Indian Kanoon - Search engine for Indian Law

(b) In the written statement filed by the defendants 1 to 3, adopted by defendants 4 and 6, it is contended that as per the Tamil Nadu Land Survey and Boundaries Act, the suit is not maintainable; that in the year 1980, the suit property was re-surveyed and the same was published in the Government Gazettee dated 28.8.1980, in which the suit cart-track did not find a place; and that during re-survey, the plaintiff had not made any objection regarding the suit cart-track and hence the suit should have been laid only against the Land Survey Department. It is also contended that the suit cart-track ends with the southern side of defendants's property; that during 1956 when the Lower Bhavani Project was introduced, the suit property was affected and the itteri (narrow path between two fields) was also used along with the suit cart-track for taking the carts; and that the predecessors of the defendants gave 20 cents of lands to the predecessors of the plaintiff in lieu of the suit cart-track and hence the plaintiff had no right over the suit cart-track. It is further contended that the brother of the defendants is the vendor of the plaintiff, at whose instance the suit is filed with ulterior motive. The defendants categorically stated that they alone are entitled to the suit cart-track and denied the allegation that they attempted to prevent the plaintiff from using the suit cart-track. It is also submitted that the defendants 4 and 5 have no right over the suit property and they are unnecessary parties to the suit.

5. The second appeal was admitted on the following substantial question of law, "Whether the lower appellate Court erred in law in holding that the appellant/plaintiff has not proved the existence of cart way without applying its judicial mind to the documentary evidence let in under Exs.A-1 to A-3 and the Commissioner's report and plan under Exs.C-1 and C-2 ?"

6. The learned counsel for the appellant during the course of his arguments submitted that the lower appellate Court erroneously set aside the judgment of the Trial Court and therefore the same is bound to be restored. In support of his submissions the learned counsel submitted that in Ex.A-1 viz., sale deed dated 29.8.1986, by which the plaintiff purchased the suit property, there is a clear recital to the effect that the plaintiff purchased the 84+ cents in Old Survey No.940 /3 and re-survey No.1074/2 in Sivagiri village, Erode Taluk, Periyar District, along with the standing trees, the usufructs therein and the irrigation rights of the lands, including the easementary rights to use the cart-track running south-north for taking vehicles and cattles and to use the same as pathway. The learned counsel further pointed out that the parent document viz., Ex.A-2 dated 16.9.1980 also describes the existence of the cart-track and the right of the purchaser to use the said cart track for movement of cattles and also use the same as pathway. It is further pointed out that Ex.A-3 Sale Deed dated 28.4.1984 also mentions about the common cart track and therefore, the existence of common pathway as found by the Commissioner in his report Ex.C-1 is beyond any doubt. The learned counsel further argued that the contention of defendants 1 and 3 made in the written statement that re-survey of Sivagiri Village was pleaded and notified in the District Gazettee dated 28.8.1980 as per the provisions of the Tamil Nadu Survey and Boundaries Act, 1923, and in that, the existence of the suit cart-track does not find a place, will not hold good, as the predecessors-in-title of the plaintiff were not issued with any notice under Section 9(1) of the Tamil Nadu Survey and Boundaries Act, 1923. In view of non-issuance of the statutory notice, according to the learned counsel, the completion of re-survey as notified on 28.8.1980, will not bind the plaintiff and the sam e cannot be put against the rights of the plaintiff. The learned counsel further argued that the contention of defendants 1 and 3 that the predecessors-in-title of the plaintiff and the defendants entered into an arrangement under which the predecessor-in-title of the defendants 2 and 3 were allowed to annex the itteri along with their share without giving any right in the itteri to the predecessors-in-title of the plaintiff and in turn, the plaintiff's predecessors-in-title were given an extent of 2 0 cents from out of the share of the predecessors-in-title of defendants 2 and 3 and consequently the owners of the plaintiff's share discontinued to enjoy the suit itteri eversince 1956 and that the suit cart track has been exclusively used by the defendants and their predecessors-in-title, cannot be accepted due to the reason that the alleged giving of 20 cents is totally a false story. Learned counsel submitted, as per section 19 of the Indian Registration Act, the Value of the property involved is above Rs.100/- and the same has to be compulsorily registered to convey the title. In the absence of any registered document to show that the predecessors-in-title of the defendants gave 20 cents to the predecessors-in-title of the plaintiff, the alleged transfer of 20 cents cannot be accepted. Therefore, the counsel submitted that the existence of common pathway having been admitted by the defendants themselves, based on which the Trial Court arrived at the conclusion, is perfectly legal and the findings given by the lower appellate Court for setting aside the well considered judgment of the trial court are unsustainable.

13. It is also to be noted that even if the exchange of 20 cents was made orally in lieu of the right of enjoyment of the cart track, by the predecessors-in-title of the defendants in favour of the predecessors-in-title of the plaintiff, followed by delivery of possession as claimed, mutation of revenue records is mandatory. In this connection, the decision reported in AIR 1990 Punjab and Haryana 89 ( Bhagwan Kaur v. Ranjit Singh) can be usefully referred to. In the said decision it is held that the exchange of property can be made orally followed by delivery of possession and the same can be accepted if entries are made in the mutation register. In the case on hand, admittedly there is no entry in the mutation register about the alleged exchange of property. The alleged exchange is said to have been made prior to 1956. Ex.A-1 is dated 29.8.1986 wherein the recitals contain the existence of the suit common cart track. Ex.A-2 dated 16.9.1980, the parent document of Ex.A-1 also describes the existence of the cart track and the right of the purchaser of the land to enjoy the suit cart track. In Ex.A-3 sale deed dated 28.4.1984 also there is a mention about the common cart track. On the contrary, DW-1 merely states that the said recitals are made mistakenly by following the earlier document at the time of registration of those documents. In addition to that, there is no pleading to the effect that mutation of record had taken place at any point of time after the alleged giving of 20 cents by the predecessors-in-title of the defendants in favour of the predecessors-in-title of the plaintiff in lieu of giving up of the right of enjoyment of the common cart track. Hence the contention of the defendants that the appellant/plaintiff cannot maintain the suit in view of the giving up of the right by their predecessors-in-title, is clearly unsustainable and on that score a lso the findings given by the lower appellate Court is unsustainable.

14. The third contention raised by the learned counsel for the respondents/defendants that the Commissioners plan Ex.C-2 does not contain the common pathway was also dealt by the trial Court and a specific finding was given in so far as the non-existence of alternative cart track and the existence of the suit cart track. In the plan submitted by the Commissioner, the existence of the suit cart track is clearly mentioned. A perusal of Exs.C1 and C2, Commissioner's report and plan clearly establishes the necessity of the appellant/plaintiff to file the suit. The respondents/defendants accepted the Commissioner' s report as no objection thereto was filed. As per Order 36 Rule 9 of Code of Civil Procedure, the Commissioner's report is an evidence. Taking all these into consideration, I hold that the findings given by the learned Trial Judge that the suit cart track is a common cart track is perfectly legal and valid in the light of the materials on record. Consequently I hold that the appellant/plaintiff is entitled to get the relief sought for in the plaint.