Madras High Court
Sekar vs Pattaikarar @ Palaniappa Gounder on 4 June, 2012
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 04.06.2012 Coram:- The Hon'ble Mr. Justice T.RAJA Second Appeal No.395 of 2006 Sekar ... Appellant vs. 1.Pattaikarar @ Palaniappa Gounder 2.Thangarasu ... Respondents Second Appeal filed under Section 100 CPC. as against the judgment and decree, dated 18.10.2005, passed by the Subordinate Judge's Court, Namakkal, in A.S.No.139 of 2001, reversing judgment and decree, dated 08.08.2001, passed in O.S.No.171 of 1999, by the Principal District Munsif Court, Namakkal. For Appellant : Mr.I.Abrar Md.Abdulla for Mr.V.Krishnan For Respondents : Mr.I.Muthiah for Mr.J.Ramakrishnan for R2 No Appearance for R1 J U D G M E N T
The present second appeal has been brought by the plaintiff/appellant herein, aggrieved by the judgment and decree passed by the learned Subordinate Judge, Namakkal, in A.S.No.139 of 2001, dated 18.10.2005, in and by which, the judgment and decree passed by the learned Principal District Munsif, Namakkal, in O.S.No.171 of 1999, dated 08.08.2001, was reversed.
2. Brief facts leading to the filing of the second appeal are given as under:-
The plaintiff/appellant herein claimed to have purchased the suit property by registered sale deed, dated 11.03.1992. Even before purchasing the suit property in the year 1992, the plaintiff has also further claimed that the pathway, which is marked as XYZ, which is going to the plaintiff's property, has been in existence for the last 50 years, as it is being used by men, cattle and bullock cart. Since the sale deed, dated 11.03.1992, specifically mentioned the existence of pathway for more than 50 years, even prior to his purchase of the suit property, the defendant cannot obstruct from using the said pathway, with a width of 15'. Further, the defendant, by extending the thatched roof of their house, beyond 2.25', in blocking the road, have further created blockage to the plaintiff and other people using the existing pathway to reach their homes. Hence, the said extent of 2.25' blockage made by the defendants should also be removed.
3. A detailed written statement was filed by the defendants, wherein it is stated that there was no such pathway in the said property with a width of 15' in XYZ route. In respect of his objection not to grant the relief as prayed for, it was also prayed that all the suit properties were originally belonged to one Pavayee, wife of Palani. Later on, the said Pavayee, by a sale deed, dated 14.02.1950, had given the said suit property to her son, Sengoda Koundar, by clearly mentioning that her son is entitled to have the pathway running from south to north. The said property was later on purchased by the plaintiff, by a sale deed, dated 11.03.1992, to the extent of 2.25 acres, out of 2.31, leaving 6 cents with Perumal family. The trial Court, after considering the case of both sides, came to the conclusion that the plaintiff was able to establish the existence of pathway, but not with an extent of 15' width, but only 10' width. On that basis, decreed the suit to use the pathway with 10' width running from north-south from XY point to Z point. Aggrieved by the same, when an appeal was filed by the defendants, the same was reversed by the learned first appellate Court in A.S.No.139 of 2001, dated 18.10.2005. Aggrieved by the reversal judgment and decree passed by the learned first appellate Court, the present second appeal has been filed by the plaintiff/appellant herein.
4. This Court, at the time of entertaining the second appeal, framed the following substantial questions of law.
"i. Whether the misreading and misunderstanding of the specific plea of the plaintiff that he is using the pathway for men, cattle, carts and vehicles in the plaint schedule as evidenced in Ex.A1 by the learned subordinate judge was justified in holding that there is no specific plea as evidence to dismiss the suit?
ii. The learned Subordinate Judge having held that there is a pathway seven feet wide was justified in dismissing the entire suit.?"
5. Learned counsel appearing for the appellant submitted that when the plaintiff has placed his case on the basis of Exs.A1 and A2, sale deeds, which specifically speak about the existence of pathway, the learned first appellate Court ignoring the material evidence, has erroneously reversed the findings holding that the plaintiff has not pleaded in his plaint the existence of pathway. Further, the learned first appellate Court has committed one another error in holding that the sale deeds, Exs.A1 and A2 have also not mentioned the existence of pathway, when the sale deeds, Exs.A1 and A2, clearly speak about the existence of pathway. Further, when PW2 also clearly mentioned in his deposition that the plaintiff has purchased the suit property and it was also specifically mentioned in the sale deed executed jointly by him, his mother and his children, that the plaintiff is entitled to have the benefit of existence of pathway, having a width of 15', which is running below his house property, because that pathway is running from south-north leading to the plaintiff's suit property and without which the plaintiff cannot reach his house, the learned first appellate Court completely ignoring the material evidence, both oral and documentary, produced on record, acted totally against the evidence. Therefore, such findings required to be interfered with.
