Madras High Court
Dharma Pillai vs Sanjeevipillai (Died)
Author: J.Nisha Banu
Bench: J.Nisha Banu
S.A.No.658 of 1999
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 15.11.2019
PRONOUNCED ON: 24.01.2020
CORAM
THE HONOURABLE MRS. JUSTICE J.NISHA BANU
SECOND APPEAL No.658 of 1999
1.Dharma Pillai
2.Sundaram Pillai
3.Shanmugavel Annavi
4.Palanisamy
5.Guruswamy Pillai (died)
6.Patchimuthu Pillai
7.Balupillai @ Balakrishnan (died)
8.Rakkapillai
9.Mariappan ... Appellants 1 to 9 /
Respondents 1 to 8 & 10 /
Defendants 1 to 8 & 10
10.Rajavel
11.Manoharan
12.Shanthi
13.Sudha
14.Chitra .... Appellants 10 to 14/
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LRs. of 5th appellant/5th defendant
15.B.Anandham
16.R.Palaniammal
17.B.Radhakrishnan
18.Jotheeswari
19.B.Gopalakrishnan
20.K.Kowsalya
21.B.Muthukumar ... Appellants 15 to 21/
LRs of 7th appellant / 7th defendant
Vs.
1.Sanjeevipillai (died)
2.Rakkappan (died)
3.Muthaiah
4.Narayanan
5.Krishnan
6.Velusamy (died)
7.Krishnapillai (died)
8.Annalakshmi
9.Chandra Devi ... Respondents 1 to 9/
Appellants / Plaintiffs
10.Rajapalayam Municipality,
rep. by its Commissioner,
Rajapalayam. ... 10th respondent /
9 respondent / 9th defendant
th
11.Raghavan
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S.A.No.658 of 1999
12.Arunachalam ... Respondents 11 & 12/
LRs of 1st respondent / 1st plaintiff
13.Kandammal
14.Uma
15.Senthil ... Respondents 13 to 15/
LRs of 2nd respondent/2nd plaintiff
16.Rakkammal
17.Mariyammal
18.Govindammal .... Respondents 16 to 18/
LRs of 7th respondent/7th plaintiff
19.Lakshmi
20.V.Kandasamy
21.Muthulakshmi
22.V.Nagarajan ... Respondents 19 to 22/
LRs of 6th respondent/6th plaintiff
(Appellants 10 to 14 brought on record as LRs of deceased 5th appellant as
per the order of this Court, dated 07.12.2015 made in M.P.(MD).No.1603 of
2014)
(Appellants 15 to 21 brought on record as LRs of deceased 7th appellant, as
per the order of this Court dated 03.10.2016 made in C.M.P.(MD).Nos.7039
and 7040 of 2016)
(Respondents 11 and 12 brought on record as LRs of deceased 1st
respondent as per the order of this Court dated 07.12.2015 made in M.P.
(MD).Nos. 4 to 6 of 2014)
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S.A.No.658 of 1999
(Respondents 13 to 15 brought on record as LRs of deceased 2nd
respondent as per the order of this Court dated 07.12.2015 made in M.P.
(MD).Nos. 7 to 9 of 2014)
(Respondents 16 to 18 brought on record as LRs of deceased 7 th
respondent as per the order of this Court dated 07.12.2015 made in M.P.
(MD).Nos. 10 to 12 of 2014)
(Respondents 19 to 22 brought on record as LRs of deceased 6 th
respondent as per the order of this Court dated 14.10.2019 made in C.M.P.
(MD).No.4640 of 2019)
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree, dated 08.02.1999, passed in
A.S.No.80 of 1998 by the Subordinate Court, Srivilliputhur, reversing the
judgment and decree, dated 21.10.1998 passed in O.S.No.116 of 1995 by
the Additional District Munsif, Srivilliputhur.
For appellants ... Mr.V.Sathurthiraja
for Mr.S.Kadarkarai
For respondents ... Mr.A.Sivaji
3 to 5, 8, 9 and 11 to 22
For 10th respondent ... Mr.P.Srinivas
JUDGMENT
This second appeal has been filed by the appellants/defendants challenging the judgment and decree, dated 08.02.1999, passed by the 4/13 http://www.judis.nic.in S.A.No.658 of 1999 first appellate Court in A.S.No.80 of 1998, whereby and whereunder the first appellate Court has set aside the judgment and decree passed in O.S.No.116 of 1995 and granted the decree of declaration and injunction to certain extent.
