Madras High Court
P.Siddha Gounder vs K. Venugopal on 8 March, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
In the High Court of Judicature at Madras
Dated: 08.03.2012
Coram:
The Honourable Mr.Justice V.PERIYA KARUPPIAH
Second Appeal No.414 of 2005
1. P.Siddha Gounder
2. Pappa
3. Chennimalai
4. P. Muniappan
5. Sakthivel
6. Krishnan
7. Kattu Raja ... Appellants
Versus
1. K. Venugopal
2. J. Mallika
3. P. Palanisamy ... Respondents
(3rd respondent is given up)
Second Appeal filed under Section 100 of C.P.C. against the Judgment and Decree dated 14.12.2004 made in A.S.No.43 of 2004 by the learned Principal District Judge, Salem, in confirming the Judgment and Decree dated 15.12.2003 made in O.S.No.279 of 2003 by the learned Principal District Munsif, Salem.
For Appellants .. Mr.D.Shivakumaran
For Respondents 1 & 2 .. Mr.V.Srinivasan
JUDGMENT
This appeal is directed against the judgment and decree passed by the first appellate court in A.S.No.43 of 2004 dated 14.12.2004 in confirming the judgment and decree passed by the trial court made in O.S.No.279 of 2003 dated 15.12.2003 in decreeing the suit in favour of the plaintiffs.
2. The plaintiffs are the respondents 1 and 2 and the defendants are the appellants and 3rd respondent in this appeal.
3. The case of the plaintiffs before the trial court as stated in the plaint would be as follows:-
The plaintiffs are the husband and wife. The defendants 1 and 2 were the original owners of the vacant land and terraced building. The plaintiffs have jointly purchased the southern portion of the suit property from the first defendant and the northern portion of the suit property from the second defendant by means of two registered sale deeds dated 09.09.1985. The second defendant is the second wife of the first defendant. Defendants 3 and 4 are the sons of the first defendant through his first wife and the defendants 5 to 8 are the children of the defendants 1 and 2. The plaintiffs have purchased the suit property as a house-plot. After purchase, the plaintiffs have constructed a terraced house in the western portion in the year 1986 and another terraced house in the eastern portion in the year 1995. The suit property is only six feet on the west which is running in between the Paramanar Koil property and the defendants' property. The plaintiffs are exercising their right of way only through the six feet way, right from the date of purchase. There is no other way for the plaintiffs to reach their property. The first defendant's brother's wife Chinnathayee sold a house plot to one Palaniammal which is situated on the south of the suit property. This property originally belonged to the first defendant's family. In that sale deed, dated 12.09.1988, six feet way has been clearly mentioned as the northern boundary. There is a Well and Peramanar Koil on the west of the suit property. The persons having rights in the Well and the persons coming to the temple are using this six feet way only. The six feet way has been marked as 'ABCD' in the plaint rough plan. The defendants 2 to 8 started giving pinpricks to the plaintiffs in the enjoyment of the suit property for reaching their property through the six feet way. The first defendant is also supporting the defendants 2 to 8 for their illegal activities. On 13.04.2003, the defendants parked the two wheelers and cycles in the six feet way and completely blocked the way and it was only at the intervention of neighbours, the obstruction was removed. Hence, the suit.
4. The case of the defendants as found in the written statement filed by the 5th defendant would be as follows:-
The defendants 1 and 2 have no right to sell the property as their own. The property is a common ancestral family property. It is true that the property has been purchased by the plaintiffs as a house plot and after purchase, they constructed a terraced house in the western portion and another terraced house in the eastern portion. It is not true to say that the plaintiffs are using the six feet way, which runs East-West in between Paramanar Koil property and the defendants' property. The defendants' house is situated on the southern side of the six feet access to the length of 10 feet thatched house and 10 feet open verandah without wall, totally 20 feet length. At the time of constructing a thatched house, he has left 3 feet width on the northern side abutting the pathway for his personal use to stop his cycles and to keep his fuel wood by the side of the defendants' house. While the people, who are getting water from the Well and to go to the temple house, have used the six feet width pathway and the defendant has not raised any objections. The temple and the Well were absolutely, belonged to the defendants' family. The plaintiffs were also permitted to use the six feet as others, but not having any statutory right to claim six feet width for their thorough access. Out of six feet way, the defendants have left some space by the side of their house roof to repair their house and wall. Only three feet width has been left for the purpose of the people, coming to the Well and the Temple. At the time of disposing the property, the said Chinnathayee has mentioned in her document that the boundaries on the northern side as six feet width way. The first plaintiff, who is the Secretary of the Milk Society in which this defendant is working as Milk Salesman, had enmity and grudge upon this defendant, as this defendant has raised some objection and questioned about the first plaintiff's misappropriation. The defendant also filed a suit before this Court in O.S.No.327 of 2003 for the relief of mandatory injunction and to remove the unlawful encroachments. The suit was therefore vexatiously filed and the same may be dismissed.
