Madras High Court
Pappayammal (Died) vs Karuppiah on 20 January, 2023
Author: P.T.Asha
Bench: P.T.Asha
SA.No.604 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.01.2023
CORAM:
THE HON'BLE MS.JUSTICE P.T.ASHA
S.A.No.604 of 2006
1.Pappayammal (Died)
2.Saravanan
(2nd appellant LRs of the deceased
as per memo dated 31.10.2019
vide Court order dated 05.08.2021
made in SA.No.604/2006)
3.Ammani
4.M.Thangaraju
5.V.Selvi
6.Periyammal ... Appellants
(A1-Died, A3 to A6 brought on
record as legal heirs of the deceased
A1 vide Court order dated 15.12.2022
made in CMP.No.21891/2022 in
SA.No.604/2006)
Vs.
1.Karuppiah
2.Kumarasamy
3.Muthusamy ... Respondents
PRAYER : Second Appeal filed under Section 100 of C.P.C., to set
aside the judgment made in A.S.No.17 of 2004 on the file of the
Additional District Judge-cum-Fast Track Court, Namakkal, dated
https://www.mhc.tn.gov.in/judis
1/12
SA.No.604 of 2006
21.10.2005 confirming the judgment of the Principal District Munsif,
Namakkal, in O.S.No.97 of 2002 dated 23.06.2003 in respect of the
reliefs o mandatory injunction and restoration, allow the above appeal
with cost.
For Appellants : Mr.K.J.Nithianandham
For Respondents : Mr.R.Thirugnanam
for Mr.CH.Pandian for R1 to R3
JUDGMENT
The plaintiffs are the appellants before this Court challenging the judgment and decree passed against them. The facts which have culminated in the filing of the above Second Appeal is set out hereunder and the parties are referred to in the same rank as before the trial Court.
2. The plaintiffs had filed a suit in O.S.No.97 of 2002 on the file of the Principal District Munsif Court, Namakkal, for a declaration that the plaintiffs have right of usage of "AB" pathway for taking their men vehicle, cattle, livestock etc., for a consequential injunction restraining the defendants from interfering with this right, for a declaration that the suit 'BCD' portion belongs absolutely to the plaintiffs and for consequential injunction thereof. After the visit by the Advocate https://www.mhc.tn.gov.in/judis 2/12 SA.No.604 of 2006 Commissioner, the suit reliefs were amended to include the relief of mandatory injunction directing the defendants to remove the encroachments made to an extent of 17 links in the 'AB' pathway and to restore the pathway to its original share and for mandatory injunction directing the defendants to remove the encroachments made to the extent of 2 links to 5 links in the suit 'BCD' portion.
3. It is the case of the plaintiffs that the first plaintiff had purchased the 1st item of the suit property from one Kuppusamy Gounder under registered sale deed dated 21.01.1971 and the second item of the property was purchased from the very same person on 14.12.1973. The second plaintiff is none else than the grandson of the first plaintiff. A plan that was attached to the plaint would show indicate that suit pathway is earmarked as 'ABCD' and the plaintiffs property is shown as P, P1 and P2 and the defendants as D, D1 and D2.
4. It is the case of the plaintiffs that under the sale deed, Kuppusamy Gounder had conveyed the pathway rights in 'AB' pathway. Ever since the purchase, they have been in enjoyment of this pathway https://www.mhc.tn.gov.in/judis 3/12 SA.No.604 of 2006 and this right is available to them by way of a grant. On 12.07.1977, the defendants have purchased portions to the east of the pathway which has been earmarked as D, D1 & D2. It appears that on 12.07.1972, there was a family arrangement amongst the defendants and even in this document the right of way of the plaintiffs had been asserted. Now however, certain misunderstanding had taken place between the plaintiffs and defendants, as a result of which, the defendants are attempting to obliterate the pathway and deny the plaintiffs their use of the suit pathway. Therefore, the plaintiffs came forward with the suit in question.
5. The third defendant had filed written statement inter alia contending that they had never prevented the plaintiffs from using the pathway on which the cart road is situated. It is the case of the defendants that the lands belonged to them and the plaintiffs are not using the AB pathway to reach BCD cart road in order to reach their land shown as P, P1. They further contended that the plaintiffs have an alternative pathway. Further by taking heavy vehicles to transport agricultural products the plaintiffs have damaged this AB pathway. Therefore, they sought for the dismissal of the suit.
https://www.mhc.tn.gov.in/judis 4/12 SA.No.604 of 2006
6. The learned District Munsif, Namakkal had framed the following issues:-
“1/ tHf;Fj;jlj;jpd; “Vgp” ghfk; bghWj;J thjpf;F tpsk;g[if ghpfhuKk;. epue;ju epiya[jJ ; f; fl;lisg; ghpfhuKk;
fpilf;fj;jf;fjh?
