Madras High Court
K.K. Pongiannan vs Karuppana Gounder (Died) on 8 June, 2015
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08 06 2015 CORAM: THE HONBLE SMT. JUSTICE PUSHPA SATHYANARAYANA S.A. No. 209 of 2009 and M.P. No. 1 of 2009 1. K.K. Pongiannan 2. K.K. Palanisamy .. Appellants Vs. 1. Karuppana Gounder (died) 2. Chinnasamy @ Sivalingasamy 3. Murthy @ Lingeswaramurthy (died) 4. The State of Tamil Nadu Rep. By its District Collector Erode District 5. The Tahsildar Gobichettipalayam Erode District 6. Amirtha Devi 7. Sasikumar .. Respondents [RR 6 and 7 brought on record as LRs of deceased R3 vide order dt. 17.12.2014 made in M.P. Nos. 1 to 3 of 2014] Appeal under Section 100 of the Civil Procedure Code, against the judgment and decree dated 30.09.2008 passed by the Principal Subordinate Judge, Gobichettipalayam, in A.S. No. 20 of 2008 confirming the judgment and decree passed by the District Munsif, Gobichettipalayam, in O.S. No. 181 of 2000 on 24.10.2007. For Appellants : Mr. N. Manokaran Respondent 1 : died Respondent 3 : dismissed as abated For RR 2, 6 & 7 : Mr. T. Murugamanickam For RR 4 & 5 : Mr. T. Jayaramaraj, GA (CS) JUDGMENT
The plaintiffs, who were non-suited by the concurrent findings of the Courts below as regards their prayer for declaration that they have the right to use the suit property (itteri) to reach LBP canal and for consequential injunction, challenge the findings of the Courts below by way of the present Second Appeal.
2. The case of the plaintiffs, who claim to be the adjacent owners of the suit property, is that the itteri in S.F. Nos. 69 and 70 in Ayalur Village within the Sub-Registration District of Gobichettipalayam, are not the exclusive property of the defendants 1 to 3 and that the general public are also entitled to use the itteri as public thoroughfare. The further case of the plaintiffs is that the itteri was used to reach Avayarpalayam on the north passing through S.F. Nos. 69 and 70 and when the Lower Bhavani Project Canal was constructed, the itteri got detached and stopped with S.F. No. 69 itself and, therefore, the public were using the itteri to reach S.F. No. 68 for taking water and bathing purposes. According to the plaintiffs, defendants 1 to 3 have encroached the suit property, viz., itteri, and did not allow the usage of the same by the public. The further grievance of the plaintiffs is that the defendants 1 to 3 are making attempts to obtain patta to the itteri. Hence, they filed the suit seeking for declaration that they have right to use the suit property (iiteri) to reach LBP Canal and proceed further as a public itteri and for mandatory injunction directing the defendants to remove the encroachment and to restore the suit property to its original state as a public itteri.
3. Resisting the suit, the defendants 1 and 5 filed separate written statements denying the allegations made by the plaintiffs. According to the first defendant, the suit property is a pathway intended for the exclusive use of the land owners of S.F. Nos. 67 and 73. It is stated that the defendants 1 to 3 owned 2/3 share of properties ancestrally in R.S.F. No. 67 and they also purchased the remaining 1/3 share in the name of defendants 2 and 3 for valuable consideration on 15.7.1974. It is further stated that the defendants 2 and 3 purchased the entire R.S.F. No. 73, which is situate to the east of S.F. Nos. 69 and 70, for valuable consideration on 23.4.1975 and as such, according to the defendants, they have been in peaceful possession and enjoyment of their lands for more than 25 years by cultivating the same in their own right and title. It is also the case of the defendants that there is no pathway either in R.S.F. No. 68 or in 74 to reach the canal bund and that neither the public nor the plaintiffs have any right to use the suit property to go to the canal bund. The further case of the defendants is that the plaintiffs' lands are situate to the west of S.F. No. 70 and there is a pucca east west road from Killaimooppanur in S.F. Nos. 288 and 289 to reach their lands. According to the defendants, there is no necessity for the plaintiffs to use the suit property to reach their lands and sought for dismissal of the suit.
4. Before the trial Court, at the first instance, the first plaintiff examined himself as P.W. 1 besides examining one Ramasamy as P.W.2 and marked Exs. A.1 to A.10. On the side of the defendants, one Sivalingasamy was examined as D.W.1 and Exs. B.1 to B.24 were marked. Exs. C.1 to C.3 were marked as Court documents.
