Madras High Court
Marimuthu vs Shanmugam
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A Nos.659 and 660 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: .09.2022
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
S.A.Nos.659 and 660 of 2013
1.Marimuthu
2.Family Manager, Karuppan
3.Family Manager, Mariappan
4.Manian
5.Kuppan
6.Muthu
7.Family manager Mari
8. Palanisamy
9.Chinnadevar
10.Sakthivel
...(Appellants in S.A No.659 of 2013)
1.Marimuthu
2.Narayanan
3.Ramasamy
4.Mariappan
5.Kuppanan
6.Venkatraman
7.Saminathan
...(Appellants in S.A No.660 of 2013)
Vs
1.Shanmugam
2.K.P. Sivasamy ...Respondents in S.A No.659 and 660 of 2013
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https://www.mhc.tn.gov.in/judis
S.A Nos.659 and 660 of 2013
PRAYER IN S.A NO.659 OF 2013: This Second appeal filed under
Section 100 of the Code of Civil Procedure against the Judgment and decree
of the learned Subordinate Judge, Gobichettipalayam in A.S No.12 of 2012
dated 05.11.2012 reversing the Judgement and decree of the learned District
Munsif, Gobichettipalayam in O. S NO.368 of 2006 dated 29.02.2012.
PRAYER IN S.A NO.660 OF 2013: This Second appeal filed under
Section 100 of the Code of Civil Procedure against the Judgment and decree
of the learned Subordinate Judge, Gobichettipalayam in A.S No.13 of 2012
dated 05.11.2012 reversing the Judgement and decree of the learned District
Munsif, Gobichettipalayam in O. S No.383 of 2006 dated 29.02.2012.
For Appellants : Mr.A.K. Kumarasamy, Senior Counsel
(in both the appeals) For Mr.S.Kaithamalai Kumaran.
For R2 : Mr.Titus Enock
(in both the appeals)
COMMON JUDGMENT
The brief facts of the case are as follows:
The parties are denoted as per O.S No. 368 of 2006. The suit property herein is the cart track in 28.11 punjai acres situated at Kongaraplayam village in S.No.177, which was sub divided as S.No. 93/3, 93./2C, 93/2A, 2/14 https://www.mhc.tn.gov.in/judis S.A Nos.659 and 660 of 2013 93/1C, 93/1A, 92/4D, 92/4B, 92/4A, 92/3B, 90/2B, 90/1. Out of which, S.No. 92/3B, 92/4A, 92/4B, 92/4D, 93/3 belongs to the defendants through partition deed dated 08.12.2004. Further the lands in S.No.90/2B and 90/1 belongs to the plaintiff through gift deed dated 23.01.1995. The case of the plaintiff is that in suit cart track the plaintiffs/co-patta tharars in old S.No.177 and New S.No.90/2B and 90/1 have the right to take their men, cattles, carts etc., for more than 5 decades. Hence, plaintiffs have acquired their right of easement over the cart track by description. The defendants herein are the brothers, they are also co-pattadharars in old S.No.177 and New S.Nos. 92/3B, 92/4A, 92/4B, 92/4D, 93/3, uses the suit cart track taking their men cattle cars openly. Admittedly, plaintiffs used the suit cart track without any interference. While so, the defendants in the year 2005, closed the said cart track and planted the small crops. Hence, dispute arouse. Immediately (defendant in O.S No.368 of 2006)/plaintiffs filed a suit for injunction in O.S No.383 of 2005. As the defendants were not amenable for any amicable settlement, this plaintiff filed the suit for declaration and other consequential relief in O.S No.368 of 2006. As the parties are same, the Trial Court tried both suits jointly by framing issues. On the side of this 3/14 https://www.mhc.tn.gov.in/judis S.A Nos.659 and 660 of 2013 plaintiffs, two witnesses were examined and 13 documents were marked including sale deeds, partition deed and patta. On the side of the defendants,
2 witnesses were examined and Exhibits B1 to B9 documents were marked. Court witnesses 1 to 4 were also marked to prove the existence and enjoyment of the cart track, the plaintiffs relied the earlier title deed, sale deed stands in the name of the plaintiffs as well as the commissioner report. On perusal of the boundaries mentioned in the sale deed/Ex.A3 dated 19.12.1966, Exchange deed/ Ex.A4 dated 03.03.1975, sale deed/Ex.A5 dated 10.03.1975, sale deed/Ex.A6 dated 25.03.1976, sale deed/Ex.A7 dated 21.08.1978,sale deed Ex.A9 dated 01.06.1988, Ex.A10 partition deed dated 08.12.2004, the learned trial Judge arrived a conclusion that there is common existence common entry (cart track) and the same is shown as eastern boundaries of the lands purchased by the parties in S.F No.177 and the report of the commissioner also proves the existence of the said common cart track. Accordingly, declared the plaintiff's easementary right in the suit cart track and also directed the defendant to clear path way which was obliterated by them by way of mandatory injunction thereby the suit filed by the plaintiffs was decreed. Subsequently, the suit filed by the defendants for 4/14 https://www.mhc.tn.gov.in/judis S.A Nos.659 and 660 of 2013 relief of permanent injunction restraining these plaintiffs not to make any interference in the path way of their land is dismissed.
