Madras High Court
Sakthivel, Jayavel, Shanmugha Vadivel ... vs V. Kanniyan, Palaniammal, Ponnusamy, ... on 29 July, 2002
JUDGMENT A. Ramamurthi, J.
1. The defendants in the suit are the appellants.
2. The case in brief is as follows:- The plaintiffs filed a suit for declaring their right to use the common municipal lane A B C D E F G H and permanent injunction and also for mandatory injunction directing the defendants to remove the obstruction at points A H B C J K and F G and other obstructions. The plaintiffs and the defendants are residents of the north-south 10 feet common lane branching off from Periya Onkaliamman Koil Street, Thiruchengode. They are having houses in the lane. This is the lane through which the plaintiffs and the defendants reach their houses from the street and also take their men, carts, cattle, etc., all these years. There is no other passage. Defendants 1 to 3 are the sons of the 4th defendant. The lane is vested with the Municipality and they have also laid water main drawn from the main in Ongaliamman Koil Street towards north upto Harijan Colony. The Municipality has also constructed a drainage and electrified the lane. In the sale deeds and the prior title deeds of the parties, the 10 feet lane is mentioned as boundary. The defendants dug up a foundation across the lane at point A H and constructed steps to make it impossible for the plaintiffs to take their carts, cattle, etc,. The complaints to the police and other authorities were of no avail. The defendants in order to wreak vengeance had put up a Pandhal at point B C J K blocking the lane and also constructing steps. On account of this act, the length of the lane has been very much narrowed making it impossible for them to pass through the lane. Hence the suit.
The 4th defendant filed a written statement adopted by defendants 1 to 3. There is no common lane of 10 feet in breadth branching off from the Amman Koil Street. It is not true to say that the plaintiffs are having houses in the alleged common lane. The other allegations made by the plaintiffs that this is the only pathway is also denied. The defendants have got three houses bearing door No.7, 8 and 9 of Amman Koil street and the vacant site west of the houses and east of the houses bearing door Nos.2, 3 and 4 and they are part of the properties. The defendants are entitled to the vacant site exclusively. Immediately north of the vacant site is the house of the 1st plaintiff's brother. There are three steps constructed in the southern extremity of the alleged lane and it is impossible for any carts to get down from the Koil street into the alleged lane portion. The defendants have been using the vacant portion corresponding to point A B F H. The plaintiffs have got access through oddar lane situated on the western side of the plaintiffs' houses and they have been using the Oddar lane as access to their property. The Municipality has laid water pipeline only with the consent of the defendants. They have not constructed any drainage and they have also not electrified. There is a lane from oddar lane to the houses of the plaintiffs. So far as A C F H is concerned, it is shown as only the property of the defendants in the documents. The steps along A H is in existence for over 50 years. The defendants constructed parapet walls for the steps. They wanted the defendants to permit them to use the portion as pathway and since they refused, the present suit is filed. The defendants are not entitled to claim any relief and as such, the suit is liable to be dismissed.
The defendants also filed additional written statement alleging that according to para 4 of the plaint, Thiruchengode Municipality is the owner of the suit property, is false. The 4th defendant is the absolute owner of the property. The Municipality has not constructed any drainage. Thiruchengode Municipality is also a necessary and proper party since the suit is of declaratory in nature. Hence, without the Municipality as party to the suit, there cannot be any end of the proceedings. The suit is bad for non-joinder of necessary and proper party.
The trial court framed 7 issues and on behalf of the plaintiffs, P.Ws.1 to 4 were examined and Exs.A-1 to A-59 were marked and on the side of the defendants, D.Ws.1 and 2 were examined and Exs.B-1 to B-27 were marked. The reports and plans filed by the Commissioner were marked as Exs.C-1 to C-4. The trial court decreed the suit and aggrieved against this, the defendants preferred A.S.No. 58 of 1989 on the file of Sub Court, Sankagiri and the learned Judge after hearing the parties, dismissed the appeal. Aggrieved against this, the defendants have come forward with the present second appeal. The 4th appellant died after the filing of the appeal and a memo was filed to the effect that the legal heirs are only appellants 1 to 3, who are already on record.
3. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration:
(1) Whether the conclusion of the lower appellate court that the defendants have not established that the disputed lane belongs exclusively to them is supported by evidence ?