2. For better appreciation and understanding, the parties are referred to as per their rank in the suit.
3. The case of the plaintiffs is that the plaint 1st schedule property mentioned as ABCD in the plaint plan measuring about 90 cents was originally belonged to one Nagul Naidu and he divided the same into plots and sold the same to the plaintiffs by leaving the 2nd schedule property, which is mentioned as DEFA in the plaint plan, as pathway on the southern side. According to the plaintiffs, the suit 2nd schedule property - pathway was exclusively given for the benefit of the plaintiffs only. While so, the defendants, who have purchased the properties on the southern side of the second schedule property and constructed their houses on south facing, have attempted to put up an opening in the northern wall of their respective houses. Hence, the plaintiffs have filed the suit for declaration that the plaint 2nd schedule property exclusively belongs to them and for mandatory injunction directing the defendants 1 to 8 and 10 to close the 5/13 http://www.judis.nic.in S.A.No.658 of 1999 openings made by them towards the plaint schedule property in northern side walls of their respective houses.
4. The case of the defendants 1 to 8 and 10 is that the suit 2 nd schedule property, which is comprised in T.S.No.51, is classified as Sanjeevanathapuram Street. The sale deed executed by Nagul Naidu in favour of the plaintiffs did not give any exclusive right to the plaintiffs to claim that the said pathway exclusively belongs to them and therefore, the plaintiffs cannot restrain usage of the said pathway by the defendants.
5. The case of the 9th defendant/Municipality is that the suit 2nd schedule property has been maintaining by the Municipality as public street. Since the plaintiffs have not purchased the plaint 2nd schedule property as part of their respective house sites, they cannot claim exclusive right in the plaint 2nd schedule property. Neither the plaintiffs nor the defendants have exclusive right in the plaint 2nd schedule property. The plaintiffs 7 and 8 have made some encroachment over the plaint 2 nd property property and therefore, the 9th defendant/ Municipality has issued notices to the plaintiffs 7 and 8 to remove the encroachment.
6. On the side of the plaintiffs, the 2 nd plaintiff was examined PW1 6/13 http://www.judis.nic.in S.A.No.658 of 1999 and Exs.A1 to A27 were marked. On the side of the defendants, 1 to 8 and 10, the 7th defendant was examined as DW1 and Exs.B1 to B5 were marked. On the side of the 9th defendant/Municipality, the Town Planning Inspector and Town Surveyor were examined as DW2 and DW3 and marked Exs.B6 to B11.
7. The trial Court, after considering the oral and documentary evidence, has dismissed the suit holding that the plaintiffs' vendor while executing the sale deed in favour of the plaintiffs has not specifically stated that the plaintiffs alone are entitled to use the plaint 2 nd schedule property as pathway and the plaint 2nd schedule property is described as Sanjeevanathapuram North Street in property tax receipts, which was admitted by PW1 and as the suit 2nd schedule property is classified as public pathway, the public, including the defendants, have right to use the same as pathway. Aggrieved by the same, the plaintiffs have filed A.S.No. 80 of 1998. The first appellate Court, after reappraising the entire evidence, has held that the 9th defendant / Municipality has not obtained the title to the plaint 2nd schedule property and no drainage have been provided nor the plaint 2nd schedule property is properly maintained by the 9th defendant and therefore, the plaintiffs are entitled to exclusive right in the plaint 2nd schedule property. Thus, the first appellate Court has 7/13 http://www.judis.nic.in S.A.No.658 of 1999 granted the decree of declaration and negatived the relief of mandatory injunction. Aggrieved by the same, the defendants 1 to 8 and 10 have filed the present second appeal. During the pendency of this appeal, the plaintiffs 1, 2, 6 & 7 died and their legal heirs were impleaded as respondents 11 to 22 and the defendants 5 and 7 died and their legal heirs were impleaded as the appellants 10 to 21.
8. This second appeal was admitted on the following substantial question of law:
a) Whether the present suit is maintainable in view of the specific provisions contained in Section 63/180-A of the Tamil Nadu District Municipalities Act, 1920?
b) Whether the Lower Appellate Court is justified in law holding that the 9th defendant municipality failed to prove that the second schedule street is a public street, while the burden of proof is on the plaintiffs to prove that the suit schedule property is their private property?
c) Whether the suit claim is barred under Sections 63, 178, 179 and 180 of the Tamil Nadu 8/13 http://www.judis.nic.in S.A.No.658 of 1999 District Municipalities Act, 1920?
