1994 and 172/2003. Impugning the judgment and decree of the trial court, the first appeal had been preferred by the defendants in O.S. No.474/1992 and the plaintiffs in O.S.Nos.161/1994 and 172 of 2003. The first appellate court, on an appreciation of the materials available on record and the submissions put forth by the respective parties, was pleased to modify the judgment and decree of the trial court and held that the plaintiffs are entitled only to the reliefs prayed for by them qua 10 feet width pathway shown in the plaint and accordingly also modified the Page 4 of 15 https://www.mhc.tn.gov.in/judis/ S.A..Nos.1026, 1027 & 1028 of 2009 reliefs granted by the trial court in O.S. Nos.161/1994 and 172/2003 and disposed of all the appeals. Impugning the judgment and decree of the first appellate court, the present second appeals had been preferred.
6. Considering the pleas put forth by the respective parties and the submissions made by them as well as the available materials on record, it is found that the suit has been laid by the plaintiffs seeking for appropriate reliefs in respect of 25 feet width pathway in survey No.83/4, which according to the plaintiffs was situated within the specific boundaries. The sum and substance of the plaintiffs' case is that other than the said pathway, as above pointed out, the plaintiffs have no other access to reach the main road and the defendants, without any authority or right, are attempting to disturb the plaintiffs' possession and enjoyment of the suit pathway and also put up the construction in the same with a view to prevent the plaintiffs from using the pathyway to have access to the main road and hence stated that they had been necessitated to institute the suit for appropriate reliefs. The other suits had been laid by the respective plaintiffs in O.S. Nos.161/1994 and 172/2003 against some Page 5 of 15 https://www.mhc.tn.gov.in/judis/ S.A..Nos.1026, 1027 & 1028 of 2009 of the plaintiffs claiming that the properties described in the abovesaid suits are in their exclusive possession and enjoyment and the plaintiffs are not entitled to prevent their enjoyment and accordingly sought for the relief of permanent injunction.
7. The main contention put forth by the defendants is that the suit property has been originally classified as jamin property and subsequently converted as battai porombokku land during 1973 and there is no common pathway in the suit property as alleged by the plaintiffs and also subsequently converted as village natham and the defendants have been granted the patta in respect of the suit pathway and accordingly it is stated that the defendants have put up the construction in the suit pathway and therefore, the plaintiffs are not entitled to seek the reliefs as prayed for.
8. Considering the materials placed on record, particularly Exs.A4 and A7, when from Ex.A4 sale deed dated 22.05.1962 it is noted that the property comprised therein has been purchased by the second Page 6 of 15 https://www.mhc.tn.gov.in/judis/ S.A..Nos.1026, 1027 & 1028 of 2009 plaintiff from Adithammal vagayarah in respect of 36 cents, the same has been described as lying to the south of vandi battai and furthermore, in the Writ Petition No.14066/95 levied by the plaintiffs 1 and 2 challenging the patta granted in favour of the defendants 1 and 2 and seeking for the cancellation of the same, it is noted, observing that the appeal should have been preferred against the grant of patta in favour of the defendants 1 and 2 and the parties should be advised to approach the civil court for appropriate remedies and resultantly the writ petition has come to be dismissed.
9. Considering the other materials available on record when it is noted that the patta had been granted in favour of the defendants qua the suit property after the institution of the suit and considering the proceedings marked as Ex.B7, when it is seen that the suit property has been only classified as Vandi battai prior to 1973 and only subsequently converted as village natham and when it is further noted that the patta granted in favour of the defendants 1 and 2 had been stayed and despite the pendency of the suit, the patta should not have been granted to the Page 7 of 15 https://www.mhc.tn.gov.in/judis/ S.A..Nos.1026, 1027 & 1028 of 2009 defendants 1 and 2, in such view of the matter, as rightly held by the courts below when the property in question had been orginally used only as vandi battai and only later converted as village natham, the authorities concerned should have called for the objections of the public, who had been using the vandi battai, as well as the neighbouring land owners of the vandi battai, who had been using the same as an access and on the other hand, when there is no material projected on the part of the defendants that the suit property has been converted as village natham only after proper notice and after inviting the objections of the aforestated parties, therefore, the conversion of the suit property as village natham has been nightly not accepted by the courts below.
10. It is noted that the suit property had been inspected by the Advocate commissioner thrice and filed his reports and plans which had come to be exhibited as Exs.C1 to C6. From the report of the commissioner, it is seen that the commissioner himself has been necessitated to enter only through the defendants' site to inspect the plaintiff's property. Therefore, as rightly concluded by the courts below, Page 8 of 15 https://www.mhc.tn.gov.in/judis/ S.A..Nos.1026, 1027 & 1028 of 2009 it is found that the defendants in a hurried manner after securing the patta during the pendency of the suit had endeavoured to put up the construction and thereby they had prevented the access of the plaintiffs through the suit pathway which had been the only access to the plaintiffs to reach their lands as well as to go to the main road. Therefore, the materials available on record being above, the courts below are found to be justified in holding that the vandi battai is in existence on the northern side of the plaintiffs' property prior to 1973 and no exception could be taken to the same.
