Madras High Court
K.Arumugham vs P.Selvi on 25 August, 2023
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A.No.590 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 25.08.2023
CORAM
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
S.A.No.590 of 2013
M.P.No.1 of 2013
1. K.Arumugham
2. A.Anbzhagan
3. Kunju @ Madheswaran
4. S.Chinnusamy ....Appellants
Vs.
P.Selvi ... Respondent
PRAYER: Second Appeal filed under Section 100 of C.P.C., against the
Judgment and decree dated 21.07.2012 made in A.S.No.51 of 2010 on the
file of Sub-Court, Rasipuram, confirming the Judgment and decree dated
29.07.2010 made in O.S.No.161 of 2008 on the file of the District Munsif
Court, Rasipuram.
For Appellants : M/s.Zeenath Begum
For Respondent : Mr.N.Suresh
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S.A.No.590 of 2013
JUDGMENT
The above second appeal arises against the Judgement and decree in A.S.No.51 of 2010 on the file of the Sub Court, Rasipuram, confirming the judgment and decree in O.S.No.161 of 2008 on the file of the District Munsif Court, Rasipuram.
2. The defendants are the appellants herein and the plaintiff is the respondent herein.
3. The plaintiff filed the suit in O.S.No.161 of 2008 for permanent injunction.
4. The brief case of the plaintiff is as follows:-
According to the plaintiff, she has purchased the suit property in S.No.133/2 from her vendor Palanivel on 15.07.2002 and patta also was issued to the plaintiff. From that on wards, she was absolute owner of the suit property. The defendants 1 to 3 are fathers and sons and 4th defendant is a close relative of the defendants 1 to 3. There was some dispute arose 2/15 https://www.mhc.tn.gov.in/judis S.A.No.590 of 2013 between the parties with regard to cart track exist on the eastern side of the suit property. Further, the defendants land is situated on the southern side of the plaintiff's land and the cart track for the defendants is available from road to the land and there is no necessity for the defendants to enjoy any pathway or cart track in the suit property. The defendants have purchased property on the southern side of the plaintiff's land on 12.04.2008 and the said sale deed clearly mentioned that there is no pathway or cart track existing on the eastern side of the suit property. The plaintiff is the women, so, the defendants, using their money and muscle power, attempting to lay pathway in the suit property. On 08.09.2008 the defendants entered into the suit property and damaged the plants which was laid by the plaintiff.at that time, the plaintiff with the help of neighbours prevented the defendants. However, the defendants while leaving the property stated that they will lay cart track in the suit property. Hence, the suit.
5. The brief case of the defendants are as follows:-
According to the defendants, the plaintiff and the defendants have purchased the property from common owner and the defendants claimed 3/15 https://www.mhc.tn.gov.in/judis S.A.No.590 of 2013 that there is a cart track existing on the eastern side of the plaintiff's land and that is the access to the defendants land and Well called Andikkinaru, except that way there is no other way to the defendants to reach the well and operate oil engine motor pumpset for irrigating the water to this defendants land. The above said cart track leads from North to South and end with the defendants Well. The above said cart track was used by the vendor's predeceased forefather for a period of more than 100 years ago and the same also mentioned in the ancient title deeds but the plaintiff has suppressed the entire facts and filed the suit. If there is no such cart track exist on the eastern side of the plaintiff's land, she should have filed the commission petition but she failed. At the instigation of her husband, the plaintiff filed the suit. So,there is a cart track exist on the eastern side of the plaintiff's land and the defendants are entitled to use the same for ingress and egress to their land and Well.Hence, the defendants have no objection to decree the suit except the above such cart track on the eastern side of the plaintiff's land in S.No.133/2.
6. Before the trial Court, on the side of the plaintiffs, two witnesses PW1 and PW2 were examined and Ex.A1 to Ex.A5 documents were marked 4/15 https://www.mhc.tn.gov.in/judis S.A.No.590 of 2013 and on the side of the defendants, three witnesses DW1 to DW3 were examined and Ex.B1 to Ex.B4 documents were marked.
7. The trial Court after taking into consideration the oral and documentary evidences of both sides, decree the suit.
8. Aggrieved over the Judgment and decree of the trial Court, the defendants have preferred an appeal in A.S.No.51 of 2010 on the file of the Sub Court, Rasipuram and the lower Appellate Court confirmed the judgment and decree of the trial Court, dismissed the appeal with cost.