9. Heard the learned counsel appearing for both sides and perused the records carefully.
10. Admittedly, it is not in dispute that the suit first and second schedule properties were originally belonged to Nagul Naidu and he divided the same into plots by leaving the suit 2 nd schedule property as common pathway to the said plots. The suit 2nd schedule property is 12 feet pathway and there is dead end on the eastern side of the pathway and there is no traffic in the same. In the sale deeds executed in favour of the plaintiffs, the vendor has given a right to use the 2nd schedule property – pathway for access to the road. The southern boundary in the sale deeds executed in favour of the plaintiffs is described as “brhj;jpy; nghl;oUf;Fk; fpHnky; bjU.” It would clearly show that the suit 2nd schedule property was created specifically for ingress and egress to the plots in the suit 1 st schedule property. Merely because there is omission of words to the effect that the suit 2nd schedule property is for exclusive usage of the owners of the plots in the first schedule property in the sale deeds in favour of the plaintiffs, it cannot be declared that the suit 2 nd schedule property is a public street.
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11. Though the 9th defendant / Municipality has stated that the suit 2nd schedule property is a public street and the same has been maintaining by the Municipality, it has not produced any document to show that either of the vendor of the plaintiffs or the plaintiffs have dedicated / gifted the paint 2nd schedule property in favour of the Municipality. The plaintiffs, who are the owners of the 1st schedule property, have also not made a request to declare the suit 2nd schedule as public pathway as per the District Municipalities Act. When there is no dedication/ gift / requisition by the original owners, the 2nd schedule property cannot be declared as public street. More over, the suit 2nd schedule property has not been maintained by the Municipality by laying road, drainage facility, etc. Though by relying on Exs.B6 – Town Survey Register and B7 – Survey sketch, it is contended by the defendants that the suit 2nd schedule property is a public street, a perusal of Ex.B6 shows that the suit 2nd schedule property has been described as “Boosthathi Sanjeevinathapuram North Street”. The word “Boosthathi” refers to Patta land belonging to private individuals. Therefore, even on the basis of Exs.B6 and B7, it cannot be presumed that the suit 2nd schedule property is a public street. More over, the entries in the revenue records itself would not confer any title on the 9th defendant.
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12. In the case of A. Komalavalli vs. The Madras Area Defence Services Cooperative House Construction Society Ltd., 2000 (3) MLJ 10, this Court has held that unless private parties to whom the land belongs execute conveyance deed in favour of panchayat, the panchayat or local bodies cannot claim such roads as public road. It is also held in the same judgment that if a road itself formed in a private property and so long as it is not dedicated as public road, nobody can claim as a matter of right to pass through or to make use of the same as pathway.
13. The dictum laid down in the above case is squarely applicable to this case, as the 9th defendant / Municipality, in this case, without any dedication/gift/requisition from the owners, claimed the 2nd schedule property as public street only based on entries in the records. Thus, the 2nd question of law is answered against the defendants.
14. In view of the above facts and circumstances of the case, the provisions of law mentioned in the first and third questions of law are not applicable to this case. This Court is of the view that the first appellate Court has rightly granted the relief of declaration and injunction in favour of the plaintiffs. So far as the mandatory injunction sought for by the plaintiffs is concerned, the first appellate Court has negatived the same 11/13 http://www.judis.nic.in S.A.No.658 of 1999 holding that the windows put up by the defendants 1 to 8 and 10 are only in their own respective northern wall and therefore, the same cannot be prevented by the plaintiffs. This Court does not find any reason to interfere with the said finding of the first appellate Court.
15. In view of the above discussions, this Court does not find any reason to interfere with the judgment and decree passed by the first appellate Court.
16. In the result, this second appeal is dismissed. No costs.
Internet : Yes/No 24.01.2020
Index : Yes/No
gcg
To
1.The Subordinate Judge,
Srivilliputhur.
2.The Additional District Munsif,
Srivilliputhur.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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J.NISHA BANU, J
gcg
Judgment in
S.A.No.658 of 1999
24.01.2020
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