Madras High Court
Balakrishnan Chettiar vs Rajeswari on 16 August, 2018
Author: T.Ravindran
Bench: T.Ravindran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 19.07.2018
PRONOUNCED ON : 16.08.2018
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S. A.No.698 of 2005
Balakrishnan Chettiar ...Appellant
Vs.
1. Rajeswari
2. Selvam Ammal
3. Arulmigu Alunthuraiyar Devasthanam
represented by its
Executive Officer, Kilapalur village
Ariyalur Dist. ....Respondents
Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 10.01.2003 in A.S.No.119 of 1993, on the file of the Subordinate Court, Ariyalur in confirming the judgment and decree dated 08.12.1992 in O.S. No.242 of 1990 on the file of the Principal District Munsif Court, Ariyalur.
For Appellant : Mr.G.Saravanan
For Respondent 1 : Mr.P.Dinesh Kumar
for M/s. Sarvabhauman Associates
For Respondents 2 & 3 : No appearance.
Set exparte
vide order dated 19.07.2018
JUDGMENT
Challenge in this second appeal is made to the judgment and decree dated 10.01.2003 in A.S.No.119 of 1993, on the file of the Subordinate Court, Ariyalur confirming the judgment and decree dated 08.12.1992 in O.S. No.242 of 1990 on the file of the Principal District Munsif Court, Ariyalur.
2. Parties are referred to as per their rankings in the trial Court.
3. Suit for declaration and permanent injunction.
4. The case of the plaintiff, in brief, is that he is the absolute owner of 0.10 cents of property situate in Natham S.F. No.208/5 at Keelapalur and S.F. No.208/6 situated to the east of S.F. No.208/5 belongs to the third defendant and originally S.F.No.208/5 belonged to Venkatasea Iyer and he had sold some portion in the west in favour of a muslim from whom one Sherif Rawther had purchased the same and thereafter Mohamed Ismail Rawthur purchased that portion on 11.09.1973 and on 09.10.1975, the said portion was purchased by the plaintiff and the said portion measures to an extent of 17 feet east-west commencing from 1 feet in the common lane belonging to the plaintiff and Krishnamoorthy on the west of the house of the plaintiff and thereafter, the remaining portion of 32 feet west to east in S.F. No.208/5 was purchased by the plaintiff from Venkatasa Iyer and others on 12.04.1998 and thus the plaintiff had become the absolute owner of S.F.No.208/5 and enjoying the same and also prescribed title to the said property by way of adverse possession and there is an old mud and white stoned wall on the east of the property purchased by the plaintiff and beyond that wall, there is a lane of 2 feet east west which belongs to the plaintiff absolutely and the lane is running north to south and the sale deed dated 12.04.1998 includes the abovesaid lane also and the property lying to the east of the 2 feet lane belongs to the third defendant and the defendants have no right whatsoever in the 2 feet lane and on the other hand, the said lane had been left out by the predecessors in title of the plaintiff for the purpose of ingress and egress to effect the repairs of the eastern wall and also to have access to thottam portion. Beyond that wall, there was a lane of 1 > feet on the east and the first defendant was having a thatched shed in the east of the abovesaid 1> lane and the same got destroyed in fire and the first defandant, thereafter, put up a wall upto the western edge of the abovesaid 1> feet lane and the first defendant is running a hotel in S.F.No.208/6 and the first defendant's husband dumped the waste leaves and also washing hands in the suit property and also throwing rubbish materials in the suit property and creating nuisance to the plaintiff and therefore, the plaintiff issued a notice to the defendants with reference to the same and the first defendant's husband sent a reply containing false and frivolous allegations on 03.04.1990 and in the said reply, he has stated that the first defendant is an usufructuary mortgagee from one Mani including the suit property and the said Mani had died and his legal heir is the second defendant and however the fact remains that S.F. No. 208/6 is the property of the third defendant and in as much as the defendants attempted to dispute the title of the plaintiff to the suit property and thereby interfere with his possession and enjoyment, accordingly, the plaintiff has laid the suit for appropriate reliefs.