6. On the other hand, learned counsel appearing for the respondents submitted that since the the plaintiff has not established the existence of pathway on the basis of his plaint and other documents clearly mentioning the exact length and width of the existing alleged pathway, the learned first appellate Court has rightly brushed aside that the plaintiff has miserably failed to prove the correct extent of width of the pathway running XY point to Z point, leading to the suit property. Even the sale deeds, Exs.A1 and A2 have not even mentioned the width of the pathway, so as to accept the plaintiff's case. Therefore, the judgment and decree passed by the learned trial Court was rightly reversed by the learned first appellate Court, hence, such findings shall not be interfered by this Court.
7. It was also further submitted that when the first appellate Court, which is a final fact finding authority, has rightly come to the conclusion that the plaintiff has failed to establish his case, such a finding does not call for interference. Further, it was submitted that when the learned first appellate Court, after reading the two important sale deeds, Exs.A1 and A2 has come to the conclusion that there is no pathway with an extent of 15' width, such an approach of the learned first appellate Court cannot be termed as fundamentally wrong. On this basis, it was further pleaded that no interference is called for.
8. In support of his submission, he has also relied upon the decision of the Apex Court in HERO VINOTH (MINOR) V. SESHAMMAL (2006) (5) SCC 545, wherein it was held that 'the High Court is obliged to satisfy itself recording the existence of substantial questions of law and is also required to be heard on the substantial question so formulated as per Section 100 of Code of Civil Procedure.'
9. Heard the learned counsel appearing on either side and perused the materials available on record.
10. While reassessing the documents Exs.A1 and A2, by posing a question whether Ex.A1, filed in support of the plaintiff's case, has mentioned the existence of pathway as claimed by the plaintiff, the learned trial Court, after scanning through the Ex.A1, findings that Ex.A1 mentioned the purchaser of the lands covered in the said document is also entitled to use the pathway, again on perusal of Ex.A2, it was also found that the said document also has mentioned the existence of pathway, running from north-south, via Periya Koundar lands. In fact, the said sale deed Ex.A2 clearly mentioned that the purchaser is entitled to use the land along with the benefit of using the already existing pathway, running from south-north, via Periya Koundar's lands. But, the width of the said pathway was not mentioned. These findings reached by the learned trial Court on the basis of material evidence on record were overlooked. This has been found in para 10 of the first appellate Court's judgment. Again, while considering the evidence of PW2, Subbarajan, who is 72 years old on 19.07.2001, it was found that the said witness PW2 has deposed that there has been an existence of pathway with 15' width, but the learned first appellate Court wrongly held that PW2 has not admitted the existence of pathway. This is not only contrary to the evidence, but also misreading of the evidence given by PW2 and also the sale deed, Ex.A2 filed by the plaintiff. When these documents clearly make a mention of the existence of pathway, which is running from south-north side, the learned first appellate Court should have considered the same, but in contra, it has completely ignored the material evidence and acted against the speaking evidence, while reversing the judgment and decree passed by the learned trial Court.
11. Further, when the plaintiff has also categorically mentioned that the pathway is used for men, cattle and bullock cart, the learned first appellate Court erred in holding that the plaintiff has not mentioned such things in the plaint. Further, when the Advocate Commissioner also submitted his report, showing that there is a pathway running from south-north in Survey No.143/5A, the learned first appellate Court is not justified in rejecting the claim of the appellant in reversing the judgment of the trial Court.