(2) Whether in the absence of Municipality as the Government as a party to the suit, it would be open to the respondents to pray for and obtain the reliefs in the suit ?
4. Heard the learned counsel for the parties.
5. The plaintiffs filed the suit for declaring their right to use the common municipal lane marked as A B C D E F G H in the plaint plan and for permanent injunction and for mandatory injunction directing the defendants to remove the obstructions at points A H B D and F G and other obstructions. The plaintiffs and the defendants are having houses on either side of the disputed lane. According to the plaintiffs, it is a 10 feet width lane existing for many decades and through which only, both the plaintiffs and the defendants reach their Peria Onkali Amman Koil Street and also take their men, carts, cattle, etc. There is no other way. The Municipality had also constructed drainage and electrified the lane. There are recitals in the prior title deeds of the parties about this 10 feet lane.
6. The appellants, on the other hand, contended that there is no common lane of 10 feet in breadth branching off from Peria Onkaliamman Koil Street and the disputed property belong to them. It was never used as a pathway by anybody and the plaintiffs have got other right of way. The appellants are entitled to the entire portion of the vacant site exclusively and absolutely. When the plaintiffs have come forward describing the lane as a municipal lane, then necessarily the Municipality is also a necessary and proper party and the suit is bad for non-joinder of necessary parties. The trial court as well as the lower appellate court rejected the contentions of the appellants. The learned Senior counsel for the appellants contended that the appellants are true owners and they have got good title against all except the Municipality or the Government. The courts below also failed to note that the respondents have alternate pathway through oddar street and they need not use the disputed lane portion. The learned senior counsel for the appellants also contended that the burden of proof is only upon the plaintiffs to establish that it was a common lane belonging to the Municipality. Further more, the appellate court also has not determined the point for determination and there is non compliance of Order 41 Rule 31 Civil Procedure Code. Although there is a concurrent finding in favour of the respondents, yet the suit is bad for non-joinder of the Municipality. If Municipality is impleaded as one of the parties, then it will throw light into the matter about the existence of a lane or the vesting of the same with the Municipality.
7. The learned senior counsel for the appellants relied onV.Manakkan and others ..vs.. Veera Perumal that "Findings without pleadings and misreading of documents would constitute error of law warranting interference in second appeal - Plaintiff should stand or fall on strength of his own case and not rely on alleged weakness of defendant's case". The same view has been reiterated in another decision of this Court in Periasamy ..vs.. Joseph Nadar (1999 (I) MLJ 769).
8. It has been held in Sri Raja Sobhanadri Appa Rao Bahadur ..vs.. Sri Raja Parthasarathi Appa Rao (Vol.62 MLJ 154) that where a defendant is permitted to file an additional written statement and he therein raises an objection as to non-joinder, which is later on made the subject matter of a fresh issue, the provisions of R.13 of Or.1 of the Code of Civil Procedure are not infringed.
9. The appellants also relied on Pasumarthi subbaraya Sastri ..vs.. Mukkamala Seetha Ramaswami (65 MLJ 290) as follows:
"In a suit by the plaintiff to eject the defendant from the suit site and to remove a pial erected by him, the defendant raised a plea that as the land belonged to the Municipality and that as he had put up the pial with its permission, the Municipality was a necessary party".
10. It has also been held in K.M.M.Kadar Hussain ..vs.. O.M.R.Selvaraj and others (1997 (II) CTC 559) that "Appellate Court should raise points for determination and state reasons for decision - Provisions of Order 41 Rule 31 is mandatory - Failure to follow mandatory provisions would render judgment defective".
11. The learned counsel for the respondents relied on, Sri Ram Pasricha ..vs.. Jagannath relating to Order 1 Rule 9 about non-joinder of parties, the plea should be taken at earlier opportunity.
12. It has been held in S.Narain Bera ..vs.. Chandra Bera (1924 Calcutta 1050) that in order to determine whether a suit is maintainable and whether certain parties are necessary parties or not, it is necessary to ascertain the nature of the plaintiff's case as set out in the plaint.
13. It has been held in S. Narayana Rao ..vs.. R.Narasinga Rao that concurrent findings of fact in favour of plaintiff after appraisal of evidence that absence of impleading Municipality would not be fatal to suit and it cannot be disturbed in the second appeal.
