Madras High Court
Jeeva Murugan vs Badrinarayanan on 30 September, 2022
Author: P.T. Asha
Bench: P.T. Asha
S.A.No.1101 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.09.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1101 of 2021
and
C.M.P.No.21052 of 2021
1.Jeeva Murugan
2.Azhagu ... Appellants/Appellants/Defendants
Vs.
1.Badrinarayanan
2.Lakshmi ...Respondents/Respondents/Plaintiffs
PRAYER: Second Appeal filed under Section 100 read with Order
42 Rule 1 of the Code of Civil Procedure against the Judgment and
Decree dated 22.11.2019 in A.S.No.34 of 2017 on the file of the
learned Additional Subordinate Judge, Dharmapuri, confirming the
the Judgment and Decree dated 11.08.2017 in O.S.No.9 of 2014 on the
file of the learned District Munsif, Dharmapuri.
For Appellants : Mr.J. Hariharan
For Respondents : Mr.S.Adarsh Subramanian
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S.A.No.1101 of 2021
JUDGMENT
The defendants before the learned District Munsif, Dharmapuri, in the suit O.S.No.9 of 2014 have filed the above Second Appeal challenging the concurrent Judgment and Decree of the Courts below.
2.The facts in brief are hereinbelow narrated in order to appreciate the objections to the said Judgment and Decree under Appeal:
The Second Appeal has been admitted on the following Substantial Questions of Law:
“The suit was filed by the plaintiffs for the relief of declaration of title in respect of the B schedule property and for consequential relief of injunction. When it is specifically pleaded by the defendants that there is no specific reference in the prior title deed of the plaintiffs ie., the gift deed dated 17.05.2005 that the plaintiff's predecessor is entitled to the suit lane absolutely and it 2/17 https://www.mhc.tn.gov.in/judis S.A.No.1101 of 2021 was introduced only in the plaintiffs' title deed in Ex.A1 and when there is a specific reference in the defendants' prior title deed dated 08.02.1954 that the defendants' predecessors in title has right of user of the suit lane, whether the judgment and decree by the Courts below in favour of the plaintiffs can be sustained?”
3.The plaintiffs had originally filed a suit for bare injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit schedule property which was subsequently amended to include the relief of declaration. It is the case of the plaintiffs that the plaintiffs have entered into the suit property as a tenant 23 years prior to the filing of the suit. The 2nd respondent under a registered Sale Deed dated 20.12.2012 purchased the suit property. From the date of purchase, the plaintiffs are in absolute possession and enjoyment of the property by exercising their rights of ownership. The revenue records have been mutated in favour of the 2nd plaintiff. The plaintiffs would contend that there is a lane on the 3/17 https://www.mhc.tn.gov.in/judis S.A.No.1101 of 2021 northern portion of the suit property exclusively belonging to the plaintiffs. This alone has been described as the “B” schedule property. The plaintiffs have been using the lane for more than nine decades. The defendants have no right or title or possession of the same.
4.The plaintiffs would submit that they have been in enjoyment of the air and light through the suit lane and that apart, the rain water, waste and drainage water drain out through the pipe line installed in the suit land into the public ditch. The plaintiffs have a door facing the lane through which they are maintaining the same. In the meanwhile, the 1st defendant had purchased the property to the North of the suit property under a Sale Deed dated 02.03.2007 and he is enjoying the same along with the 2nd defendant. The defendants had demolished the existing house and put up a new terraced construction. The constructions have been done without obtaining permission from the Town Panchayat and that too without leaving the mandatory vacant space. When the defendants had demolished the old house, the defendants damaged the wall abutting the suit lane and were making 4/17 https://www.mhc.tn.gov.in/judis S.A.No.1101 of 2021 arrangements to put up windows on the Southern wall of the plaintiffs. The plaintiffs have objected to the same and directed the defendants not to open out the windows or put up sunshades on the suit lane. Since the parties were not reaching a consensus, a panchayat had taken place, however, the defendants have refused to show the Sale Deed and started to claim a right over the “B” schedule property. They also attempted to encroach onto the same which necessitated the filing of the suit.