2. Aggrieved over that, defendants in O.S No.368 of 2006 and also as plaintiff in O.S No.383 of 2005 preferred an appeal in A.S Nos.12 and 13 of 2012, the lower appellate judge independently analysed the facts and evidence concluded that no such cart track is under existence nor plaintiffs were given any right to enjoy the same. Thereby the findings of the trial Judge was set aside by allowing the appeals.
3. Challenging the same plaintiff in O.S No.368 of 2006 (and defendant in O.S No. 383 of 2005) preferred appeals before this Court. This court admitted the appeal with the following questions of law:
1. Is the lower appellate Court Justified in ignoring the recitals in Ex.A3, Ex.A4, Ex.A6 and Ex.A7 which would conclusively go to show that the suit cart track is a common one for the sharers in Old S.No.177?
2. When relief is claimed on the basis of easement by prescription, is the 5/14 https://www.mhc.tn.gov.in/judis S.A Nos.659 and 660 of 2013 lower appellate Court justified in holding that as the appellants are entitled to an alternative cart track, the suit is not maintainable?
4. As the plaintiffs filed the suit for declaration to declare their easemantary right in the suit cart track to take their men, cattle, carts in S No.177. Now sub divided into S.No. 93/3, 93./2C, 93/2A, 93/1C, 93/1A, 92/4D, 92/4B, 92/4A, 92/3B, 90/2B, 90/1, the burden is on the plaintiffs to prove the suit cart track. But the defendant totally denied the existence of common cart track as well as the plaintiff's right to enjoy the same. Burden is on the plaintiff to prove the existence of suit cart track and right to enjoy the same to reach their lands. As per the case of the plaintiff, the suit cart track gets diverted from the Guntteripalayam road starting from the southern extremity in S. No.93/3 and runs through S.No.93/2c, 93/2A, 93/1C, 93./1A, 92/4D, 92/4B, 92/4A, 92/2B and then reaches their land in S.No.90/2 and 90/1, the suit cart track runs on the eastern extremity of the above survey Numbers and it was stopped by the defendants. It is an admitted fact that the suit cart track existed in old S. No.177 with an extent of 28.11 acres. Subsequently the said S. No.177 was sub divided as S.No. 93/3, 93./2C, 6/14 https://www.mhc.tn.gov.in/judis S.A Nos.659 and 660 of 2013 93/2A, 93/1C, 93/1A, 92/4D, 92/4B, 92/4A, 92/3B, 90/2B, 90/1 in which the plaintiff's lands are sub divided as S.No.90/2B and 90/1 and defendants land are in S.No. 92/3B, 92/4A, 92/4B, 92/4D, 93/3. To prove the existence of enjoyment of the cart track, the plaintiff relied deeds of the co-sharers and others in old S. No.177 which are marked as Ex.A1 to A10. The contention of the defendant is that neither the plaintiff's nor their predecessors were given right to enjoy the said cart track and also denied that existence of the cart track and as per Ex.B1 and Ex.B2 which was executed by the plaintiff in the year of 1946 and 1947 in which there is no specific recitals of these cart track. But on perusal of the Ex.A3 sale deed dated 06.12.1966 the suit cart track is shown as eastern boundaries. So also, in Ex.A4/exchange deed dated 03.03.1975 the suit cart track is shown as eastern boundaries and in Ex.A5/sale deed dated 10.03.1975 in which cart track is shown as western boundaries. And in Ex.A6/sale deed dated 25.03.1976, Ex.A7/sale deed daed 21.08.1978 suit cart track is shown as eastern boundaries, In Ex.A9/sale deed dated 01.06.1988 and in partition deed dated 08.12.2004 the cart track is shown as common cart track as both one of the boundary. While describing the earliest document 1966 one 7/14 https://www.mhc.tn.gov.in/judis S.A Nos.659 and 660 of 2013 of the boundaries is described by mentioning these suit cart track as (then vadal) cart track commonly called as ettari in local language. In Ex.A4 the suit cart track is mentioned as eastern boundary and in Ex.A5 the suit cart track is mentioned as eastern boundary, those two documents related in the year 1970. but on seeing Ex.A5 dated 10.03.1975 sale deed pathway was mentioned as eastern boundaries. So also in Ex.A6 documents which is mentioned as (fhiyapy; bjd;tly; tz;oj; jlj;Jf;Fk; nkw;F) on the west of north south cart track shows as one of the boundaries.
5. Hence more than 25 years this document executed among the co- sharer in S. No. 177, the suit cart track is shown as one of the boundary hence the existence of north south cart track is established by the plaintiffs through the above documents. But the lower appellate Judge mere considering Ex.B1 and B2 came to the conclusion that no such path way is mentioned in the earliest documents, concluded that the plaintiffs and their predecessors title were not given any right in this alleged suit cart track nor it was in existence.