5. The trial court had framed necessary issues on the pleadings of the parties and entered trial. After appraising the evidence adduced before it, the trial court had come to a conclusion of decreeing the suit in favour of the plaintiffs.
6. Aggrieved by the said judgment and decree passed by the trial court, the defendants 1 to 3 and 5 to 8 preferred an appeal in A.S.No.43 of 2004. After hearing both sides, the first appellate court had dismissed the appeal and confirmed the Judgment and Decree passed by the trial court.
7. Having aggrieved by the concurrent judgment given by the first appellate court, the defendants 1 to 3 and 5 to 8 have preferred the present Second Appeal before this Court.
8. On admission of the Second Appeal, this Court had formulated the following substantial questions of law for being considered in this appeal:-
i) Is not the judgment and decree of both the courts below, perverse for not framing correct issues and points for determination according to the material propositions of facts and law as pleaded by the parties in the suit?
ii) Are the courts below correct in law in decreeing the suit on the basis of Ex.A7, which is inadmissible in evidence for the reason that PW.1 is not a party to the said document and Ex.A7 cannot be marked through PW.1. ?
9. Heard Mr.Mr.D.Shivakumaran, learned counsel for the appellants and Mr.V.Srinivasan, learned counsel for the respondents.
10. The learned counsel for the appellants would submit in his argument that the courts below have not perceived the evidence and appreciated the same and therefore, they have recorded concurrent findings by decreeing the suit filed by the plaintiffs. He would further submit that both the courts below have wrongly cast the burden of proof on the defendants in respect of the facts which are to be proved by the plaintiffs. He would further submit in his argument that the first appellate court had wrongly understood that the suit pathway was six feet breadth without any evidence except Ex.A7. He would further submit that the description of the pathway was to a breadth of six feet in Ex.A7 can be shown to be wrong as per the earlier title deed executed by the defendants in favour of one Chinnathayee purchased in Ex.B1, which is marked in I.A.No.268 of 2004 in A.S.No.43 of 2004. He would further submit that there was no pathway referred to in Ex.B1 on its northern side, but it was mentioned wrongly in Ex.A7 in order to render support the case of the plaintiffs. He would further submit that even otherwise, the recitals shown in Ex.A7 are true, it would bind only the said purchaser, namely, Palaniammal and not the defendants. The plaintiffs could at best move upto the western end of Palaniammal's land to the width of six feet and thereafter it is not possible to pass through the suit pathway as shown on the northern side of the defendants' property. He would further submit that the plaintiffs have an alternate pathway on the southern side of Palaniammal's land and defendants land as shown in the Commissioner's sketch despite such road has been not clearly drawn in the sketch. He would also submit that Ex.A7 would go to show that there was a 3= feet pathway on the eastern side of the property of Palaniammal and the plaintiffs can use the said pathway to reach the road lying on the southern side of the Palaniammal's land. He would, therefore, submit that the suit pathway cannot be declared as a pathway usable by the plaintiffs as per the right to use the pathway in their title deeds in Exs.A1 and A2. He would also submit that the courts below have wrongly understood the evidence of DW.1 that he admitted that the suit pathway, referred in Exs.A1 and A2, but on the other hand, DW.1 was having no objection to use the suit pathway to an extent of two feet breadth. He would, therefore, submit in his argument that the Judgment and Decree passed by the first appellate court was a predetermined one to confirm the decree passed by the trial court and it did not actually discuss the evidence, but had simply ratified the Judgment and Decree passed by the trial court. He would, therefore, submit in his argument that the Judgment and Decree passed by the first appellate court were perverse and the first appellate court, instead of setting aside the judgment, had confirmed it and therefore, it has to be interfered and set aside and thereby the trial court's judgment is also to be set aside and thus, the Second Appeal may be allowed.