5.Pending the suit, the defendants put up six windows in the lower side of the wall and four windows on the upper side of the wall with a sunshade protruding to a width of ½ feet and encroached into the property of the plaintiffs. Due to this construction, there is no privacy in the bathroom and toilet which are situate near the suit lane. Since the constructions were put up pending the suit the plaintiffs had amended the suit prayer including the relief of declaration in respect of “B” schedule property, for mandatory injunction directing the 5/17 https://www.mhc.tn.gov.in/judis S.A.No.1101 of 2021 defendant to remove the sunshade, windows and toilet besides the earlier relief of injunction.
6.The defendants had filed their Written Statement inter alia contending that the lane between the houses of the plaintiffs and the defendants is not being used as an access by the plaintiffs to reach their house since they are having an access directly from the road on the Eastern side. The lane is kept by the predecessors in title for common use of both the houses, for repairing their respective walls and white washing their respective walls and to open out their windows, sunshades of their houses. Thus, the suit lane is a common one. The defendant has an easementary right over the same. With an intention to create disturbance to their possession, the plaintiffs have fraudulently claimed that the lane belongs exclusive to them. In the earlier documents of the defendants the lane is described as a common lane. Even before the 2nd plaintiff had purchased the property, the suit lane was in existence. The 2nd plaintiff is a Court staff and taking advantage 6/17 https://www.mhc.tn.gov.in/judis S.A.No.1101 of 2021 of her position, has been threatening the defendants and fraudulently claiming a right over the suit lane. The defendants would contend that their house and plot originally belonged to one Kandasamy Gounder who purchased the same under a registered Sale Deed dated 08.02.1954. Under the Sale Deed, the suit lane has also been described. After the lifetime of Kandasamy Gounder, there was a partition between the sons of Kandasamy Gounder, namely, D.K.Murugesan and Gopal. The plaintiffs had purchased the share of Gopal and the defendants have purchased the share of Murugesan. Therefore, it is the contention of the defendants that the suit lane is a common lane. They would contend that they have put up constructions within their site and have left the space of 1 ½ feet on the Southern side of the common lane vacant.
7.An additional Written Statement was filed by the defendants once again reiterating that the suit lane was a common lane. They would further submit that in the Sale Deed dated 17.05.2000 of one Sundaravardan, there is no recital about the suit lane. However, the 7/17 https://www.mhc.tn.gov.in/judis S.A.No.1101 of 2021 plaintiffs have created the Sale Deed dated 20.12.2012 contrary to the above Parent Deed. There is no wall on the Northern side of the plaintiffs' property, even the wall has not been described in her document or the Commissioner's report and plan. While so the 2nd plaintiff by taking advantage of the status as Court employee obtained police aid suppressing the pending suit and by misrepresenting before the Chief Judicial Magistrate. Thereafter, with the help of the police she has put up a wall just two month prior to the filing of the suit. The defendants would therefore submit that the plaintiffs have come to Court with unclean hands and is therefore not entitled to any relief.
8.The learned District Munsif, Dharmapuri, had framed the following issues for consideration:
“vGtpdhf;fs;:
(1)thjpfSf;F jhthtpy; mth;fs; nfhhpa
epue;ju cWj;Jf;fl;lis ghpfhuk;
fpilf;fj;jf;fjh ?
8/17
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S.A.No.1101 of 2021
(2)tpsk;gi
[ f ghpfhuk; nfhuhky; jhf;fy;
bra;ag;gl;l mry; tHf;F epiyf;fj;jf;fjy;y
vd;W gpujpthjpfshy; Twg;gLtJ rhpahd
xd;wh?