2/ tHf;F jlj;jpy; “gprpo” ghfk; bghWj;J thjp nfl;Ls;s tpsk;g[if ghpfhuKk;. epue;ju epiyaj;J fl;lisg; ghpfhuKk; mtUf;F fpilf;fj;jf;fjh?
3/ “gprpo” ghfj;jpd; moepyk; gpujpthjpfSf;F ghj;jpag;gl;lJ vd;why; rhpah?
4/ 2k; thjp tHf;fpwF ; mtrpakhd jug;gpdh; my;y vd;why;
rhpah?
5/ thjpf;F fpilf;ff; Toa ntW ghpfhu';fs; vd;d?
On 06.03.2003 the additional issues were framed as follows:
1/ “Vgp” ghfk; bghWj;J thjpfs; nfl;Ls;s bray; cWj;Jf; fl;lisg; ghpfhuk; thjpfSf;F fpilf;fj;jf;fjh?
2/ “gprpo” jl ghfj;jpy; thjpfs; nfl;Ls;s RthjPdg; ghpfhuk; thjpfSf;F fpilf;fj;jf;fjh?
3/ brhj;J tptuk; rhpahf Fwpg;gplg;glhjjhy; braYWj;Jf;fl;lisg; ghpfhuk; thjpfSf;F fpilf;fj;jf;fjy;y vd;why; rhpay;y?
https://www.mhc.tn.gov.in/judis 5/12 SA.No.604 of 2006 4/ mtrpakhd jug;gpdiur; nrh;ff; hjjhy; tHf;F ghjpf;fg;gl;Ls;sJ vd;why; rhpah?
7. The second plaintiff had examined himself as PW1 and marked Exs.A1 to A6. The third defendant had examined himself as DW1 and had not marked any documents. The Advocate Commissioner's report and plan were marked as Exs.C1 & C2.
8. The learned Judge ultimately decreed the suit in respect of the declaration in respect of the property coloured as yellow in Ex.C2 Commissioner's plan and injuncted the defendants from interfering with the plaintiffs enjoyment of the same. Likewise, the declaration was also granted in respect of 'BCD' pathway along with injunction. However, the suit was dismissed with reference to the mandatory injunction.
9. Challenging the said judgment and decree with regard to the refusal of the relief of mandatory injunction, the plaintiffs had filed an appeal in A.S.No.17 of 2003 on the file of the Additional District Judge- cum-Fast Track Court, Namakkal. By the judgment and decree of the District Judge, dated 21.10.2005, the appeal was dismissed. https://www.mhc.tn.gov.in/judis 6/12 SA.No.604 of 2006
10. Challenging the concurrent judgment and decree with regard to the relief of mandatory injunction, the appellants are before this Court and the Second Appeal has been admitted on the following substantial questions of law as follows:
“1. Whether the judgment of the Lower Appellate Court without appreciating the evidence and documents and merely confirming the judgment of the trial Court will not amount to miscarriage of justice?
2. When the fact of encroachment is proved by Ex.C2 Commissioner's report and the opposite party does not dispute the width of the pathway, has it to be proved independently by the appellants to get a decree for mandatory injunction and restoration?”
11. Heard the counsels on either side and perused the records.
12. From the perusal the plaint, it is difficult to decide as to the nature of the encroachment and the extent of the encroachment. This assumes significance as the Advocate Commissioner in its report and plan which has been filed as Exs.C1 & C2 has not talked about any https://www.mhc.tn.gov.in/judis 7/12 SA.No.604 of 2006 obstruction on the pathway which has been marked as 'ABCD' in his plan which forms part of the decree.
13. The counsel for the appellants would submit that the place is covered with shrubs and the same has to be removed. The fact that the encroachment is in the form of growth of trees on the pathway has not been pleaded by the plaintiffs.