5. The case of the defendants, in brief, is that after denying the allegations contained in the plaint, according to the defendants, the first defendant entered into the property as an usufractuary mortgagee and the then occupant of defendant's site, Mani had described the disputed lane as that of the lane belonging to the site in occupation of the defendant and there were some earlier proceedings in respect of the defendant's site and the lane in between the first defendant and one Selvam in O.S. No.74/1986 on the file of Ariyalur District Munsif Court and in the said suit, a commissioner was appointed and he has inspected the property and submitted his report and plan giving a full details in respect of the disputed lane and the site in the occupation of the first defendant and therefore, the disputed lane is only in the occupation of the first defendant and her predecessors in interest and the allegations that the first defendant had shifted the western wall as stated in the plaint has never occurred and the door step of the defendants is facing only the lane and the provision has been made therein to throw the leaves and washing hands in the lane would go to show that it is only the first defendant who has been in the possession and enjoyment of the disputed lane and the plaintiff is not in the possession and enjoyment of the disputed lane and therefore the allegation of the plaintiff that the defendants had caused nuisance to him is baseless and the suit is liable to be dismissed.
6. In support of the plaintiff's case, Pws.1 and 2 were examined, Exs.A1 to A7 were marked. On the side of the defendants, DWs 1 and 2 were examined, Exs.B1 and B2 were marked and Ex.C1 to C5 were also marked.
7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Courts below were pleased to dismiss the plaintiff's suit and aggrieved over the same, the present second appeal has been preferred.
8. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration:
(i)Have not the courts below erred in having failed to consider the legal aspect that the boundaries of any property shown in the documents of title will prevail over the extent show thereon?
(ii) Have not the courts below committed grave error in having failed to find that the first respondent who is only a mortgagee of the adjacent property, is not entitled to dispute the title of the appellant to the suit property?
9. The plaintiff claims title to the suit property based on the sale deeds dated 09.10.1975 and 12.04.1988. The abovesaid sale deeds have come to be marked as Exs.A1 and A2. According to the plaintiff, the suit property originally belonged to Venkatasea Iyer and after the same, changed ownership to others and finally it is stated that the plaintiff had acquired the suit property by way of Exs.A1 and A2 sale deeds. On a perusal of Exs.A1 and A2, to which documents there has been no serious challenge put by the defendants, it is found that by way of Ex.A1, in S.F. No.208/5, the plaintiff has purchased an extent of 16 feet east west and while describing the property comprised in Ex.A1, it has been stated to be located within the specific boundaries and from the same, it is found that there is a common lane in between the said property and the property of one Krishnamoorthy and accordingly, it is seen that from the commissioner's report and plan marked in the present suit, the common lane lying in between the property comprised in Ex.A1 and Krishnamoorthy's property, is measuring 2 feet and so adding one feet of the common lane to the plaintiff's property, it is found that as per the case of the plaintiff it is seen that the plaintiff by way of Ex.A1 had purchased an extent of 17 feet east west commencing from 1 feet in the common lane belonging to the plaintiff by way of Ex.A1 and Krishnamoorty on the west of the same. From Ex.A2, it is found that the plaintiff had purchased the remaining extent in S.F. No. 208/5 within the specific boundaries and as per the said document, east west measurement purchased is 32 feet and in Ex.A1, it has been specifically mentioned that there is a two feet lane on the eastern side kept in common. Thus, it is found that as per Exs.A1 and A2 sale deeds in toto, the plaintiff had purchased inclusive of the common lane of 2 feet on the eastern side, an extent of 49 feet east west. Now, according to the plaintiff, the abovesaid purchase made by him under Exs.A1 and A2 also comprised of the lane portion of 2 feet east west lying on the eastern side and accordingly, it is stated that the abovesaid 2 feet lane on the eastern side is being used by the plaintiff for having access to the garden portion and effecting repairs on the eastern wall and the defendants without any authority are attempting to interfere with his possession and enjoyment of the said 2 feet lane . Hence, according to the plaintiff, he has been necessitated to institute the suit for appropriate reliefs.
