Madras High Court
M.Rajasekaran vs E.S.R.R.Nagarathinam Ammal on 13 November, 2019
Author: R.Pongiappan
Bench: R.Pongiappan
S.A.No.1854 of 2001
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 27.08.2019
PRONOUNCED ON : 13.11.2019
CORAM :
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
S.A.No.1854 of 2001
1. M.Rajasekaran
2. M.Pechimuthu .. Appellants/defendants
Vs.
1. E.S.R.R.Nagarathinam Ammal
2. R.R.Sannasi Velan
3. C.Pandiammal
4. S.Parvathy ... Respondents/Plaintiffs
Prayer:- This Memorandum of Second Appeal is filed under Section 100 of
Code of Civil Procedure, against the Judgment and decree dated
13.06.2001 passed in A.S.No.47 of 1999 and Cross Appeal No.214 of 2001 on
the file of the II Additional Subordinate Court, Madurai confirming the
judgment and decree dated 14.01.1999 passed in O.S.No.521 of 1988 on
the file of the Principal District Munsif Court, Madurai.
For Appellants : Ms.N.Krishnaveni, Sr. Counsel
for Mr.P.Thiagarajan
For Respondents : Mr. M.Saravanan (for R1 to R4)
for Mr.R.Subramanian
JUDGMENT
The defendants in OS.No.521 of 1988 on the file of the learned Principal District Munsif, Madurai are the appellants herein. Before the said Court, the respondents in the Second Appeal filed the above referred suit, http://www.judis.nic.in 1/20 S.A.No.1854 of 2001 as against the appellants, seeking the relief of declaration, declaring that the suit schedule property, is the exclusive property of the plaintiffs. Consequently, they prayed for the relief of permanent injunction, restraining the defendants, their servants and their agents from interfering with the exclusive possession and enjoyment of the property. Along with those prayers, they have prayed for another relief of mandatory injunction, directing the defendants to remove several encroachments made by them in the suit schedule property and for Costs.
2. By judgment and decree dated 14.01.1999, the learned Principal District Munsif, Madurai, had allowed the suit in respect of the relief of declaration and mandatory injunction. In respect of the relief of permanent injunction, a decree has been granted to the suit schedule property, excluding the property encroached by the defendants.
3. Aggrieved over the said findings, the defendants 1 and 2 preferred an appeal, in AS No.47 of 1999 on the file of the learned II Additional Subordinate Judge, Madurai. Similarly, the plaintiffs had preferred a Cross Appeal in AS No.214 of 2001. By common judgment and decree dated 13.06.2001, the learned Subordinate Judge, Madurai, had dismissed the Appeal and allowed the Cross Appeal and thereby, confirmed the judgment http://www.judis.nic.in 2/20 S.A.No.1854 of 2001 and decree dated 14.01.1999, passed by the learned Principal District Munsif, Madurai in O.S.No.521 of 1988. Feeling aggrieved by the concurrent findings of the Courts below, the defendants in the suit, preferred the second appeal.
4. For the sake of convenience, hereinafter, the appellants are called as 'defendants' and the respondents are called as 'plaintiffs'.
5. The averments made in the plaint, in short, are as follows:
(i) First plaintiff was the owner of the suit schedule property. On 20.06.1983, he had purchased the same in a Court auction. One Paramasamy Thevar, son of Virumandi Thevar, to whom the suit schedule property previously belonged, borrowed a sum of Rs.6,500/- from the first plaintiff under a promissory note and as security for the said loan he deposited the title deeds of the suit schedule property and thereby created an equitable mortgage in favour of the first plaintiff over the suit schedule property. Since Paramasamy Thevar died without discharging the debt, the first plaintiff filed a suit in OS No.485 of 1972 on the file of the learned District Munsif, Madurai, for recovery of the amount, by enforcing the mortgage. A preliminary decree has been passed on 15.12.1972. It was followed by a final decree dated 18.07.1973. Thereafter, the first plaintiff http://www.judis.nic.in 3/20 S.A.No.1854 of 2001 took out an execution petition in EP No.194 of 1982 on the file of the learned District Munsif, Madurai Town and the suit schedule property was brought for sale. In the sale proceedings, the first plaintiff himself purchased the suit schedule property in the Court auction. The sale was confirmed on 25.08.1993 and the delivery of property was also effected on 09.11.1984. On and from the date of purchase, the first plaintiff becomes the absolute owner of the suit schedule property and he has been in exclusive and absolute possession and enjoyment of suit schedule property.