14. On the contrary in paragraph No.7, the plaintiffs would state as follows and in para 11(A), it is stated as follows:
“7/ jhth brhj;JfSf;F jhth brhj;Jf;fis 1k; thjpf;F fpiuak; bra;j Fg;g[rhkpf; ft[z;lh; tifauht[f;F ghj;jpag;gl;l epy';fSf;F bjd;g[uk; cs;s nky; ghijapy; ,Ue;J nkw;go Fg;g[rhkpf; ft[z;lh; tifauht[f;F ghj;jpag;gl;l ,ju epy';fspd; nky;g[u Xukha; bjd;tlyhf 17 yp';!; mfyKs;s tz;o jlj;jpy; vf;fhyj;jpYk; tz;o. Ms;. ML. khL. vUik tifauhf;fspd; nghf tu nkw;go Fg;g[rhkpf;ft[z;lh; tifauh ic&; fpiuag; gj;jpu';fspy; jlghj;jpak; vGjpf; bfhLj;Js;shh;fs;/ ico; jlk; jhth gug;gpdhy; AB vd fhz;g;gpf;fg;gl;Ls;sJ/ ///11(v)/ jhth jhf;fy; bra;j gpd; fkpcodh; K:yk; rh;nt bra;j nghJ rh;nt gpshdpy; gpujpthjpfs; jhth Vgp ghijapy; bjd;g[uj;jpy; KGg;ghija[k; bfh";rkhf Mf;ukpj;J jw;bghGJ 3k; egh; epyj;jpy; bry;tjhYk;. nkYk; Vgp ghijapd; tlg[uj;jpy; ghijia 3 Kjy; 5 yp';!;ntiu gpujpthjpfs; Mf;fpukpg;g[ bra;Js;sjhYk; rK:fk; nfhh;l;lhh; mth;fs; gpujpthjpfs; nghpy; thjpfSf;F tH';fg;gl;Ls;s https://www.mhc.tn.gov.in/judis 8/12 SA.No.604 of 2006 17yp';!; ghijia bu!;nlhh; bra;J bfhLf;f nkd;nll;lhp ,d;$';rd; ghpfhuj;jpw;F cj;jputpl ntz;oaJk; kw;Wk; jhth “gprpo”tz;og;ghij ghfj;jpy; gpujpthjpfs; 2 Kjy; 5 yp';!; tiu Mf;fpukpg;g[ bra;Js;s ghfj;ij mfw;wp RthjPdk; bra;J bfhLf;f ntz;o cj;jputpl ntz;oaJk; mtrpakhfpwJ/”
15. Therefore, a mere reading of the above pleading would show the vague allegations with reference to the relief of mandatory injunction. The defendants in the written statement has clearly stated that they are in no manner interfering with the enjoyment of the suit pathway.
“,g;gp[ujpthjpfs; fpuak; bgw;w fhyj;jpy; ,Ue;nj g{!;jpjpapy; i&;tPje;jhd; ghija[k; mike;Js;sJ/ nkYk; jlj;jpd; tHpahf thjpfs; brd;W tUtij ,g;gpujpthjpfs; vf;fhyj;jpYk; jil bra;jJkpy;iy/ jil bra;ak[ ; vz;zkpy;iy/”
16. The Courts below have also declared the plaintiffs right to the pathway. As already stated the plaintiffs have not explained the nature of the encroachment or the extent of the encroachment in their pleadings. The Advocate Commissioner's report does not indicate any such encroachment. Therefore, from the findings of the Courts below, I see no reasons to interfere with the concurrent judgment and decree of the Courts below. The substantial questions of law are therefore answered against the plaintiffs. The substantial question of law No.2 https://www.mhc.tn.gov.in/judis 9/12 SA.No.604 of 2006 does not set out the true facts, since Ex.C2 Commissioner's report does not indicate any encroachment but has shown that the extent of the pathway is not uniform and differs from place to place.
17. Considering the facts that the appellants have no objections to the usage of the pathway which has now been declared and since it is the contention of the learned counsel for the appellants that the encroachment is in the form of the growth of shrubs, the Second Appeal is dismissed with an observation that the pathway shall be maintained to the extent described by the Commissioner in his plan as 'ABCD'. No costs.
20.01.2023 Index : Yes/No Internet : Yes/No dna https://www.mhc.tn.gov.in/judis 10/12 SA.No.604 of 2006 To
1.The Additional District Judge-cum-Fast Track Court, Namakkal,
2.The Principal District Munsif, Namakkal.
https://www.mhc.tn.gov.in/judis 11/12 SA.No.604 of 2006 P.T.ASHA, J.
dna S.A.No.604 of 2006 20.01.2023 https://www.mhc.tn.gov.in/judis 12/12 SA.No.604 of 2006 https://www.mhc.tn.gov.in/judis 13/12