Madras High Court
M.Seeranga Gounder (Died) vs M.Kuppusamy Gounder (Died) on 10 March, 2020
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
S.A.No.1744 of 1998
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 24.02.2020
Date of Verdict : 10.03.2020
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
S.A.No.1744 of 1998
and
C.M.P.No.3721 of 2020
1.M.Seeranga Gounder (Died)
2.S.Pavayammal
3.S.Thangavel
4.T.Nagaraj
(Appellants 2 to 4 are brought on record
as LR's of the deceased sole appellant,
vide order of the Court dated 07.11.2011
made in C.M.P.No.1021 to 1023 of 2011) ... Appellants
Vs.
1.M.Kuppusamy Gounder (Died)
2.P.Sarojini
3.N.Thamaiyenthi
(RR 2 and 3 are brought on record
as LR's of the deceased sole appellant,
vide order of the Court dated 07.11.2011
made in C.M.P.No.1021 to 1023 of 2011)
4.Palaniammal
5.K.Venugopal (Died)
6.K.Somasundaram
(RR 4 to 6 are brought on record as
legal heirs of the deceased sole respondent
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1/14
S.A.No.1744 of 1998
Viz., M.Kuupusamy Gounder vide order of
the Court dated 11.12.2019 made in
C.M.P.Nos.1189 to 1191/2011
in S.A.No.1744 of 1998)
7.V.Gousalya
8.V.Hari Prasad
(RR 7 & 8 are brought on record as
legal heirs of the deceased R5 Viz.,
K.Venugopal vide order of the Court
dated 20.01.2020 made in C.M.P.No.
26496/2019 in S.A.No.1744/1998) ... Respondents
Prayer :- This Second Appeal is filed under Section 100 of Civil Procedure
Code against the judgment and decree of the learned Principal Subordinate
Judge, Erode dated 24.08.1994 made in A.S.No.159 of 1993 reversing the
judgment and decree dated 18.06.1993 in O.S.No.438 of 1996 on the file of
the II Additional District Munsif, Erode.
For Appellants : Mr.V.P.Sengottuvel
For RR4, 6 to 8 : Mr.A.K.Kumarasamy
Senior Counsel
for M/s.Kaithamalai Kumaran
For RR1 & 5 : Died (steps taken)
For RR2 & 3 : Not ready in notice
JUDGMENT
This second appeal is directed as against the Judgment and Decree dated 24.08.1994 passed in A.S.No.159 of 1993 on the file of the Principal http://www.judis.nic.in 2/14 S.A.No.1744 of 1998 Subordinate Court, Erode, reversing the Judgment and Decree dated 18.06.1993 in O.S.No.438 of 1996 on the file of the II Additional District Munsif Court, Erode.
2. For the sake of convenience, the parties are referred to as per their ranking in the trial Court.
3. The case of the plaintiff in brief is as follows :-
3.1. The suit is filed for declaration and permanent injunction. The plaintiff and defendant are brothers. They have ancestral properties and the same was partitioned by the registered partition deed dated 12.11.1984.
Accordingly, the defendant was allotted his share ad-measuring 0.78.0 Hectares in the land comprised in S.No.108/4. The plaintiff was allotted ad-measuring 0.55.0 Hectares in the land comprised in S.No.109/5, ad-measuring 0.15.0 Hectares in the land comprised in S.No.110/5 and the land ad-measuring 0.02.0 Hectares in the land comprised in S.No.114/2, all together comes to 0.72.0 Hectares alone. The plaintiff’s share in the southern side comprised in S.No.109/5 is situated near the northern side of the defendant's share comprised in S.No.109/4. There is a common Well belonging to the plaintiff and defendant, which is situated on the southern- http://www.judis.nic.in 3/14 S.A.No.1744 of 1998 eastern portion of the land allotted to the defendant. The plaintiff and the defendant have 1/4th share in the common Well and third party is entitled in the remaining share in the common Well. In between the plaintiff’s and the defendant’s land, there is an East-West Itteri (pathway) described in the plaint ‘A’ schedule property to the width of 30 feet. It is categorically mentioned in their partition deed and they are entitled to use the said Itteri by taking their cars and other vehicles. After the partition they also entered into an agreement on 12.11.1984 and clarified the width of the said Itteri. While being so, the defendant is attempting to reduce the width of 30 feet East-West Itteri and as such the plaintiff resisted the same. Hence the suit for declaration declaring the plaintiff’s right to use the ‘A’ schedule property and restraining the defendant from interfering with or reducing the width of ‘A’ schedule property and also restraining the defendant from interfering plaint ‘B’ schedule property. The plaintiff also sought for mandatory injunction to restore the ‘A’ schedule property to the width of 30 feet as provided in the partition deed dated 12.11.1984 and agreement entered between them dated 12.11.1984.