(ii) The suit schedule property consists of 3 Thaks. Thak Nos.1 and 2 totally measures 20 feet East-West and 120 feet North-South. Thak No.3 measures East-West 53 feet and North-South - 20 feet. Thak Nos.2 and 3 are abutting the road (Sekkadi Theru). Thak No.1 is North of Thak No.2. A rough sketch is filed to show the lie of the suit schedule property.
(iii) The judgment debtor Paramasamy Thevar also had other properties adjoining the suit schedule property. It appears that the said Paramasamy Thevar has sold the adjoining property to one A.M.Thiyagarajan. Defendants 1 and 2, are purported to have purchased the suit schedule property from the said A.M.Thiayagarajan, separately. Properties stated to have been conveyed to the defendants 1 and 2, lies to http://www.judis.nic.in 4/20 S.A.No.1854 of 2001 the West and North of the suit schedule property and they have no connection to the suit schedule property. But, by introducing fraudulent recitals, defendants 1 and 2 colluded with their vendors and claim the right of pathway over the suit schedule property.
(iv) The suit schedule property was never used as a pathway either by the defendants or their predecessors-in-interest, at any point of time. The same was the exclusive property of Paramasamy Thevar, till the first plaintiff purchased it in Court auction. The recitals found in the sale deeds, which stands in the name of defendants 1 and 2, in respect of the right of pathway is fraudulent and untenable. Defendants did not and could not derive any right on the common passage. Even the vendors and prior owners of defendants 1 and 2, did not possess or enjoy any such right. The 1st defendant is residing at North-East of the suit schedule property. Initially the 1st defendant has encroached Northern portion of the suit schedule property and put up a tiled shed, resting on stone pillars. Besides, on the South side of the tiled shed, he had put up a septic tank chamber, which is also an encroachment in the plaintiff's property. The said encroachment was committed by the defendants, very recently. Hence the suit.
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6. The averments made in the written statement filed by the defendants are as follows:
(i) The allegation made by the plaintiffs in respect of the possession and enjoyment of the suit property, is false and denied. The defendants 1 and 2 purchased the properties from A.M.Thiyagarajan, who had purchased the same from Paramasamy Thevar. The allegation that their property purchased from the A.M.Thiyagarajan, has no connection with the suit schedule property, is false and denied. It is not correct to say that defendants have introduced a fraudulent recital in the sale deeds, by inserting the right of pathway over the suit schedule property and it is mischievous and misleading. It is not correct to say that the suit schedule property is the exclusive property of Paramasamy Thevar, till the plaintiff purchased the same in a Court auction.
(ii) The allegation that the defendants will not and could not derive any right under their sale deeds, is false and denied. The allegation that the defendants recently have encroached upon the Northern portion of the suit schedule property and put up a tiled shed and also put up a septic tank, South of the tiled shed and these encroachments are unauthorised and committed without the knowledge of the plaintiffs, are all false and denied.
http://www.judis.nic.in 6/20 S.A.No.1854 of 2001 Drainage pipes and drinking water pipes are going under the common pathway, for a long time. The allegation that the defendants have no right to lay any pipeline, is false and denied.
(iii) The defendants are the bonafide purchasers of two Plots comprised in T.S.No.1662, for value, from their predecessors-in-title. The 1st defendant purchased Northern side plot, measuring 40 feet East-West and 60 feet North-West and the 2nd defendant purchased the Southern side plot, measuring 40 feet East-West and 60 feet North-West. On the Eastern side of their property, a common pathway is running South to North, measuring about 10 feet East-West and 120 North-West. The common pathway was let out by the predecessors-in-title of the property, when TS No.1662, was wholly owned by one family, before 56 years. The common pathway is in existence for more than 50 years. Nobody has any right over the common pathway including the said Paramasamy Thevar and the present plaintiffs. The common pathway cannot be a subject matter of any encumbrance. The common pathway is shown as boundary even before 50 years. What was purchased by Paramasamy Thevar was earlier sold to A.M.Thiyagarajan, who inturn sold the same, to the present defendants. The plaintiffs wantonly suppressed the real facts. http://www.judis.nic.in 7/20 S.A.No.1854 of 2001
(iv) The plots purchased by the defendants were having tiled houses previously and the occupants of the house used the common pathway to reach their houses. The only pathway to reach their houses is the present common pathway. Likewise the residents of the houses on the 2nd defendant's plot have also used the same pathway. So the common pathway is remaining as a pathway used by the adjacent house owners for more than a statutory period of 50 years. The common pathway is used as pathway, openly and continuously, without any interruption for over several decades to the knowledge of all, by the defendants and their predecessors-in-title and by the owners of adjacent properties. The septic tank was in existence for more than 30 years and the Corporation drinking water pipes and drainage pipes are under the common pathway. The electricity connection wires are also running over the said pathway.