8/14 https://www.mhc.tn.gov.in/judis S.A Nos.659 and 660 of 2013
6. Accordingly, the lower appellate Judge denied the plaintiffs claim over the suit cart track. Further, learned Lower Appellate Judge also concluded that in all the Ex.A1 to A4 documents, one of the boundaries was shown as common (bghJ ,l;nlhp) ( common cart track) but their right to enjoy the suit cart track was not given to the plaintiff. Accordingly, rejected the entire documents adduced on the side of the plaintiff and concluded that plaintiff's failed to prove their right as well as existence of the cart track. As rightly pointed out by the plaintiff's counsel, dmittedly, in earliest document, there is no mention about the cart track, but the documents relied by the plaintiff is of the year 1970 i.e Ex.A1 to Ex.A9 north south cart track is mentioned as one of the boundaries in the sale deed and also from the 1975 onwards one of the boundaries of the property concerned in old S. No.177 is shown as cart track. After lands were sub divided, there is existence of common cart track. Hence it was shown as one of the boundary. Though the appellant judge admits the said boundaries, erroneously concluded that plaintiffs were not given any right to use the said cart track in those documents for the reason that the plaintiff's predecessor was not given any specific right to enjoy the said cart track thereby the plaintiff's 9/14 https://www.mhc.tn.gov.in/judis S.A Nos.659 and 660 of 2013 right was denied by the appellant Judge.
7. But on seeing the recitals in those sale deeds it is specifically mentioned that (bghJ ,l;nlhp) common cart track (and north south common cart track) which itself denotes that their existence of cart track, in which all the patta tharars in S. No.177 are right to enjoy the said cart track. The right to enjoy the cart track is attached with suit common cart track. Hence, it need not be specifically mentioned in the sale deeds as suggested by the learned Judge. The right is attached with the common cart track and it belongs to all the patta tharars in S. No.177. Hence it was described as bghJ ,l;nlh /Common cart track thus the findings of the lower apellate Judge that plaintiff's were not given specific right to enjoy the said cart track is erroneous and misconception of the facts and law and it is perverse in nature.
8. However, the contention of the defendant is that the plaintiff's having path way right from the forest road exist on the north of their land and they are having alternative path way but suppressed this facts and claimed right over the suit cart track by easement of necessity and grant, and falsely claimed they are having only one path way to reach their land this 10/14 https://www.mhc.tn.gov.in/judis S.A Nos.659 and 660 of 2013 suit cart track. Admittedly the plaintiff has not described about the existence of the forest road on the north of their land in the plaint but during the evidence plaintiff admitted that there is existence of forest road. The commissioner report also mentioned about the forest road. The case of the plaintiffs patta tharars of S.No 177 was right to use the common suit cart track which was given already was denied by the defendant. Admittedly, the suit cart track in old S. No.177 so the plaintiffs being patta tharars old S. No.177 is entitled to enjoy the suit cart track under easement by prescription. But without appreciating this legal aspects the first appellate Judge observed that existence of the forest road is used by the plaintiff and they are using the said forest road to their land is totally untenable and unjust one.
9. As discussed above, the right to enjoy common cart track in S.No 177 is attached with the land all the patta tharars in S. No.177 entitled to use said common cart track, thus same is meant for the plaintiff and the defendant irrespective of existence of the forest road. Therefore, the findings given by the first appellate judge is clear misconception of law and facts also proves that there is alteration in suit cart track it needs restoration 11/14 https://www.mhc.tn.gov.in/judis S.A Nos.659 and 660 of 2013 by way of mandatory injunction. Hence the findings given by the lower appellate Judge is against the recitals of the boundary description found in Ex.A1 to 3, A4,A5,A6 and A7 and the same is liable to be set aside. Accordingly, questions of laws are answered.
10. With regard to second questions of law, as discussed above, irrespective of existence of forest road the plaintiff being the patta tharars in old S. No.177 are entitled to use the common cart track and the said right is attached with that common cart track. However, they have no right over the said land. Accordingly they are entitled for relief of declaration. Hence the findings rendered by the lower appellate Court is erroneous and the findings that the plaintiff's having alternative path way thereby they not entitled to declare their easement right to enjoy the cart track is unjust and is liable to be set aside. Hence, both appeals are allowed. Thereby, the findings of the lower appellate Court in A.S No. 12 and 13 of 2012 is hereby set aside. 12/14 https://www.mhc.tn.gov.in/judis S.A Nos.659 and 660 of 2013
11. Accordingly, the findings of the trial Court is confirmed hence the suit filed by the plaintiff in O. S No. 368 of 2006 is hereby allowed as prayed for and the suit filed by the defendant's in 383 of 2005 is dismissed as no merits. Hence, both the appeals are allowed. No costs.
09.2022.
pbl 13/14 https://www.mhc.tn.gov.in/judis S.A Nos.659 and 660 of 2013 T.V.THAMILSELVI,J.
Pbl To
1. The Principal Sub-Ordinate Judge, Krishnagiri
2.The District Munsif Court, Krishnagiri.
3.The Section Officer, VR Section.
SA.Nos.659 and 660 of 2013 .09.2022 14/14 https://www.mhc.tn.gov.in/judis