(3)thjpfSf;F fpilf;fj;jf;f ,ju
ghpfhu';fs; ahit?
TLjy; vGtpdhf;fs;:
(1)2k; thjpf;F “M” ml;ltiz brhj;ij
bghWj;J jhthtpy; mth; nfhhpa tpsk;g[if
ghpfhuk; fpilf;fj;jf;fjh ?
(2)thjpfSf;F jhthtpy; mth;fs; nfhhpa
braYWj;Jf; fl;lis ghpfhuk;
fpilf;fj;jf;fjh ?
(3)tHf;Fiuapy; Fwpg;gpl;Ls;s tHf;F
brhj;Jtptuk; rhpahdjh?”
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S.A.No.1101 of 2021
9.On the side of the plaintiffs, two witnesses have been examined as PW1 and PW2 and Ex.A.1 to A11 were marked. On the side of the defendants, three witnesses have been examined and Ex.B.1 to Ex.B.6 were marked.
10.Ultimately, the suit was decreed as prayed for. Challenging the same, the defendants had filed A.S.No.34 of 2017 on the file of the learned Additional Subordinate Judge, Dharmapuri. The learned Judge also concurred with the Judgment and Decree of the trial Court and dismissed the appeal. Challenging the same, the defendants had filed this appeal and the same has been admitted on the substantial questions of law extracted Supra.
11.Heard the learned counsels appearing on either side and perused the papers.
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12.The “B” schedule property which is the subject matter of the suit has been described as follows:
“M”ml;ltiz jUkg[hp gjpt[ khtl;lk; jUkg[hp nkw;F rhh;gjptfk; jUkg[hp tl;lk; bts;nsft[z;ld;
ghisak; fpuhk rh;nt vz;/85/A1A1C1C2A1
,jpy; jUkg[hp lt[d; rj;jpuk; nky; bjUtpy;
rj;jpuk; nky; bjUt[f;F fpHf;F. rz;Kfk;
brhj;jpw;F nkw;F. $PtKUfd; fpua tPl;ow;F
bjw;F. bt';fnlrd; fpuak; bgw;W tPl;ow;F
tlf;F ,jd; kj;jpapy; fpHnky; ,Ug[wKk; 69 mo bjd;tly; ,Ug[wKk; 13 mo mst[ bfhz;l “m” ml;ltiz brhj;jpy; tlg[wk;
fpHnky; 48 1/2 moePsKk; bjd;tly; 3 mo
mfyKk; mst[s;s fpHnkyha; bry;Yk; re;J
kw;Wk; mjd; fpHg[wk; mnj mfyj;jpy; 2012
mo ePsj;jpy; cs;s fhyp gFjpa[k; cl;gljhd;/ 11/17 https://www.mhc.tn.gov.in/judis S.A.No.1101 of 2021 nkw;go re;J kw;Wk; mjd; fpHg[w gFjpapy;
thjpfs; tPl;od; fHpt[ ePh; Vwthd jz;zhP ;
kiHePh; khK:y;go tpGe;J btspnaWk;
ghj;jpaKk; nkw;go “m” ml;ltiz brhj;jpy;
cs;s tPl;Lf;F nkw;go re;jpd; tHpahf
rj;jpuk;nky; bjUtpd; K:yk; nghftu khK:y;
eiltHp ghj;jpaKk; tz;o thfdhjpfs;
nghftu ghj;jpaKk; cl;gl.”
