Madras High Court
K.Gomathi vs Devarajan on 3 March, 2021
Author: T. Ravindran
Bench: T.Ravindran
S.A.No.1675 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.03.2021
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S.A.No.1675 of 2008
K.Gomathi ... Appellant
Vs.
Devarajan ... Respondent
Prayer: The second appeal has been filed under Section 100 of C.P.C.
against the judgment and decree dated 29.03.2006 passed in A.S.No.125 of
2005 on the file of the Principal Subordinate Court, Erode, confirming the
judgment and decree dated 21.09.2005 passed in O.S.No.79 of 2004 on the
file of the II Additional District Munsif Court, Erode.
For Appellant : Mr.Thirugnanam
For Respondent : Mr.G.Karthikeyan
JUDGMENT
Challenge in this second appeal is made to the judgment and decree dated 29.03.2006 passed in A.S.No.125 of 2005 on the file of the Principal Subordinate Court, Erode, confirming the judgment and decree dated 21.09.2005 passed in O.S.No.79 of 2004 on the file of the II Additional District Munsif Court, Erode.
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2.For the sake of convenience, the parties are referred to as per their rankings in the trial Court.
3.The second appeal has been admitted on the following substantial questions of law:
"(1).Whether the Courts below were right in law in holding that the properties were originally belong to one common owner and was subsequently divided into parts, when admittedly there was no such pleadings by the respondent herein?
(2).Whether the appreciation of the Advocate Commissioner's report and plan by the Courts below is perverse and sustainable in law?
(3).Whether the Courts below were right in holding that the respondent is entitled to use the north-south itteri when admittedly there is a well laid road is available to reach his lands from his house?"2/10
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4.Considering the issues involved between the parties lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.
5.The plaintiff in O.S.No.79 of 2004, who has lost in the Courts below, is the appellant in the second appeal.
6.Suit has been laid simplicitor for the relief of permanent injunction.
7.The plaintiff claims the relief of permanent injunction based on the title deeds marked as Exs.A1 and A2. It is the case of the plaintiff that the defendant, without any entitlement, is attempting to disturb the plaintiff's possession and enjoyment of the suit property and hence, according to her, the suit has come to be laid for appropriate relief.
8.However, considering the pleas and the materials placed on record put forth by the respective parties, it is seen that the parties are at issue only 3/10 https://www.mhc.tn.gov.in/judis/ S.A.No.1675 of 2008 with reference to the north-south itteri lying on the eastern side of the plaintiff's property. The plaintiff would claim that north-south itteri is not lying on the eastern side of the plaintiff's property, by contending that the same is not at all used by any one including the defendant and would also contend that the defendant has no necessity to use the north-south itteri to reach his land across the LBP canal. However, as rightly concluded by the Courts below, when the documents of title projected by the plaintiff marked as Exs.A1 & A2 clearly depict that the property comprised therein is lying to the west of north-south itteri and furthermore, when from the Commissioner's report and plan, the existing of north-south itteri on the eastern side of the plaintiff's property is also noted, the plaintiff cannot, as held by the Courts below, claim any portion on the eastern side of her property i.e. in the north-south itteri. The problem had arisen between the parties, when the plaintiff endeavored to put up the fence on the eastern side annexing the portion of north-south itteri, which had been used by the defendant to reach his property and resultantly, the suit has come to be laid by the plaintiff for the relief of permanent injunction. 4/10 https://www.mhc.tn.gov.in/judis/ S.A.No.1675 of 2008
9.When considering the materials available on record, particularly, the documents of title projected by the plaintiff as well as the documents of title projected by the defendant marked as Exs.B1 & B2, it is seen that the defendant has also been granted the right to use the itteri in question and therefore, the claim of the plaintiff that no such itteri is in existence and the defendant is not using the said itteri, as such, cannot be accepted and rightly disbelieved and negatived by the Courts below.
10.From the materials available on record, when it is noted that the defendant and his predecessor in title had been using the north-south itteri as a matter of right, the Courts below had rightly held that the contention of the plaintiff that the defendant is claiming only easementary right over the north-south itteri, as such, cannot be countenanced.