11. The learned counsel for the respondents 1 and 2 / plaintiffs would submit in his argument that the courts below have correctly decided the dispute after appraising the evidence adduced on either side in a correct perspective. He would further submit that the defendants 1 and 2, who sold the property to the plaintiffs 1 and 2 through Exs.A1 and A2 have categorically conveyed the right to use the mamool, pathway to the said properties and the third defendant, who was examined as DW.1, had also categorically admitted that the pathway rights given under Exs.A1 and A2 were referring the suit pathway only. He would further submit that the suit pathway was described as measuring six feet breadth on its North-South throughout till it reaches the road. He would further submit that there is no explanation given by DW.1 in his evidence that the reference as to the mamool pathway in Exs.A1 and A2 was only to an extent of two feet in the suit pathway. He would, therefore, request that there is no merit in the arguments advanced by the learned counsel for the appellants and the courts below have correctly appraised the evidence and have come to the conclusion. He would also submit that the judgment and decree passed by the courts below are neither biased nor perverse and therefore, there is no necessity to interfere with the concurrent findings reached by the courts below. He has also referred to a judgment of this court reported in 2002(2) MLJ 659 (Ponnaiyan v. Karuppakkal) and also a judgment of the Hon'ble Apex Court reported in AIR 2003 SC 1905 (Bondar Singh vs. Nihal Singh) in support of his arguments. Therefore, he would request the court to dismiss the Second Appeal and to confirm the Judgment and Decree passed by the courts below.
12. I have given anxious thoughts to the arguments advanced on either side.
13. The suit was laid by the plaintiffs seeking for declaration of their right and permanent injunction in respect of the suit pathway running from the plaintiffs' properties to the road measuring a breadth of six feet as shown in the plaint sketch. The said plaint sketch has been marked as Ex.A6 in the evidence. The said pathway is running from the plaintiffs' property towards west so as to reach the main street (Road), in between Perumanar Koil, defendant's property, Palaniammal's property and a vacant site with the Well. The said suit pathway has been described as 'ABCD' in the plaint sketch, Ex.A6 measuring six feet breadth and 50 feet in length. The plaintiffs have examined the second plaintiff as PW.1 and yet another witness on their side to prove the existence of the pathway apart from producing Exs.A1 to A10. In Exs.A1 and A2, it has been categorically stated that those two properties sold to the plaintiffs were having right to use the mamool pathway attached with the said properties. No doubt, those two sale deeds have been executed by the Defendants 1 and 2. Therefore, the finding of the first appellate court that the plaintiffs' property is having a right to use the pathway attached with the property, was in a correct perception.
