Madras High Court
S. Narayanasamy vs K. Chidambaram on 6 August, 2013
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 06.08.2013
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
S.A.No.739 of 2013
and
M.P.No.1 of 2013
1. S. Narayanasamy
2. N. Prakash
.. Appellants/ Defendants 1 and 2
Vs.
1. K. Chidambaram
.. 1st Respondent/
Plaintiff
2. N. Selvaraj
3. K. Kolanchi
4. V. Subramanian .. Respondents 2, 3 and 4/
Defendants 3, 4 and 5
Prayer:- Second Appeal filed under Section 100 of Code of Civil Procedure against the Judgment and Decree dated 2.2.2013 made in A.S.No.4 of 2011 on the file of the Principal Subordinate Court, Viillupuram, confirming the Judgment and Decree dated 1.11.2010 made in O.S.No.29 of 2007 on the file of the Principal District Munsif Court, Ulundurpet.
For appellants : Mr.T. Arockia Dass
J U D G E M E N T
The defendants 1 and 2 in O.S.No.29 of 2007 on the file of the Principal District Munsif Court, Ulundurpet, are the appellants.
2. The 1st respondent/ plaintiff filed the suit for declaration and for injunction. The case of the 1st respondent/ plaintiff was that he purchased 22 cents of property from one Narambi @ Angammal under a registered sale deed dated 23.1.1950 and the remaining 22 cents belonged to him ancestrally. In respect of the ancestral property of 22 cents his cousins claimed rights and therefore under a registered sale deed dated 5.10.2005 he purchased 22 cents from his cousins and he became the owner of 44 cents. Thereafter, he sold 23 cents to third parties and he is in possession and enjoyment of the remaining 21 cents and the same has been sub divided into Survey No.163/6A1 having an extent of 0.08.5 errs and patta was also issued in the name of the 1st respondent/ plaintiff in Patta No.128. The appellants are having the property on the western side of the suit property and the 1st appellant is the father and the 2nd appellant is the son. The appellants 1 and 2 along with the respondents 3 and 4 attempted to claim right over the suit property stating that they have got the right of way and therefore a notice was given and thereafter the suit was filed for declaration and for injunction.
3. The 1st appellant/ 1st defendant filed the statement denying the claim of the 1st respondent/ plaintiff in respect of 44 cents and also 21 cents which is the suit property. He further contended that he is the owner of Survey No.163/5 and that property in Survey No.163/5 originally belonged to Narayana Reddy and the said Narayana Reddy put up a thatched house on the northern side over an extent of 0.02 cents and the said Narayana Reddy had three sons by name Rajagopal, Krishna Reddiar and Perumal. One of the sons namely Rajagopal was enjoying his portion of property and after him the 1st appellant and Govindasamy who are his sons are enjoying the property. The suit property is situate on the eastern side and on the northern side of the suit property there is a cement road. On the north western portion of the suit property there is 10 ft., path way which provides ingress and egress for the 1st appellant to the cement road from his house and that path way is enjoyed by the 1st appellant and his predecessors intitle for more than 100 years and the 1st appellant has got right of easement in respect of 10 ft., path way over the suit property. He also denied title of the plaintiff and therefore the plaintiff is not entitled to the relief prayed for.
4. On the basis of the pleadings the trial Court framed the following issues and are as follows:
(1) Whether the plaintiff is enjoying the property as per sale deed dated 23.1.1950 ?
(2) Whether the sale deed dated 5.10.2005 is valid and the plaintiff is the owner of the suit property ?
(3) Whether the plaintiff is entitled to the relief of declaration ?
5. The trial Court on the basis of Exs.A1 and A2 held that the plaintiff is owner of 21 cents in Survey No.163/6A1 and as per Ex.A1 on 23.1.1950 the plaintiff purchased 22 cents from Narambi @ Angammal and in that document undivided half share namely 22 cents out of 44 cents in Survey No.163/6 was sold. That Item was sub divided and given as Survey No.163/6A1 and under Ex.A2 the plaintiff purchased the remaining 22 cents in Survey No.163/6 and he became the owner of 44 cents and therefore the plaintiff proved his title. The trial Court further held that the 1st appellant examined himself as DW1 and admitted that the plaintiff is having the property in Survey No.163/6 and he is having property in Survey No.163/5 on the western side of the suit property and he claimed the right of way over the plaintiff's property. He also admitted in his cross examination that he is the owner of property in Survey No.163/5 and he claims right of way over the suit property. The trial Court further held that the 1st appellant/ 1st defendant failed to prove that he has right of way over the plaintiff's property and the 1st appellant/ 1st defendant admitted that in the documents there was no mention that he has got right of way over the plaintiff's property. Therefore, the trial Court decreed the suit as prayed for.