4. Resisting the plaintiff’s case, the defendant filed written statement stating that the entire averments and allegations made in the http://www.judis.nic.in 4/14 S.A.No.1744 of 1998 plaint as false and frivolous. There is a common Well belonged to the plaintiff, defendant and the third party in which the plaintiff and the defendant were allotted 1/4th share for taking water from the Well for irrigation purpose. Admittedly, there is an Itteri in between the land allotted to the plaintiff and defendant and it proceeds towards West on the land of the plaintiff and joints North-South Itteri on the West of the land belonged to the plaintiff. Only through the Itteri the land of the defendant can be reached from the road on the West. The said Itteri running on the land of the plaintiff is purposefully suppressed in the plaint and the rough sketch annexed to the plaint. The defendant never executed any agreement dated 12.11.1984. There was absolutely no necessity for executing such agreement and on the date of partition deed the signatures of the defendant were obtained on number of forms and papers representing that his signatures are necessary for effecting change of records. Since the document writer and witnesses are very close friends of the plaintiff, they utilised the signed blank paper and created an alleged agreement and filed the present suit. It is a forged document and there is never an Itteri with a width of 30 feet. Its width is about 20 to 25 feet, which run previously in old S.No.57 and now it is running on the South of new S.No.108/4. Therefore, prayed for dismissal of the suit.
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5. In support of the plaintiff's case, P.W.1 and P.W.2 were examined and marked Exs.A1 to A3. On the side of the defendant D.W.1 was examined and Exs.B1 to B7 were marked. Exs.C1 to C6 were marked as Court documents. On considering the oral and documentary evidences adduced by the respective parties and the submission made by the learned counsel, the trial Court decreed the suit in favour of the plaintiff. Aggrieved over the judgment and decree of the trial Court, the defendant preferred an appeal suit in A.S.No.159 of 1993 before the Principal Subordinate Judge, Erode and the first Appellate Court allowed the appeal and dismissed the suit filed by the plaintiff. Challenging the same, the plaintiff has come forward with the present second appeal.
6. At the time of admission of the second appeal, the following substantial questions of law were framed :-
a) Whether the first Appellate Court committed an error in holding that the document dated 12.11.1984 marked as Ex.A2 was not supported by consideration and was created by using the signature in the blank papers when it was http://www.judis.nic.in 6/14 S.A.No.1744 of 1998 an agreement in respect of a pathway as a result of compromise arrived at the intervention of the well wishers of the family?
b) Whether the lower appellate Court misread the evidence and failed to consider the materials on record in negativing the relief of declaration and permanent injunction as prayed for in the plaint?
7. While pending the appeal, the plaintiff also filed a petition to receive additional document, viz., the registered Will, dated 23.05.2002, executed by the defendant in favour of his sons and to mark the same as Ex.A4.
8. The learned counsel appearing for the plaintiff submitted that in the said Will the defendant had categorically mentioned about the Itteri with the width of 30 feet. Therefore, the plaintiff filed this petition to strengthen his contention that the width of the Itteri is 30 feet and now it is reduced to 20 feet. Further, he submitted that the partition deed dated 12.11.1984 entered between the plaintiff and the defendant and the same was registered before the Registrar Office, Erode. On the very same day in http://www.judis.nic.in 7/14 S.A.No.1744 of 1998 respect of other properties one another partition deed executed between them and the same was also registered. They also entered into an agreement in respect of the path way. The witnesses in all these 3 documents are one and the same and P.W.2, the attestor of these documents categorically deposed that the plaintiff and the defendant entered into an agreement in respect of path way. Therefore, the Trial Court rightly decreed the suit. But the first Appellate Court reversed the findings of the Trial Court only for the reason that while executing the partition deed between the plaintiff and the defendant, if at all the defendant agreed for 30 feet pathway in his land, they would have entered the same in their partition deed itself. He further contended that the defendant was allotted land ad-measuring 0.78.0 hectares, whereas, the plaintiff was allotted land only ad-measuring 0.72.0 hectares and it is less than the land, which was allotted in favour of the defendant. Therefore, the plaintiff and the defendant entered into an agreement to compensate the said differences of land, the defendant agreed to expand the path way into 30 feet, since already there was a 20 feet pathway in which there was no dispute. Therefore, he prayed for decreetal of the suit.
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9. Per contra, the learned senior counsel appearing on behalf of the defendant submitted that admittedly, the plaintiff and the defendant are brothers and they have entered into the partition deed dated 12.11.1984 in respect of the properties in which their shares allotted on either side of the pathway. Northern side of the pathway, the defendant was allotted and Southern side of the pathway, the plaintiff was allotted their respective shares. If at all the defendant agreed to leave another 10 feet that too on the land which was allotted in his favour, he would have definitely mentioned the same in the partition deed itself, since that partition deed and also the alleged agreement were entered between them on the very same day, namely, 12.11.1984. Therefore, the first Appellate Court rightly dismissed the suit and prayed for dismissal of the appeal.
