Madras High Court
Logambal vs Pitchaiya on 30 June, 2017
Author: N.Seshasayee
Bench: N.Seshasayee
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.06.2017 Reserved on: 13.04.2017 Pronounced on: 30.06.2017 CORAM THE HONOURABLE MR.JUSTICE N.SESHASAYEE S.A.No. 1506 of 2001 1. Logambal 2. J.Narayanasamy 3. J.Kumuthavalli 4. J.Thirupurasundari 5. J.Rukkumani ...Appellants/Appellants/Plaintiffs Vs. Pitchaiya ...Respondent/Respondent/Defendant Prayer: Second Appeal filed under Section 100 of the Code of the Civil Procedure against the Judgment and Decree dated 20.12.2000 in A.S.No.101 of 2000 on the file of Principal District Court, Thanjavur, confirmed in Judgment and Decree dated 02.08.2000 made in O.S.No.70 of 1994 on the file of District Munsif Court, Thanjavur. !For Appellant : Mr.V.Chandrasekar ^For Respondent : No appearance :JUDGMENT
Plaintiffs have filed a suit for declaration of title and for mandatory injunction to remove an encroachment in a common pathway. Both the Courts below have successively dismissed the suit and this appeal has been preferred by the appellants.
2.The facts that are not in controversy are as follows:-
The property enblocked in S.F.No.2790 in Pookara 2nd Street, Thanjavur Town originally belonged to three brothers namely Duraikkannu, Kaliyaperumal and one Sundaram. These brothers have orally partitioned the said property and accordingly Duraikkannu was allotted a portion of property on the far west. The adjacent eastern plot was allotted to Kaliyaperumal. Beyond it, on the east is a a north-south running common pathway. This pathway is the suit property. The property which is to the east of the common pathway, was allotted to Sundaram.
While so, on 01.04.1971 one Jeyaram purchased the western most plot from Duraikkannu. A few months later, on 13.09.1971, Vide Ext-A2 sale deed, Jeyaraman had purchased the next adjacent plot on the east from Kaliaperumal. Plaintiffs are the widow and children of Jeyaram. It is the further case of the plaintiffs that the dispute is regarding the width of the common pathway. According to the plaintiffs, the defendant who owns the property to the east of the pathway has encroached into the pathway and has put up a wall, and hence the plaintiffs have filed the suit for mandatory injunction to remove the wall so built by the defendant.
3.The only contention that the defendant has taken in his written statement is that there was a fence earlier available along with a very line on which the wall is put up and that there is no encroachment into the property.
4. Before the trial Court, plaintiffs had taken out a commissioner and the Advocate Commissioner has filed his report which are available on record as Exts.C-1 and C-2. Both the Courts below have dismissed the suit on the ground that the Commissioner has not measured the property of the defendant.
5. When this appeal was admitted, the following substantial questions of law were raised:-
?1) Whether the Courts below erred in law in rejecting the Commissioner, Surveyor report and plan only on the ground that the property of the defendant had not been measured when the surveyor has given evidence that he had measured the entire survey number after fixing the boundaries as per survey stone?
2) When no objection is filed by the respondents to the report of the Advocate Commissioner and the defendants has not produced any document to substantiate his case, whether the Courts below are correct in law in non-
suiting the plaintiffs who have proved their case by producing both oral and documentary evidence??
6. Heard the learned counsel for the appellant. There is no representation for the respondent.
7. The learned counsel for the appellants contended that the defendant/respondent herein has not filed any objection to the Commissioner's report, yet he was permitted to cross examine the Commissioner. This is a patent error in law and both the trial Court as well as the first appellate Court have fallen in error in relying on a piece of oral testimony that the Commissioner has made during the cross examination by the defendant to which he himself was not entitled to, in the absence of any formal objection to the Commissioner report.
8. On going through the records, it is seen that, in Ext.A-1 the width of common lane is stated to be 3 feet but in Ext.A-2 the same width is referred to as 5 feet. The defendant in his written statement however, has conceded to the existence of the pathway referred to, and has pleaded that it has a width as 4 feet. The commissioner upon measuring the width of the pathway has found it as 3-1/2 feet.
9.Without going into the merit of the case, it is seen that as per the variance in the width of the allotted pathway between Ext. A-1 and A-2 under which the plaintiffs claim title to the property, even they have no consistent case. What is now available is 31/2 feet pathway according to the Commissioner's report and the defendant has conceded that the width of the pathway was 4 feet. There can always be a variation of about + foot and the same cannot be considered a major issue. Inasmuch as, the appellants have not clarified the variance in the width of the pathway as per their own title, it is inconceivable to hold that the lower courts have fallen in error even though their judgments are backed by different reasons.
10. Ultimately, the width of the pathway is the question of fact that the plaintiff cannot claim anything more than what is now in existence namely 31/2 feet common pathway, and as referred to above, this Court cannot go into the same and the matter does not involve any substantial question of law.
11 . In the result, the Second Appeal is dismissed. The Judgment and Decree dated 20.12.2000 in A.S.No.101 of 2000 on the file of Principal District Court, Thanjavur, and the Judgment and Decree dated 02.08.2000 made in O.S.No.70 of 1994 on the file of District Munsif Court, Thanjavur are confirmed. No costs.
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