11. Further as rightly concluded by the courts below, the plaintiffs have not come forward with the clear materials as to the actual extent of the suit pathway as such. However, it is noted that other than the suit pathway lying on the northern side, the plaintiffs have no access to reach their lands or to approach the main road.
12. The contention has been raised by the defendants that once the courts below had come to the conclusion that the portion lying on the Page 9 of 15 https://www.mhc.tn.gov.in/judis/ S.A..Nos.1026, 1027 & 1028 of 2009 northern side of the plaintiffs' property has been used as a public pathway, the plaintiffs should have only laid the suit in a representative capacity and therefore, the plaintiff's suit, as such, is not maintainable. However, when it is found that the plaintiffs also form part of the public and they are, in particular, personally affected by the encroachment committed by the defendants over the suit property and by putting up the construction, the defendants having also prevented the plaintiffs from having access to their lands and approach the main road and when from the suggestion put to P.W.1 by the defendants that after the institution of the suit, the public are not having access through the suit pathway, by way of the same, as concluded by the courts below, the defendants themselves have, thereby, impliedly admitted the existence of the public pathway, in such view of the matter, though the plaintiffs have, as such, not filed the suit in the representative capacity, considering the existence of vandi battai on the northern side of the plaintiffs' property all along and the grant of patta to the defendants in respect of the said pathway without inviting the objection of the plaintiffs and the others and the hurried manner by which the defendants are also found to have put up the Page 10 of 15 https://www.mhc.tn.gov.in/judis/ S.A..Nos.1026, 1027 & 1028 of 2009 construction and after noting that the plaintiffs would not be prejudiced if they are granted the pathway to an extent of 10 feet width, accordingly, the appellate court, in the right perspective, taking into the convenience of both the parties as well as the materials placed on record, particularly, the existence of the public pathway all along and the defendants having not established their lawful claim of title to the 10 feet width pathway as such, accordingly modified the judgment and decree of the trial court by granting the reliefs in favour of the plaintiffs only with respect of 10 feet width pathway as determined by it, consequently also modified the judgment and decree of the trial court by granting the relief in favour of the plaintiffs in O.S. No.161/1994 and 172/2003 that excluding the abovesaid extent of 10 feet width pathwayas declared in O.S.No.474/1992, the respective plaintiffs are entitled to obtain the reliefs qua the other portion of the suit properties.
13. Considering the reasonings and conclusions of the first appellate court in particular and when it is found that the same are based on the proper appreciation of the pleas put forth by the respective parties Page 11 of 15 https://www.mhc.tn.gov.in/judis/ S.A..Nos.1026, 1027 & 1028 of 2009 and the materials available on record, both oral and documentary and the various contentions put forth by the respective parties, in all, the same being found to be proper and correct, both on factual matriax as well as on the question of law, and when the same are not shown to be perverse, illogical and irrational in any manner, accordingly, I do not find any valid reason to interfere with the judgment and decree of the first appellate court passed in the matter. Resultantly, I hold that no substantial question of law is involved in the second appeal.
14. The counsel for the plaintiffs placed reliance upon the decisions reported in
1) 2006(4) CTC Page 79 (Hero Vinoth (minor) v.
Seshammal)
2) 2011(3) CTC Page 769 (Hari Ram v. Jyothi Prasad & another)
3) 2012(6) CTC Page 892 (Syed Dhasthakeer v. Navab John) Page 12 of 15 https://www.mhc.tn.gov.in/judis/ S.A..Nos.1026, 1027 & 1028 of 2009 The principles of law outlined in the abovesaid decisions are taken into consideration and followed as applicable to the case at hand.
15. In conclusion, the common judgment and decree dated 13.10.2008 passed in A.S. Nos.85, 86 and 87 of 2007 on the file of the Subordinate Court, Thiruvallur, partly allowing the appeal modifying the common judgment and decree dated 17.07.2007 passed in O.S.Nos.474/1992, 161/1994 and 172/2003 on the file of the District Munsif Court, Thiruvallur, are confirmed. Resultantly, the second appeals are dismissed with costs. Consequently, connected miscellaneous petition is closed.
11.02.2021 Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order bga To
1. The Subordinate Court, Thiruvallur Page 13 of 15 https://www.mhc.tn.gov.in/judis/ S.A..Nos.1026, 1027 & 1028 of 2009
2. The District Munsif Court, Thiruvallur
3. The Section Officer, VR Section, High Court, Madras Page 14 of 15 https://www.mhc.tn.gov.in/judis/ S.A..Nos.1026, 1027 & 1028 of 2009 T. RAVINDRAN, J.
bga S.A.Nos. 1026, 1027 & 1029 of 2009 11.02.2021 Page 15 of 15 https://www.mhc.tn.gov.in/judis/