(v) On the North-East end of the common pathway, a house bearing Door No.9 was constructed before 30 years and the only access to the said house is only through the common pathway. The said house is owned by Tmt.Meena, wife of the 1st defendant and she and her predecessors-in-title had been using the common pathway and there is no other way to reach her house at Door No.9.
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(vi) So, the permanent physical features and use, as stated above, clearly shows that neither the plaintiffs nor the said Paramasamy Thevar had any iota of title or possession of the said common pathway. This construction had been constructed long ago to the knowledge of all including the said Paramasamy Thevar, who never objected the defendants as he had no right to object. The measurements shown in the sketch, are imaginary and misleading. There is no lane having a breadth 20 feet East- West as mentioned in the sketch. The property description shown in the schedule of the property is not correct. Having failed in his attempts to trace out the property alleged to have been bought by him in the Court auction, the plaintiff has attempted to interfere with the physical possession and enjoyment of the common pathway by the defendants. The suit is not maintainable.
7. Based on the abovesaid pleadings, the learned Principal District Munsif, Madurai, framed necessary issues and tried the suit. On the side of the plaintiffs, 3rd plaintiff R.R.Sanyasi Velan was examined as PW1 and 12 documents were marked as Exs.A1 to A12. On the side of the defendants, the 1st defendant and one Edwin were examined as DW1 and DW2, respectively and 53 documents were marked as Exs.B1 to B53. Apart from those documents, the report and plan submitted by the learned Advocate http://www.judis.nic.in 9/20 S.A.No.1854 of 2001 Commissioner and the report given by the Engineer, were marked as Exs. C1 to C4.
8. Having considered the materials placed before him the learned Principal District Munsif, Madurai, vide judgment and decree dated 14.01.1999, concluded the suit in OS No.521 of 1988, in favour of the plaintiffs only, in respect to the prayer of permanent injunction, the suit was partly allowed.
9. Aggrieved over the same, the defendants preferred an appeal in AS No.47 of 1999. Similarly the plaintiffs, preferred a cross appeal in AS No.214 of 2001. The learned II Additional Subordinate Judge, Madurai, by judgment, dated 13.06.2001 has confirmed the findings arrived at by the learned Principal District Munsif, Madurai and ultimately, dismissed the appeal filed by the defendants and allowed the cross appeal filed by the plaintiffs.
10. Aggrieved over the said concurrent findings of the Courts below, the defendants are before this Court with the present Second Appeal. When the Second Appeal came up for admission, this Court formulated the following substantial questions of law.
http://www.judis.nic.in 10/20 S.A.No.1854 of 2001 “Whether the original documents of title of the plaintiffs and the defendants clearly indicate the existence of 10 ft. common pathway. Are the Courts below right in ignoring the said fact and decide the matter only based upon the boundary descriptions in Exs.A8 and A9?”
11. The learned counsel appearing for the defendants submitted that the suit schedule property was purchased by Paramasamy Thevar from one Mohammed Madhar, under Ex.A7 dated 29.10.1965, in which the Eastern boundary has been shown as the vacant land of Ammani Ammal, Kalandhar Saibu and Alima Bibi Vagayra (as per Exs.B7, B14 and B8). Even in the plaint schedule, the plaintiffs have shown the Eastern boundary as the vacant land of Ammani Ammal, Kalandhar Saibu and Alima Bibi Vagayra.