14. We have to see, what would be the mamool pathway means ? , whether it is the suit pathway as detailed in Ex.A6 or the pathway as mentioned in Commissioner's plans Exs.C2 and C3. For that, when we analyse Ex.A7, a document executed in favour of one Palaniammal by one Chinnathayee, it has been referred to on its northern side, a pathway measuring a width of six feet. The said property was originally belonging to the defendants' family and the same was sold by the defendants in favour of one Chinnathayee through Ex.B1. In Ex.B1 sale deed, the entire property sold in Ex.A7 was described as located on the southern side of Perumanar Koil. Therefore, I could see that on the date of Ex.B1, the property was belonging to the defendants' family and it was conveyed to Chinnathayee and thereafter, it was also transferred to Palaniammal after giving away six feet breadth of pathway on the northern portion of the said property. No doubt, the said northern part of the suit property was given as suit pathway, which would show that the suit pathway was branching from the plaintiffs' property towards the Street. It is a categorical admission of DW.1 that the properties of the plaintiffs were having a mamool pathway. He would further admit that he has no objection for the plaintiffs to use the suit pathway to the width of two feet for reaching the street. When he himself has admitted that the suit pathway can be utilised by the plaintiffs for an extent of two feet breadth only, it cannot be argued that the alternative pathway on the southern side of the defendants and Palaniammal's property, which runs to reach the road from the plaintiffs' property. It has been insisted by the learned counsel for the plaintiffs that DW.1 had not only admitted that the plaintiffs can use the suit pathway for an extent of two feet breadth, but also given his admission that the mamool pathway as referred to in Exs.A1 and A2 sale deeds, was the suit property. On a careful perusal of the evidence given by DW.1, I could see that DW.1 had categorically admitted that the mamool pathway mentioned in Exs.A1 and A2 was the suit pathway. There is no second thought that the suit pathway was not to a breadth of six feet. It has been categorically described as 'ABCD' in the plaint sketch marked as Ex.A6. Therefore, the admission given by DW.1 in his evidence would be with reference to 'ABCD' pathway only as mentioned in Ex.A6.
15. Furthermore, I could see from Ex.C2, the plan attached by the Commissioner, drawn by the Surveyor, who measured the property, would show that there is no alternate pathway on the eastern side of Palaniammal's house. Therefore, I could see that there is no other pathway except the suit pathway for the plaintiffs to reach the Street and to have an access from the main street to their house.
16. The next point is whether the suit pathway is six feet or two feet. It has been categorically mentioned in Ex.A7 that the said pathway on the northern side of the plaintiffs would be six feet and it could be taken as a piece of evidence to hold that the suit pathway is six feet as described in Ex.A6. Apart from that, the extension of the said pathway is beyond the boundary of Palaniammal's property towards West. It was admitted by DW.1 that the people coming to the Perumanar Koil and for taking water from Well are using the said six feet pathway and he has no objection for the people for using the said pathway. When the six feet pathway, is admitted by DW.1, for the use of other persons and the existence of six feet pathway has been proved by Ex.A7 up to the extent of Palaniammal's property, there is no impediment for this Court to construe that the said six feet pathway has been extended towards Street for the use of one and all, which includes the plaintiffs. Of all, the evidence of DW.1 would go to show that the suit pathway is the mamool pathway as referred to in Exs.A1 and A2.
17. In the judgment of the Hon'ble Apex Court reported in AIR 2003 SC 1905 (Bondar Singh vs. Nihal Singh) has laid down as follows:
" 4. .......An appeal under S.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 S.100 C.P.C. is a matter of settled law. The learned counsel for the appellant cited several judgments in support of his contention. We do not consider it necessary to discuss these decisions because so far as the question of powers of High Courts under S.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 S.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."
In the aforesaid judgment, it has been categorically mentioned that only if any perversity or biased attitude have been found in the decision of the first appellate court or in the concurrent finding of the first appellate court, it could be interfered. But, I do not find any perversity or bias in the judgment passed by the first appellate court, and therefore, the Judgment and Decree passed by the first appellate court cannot be interfered. In the circumstances, I have no hesitation to uphold the concurrent judgment given by the first appellate court, which was on the correct perception of the evidence.
18. For the foregoing discussions, I am of the considered view that there is no reason to interfere with the Judgment and Decree passed by the first appellate court and the questions of law framed in this appeal cannot be decided in favour of the appellants. Accordingly, I am inclined to dismiss the appeal and thereby, to confirm the judgments and decrees of both the courts below.
19. In fine, the Second Appeal is dismissed and the Judgment and Decree dated 14.12.2004 made in A.S.No.43 of 2004 by the learned Principal District Judge, Salem, in confirming the Judgment and Decree dated 15.12.2003 made in O.S.No.279 of 2003 by the learned Principal District Munsif, Salem are hereby confirmed. No costs.
08.03.2012 Index:Yes/No Internet:Yes/No mra To
1. The Principal District Judge, Salem.
2. The Principal District Munsif, Salem.
V.PERIYA KARUPPIAH,J.
mra Second Appeal No.414 of 2005 08.03.2012