12. Again, it is also pertinent to note that the first appellate Court, while reversing the judgment of the trial Court, has found fault with the reasoning given by the trial Court in paragraph 13 of its judgment. While dealing with the evidence of P.W.2/Subbarayan, it was mentioned that the said P.W.2/Subbarayan did not speak about either the existence of 15 ft. width pathway or the same pathway was used by his grandmother Pavaiammal. But, contrary to that, P.W.2 Subbarayan, son of Sengoda Gounder, aged about 72 years, in his cross examination, has deposed that there has been a pathway with a width of 15ft in between his house and the first defendant 's house and Thangapps's house. It is also mentioned that the plaintiff has purchased the suit property from P.W.2 Subbarayan, his mother, Nallappan and Raju. Further, it is useful to extract the relevant portion from the deposition of P.W.2 , which is as follows:
VERNACULAR (TAMIL) PORTION DELETED
13. Secondly, the first appellate Court has also given yet another errant finding that the plaintiff has failed to prove the existence of pathway against the recitals found in Ex.A.1, sale deed. In fact in paragraph 15 of its judgment, the first appellate Court has agreed that there has been a recital in Ex.A.1 sale deed, dated 11.3.1992 about the existence of pathway for men and their cattle to go from panchayat road towards South North side from XYZ point. This finding is also not properly recorded. When there has been proper evidence adduced by P.W.2/Mr.Subbarayan, S/o.Sengoda Gounder, aged 72 years, when he came to the Court to depose on 19.7.2001 that there has been an existence of pathway with a width of 15ft in between his house and the first defendant's house and Thangapps's house, the learned first appellate Court has ignored material evidences on record and acted against the proved facts. Therefore, the relevant portion from Ex.A.1, sale deed dated 11.3.1992 clearly showing the existence of pathway is extracted hereunder:-
VERNACULAR (TAMIL) PORTION DELETED Therefore, the plaintiff Sekar, S/o. Varadaraj Kounder has produced Ex.A.1, sale deed from P.W.2/Subbarayan his mother Perumayee, Nallappan and Raju that parent document speaks clearly that there has been a specific recital to enjoy the existence of pathway in between Survey No.143/5A, 143/5B, which is running from XYZ point. However, the oral evidence adduced by P.W.2/Subbarayan specifically deposing that there has been a existence of pathway 15' width in between his house and the first defendant house and Thangappa house was completely lost sight of by the first appellate Court, which is contrary to the evidence on record, therefore, the impugned judgment suffers from serious flaw. In this view of the matter, it is pertinent to recall the ruling of the Apex Court in BONDAR SINGH AND OTHERS V. NIHAL SINGH AND OTHERS (2003 (2) CTC 635), wherein the Apex Court has held as follows:
"Before we proceed further it is necessary to notice a preliminary argument raised by the learned counsel for the appellants. It was contended that the question of possession is a question of fact and the High Court while exercising power under Section 100 of the Code of Civil Procedure, had no jurisdiction to upset the findings on this question recorded by the lower appellate Court. An appeal under Section 100, C.P.C can be entertained by the High Court only on a substantial question of law. There can be no quarrel with this legal proposition. The scope of powers of High Court under Section 100 C.P.C is a matter of settled law. The learned counsel for the appellant cited several judgments in support his contention. We do not consider it necessary to discuss these decisions because so far as the question of powers of High Courts under Section 100, C.P.C is concerned, it needs no discussion. If the findings of the subordinate Courts on facts are contrary to evidence on record and are perverse, such finding can be set aside by the High Court in appeal under Section 100, C.P.C. A High Court cannot shut its eyes to perverse findings of the Courts below. In the present case the findings of fact arrived at by the lower appellate Court were contrary to evidence on record and therefore perverse and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit being decreed."
14. The learned counsel for the appellant also rightly relied on yet another decision of the Apex Court in RAMLAL AND ANOTHER V. PHAGUA AND OTHERS (2006 (1) SCC 168), wherein the Apex Court, while considering the power of the High Court under Section 100 of the Code of Civil Procedure, held that 'the High Court was at liberty to reappreciate evidence and record its own conclusion reversing erroneous orders passed by the lower Courts'.
15. In view of the above apparent errors and serious flaws found in the impugned judgment, this Court, being not satisfied with the findings rendered by the first appellate Court, that has overlooked the recitals in Ex.A.1, sale deed dated 11.3.1992, which specifically spoke the existence of pathway to reach the plaintiff's house and also the oral evidence adduced by P.W.2, the previous vendor of the suit property, who also spoke clearly the existence of pathway with a width of 15 ft. in between his house and the first defendant's house and Thangappa's house, deems fit to interfere with the impugned findings of the first appellate Court to remove the errors mentioned above.
16. In result, the second appeal is allowed, by answering the substantial question of law in favour of the plaintiff/appellant herein. Consequently, the judgment and decree passed by the learned first appellate Court in A.S.No.139 of 2001, dated 18.10.2005, is set aside and the judgment and decree passed by the learned trial Court in O.S.No.171 of 1999, dated 08.08.2001, is hereby confirmed. No Costs.
Rkm To
1. The Subordinate Judge's Court, Namakkal,
2. The Principal District Munsif Court, Namakkal