12. On the other hand, before the Courts below, the Eastern boundary mentioned in the documents, Exs.B7, B14 and B8, has not been established. Further it is not in dispute that the vendor Paramasamy Thevar had also purchased the land, which was situated on the North West of suit schedule property from one Alamelu Ammal through power agent Veerabathiran under Ex.A8 on 12.10.1968, which was subsequently, given to one A.M.Thiagarajan under Ex.A9 on 19.09.1973, which was later purchased by the 1st defendant under Ex.A10 on 20.02.1980. The lower Court, did not consider the documents, relating to the purchase made by the Paramasamy http://www.judis.nic.in 11/20 S.A.No.1854 of 2001 Thevar, for the reason that the extent of property held by the defendants vary and came to the conclusion that the suit filed by the plaintiffs, is proved.
13. On the other hand, learned counsel for the plaintiffs would contend that only relying upon the recitals found in Exs.B4 to B9, B14-B16, B18 to B25 and B38 to B40, the defendants have claimed the pathway, alleged to be situated on the Eastern side of their property. The above sale deeds are relating to the property situated on the further East of the suit schedule property and the same is no way related to the present case.
14. At the time of disposing the appeal, the first appellate Court has elaborately considered the recitals and held that those documents are relating to the property situated on the further East of the suit property and not related to the property situated on the Eastern side of the defendants' property. Though, in Ex.B4, it is stated that a 10 feet North- South pathway, is situated in T.S.No.1662, since the said document was executed between the family members, the first appellate Court has held that the same cannot be taken into account for considering the appeal filed by the defendants.
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15. Exs.B18 to B24, relates to the properties owned by Athiammal and Exs.B3 and B38 to B40 relates to the property owned by Edwin. Since, the said Athiammal and Edwin are related to the defendants, the first appellate Court has observed that placing reliance on those documents, would be against the principles of law.
16. Upon considering the arguments advanced by either side, it is evident that originally the properties now vested with defendants, have also been purchased by Paramasamy Thevar from one Mohammed Madhar under Ex.A7. Further the said Paramasamy Thevar has purchased one another property situated adjoining to the suit schedule property from one Alamelu Ammal under Ex.A8. Among the above said properties, the property situated on the West and North were purchased by one A.M.Thiyagarajan from the Paramasamy Thevar under Ex.A9. From the said A.M.Thiyagarajan the defendants 1 and 2 have purchased their properties under Exs.A10 and A11.
17. Now, on going through the recitals found in Exs.A10 and A11, it was mentioned that a 10 feet North-South pathway towards East- West, is situated near the property purchased by the defendants. Therefore, the http://www.judis.nic.in 13/20 S.A.No.1854 of 2001 claim made by the defendants, is that the said pathway is in the suit schedule property.
18. A perusal of Ex.A7, shows that on 29.10.1965, itself the deceased Paramasamy Thevar has purchased the property from one Mohamed Madar vagaiyara. In this connection, it is necessary to see Ex.A3, delivery order in which the property purchased through Ex.A7, alone has been delivered to the deceased 1st plaintiff on 25.08.1983. In those documents, the Eastern side of the property was mentioned as the property owned by Ammani Ammal, Kalandhar Saibu and Alima Bibi vagayra. Hence for establishing his right the plaintiffs have produced those documents. In fact the measurements in the said documents tally with the suit schedule property and therefore, a prima facie case has been raised in favour of the plaintiffs.
19. It is the contention raised by the defendants that in the sale deeds viz. A10 & A11, which stand in the name of the defendants 1 and 2, there was a clear recital in respect of existence of common pathway measuring 10 feet North-South. Exs.B4 to B16, the documents, which stand in the name of the predecessors of defendants, reflects the existence of common pathway measuring 10 feet East-West from chekkadi street to the house of Athiammal, wife of Mariyappa Nadar.
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20. Now, a close reading of those documents reveals the fact that in the Eastern side of TS No.1662, a 10 feet South-North common path way, was in existence. Since, those documents are from the period of the year 1937, this Court cannot simply reject those documents, as they are not relevant to the suit schedule property. In this occasion, it is pertinent to note that in the plaint, the plaintiffs have stated that only on the Eastern side of the suit schedule property, there was a property, belonging to the Ammani Ammal, Kalandhar Saibu and Alima Bibi vagayra.