10. Heard Mr.V.P.Sengottuvel, learned counsel appearing for the appellant and Mr.A.K.Kumarasamy, learned Senior Counsel appearing for the respondent Nos.4, 6 to 8.
11. This Court considered the rival submission made by the learned counsel on either side.
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12. Admittedly, the plaintiff and the defendant are brothers. They partitioned their ancestral property by the partition deed dated 12.11.1984, which was marked as Ex.A1. According to the plaintiff on the very same day they also entered into an agreement in which, the defendant agreed to leave 10 feet along with the 20 feet pathway already in existence for the use of the plaintiff, which was marked as Ex.A2. The relevant portion of said agreement is as follows:
ek;kpy; 2 yf;fkpl;ltUf;F ghfg;gphptpid
gj;jpuj;jpd;gof;F ghj;jpag;gl;l N:uk;gl;o fpuhkk; hP/r/108-4
(giHa f/r/57) g[/V/1 93f;F fl;Lg;gl;ljpy; ek;kpy; 2
yf;fkpl;lth; fPH;f;fz;l brf;Fg;ge;jpf;Fl;gl;l ,lj;jpy;
yf;fkpl;ltuhy; ahJk; gpujpnahrdk; bgw;Wf; bfhs;shky; xU nuhL tpl;Ltpl ntz;oaJ vd;Wk; ehk; xg;g[f; bfhz;L ,e;j nuhL ghj;jpa cld;gof;if gj;jpuk; vGjpf; bfhz;L ,Uf;fpnwhk;/ i & 2 yf;fkpl;ltuhy; tplg;gLk; nuhl;il 2 yf;fkpl;lth; jd; brytpy; nuhlhf tpl ntz;oaJ/ i & nuhl;il ehk; jLf;fnth kwpf;fnth mHpf;fnth TlhJ/ i & nuhl;oy; ehKk; ek;khy; cj;jput[ mjpfhuk; bgw;wth;fSk; eil jl tz;o thfd nghf;Ftuj;Jf;F cgnahfpj;Jf; bfhs;s ntz;oaJ/
13. On perusal of the agreement dated 12.11.1984, the defendant agreed to leave the road from his share, namely, the land comprising in R.S.No.108/4 without any consideration. On perusal of Exs.A1 and A3, the http://www.judis.nic.in 10/14 S.A.No.1744 of 1998 partition deeds, which were entered between the plaintiff and defendant executed on the very same day, namely, 12.11.1984 and both were registered before the concerned Registrar Office. There was absolutely no mentioning about the excess land allotted to the defendant for which, he was ready and willing to leave another 10 feet to the pathway, which was already in existence with a width of 20 feet.
14. The Advocate Commissioner was appointed and his reports and plans were marked as Exs.C1 to C6.
15. According to him, the width of the pathway is about 23 feet. Further, there is no evidence to show that the defendant encroached the pathway, which is used as common pathway. The defendant categorically deposed that he has no objection to use the pathway with a width of 20 feet and he never interfere with the usage of the said pathway by the plaintiff. He also admitted that the plaintiff and the defendant have 1/4 th share in the common Well and the remaining share in the Well belonged to third party. Further, there is no water in the Well and as such no one is using the Well for irrigation purpose. Therefore, the first Appellate Court rightly reversed the findings of the Trial Court and dismissed the suit. http://www.judis.nic.in 11/14 S.A.No.1744 of 1998
16. In view of the above, this Court does not find any valid reason to interfere with the reasoning and findings rendered by the First Appellate Court as such the Court below has analyzed the evidences both the documentary and oral in detail, adduced by the parties and by giving cogent reasons, concluded rightly and allowed the appeal filed by the defendant. Accordingly, this Court is of the considered opinion that no substantial question of law involved in this appeal. Be that as it may. All the substantial questions of law, formulated by this Court in this Second Appeal, are answered in favour of the defendant and as against the plaintiff.
17. Accordingly, this Second Appeal stands dismissed. Since the second appeal itself is dismissed, the Civil Miscellaneous Petition filed for receiving additional document is not necessary and the same is also dismissed. No order as to costs.
10.03.2020 Index : No Internet : No Speaking order rsi http://www.judis.nic.in 12/14 S.A.No.1744 of 1998 To
1.The Principal Subordinate Judge, Erode.
2.The II Additional District Munsif, Erode.
3.The Section Officer, V.R. Section, Madras High Court, Chennai.
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rsi Pre delivery Judgment in S.A.No.1744 of 1998 and C.M.P.No.3721 of 2020 10.03.2020 http://www.judis.nic.in 14/14