14. It has also been held in Beharilal ..vs.. Bhuri Devi that "Grantee of land from Mandi Committee seeking possession - Government or Mandi Committee not joined - Claim not being sought for against Government or Mandi Committee - Omission to join them not vitiated by Order 1 Rule 13 CPC".
15. Reliance is placed on Sivaprakasam Mudaliar ..vs.. Selvaraj Padayachi (1990 (II) MLJ 439) under Order 41 Rule 31 CPC, wherein it is held as follows:
"Though a point has not been framed by the appellate Judge, he has considered the entire evidence on record and discussed the same in detail and ultimately came to the conclusion. His findings are supported by his reasons. Hence there is substantial compliance with the provisions of Order 41, Rule 31, Civil Procedure Code and the judgment is not in any manner vitiated by the absence of of a point".
Similar view has also been reiterated in Nachimuthu ..vs.. The State of Tamil Nadu, by the Collector of Salem and another (1983 II MLJ 258).
16. It has also been held in Sahul Hameed,D. ..vs.. Swamy Nellaiappaer Sri Kanthimathi Ambal Devasthanam, Tirunelveli through its Executive Officer (2000 - 3 L.W.806) as follows:
"Judgment of Appellate Court should be self contained, facts should be clearly set out - Non framing of points for determination does not warrant upsetting the judgment of Lower Appellate Court, as long as it has adverted to the materials on record.
When entire pleadings and oral and documentary evidence and its findings are supported by reasons, failure to frame points for consideration cannot vitiate its judgment".
The same view has been reiterated in Mygapula Ganganna and others ..vs.. Sri Rajah Uppalapati Venkata Vijaya Gopalaraju Garu (Vol.31 MLJ Reports 870).
17. It has been held in Palanisami Pillai ..vs.. The Commissioner, HR & CE (Admn.) Dept., (1997 - 1 L.W.704) that "Duty of appellate court hearing an appeal to raise and set out the points for determination, and to state the reasons for the decision and focus attention of the court and the parties on the specific and rival contentions arising for determination - Failure to do so - Powers of the Bench in Letters Patent Appeal to consider the whole case on evidence and render decision".
18. The learned counsel for the respondents relied upon O.N.Natarajan and another ..vs.. The Municipal Council, Turaiyur (1990 (II) MLJ 506) wherein it is stated as follows:
"Once it is proved that the suit street is a public street, it follows that the plaintiffs being owners of the property abutting the public street have the right of access to the suit street from any part of their premises and that the defendant is not entitled to put up any fence preventing the plaintiffs from having access to the said street".
19. It has also been held in Bharathamatha Desiya Sangam ..vs.. Roja Sundaram that "Owner of land abutting road is entitled to access to it from every point on the boundary of land - He is entitled to enforce his right notwithstanding the fact that there is some space available between the offending constructions - Offending constructions would constitute a continuing wrong".
Similar view has also been reiterated in Damodara Naidu and others ..vs.. Thirupurasundari Ammal and another (1972 (II) MLJ Reports 4) and Ganapathi Mudaliar ..vs.. Ponnuswami Kounder and others (1970 II MLJ 295).
20. The appellants raised in the additional written statement relating to the plea about the non-joinder of Municipality. A specific issue has been framed by the trial court itself about the non-joinder of the party. In fact, no relief has been sought by the respondents against the Municipality. No doubt, the prayer in the plaint disclosed a declaration of the right in the municipal common lane. Simply because the lane is described as a municipal common lane, it cannot be said that the Municipality is also a necessary and proper party. In view of the decisions cited supra, it is evidently clear that only if a relief is necessary against the Municipality, then alone it is a necessary and proper party.
21. The learned senior counsel for the appellants also raised another plea about non-determination of any point by the lower appellate court. A perusal of the judgment of the lower appellate court indicates the only point is as to whether the appeal can be allowed. No doubt, Order 41 Rule 31 of Civil Procedure Code has not been strictly complied with; but the evidence adduced by the parties and the documents have been properly considered. Under the circumstance, in view of the decisions cited supra, when the entire matter has been dealt with and there is no omission on the part of the appellate court relating to the points raised by the parties, the judgment cannot be set aside on that score. Moreover, the finding given by the trial court has been confirmed by the appellate court and only in case the finding is reversed, then there is a duty cast on the appellate court to give valid and convincing reason for taking a different view.