11.The contentions have also put forth by the plaintiff that as there is no over bridge to cross the canal have the right of usage of the itteri is lost 5/10 https://www.mhc.tn.gov.in/judis/ S.A.No.1675 of 2008 has also considered by the Courts below and held that the intervention of the canal in the north-south itteri would not deter the defendant to claim his right and the enjoyment of the same and particularly, when the materials point out that the defendant is using the north-south itteri, as a matter of right, the plaintiff's contention that the defendant by way of using the north- south itteri has attempted to interfere with her property, as such, cannot be accepted and the abovesaid issue had been rightly assessed, considered and determined by the Courts below.
12.As above pointed out, the plaintiff has laid the suit for permanent injunction and the grant of the relief sought for by the plaintiff in the nature of permanent injunction being discretionary and equitable remedy, the plaintiff should make out the case for claiming the said relief. When according to the title deeds projected by the plaintiff marked as Exs.A1 and A2, the property acquired by her lies only to the west of north-south itteri, further, with a view to mislead the Court and obtain the relief of permanent injunction, the plaintiff is found to have wrongly described the property in the plaint, while describing the suit property, he has shown the same as 6/10 https://www.mhc.tn.gov.in/judis/ S.A.No.1675 of 2008 lying to the west of the third party, whereas, in the title deeds of the plaintiff, the eastern boundary is shown as north-south itteri, the abovesaid aspects have been taken into consideration by the Courts below and rightly held that the plaintiff, as per the title deed marked as Ex.A1, would be entitled to only the property that lies on the west of north-south itteri and on the other hand, with a view to grab the portion of north-south itteri, the plaintiff has wrongly given the boundaries of the suit property and therefore, as rightly contended by the defendant, only with a view to annex the portion of the north-south itteri, the plaintiff has misdescribed the suit property and the Courts below had correctly held that the plaintiff has come forward with the plaint seeking the equitable remedy with unclean hands and by suppressing the material facts and when it is the specific case of the defendant that he is not claiming any ownership over the property acquired by the plaintiff under Ex.A1, on the other hand, when considering the materials available on record in entirety, it is found that it is only the plaintiff, with a view to annex the north-south itteri lying on the eastern side of her property and to prevent the defendant from enjoying the same, has come forward with the suit giving wrong particulars, particularly, as regards 7/10 https://www.mhc.tn.gov.in/judis/ S.A.No.1675 of 2008 the description of the suit property and in such view of the matter, the Courts below are found to be justified in not granting the relief of permanent injunction as sought for by the plaintiff.
13.The reasonings and conclusions of the Courts below for rejecting the plaintiff's case being based upon the proper appreciation of the materials available on record including the Commissioner's report and plan and the right of the defendant over the usage of north-south itteri, which has been established to be in existence and when they are found to be based on the factual matrix and not involving any question of law, as such and when they are not show to be in any manner perverse, illogical and irrational, in my considered opinion, no reason is warranted to interfere with the same. Resultantly, in my considered opinion, no substantial question of law is found to be involved in the second appeal. Be that as it may, the substantial questions of law formulated in the second appeal are, for the reasons aforestated, accordingly answered against the plaintiff and in favour of the defendant.
8/10 https://www.mhc.tn.gov.in/judis/ S.A.No.1675 of 2008 In conclusion, the judgment and decree dated 29.03.2006 passed in A.S.No.125 of 2005 on the file of the Principal Subordinate Court, Erode, confirming the judgment and decree dated 21.09.2005 passed in O.S.No.79 of 2004 on the file of the II Additional District Munsif Court, Erode, are confirmed. Accordingly, the second appeal is dismissed with costs. Consequentially, connected miscellaneous petition, if any, is closed.
Index : Yes/No 03.03.2021
Internet:Yes/No
sms
Copy to
1.The Principal Subordinate Court, Erode.
2.The II Additional District Munsif Court, Erode.
3.The Section Officer, V.R.Section, High Court, Madras. 9/10 https://www.mhc.tn.gov.in/judis/ S.A.No.1675 of 2008 T. RAVINDRAN, J.
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