5. The trial Court / learned District Munsif, Gobichettipalayam, on consideration of the evidence adduced by the parties and the submissions made by the learned counsels, by judgment dated 24.10.2007, having found that the plaintiffs have not established right and title over the suit property, dismissed suit O.S. No. 181 of 2000 for declaration of right and for mandatory injunction. Aggrieved by the same, the plaintiffs preferred appeal in A.S. No. 20 of 2008 before the Lower Appellate Court / Principal Subordinate Judge, Gobichettipalayam, and the same was also dismissed by judgment and decree dated 30.09.2008. Questioning the same, the plaintiffs have project the instant Second Appeal before this Court.
6. Pending the Second Appeal, the third defendant died and hence, the defendants 6 and 7 were impleaded as his Legal Representatives to contest the suit, by order of this Court dated 17.12.2004 in M.P. Nos. 1 to 3 of 2014.
7. The point that arises for determination before this Court is whether the concurrent finding of the Courts below requires any interference by this Court.
8. Heard Mr. N. Manokaran, learned counsel appearing for the appellants as well as Mr. T. Murugamanickam, learned counsel for the respondents 2, 6 and 7 and Mr. T. Jayaramaraj, learned Government Advocate (CS) representing the respondents 4 and 5 and perused the records.
9. The dispute in the instant case is with respect to the suit property (itteri) running through S.F. Nos. 69 and 70 in Ayalur Village. The appellants / plaintiffs based their right on the strength of being the adjacent owners of suit property. The combined sketch marked as Ex. A.10 makes it clear about the lie of the suit property. At the outset, it is to be pointed out that though the appellants / plaintiffs claimed to have filed the suit in representative capacity, as seen from the records, no such sanction had been obtained from the Court under Order I Rule 8 CPC.
10. Admittedly, the itteri is a Government poromboke property. A mere perusal of the records would show that the defendants 1 to 3 have been in possession of the same by raising coconut trees and they have also filed B memo tax. It is also seen from the materials available on records that the defendants 4 and 5 have also issued notices under Section 7 of Act 3 of 1905. Though the plaintiffs are the owners of S.F. No. 66, they want the right of way on S.F. Nos. 67 and 70.
11. The point for determination in this Appeal is whether the plaintiffs can claim right of usage in the absence of any right or title in a Government poromboke which is in possession with the defendants 1 to 3 as it is admitted and proved.
12. From the available records and the look at Ex. A. 10, it is clear that the itteri ends with S.F. No. 67. While so, it is un-understandable as to how the plaintiffs can claim right in S. Nos. 69 and 70. More over, the plaintiffs have not established that the itteri was used by general public and that the same was obstructed by the defendants 1 to 3. The defendants 4 and 5 also had stated in the written statement that defendants 1 to 3 have applied for patta and the same is pending consideration.
13. It is also not the case of the appellants / plaintiffs that their claim is an easementary right and that there is no other alternate pathway. It is to be pointed out that the itteri is not a public pathway as claimed by the plaintiffs / appellants and it vests with the Government. It is a poromboke land in occupation by the defendants 1 to 3 and not dedicated to public to be used as pathway. It is also not disputed that there is a pucca east west road from Killaimooppanur in S.F. Nos. 288 and 289 to reach the lands of the appellants / plaintiffs. In such circumstances, the Courts below have concurrently held that the plaintiffs are not entitled to claim the reliefs asked for. In the absence of any document or evidence to substantiate the claim of right or title to the suit property, the appeal has to fail and there is no question of law arising out of the said facts warranting any interference.
14. In my opinion, the courts below have clearly recorded a finding on the claim of right to the suit property. This being a Second Appeal filed under Sec.100, C.P.C., against the concurrent judgments, no substantial question of law would arise for consideration. There are no error of jurisdiction or law or perversity on the face of the records. Hence, a re-appraisal of the evidence to arrive at a different conclusion than the one concurrently arrived at by the Courts below, is not warranted. This Court is also not expected to embark upon such re-appraisal of evidence in the Second Appeal. I do not find any reason to differ from the concurrent finding rendered by the courts below.
For the foregoing reasons, the concurrent finding of the Courts below is confirmed and the Second Appeal is dismissed. However, there will be no order as to costs. Consequently, connected Miscellaneous Petition is closed.
08 06 2015 Index : Yes / No Internet : Yes / No gri PUSHPA SATHYANARAYANA, J.
gri To
1. The District Munsif Gobichettipalayam
2. The Principal Subordinate Judge Gobichettipalayam
3. The Record Keeper V.R. Section High Court Madras S.A. No. 209 of 2009 08 06 2015