22. The Plaintiffs have filed number of documents to show that the disputed lane has been described as one of the boundaries. These documents have come into force long back when there was no dispute between the parties. Ex.A-20 is a copy of the execution petition No.773 of 1961 in O.S.No.561 of 1957 relating to a sale certificate. There is a reference about the common lane portion. Similarly, in Ex.A-15 also, in the boundary description, there is a reference about this pathway. In fact, the trial court has extracted the boundary description given in various documents and came to the conclusion about the existence of the lane portion. P.W.1 is the 1st plaintiff and he spoke about Exs.A-15 to A-23 and also the boundary recitals. P.W.2 is the 5th plaintiff and he gave evidence relating to Exs.A-50 to A-52. P.W.3 is the 7th plaintiff and he gave evidence relating to Exs.A-53 and a-54. P.W.4 gave evidence relating to Exs.A-55 and A-56. The evidence adduced by P.Ws.1 to 4 and also the boundary description in the documents clearly established the existence of the lane portion.
23. D.W.1 is the 1st defendant. Exs.B-10 and B-11 are also relevant to be considered. A perusal of these two documents clearly indicates that the boundary description pointed out the existence of the disputed lane. Exs.B-10 and B-11 came into existence in the year 1979 and now D.W.1 attempted to explain that by mistake, the lane portion has been mentioned. The explanation now given by D.W.1 was rightly rejected by the courts below. The boundary recitals under Exs.B-10 and B-11 only corroborated the version of P.Ws.1 to 4 as well as the case of the plaintiffs. The appellants claimed that the disputed portion exclusively belong to them, but it has not been substantiated. However, the learned senior counsel for the appellants attempted to state that the recitals in the documents filed on behalf of the respondents are only self serving documents. Exs.A-50, 53 and 55 came into existence more than 15 years ago and it cannot be said that they were created for a future litigation. In view of the overwhelming documentary evidence filed on the side of the respondents only, the trial court as well as the lower appellate court came to the conclusion that the disputed property is a lane and obstruction has been made by the appellants and it is liable to be removed.
24. The learned counsel for the respondents also relied upon Section 180 of the The Tamil Nadu District Municipalities Act that no one shall build any wall or erect any fence or other obstruction, or projection, or make any encroachment in or over any street except as hereinafter provided. It is also seen from Section 182 that the executive authority may by notice require the owner or occupier of any premises to remove or alter any projection, encroachment or obstruction situated against or in front or such premises and in or over any street.
25. It is admitted that an Advocate Commissioner was appointed and the properties were inspected on more than one occasion. The Commissioner in the first report categorically stated that there is a lane commencing from the Peria Ongaliamman Koil Street. The lane is situated north of the Koil Street. The breadth of the lane between points A and B is about 13' 6". There are three stone steps at the entrance of the lane. The lane is about 2' 2" lower in level than the Peria Onkaliamman Koil street. In front of the plaintiffs' house facing the lane, there is cement pial portion to a length of 22' 9" to a breadth of 1' 9" and to a height of 2'. In front of the defendants' house facing the lane, there is a cement pial portion to a length of 22'9" to a breadth of 2'4" and to a height of 1'7". The cement steps appears to be recently built up and it is white washed. There is a thatched pandhal in front of the defendants' house. There are 2 electric posts and there is a metal water pipeline to the defendants' house. To a length of 68' 9" are build up portion on the eastern side of the lane. There is another lane on the western side of the suit lane as Odder lane. The said odder lane and the suit lane are connected by a small lane to a breadth of 1'9". It is clear from the reports and plans filed by the Commissioner that the obstruction has been made by the appellants. When once the plaintiffs had positively established that the lane is a common one, then both parties should not put up any construction in the lane detriment to the enjoyment of all the parties concerned. On the other hand, the appellants have failed to establish that the disputed property belongs to them exclusively. In my view, the courts below had rightly considered the contentions of the parties and there is a clear concurrent finding by the courts below that it is a common lane intended to benefit to both parties. The respondents are also entitled to the relief of permanent injunction as well as mandatory injunction. The finding is based on legal evidence and as it is not a perverse one, no interference is called for.
26. For the reasons stated above, the second appeal fails and is dismissed.