6. The appellants filed the appeal and the lower appellate Court framed the following points for consideration:
(1) Is it true that the 1st defendant and his predecessors entitle are enjoying 10 ft., pathway on the north eastern portion of the plaintiff's property to reach 1st appellant's property in Survey No.163/5 ? (2) Whether the plaintiff is entitled to the relief of declaration and injunction ? (3) Whether the trial Court Judgment and Decree are correct ?
(4) Whether the appeal is to be allowed ?
7. The lower appellate Court considered the case of the 1st appellant regarding the right of way and found that the 1st appellant failed to prove that there is a right of way over the plaintiff's property and that was the only way for the appellants to reach the cement road on the northern side. The lower appellate Court also found that the 1st appellant in his cross examination admitted that one Jayaraman is having lands on the western and northern side of his property and east of Jayaraman's property there is a north south pathway and that north south pathway turns towards east and proceeds towards north south and join with the road and held that the 1st appellant could not have used the plaintiff's property to reach the road and the 1st appellant also failed to prove the existence of pathway over the plaintiff's property by filing an application for appointment of Advocate Commissioner and as the appellants claimed easement right over the plaintiff's property, he indirectly admitted the title of the plaintiff/ 1st respondent and answered the points for consideration against the appellants holding that the appellants failed to prove that there was a pathway on the plaintiff's property and they were using the cement road for more than 100 years and the plaintiff also proved his title and confirmed the findings of the trial Court and dismissed the appeal. Hence the Second Appeal.
8. The learned counsel appearing for the appellants submitted that the trial Court erred in not framing issue regarding the right of way when the same was pleaded in the written statement and no finding was given regarding the right of way by the trial Court and no opportunity was given to the 1st appellant to prove the existence of path way over the plaintiff's property and therefore the Judgment of the trial Court is liable to be set aside. He further submitted that the Court below erred in presuming that the 1st appellant had right of way over the Jayaraman's property, in the absence of any evidence to the effect that the 1st appellant can have access to the road through Jayaraman's property and therefore the lower appellate Court also erred in holding that the 1st appellant failed to prove the existence of pathway. He therefore submitted that having failed to frame issue regarding the pathway and the same was pleaded in the statement, the Courts below committed serious error in holding that the 1st appellant failed to prove the pathway and therefore the Judgment and Decree of the Courts below are liable to be set aside.
9. In the grounds of appeal the appellants raised the following substantial questions of law:
(1) Whether the Courts below erred in concluding that the appellants fail to prove the existence of pathway over the suit property which leads to 10 feets width on north-west portion, without framing any issue, thereby failed to give opportunity to lead evidence with regard to the claim of the appellants ? (2) Whether the Courts below framed an irrelevant issues and come to the conclusion that the plaintiff is entitled to declaration and permanent injunction ? (3) Whether the Courts below failed to consider the easementary rights of 10 feets to have ingress and egress to their properties through the suit property ?
10. According to me, there is no question of law much less substantial question of law arises for consideration in this appeal. As stated supra, the suit was filed for declaration on the basis of title and the plaintiff proved his title by producing sale deed Exs.A1 and A2 and it is not the contention of the appellants that the plaintiff does not have any title. At the same time, the appellants also claimed easementary right over the plaintiff's property. Therefore, the lower appellate Court rightly held that when the appellants claimed easementary right over the plaintiff's property, they indirectly admitted the title of the plaintiff. Though the trial Court did not frame any issue regarding the right of way, evidence was let in by parties and the trial Court also considered the right of way in his Judgment and held that the 1st defendant failed to prove that he has got the right of way over the suit property and the 1st appellant/ 1st defendant also admitted in his sale deed the right of way was not mentioned. Further, when the plaintiff filed the suit for declaration and in that suit when the appellants claim easementary right over the suit property they ought to have filed the counter claim and mere pleadings in the written statement that they are entitled to right of way will not be sufficient. Further, both the Courts have concurrently held on the basis of the documents and oral evidence that the appellants failed to prove that they have got the right of way over the 1st respondent/ plaintiff's property and they also failed to prove that the existence of pathway over the suit property and they are using of that pathway for more than statutory period and admittedly no steps were taken by the appellants for appointment of Advocate Commissioner to find out the existence of pathway as alleged by them and the appellants were also not able to say whether they claim easement of necessity or easement by prescription. Considering all these aspects, the trial Court and the lower appellate Court rightly held that the appellants failed to prove the right of pathway or the existence of pathway over the suit property and the lower appellate Court also framed the issue to that effect and answered that issue against the appellants. Hence, I do not find any infirmity in the findings of the trial Court and the lower appellate Court and no substantial question of law arises in this appeal.
11. In the result, the Second Appeal is dismissed. Consequently, the connected Miscellaneous Petition is closed.
06.08.2013 Index : Yes Internet: Yes kr.
R.S.RAMANATHAN, J.
kr To
1. The Principal District Munsif, Principal District Munsif Court, Ulundurpet.
2. The Principal Subordinate Judge, Principal Subordinate Court, Villupuram.
S.A.No.739 of 2013and M.P.No.1 of 2013 Dated: 06-08-2013