10. Though the defendants would contest the plaintiffs' lis by putting forth the case that they are in the occupation of the disputed lane measuring 2 feet east west, the first defendant claims to be in the occupation of the disputed lane as an usufractuary mortgagee from one Mani. However, as to the ownership of Mani with reference to the disputed lane, there is no document forthcoming. Even there is no material placed on record on part of the first defendant as to the property mortgaged in her favour by Mani as to evidence whether the same includes the disputed lane or not. It has not been explained by the defendants in the written statement as to on what basis the defendants, particularly, the first defendant claims title, possession and enjoyment of the disputed 2 feet lane. When the claim of the first defendant is that he has been enjoying the same on the basis of the usufractuary mortgage, however, when with reference to the same, there is no material forthcoming, either through the mortgage deed or the title deeds of the mortgagor Mani, it is found that the defendants have been resisting the plaintiff's case without any basis as if they also own right, possession and enjoyment of the disputed lane.
11. No doubt, the first defendant would state that with reference to the disputed lane, some dispute arose between the first defendant and one Selvam in O.S. No. 74 of 1986 on the file of Ariyalur District Munsif Court and according to the first defendant, in that suit an advocate commissioner was appointed and the commissioner has filed his report and plan wherein the disputed lane portion is shown in the occupation of the first defendant. Accordingly, the report and the plan of the advocate commissioner in O.S. No. 74 of 1986 have come to be marked as Exs.B1 and B2. However, when the plaintiff is not a party to the proceedings in O.S. No. 74 of 1986 and in addition to that when the commissioner's report and plan cannot be the basis for determining the possession of the parties to the suit, it is found that absolutely there is no material on the part of the defendants, particularly the first defendant, for claiming any right, possession and enjoyment in respect of the disputed lane portion.
12. Be that as it may, the plaintiff having laid the suit for necessary reliefs, should establish his case and as abovenoted for claiming the title to the suit property, particularly, the disputed 2 feet lane portion, the plaintiff relies upon Exs.A1 and A2. Further, as seen above, by way of Exs.A1 and A2 in toto, the plaintiff is found to have acquired right in S.F. No.208/5 measuring east west 49 feet. In this matter, the commissioner had inspected the property and filed his report and plan marked as Exs.C1 to C5. On a perusal of the same in toto, it is found that according to the commissioner, the distance between the western wall of the plaintiff's shop (5/51A) and the western wall of defendants' Muniyandi hotel inclusive of the disputed lane portion is 48 feet 3 inches. Thus, it is found that the abovesaid extent of property from the western wall of the plaintiff's shop and the western side of the defendants' hotel being found to be tallying with the east west measurement acquired by the plaintiff under Exs.A1 and A2 and when as above seen, the plaintiff has acquired the property measuring east west 49 feet and even assuming for the sake of arguments, strictly speaking, excluding the common lane portion lying on the western side belonging to the plaintiff and Krishnamoorthy, as per the measurement available under Exs.A1 and A2, the plaintiff is found to have acquired the property measuring east west 48 feet and accordingly when as per the commissioner's report and plan, the portion lying in between the western wall of the plaintiff shop and the western wall of the defendants' shop measures 48 feet and 3 inches, it is found that more or less, the commissioner's report and plan tally in all aspects to the property acquired by the plaintiff under Exs.A1 and A2 excepting the small extent of 3 inches. In this connection, it is argued by the plaintiff's counsel that considering the boundaries recitals found in Exs.A1 and A2, the courts could easily come to the conclusion that it is only the plaintiff who is in the possession and enjoyment of the disputed lane portion and accordingly considering the boundaries recitals found in the abovesaid documents, it is found that as per the same, the plaintiff is found to have acquired the property lying to the west of Kannan's house and backyard and when Kannan's house and the backyard is not shown to be covering the disputed lane portion and considering the east west measurement acquired by the plaintiff, it is seen that it is he who has title to the disputed lane portion and the same is also in his