9. Challenging the said concurrent findings of both Courts below, the defendants have preferred this Second appeal.
10. Heard M/s.Zeenath Begum, learned counsel appearing on behalf of the appellants and Mr.N.Suresh, learned counsel appearing on behalf of the respondent.
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11.The appellants have raised the following substantial questions of law in the Second Appeal:
(A) When the plaintiff has suppressed material facts about the common ownership of the properties prior to her purchase, whether the discretionary relief of injunction should have been granted ?
(B) When the properties in question were owned in common and partitioned, then, whether rights obtaining in these properties prior to partition will not ensure subsequent to partition as contemplated under Sec.13 of the Indian Easements Act?
12.The learned counsel for the appellants argued that the Courts below failed to appreciate the ancient documents Exs.B1 and B2 registered in the year 1968 and 1979 respectively. Further, argued that the ancient documents which clearly mentioned that common cart track existing on the eastern side of the suit property in S.No.133/2. Further, the learned counsel for the appellants argued that the trial Court erroneously concluded that there is no cart track exist on the eastern side of the suit property, as such is unfair and liable to be set aside. Further, the learned counsel for the 6/15 https://www.mhc.tn.gov.in/judis S.A.No.590 of 2013 appellants argued that the plaintiff has suppressed the entire facts about the existing of the cart track and at the instigation of her husband Palanivel, the plaintiff filed the suit. Therefore, the findings given by the Courts below is not sustainable Hence, he prays to allow this Second Appeal.
13. Mr.N.Suresh, the learned counsel for the respondents stated that there is no instructions from the respondent.
14. The learned counsel for the appellants submitted that the suit property comprised in Survey No.133/2, originally was allotted to one Palanivel, who is the son of Sengoda Gounder, by way of family partition held in the year 1979, the said partition deed was marked as Ex.B2. Thereafter, the said Palanivel executed the sale deed in favour of the plaintiff in the year 2002, which was marked as Ex.A1. Further, the defendants have not raised any objection with regard to the plaintiff's possession of the suit property in Survey No.133/2 but they are claimed only cart track exist on the eastern side of the suit property, which are only way to reach their land and well. Hence, the contention of the appellants is 7/15 https://www.mhc.tn.gov.in/judis S.A.No.590 of 2013 that there is a cart track exist on the eastern side of the plaintiff's land.
15. But, on a perusal of the records, it reveals that the plaintiff filed the suit for permanent injunction with an extent of 2.01 acres with Well pumpset in Survey No.133/2, Patta No.904, In the description of the suit property, the plaintiff has not mentioned about any of the cart track exist her land in the said property. Hence, the trial Judge, based on the Ex.A1/sale deed, held that the plaintiff is absolute owner of the suit property in Survey No.133/2 and granted relief of permanent injunction as prayed for. Further, both the Courts below held that the defendants have not taken any steps to prove the existing cart track on the eastern side of the plaintiff's land in Survey No.133/2.
16. Admittedly, on a perusal of the trial Court records, which reveals that both parties have not taken any steps to appoint the Advocate Commissioner to note down the physical features of the suit property and the existing the alleged cart track on the eastern side of the suit property. 8/15 https://www.mhc.tn.gov.in/judis S.A.No.590 of 2013
17. The learned counsel for the appellant argued that they have produced the earlier partition deed, which were marked as EX.B1 and B2, wherein it clearly mentioned that there is a common cart track existing on the eastern side of the plaintiff land in Survey No.133/2.