21. On the other hand, as per the Commissioner's report on the Eastern side of the suit schedule property, a house belonging to one Edwin is situated. Though, all the documents, which stands in the name of predecessors of the defendants, reflects 10 feet common pathway, perusal of the sale deed, which stands in the name of Paramasamy Thevar (Ex.A8), which was executed for the purpose of purchasing the property now in the hands of the defendant and also on going through the sale deed Ex.A9, there is no whisper in respect of existence of common pathway. The said circumstances concludes that there has been some change in respect of the pathway now claimed by the defendants from the year 1968. http://www.judis.nic.in 15/20 S.A.No.1854 of 2001
22. Actually, when there is no mention about the common pathway in the document through which the vendor of the defendants purchased the suit schedule property, then, the said vendor has no right to sell the said property, after mentioning 10 feet pathway as Eastern boundary. The Courts below only by observing as above, have come to the conclusion that the suit pathway now claimed by the defendants, was not in existence. In fact, those factors are all the factual aspects and the same did not raise any substantial question of law.
23. In the judgment rendered by the trial Court, there was a categorical finding that the plaintiff has purchased the property measuring the extent of 3480 sq.feet. But as per the report and plan filed by the learned Advocate Commissioner, Ex.C4, as of now the suit schedule property is having an extent of 1741 sq.ft. Accordingly, from the extent purchased from the predecessors of the plaintiff, the property measuring an extent of 1739, has diminished. On the other hand, as per the report of the learned Advocate Commissioner, apart from the extent of land purchased by the defendants, they are in possession of excess land of 1741 sq.ft. Since the defendants have not raised any objection in respect of the report filed by the learned Advocate Commissioner, we cannot hold that the measurement taken by the Taluk Surveyor, is a false one. So, measuring the properties http://www.judis.nic.in 16/20 S.A.No.1854 of 2001 owned by the plaintiffs and defendants, reveals correct position that the defendants have approached this Court with a false case.
24. On going through the entire written statement and evidence let in by the defendants, there is no averments in respect to the excess land possessed by them. Since the difference of land lost by the plaintiffs is equivalent to the excess land in possession of the defendants, it is concluded that the defendants have already encroached the property of plaintiffs and as of now they are in possession. In this aspect also, the said finding held by the Courts below, is only a factual finding and it also did not raise any substantial question of law.
25. Though, it is the duty of the plaintiffs to prove their case through exhibits, this Court is of the view that through Exs.A8 and A9, coupled with Exs.C1 to C5 the plaintiffs have proved their case. In this connection, this Court deems it fit to refer to the judgment in Hero Vinoth (Minor) Vs. Seshammal reported in 2006 (4) CTC 79, page 87, our Hon'ble Apex Court, has held as follows:
“24.(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by http://www.judis.nic.in 17/20 S.A.No.1854 of 2001 any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.”
26. That apart, in Mst.Sugani Vs. Rameshwar Das and Another, reported in 2006(3) MLJ 131 (SC), our Hon'ble Apex Court has held as follows:
“25....It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section.....”
27. So, in view of the principle set out by our Hon'ble Apex Court, it is not necessary for this Court to interfere with the factual findings arrived at by the Courts below. As already observed the defendants, have not http://www.judis.nic.in 18/20 S.A.No.1854 of 2001 raised any substantial questions of law. Therefore, the Judgment and decree dated 13.06.2001 passed in A.S.No.47 of 1999 and Cross Appeal No.214 of 2001 on the file of the II Additional Subordinate Court, Madurai confirming the judgment and decree dated 14.01.1999 passed in O.S.No.521 of 1988 on the file of the Principal District Munsif Court, Madurai, is sustained. The Second Appeal is dismissed. It is open to the plaintiffs to file a suit for the recovery of possession. No Costs.
13.11.2019 Speaking/Non-speaking order Index:Yes/No Internet:Yes ars To
1.The II Additional Subordinate Judge, Madurai
2.The Principal District Munsif, Madurai http://www.judis.nic.in 19/20 S.A.No.1854 of 2001 R.PONGIAPPAN.J., ars Pre-delivery Judgment in S.A.No.1854 of 2001 13.11.2019 http://www.judis.nic.in 20/20