possession and enjoyment. Accordingly, in the light of Ex.C4, it is seen that adding the 1 feet east west lane of the 2 feet common lane lying in between the Krishnamoorthy's house and plaintiff's shop, further adding the distance from the plaintiff's shop and the dwelling house measuring 14 feet and 9 inches and further adding the extent of the tiled house measuring 30 feet and 2 inches east west, it is found that the total extent east west would come to 45 feet and 11 inches and inclusive of 2 feet lane on the eastern side, it comes to 47 feet and 11 inches, whereas as per Exs.A1 and A2, the plaintiff is entitled to 49 feet inclusive of the common lane lying in between his shop and Krishnamoorthy's property. Accordingly, it is found that though the plaintiff would claim the disputed lane portion is measuring 2 feet east west, as per the commissioner's report and plan, it is only 1 feet and 10 inches, accordingly, considering the extent of property purchased by the plaintiff under Exs.A1 and A2, it is seen that the lane portion also falls within the plaintiff's property and in such view of the matter, it is found that the defendants are unable to place any document worth acceptance to evidence that they also have the claim of title, right or interest in the disputed lane portion other than marking Exs. B1 and B2. However, EXs.B1 and B2 are not found to be germane for determining the issues involved in the suit. It is thus found that it is only the plaintiff who has title, possession and enjoyment of the suit property inclusive of the disputed lane portion. The Courts below seem to have negatived the plaintiff's suit on the footing in as much as the plaintiff had purchased the property under Ex.A2 only lying to the west of Kannan's house backyard and as the western boundary had not been described as lane, it is the determination of the courts below that the lane portion would not have been acquired by the plaintiff. However, when according to the plaintiff's claim, the lane portion forms part of the property acquired by way of Exs.A1 and A2, it is obvious that the lane portion would not be shown as the eastern boundary. Accordingly, it is found that in Ex.A2, eastern boundary shown as the property of one Kannan and therefore, considering the recitals under Exs.A1 and A2 as well as the measurements acquired by the plaintiff by way of the abovesaid documents plus the commissioner's report and plan marked in the present suit, wherefrom, we can easily gather that the property acquired by the plaintiff under Exs.A1 and A2 includes the disputed lane portion also and in such view of the matter, it is found that the courts below had erred in rejecting the plaintiff's case without properly analysing the materials placed on record.
13. In the light of the above discussion, considering the boundary recitals found in Exs.A1 and A2 as well as the extent of property purchased by the plaintiff by way of the abovesaid sale deeds in conjunction with the commissioner's report and plan, all would go to disclose that the plaintiff had purchased the property inclusive of the lane portion in dispute and in such view of the matter, it is found that the courts below had failed to appreciate the abovesaid aspects of the case in the right perspective and erred in dismissing the plaintiff's case without even appreciating the fact that the defendants have failed to place any material worth acceptance for laying any claim of title, right or interest in respect of the disputed lane portion. Further, there is also no material placed by the defendants to establish their claim of the possession and enjoyment of the disputed lane portion. On the other hand, when the plaintiff has established his claim of title to the property inclusive of the lane portion in dispute, it is needless to mention that it is only the plaintiff who is in possession and enjoyment of the same. The substantial questions of law formulated in this second appeal are accordingly answered in favour of the plaintiff and against the defendants.
14. In conclusion the judgment and decree dated 10.01.2003 passed in A.S.No.119 of 1993, on the file of the Subordinate Court, Ariyalur confirming the judgment and decree dated 08.12.1992 passed in O.S. No.242 of 1990 on the file of the Principal District Munsif Court, Ariyalur are set aside and resultantly, the suit laid by the plaintiff in O.S.No.242 of 1990 is decreed as prayed for with costs. Consequently, the second appeal is allowed with costs. Connected miscellaneous petition, if any, is closed.
16.08.2018 Index : Yes/No Internet:Yes/No bga To
1. Principal District Munsif Court, Ariyalur
2. Subordinate Court, Ariyalur
3. The Section Officer, V.R.Section, High Court, Madras.
T.RAVINDRAN,J.
bga Pre-delivery Judgment in S. A.No.698 of 2005 16.08.2018