18. On Considering the partition deed dated dated 20.03.1968, it reveals that the entire properties belongs to one Kandappa Gounder who died leaving behind his sons namely Sengoda Gounder, Muthu Gounder and after the death of Kandappa Gounder, his sons partitioned the properties in which, 'A' schedule property was allotted to Sengada Gounder and 'B' schedule property was allotted to Muthu Gounder.The description of the partition deed/Ex.B1 is hereunder bghJ tspfs; bfhz;lf;fy; !;jyj;Jf;Fk; Fj;jpf;fhL !;jyj;Jf;Fk; ,Ughf!;jh;fSk; nghf tu MW Kgk; mfy; bjd;tly; jlj;ij ehk; bghJtpy; cgnahfpj;Jf; bfhs;s ntz;oaJ/ nkw;go jlj;jpy; K:f;Fj;jpfhL nkw;g[w vyiyapy; (Xk;) bg/,uhika ft[z;ld; gd";rhhp gf;fKs;s bfhf;fp kuj;ij bghJjlj;jpw;Fk; fpisfs; ,il";ry; ,d;wp mt;tg;nghJ, mjpfk; tsu tplhky; btl;of;bfhs;s nt;zoaJ/ V ghf!;jhpd; flik Mfk;/ ,jpy; gp ghf!;jh;fSf;F tHp ,ila{W ,d;wp ele;J bfhs;s tif bra;tJ/ V ghf!;jphpd; bghWg;g[ Mfk;/ 9/15 https://www.mhc.tn.gov.in/judis S.A.No.590 of 2013 nkw;go jlj;jpy; eLtpy; K:f;Fj;jp fhl;L nehpy; gd";rhhpf;Fk; tlg[uk;. gp ghf!;jh;fSf;Fk;. nkw;go gd";rhhpf;Fk Xukha;. V ghf!;jUk; gpwF ,ila{W ,y;yhky; ML khLfis nka;j;J;f bfhs;s ntz;oaJ/ nkny brhy;ypago me;je;j ghf!;jh;fs; mtuth;fs; ghfj;jpy; tsUk;
vUjiHfis cgnahfpj;Jbfhs;sjf;fJ/ ft[z;ld; khtpaj;Jf;Fk; Mz;o fpzW e";irf;Fk; ,U ghf!;jUf;Fk; bghJtpy; 6 KH tz;o jlj;jpy; nghf tu chpik cz;L/ bghd;lf;fy; bfhl;lhapypUe;J/ ghg;ghf;fz;L tHpahf nghFk; 6 KH mfy bghJ jlj;jpy; ehk; ,U ghf!;jh;fs; kl;Lk; ekf;F chpa vy;yh epy;j;jpw;Fk; khKyhf tz;o fhy;eil Ml;fs; nghf tu chpik cz;L/ rh;f;fhh;f;F ,l;l buz;L thpfis ,dp me;je;j ghf!;jh;fns brYj;jpf; bfhs;s jf;fJ/ (Xk;/) ,uh/ ikaft[[z;ld;/ bghJtpy; rk;ge;jg;gl;l tHpfspy; mUfpy; ,ila{whf kuk;. Bro tiffis vtUk; gaph; bra;tJ TlhJ/ mtuth;fs; ghf vy;iyf;F mg;ghy; 15 mo js;sp njit Mdhy; kuk; tifawh fpzW Mfpa trjp bra;J bfhs;syhk;/
19. Hence, as per the partition deed, the defendants are entitled to use the common pathway way to access their land Further, Ex.B1/partition deed, clearly reveals that the properties were belongs to common owner one Kandappa Gounder and the same was divided by his two sons. Subsequently, in the year 1979 through Ex.B2/partition deed, Sengoda Gounder divided the property among his sons and daughter. Admittedly, as per the partition deed, the said Palanivel was allotted 'C' schedule property 10/15 https://www.mhc.tn.gov.in/judis S.A.No.590 of 2013 and his brother namely Kandasamy Gounder was allotted 'A' schedule property. The defendants have purchased the properties from Kandasamy Gounder and the description of partition deed/B2 is hereunder rp ghf!;jh; epyj;jpy; fpGg[wk; Xukhf fpHnky; 12 yp';!; mfyKk; bjd; tlypy; ngha; r/be/ 127-4 d; nkw;F g[wk; bjd; tlyhf cs;s v. gp. Rp jhuh;fspd; Ms;. ML. khLfs; tz;o thfdhjpfs; rh;f;fhh; bghJ jlk; tiuapy; nghf tu ghj;jpak; r/be. 126-2 y; cs;s epyj;jpy; fpHg[[wk;
fpHnkyhf 15 yp';!; MfyKs;s jlj;jpy; bjd;tlyhf mde;jf;ft[z;lk;ghisak; fpuhkk; r/be/ 411 f;F gp ghf!;jh; r/ne/ 34-76-15 ,itfspypUe;J tz;o. Ms;. ML. khLfs; nghf tu khK:y; jlghj;jpak;//// jdf;fhft[k;. ikdUf;Fk; br';nfhl ft[z;lh; fPuy; mj;jhak;khs;. V!;fe;jrhkp fPuy; bghparhkp. GHdpnty 15 kpd;df;fy; mf;ufhuk; fpuhkk; r/be/ 133-2 y; fpHg[wk; Xukhf fpH nky; 12 yp';!; mfy;k; bjd; tlyhf V ghf!;jh; tz;o Ms;. ML. khLfs; nghf tu jlghj;jpak; Mde;j ft[d;lk;ghisak; fpuhkk; r/be/ 8 y; cs;s bek;gh;fSf;F nghf!;jh; Vw;fdnt cs;s khK:y; jlghj;jpaj;jpy; tz;o thfdhjpfs; Ms; ML. khLfs; nghf tu jl ghj;jpaKk;. V.gp/rp ghf!;jh;fs; mtuth; ghf';fSf;Fs;s khK:y; thhptha;f;fhy; mDgtpj;Jf; bfhs;s ntz;oaJ/