13.The plaintiffs claims exclusive right over the same on the basis of Ex.A.1 – Sale Deed in favour of the 2nd plaintiff. The defendants have purchased the property under Ex.A.8. A perusal of the same would show that there is no reference to the suit lane and no such right of user and enjoyment has been conferred under Ex.A.8. The defendants had also admitted the same. It is an admitted fact that the properties of the defendants and the plaintiffs belonged to the same land owner, Kandasamy Gounder. The said Kandasamy Gounder's two sons are D.K.Murugesan and Gopal. The said Murugesan and Gopal 12/17 https://www.mhc.tn.gov.in/judis S.A.No.1101 of 2021 have partitioned the property among themselves under Ex.B.3 – Partition Deed. A perusal of the schedule of properties allotted to each of the parties would clearly show that the suit lane has been conveyed only to the plaintiffs predecessor in title, Gopal. The property of the D.K.Murugesan is shown as the Northern boundary for the lane and it is this property that the defendants had purchased. Further, the description of the property of the 1st defendant under Ex.A.8 does not show the existence of the lane on the Southern side of the property and no right of user has been conferred upon the defendant.
14.The description of the property that was allotted to the share of Murugesan under Ex.B.3 is as follows:
“jUkg[hp o/ jUkg[hp nkw;F rg;o/ jUkg[hp tl;lk;. jUkg[hp lt[d.; rj;jpuk; nky; bjUtpy; rj;jpuk; nky; bjUt[f;F fpHf;F. bghd;Du';fk;. Re;jh;. nrfh; tifawh tPlL ; f;F tlf;F. ghz;L tifawhf;fs; tPl;ow;F nkw;F. yl;Rkz Iah;
b$auhkd; tifawh brhj;Jf;F bjw;F. ,jd;
13/17 https://www.mhc.tn.gov.in/judis S.A.No.1101 of 2021 kj;jpapy; fpHnkyo 70. bjd;tlyo 22 1/2 rJuo 1575 cs;s kidepyk; g{uht[k;/ ,jpy; fpHnkyo 50. bjd;tlyo 22 rJuo 1100 cs;s rJuoapy; kz;. br';fy; Rtw;wpd; nky;
K::';fpyoj;J k';fS:h; XL nta;j gpy;iy tPL 1 g{uht[k; ,jpypUf;Fk; fjt[fs; $d;dy;fs;/ fl;ol rhkhd;fs; KjyhdJk;. nkw;go tPl;od; ehd;F gf;f Rth;fs; g{uh ghj;jpaKk; nkw;go tPl;oy; cs;s kpd;rhu rfpjk; vz;/2400 kPll ; h;
rfpjk; g{uh ghj;jpaKk;. nkw;go tPl;oy; cs;s
FoePh; rh;t!
P ; ,izg;g[ vz;/5549 cs;s rfpjk;/
nkw;go mst[f;Fl;gl;l tlg[wk; cs;s re;J
ghj;jpaKk; nkw;go tPl;od; fHpt[ ePh;. KiHePh;
khK:y;go tpGe;J btspnaWk; ghj;jpaKk;
nkw;go tPl;Lf;F nkw;go rj;jpuk; nky; bjUtpd;
K:yk; nghftu eiltHp ghj;jpak; tz;o
thfdhjpfs; nghf;Ftuj;J ghj;jpak; cl;gl
nrh;e;jJ/”
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S.A.No.1101 of 2021
15.A perusal of the schedule would clearly show that the party to whom the “B” schedule has been allotted has the right of way through Chathiram West Street. The deed is totally silent about any lane existing on the Southern side of the defendants' property. It is also to be noted that the Commissioner's report would show that the defendants have constructed upon the entire property and there is no portion which has been set apart for the purpose of the lane. The lane now available exclusively belongs to the plaintiffs by reason of her documents of title, particularly, Ex.B.3 – Partition Deed between her predecessors in title. Therefore, the substantial question of law answered against the defendants.
Accordingly, the Second Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
30.09.2022
Index : Yes/No
Internet : Yes/No
Speaking order / Non speaking order
mps
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S.A.No.1101 of 2021
To
1.The Additional Subordinate Judge,
Dharmapuri.
2.The District Munsif,
Dharmapuri.
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S.A.No.1101 of 2021
P.T. ASHA, J,
mps
S.A.No.1101 of 2021
and
C.M.P.No.21052 of 2021
30.09.2022
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