20. Therefore, both the plaintiff and the defendants were entitled to use the common pathway to reach their land. Admittedly, the facts reveals that the properties which was allotted as per the Ex.B1 partition deed , subsequently, divided among the sons of the Sengoda Gounder. 11/15 https://www.mhc.tn.gov.in/judis S.A.No.590 of 2013
21.Admittedly, the defendants have purchased the properties in Survey Nos.133/3, 133/4 and 133/5 from their vendor namely Kandasamy Gounder. Indeed as per partition deed/Ex.B2, common pathway was given to both parties. More particularly, Ex.B2, it is clearly mentioned that common pathway exist on the eastern side of the survey No. 133/2 with 12 links breadth in which the owner of 'A' schedule property is entitled to use the cart track to reach their land. Therefore, through Exs.B1 and B2 partition deed, the defendants have established their case. Further, the defendants are not disputing the title of the plaintiff over the suit property but their only claim is that they are having right in the cart track on the eastern side of the suit property.
22. But the Courts below without appreciating the ancient document, erroneously concluded that the defendants have not proved their case through revenue records and Advocate commissioner.Therefore, in Exs.B1 and B2, which clearly shows that there is a common cart track exist on the eastern side of the suit property. But the plaintiff has approached the Court without mentioning the said cart track itself shows that the plaintiff not approached the court with clean hands and suppressing the existence of the 12/15 https://www.mhc.tn.gov.in/judis S.A.No.590 of 2013 common pathway. Even in the sale deeds submitted by the defendants which shows that there is a cart track exist on the eastern side of the plaintiff 's land but the Courts below failed to accept their partition deeds.
23. Therefore, through Exs. B1 and B2 partition deed, which is clearly mentioned that there is a common pathway exist on the eastern side of the suit property. Hence, the defendants are entitled to use the said common pathway on the eastern side of the suit property in S.No.133/2. But suppressing all these facts, the plaintiff approached the Court which is abuse of process of law, she is not entitled for relief of Permanent injunction.
24. Hence, the defendants are entitled to use the said cart track exist on the eastern side of the suit property in S.No.133/2 by way of easement which cannot be interfered by the plaintiff. Therefore, the findings of the both Courts below are liable to be set aside. Accordingly, the substantial question of law Nos.1 and 2 are answered.
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25. Accordingly, this second appeal is allowed and the findings given by both Courts below are set aside. Thus, the suit is dismissed. Consequently, connected miscellaneous petition is closed.
25.08.2023 Speaking / Non Speaking order Neutral Citation : Yes/No Index :Yes/No msrm To
1. The Sub-Court, Rasipuram.
2. The District Munsif Court, Rasipuram.
3. The Section Officer, V.R,Section 14/15 https://www.mhc.tn.gov.in/judis S.A.No.590 of 2013 T.V.THAMILSELVI, J.
msrm S.A.No.590 of 2013 M.P.No.1 of 2013 25.08.2023 15/15 https://www.mhc.tn.gov.in/judis