IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 07.10.2010 CORAM THE HONOURABLE Ms. JUSTICE R. MALA S.A.NO.904 of 2003 Munusami Gramani .. Appellant Vs Rohaiyabeebi .. Respondent Prayer: Second appeal under Section 100 of C.P.C has been preferred against the judgment and decree dated 21.10.2002 made in A.S.No.15 of 1984 on the file of Principal Subordinate Judge, Tindivanam in reversing the judgment and decree dated 07.01.1984 made in O.S.No.2328 of 1979 on the file of District Munsif, Tindivanam. For Appellant : Mr.V.Raghavachari For Respondent : Mr.K.Kumar for Sree and Associates ***** JUDGMENT
This Second appeal arises against the decree and judgment passed in A.S.No.15 of 1984 dated 21.10.2002 on the file of Principal Subordinate Judge, Tindivanam reversing the judgment and decree dated 07.01.1984 made in O.S.No.2328 of 1979 on the file of District Munsif, Tindivanam.
2 The averments made in the plaint are as follows:
The suit property and other properties are originally belonged to the family of one Ramabushnam Gramani. There was a civil dispute between Lakshminatha Gramani and Ramabushnam Gramani in respect of the suit property and other properties in S.A.No.752 of 1966 on the file of High Court, Madras. A compromise was effected and in terms of joint endorsement, a compromise decree was passed on 01.02.1971. In the said compromise decree, in the suit S.No.R.S.208/3 0.10 cents including the suit property was given to Ramabushnam Gramani and he was in possession and enjoyment of 10 cents allotted to him. On 07.09.1978, out of 0.10 cents, he sold the suit property in favour of one Abdul Khadar Sahib and delivered possession of the suit property. The remaining portion in the 0.10 cents was sold by Ramabushnam in favour of one Subramanian, Mohamed Ismail, Abdul Khadar and Dananjayan. On 31.05.1979, the plaintiff purchased the suit property from Abdul Khadar for Rs.1000/- and from the date of sale she was and is in possession and enjoyment of the suit property. He also acquired title by adverse possession. The defendant has no right over the property. The suit property is a patta land. The defendant has a house near the suit property and third party purchased a site belonging to the defendant and they are enemical towards the plaintiff. At their instigation, the defendant attempted to interfere with the plaintiff’s possession of the suit property. Hence, the plaintiff has come forward with the suit for declaration of title to the suit property and also for injunction restraining the defendant not to trespass into the suit property and prayed for a decree.
3 The gist and essence of written statement filed by the defendant are as follows:-
The suit property is originally belonged to ancestors of Ramabushnam Gramani. There was a compromise in S.A.No.752 of 1966. In the said compromise decree, Lakshminatha Gramani and Ramabushnam Gramani colluded together and 0.10 cents was allotted to Ramabushnam Gramani in the suit survey number among certain other properties. The suit property is a pathway in which nobody can claim any right. The pathway was in existence for more than 200 years. It was used by the residents of the house situated in the suit survey No.(208/3) and also S.No.183/1. It is a Gramanatham. The suit property was used as a link road between Pondy Marakkanam Road and Pazhayapattianam Pattai. On both sides of the Pattai, there are houses belonging to different people. The plaintiff and her predecessor in title Abdul Khadar and Ramabushnam Gramani are well aware of the fact of the existence of the common lane in the suit property.In a partition deed dated 20.01.1882, the existence of the common lane in the suit property was mentioned. Either the plaintiff or her predecessor in title namely Abdhul Kadher and Ramabushnam Gramani had no right, title or interest in the suit property. The said Ramabushnam Gramani sold all the 0.10 cents in the suit survey number to one Subramanian,Mohamed Ismail and Dananjayan. So Ramabushnam Gramani has no title or right over the suit property which is used as a common lane. Since the plaintiff under the guise of sale deed from Abdul Khadar obstructing this defendant and other residents of the area from using the lane claiming false title over the suit property, the defendant had filed a petition under section 147 Cr.P.C before the learned Executive First class Magistrate at Tindivanam in M.C.No.39 of 1979 which is pending enquiry. The plaintiff who knows fully well of the existence of the common lane, she has come forward with the vexatious suit. The sale deed in favour of the plaintiff executed by Abdul Kadher is only a sham and nominal document. The ancestors of Ramabushnam Gramani and also the defendants were using the pathway for more than 200 years uninterruptedly and openly. This defendant had also perfected easmentary right of usage by adverse possession also. The suit is bad for non-joinder of necessary parties as the other residents of the suit survey number are also necessary parties to the suit. Hence, he prayed for the dismissal of the suit.
4 The trial court after considering the averments both in plaint and and written statement had framed necessary issues and considering the oral and documentary evidence of P.W.1 to P.W.3 and D.W.1 to D.W.3 and Ex.A.1 to Ex.A.5, Ex.B.1 to Ex.B.7 and Exs.C1 and C2 dismissed the suit. Aggrieved by the same, an appeal has been preferred by the plaintiff before the first Appellate Court in A.S.No.15 of 1984 and the same was allowed. Aggrieved over the judgment and decree of the first Appellate Court, the defendant/appellant herein preferred an appeal in S.A.No. 1271 of 1987. This Court on 19.7.1999 remanded the matter back to the First Appellate Court for re-examination of the witnesses and to decide the matter afresh. As per the direction of this Court in S.A.No.1271 of 1987, P.W.1 and P.W.2 were re-examined and documents were marked as Ex.A6 to A8 and Ex.C3 to C6 before the first Appellate Court and granted decree for declaration in respect of the suit property except 3 feet breadth on the side of east-west of the building and also granted injunction in respect of the remaining portion of the suit property. Against that, the defendant has come forward with this Second appeal.
5 At the time of admission of the above Second appeal, the following substantial questions of law arose for consideration:
(i) Whether the Lower appellate Court is right in restricting the passage to 3 feet after having held that the plaintiff is not entitled to the suit property as claimed by her ?
(ii) When the lower Appellate Court had accepted Exs.B2-B4 and B6 and the Commissioner’s report under Ex.C2, is at right in restricting the suit passage to 3 feet ?
(iii) Whether the lower Appellate Court is right in recognizing the holding of the plaintiff especially when the encroachment of the property had taken place pending the proceedings ?
(iv) Whether the lower Appellate Court had not failed to appreciate that even under the common parlance a vandipathai cannot be restricted to 3 feet? and
(v)Whether the order of the Lower Appellate Court is not against the order of remand ?
6 The learned counsel appearing for the defendant/ appellant would submit that the plaintiff/ respondent herein has filed a suit for declaration of title and injunction stating that he purchased three cents under Ex.A3. He also filed documents to show that her predecessor in title purchased the same under Ex.A6. On 01.02.1971 the plaintiff’s predecessor Ramabushnam has got property under Ex.A1 Compromise decree in A.S.No.752 of 1996. Under Ex.A1, Ramabushnam was allotted 10 cents. Out of 10 cents, he sold three cents to the plaintiff’s predecessor in title, Abdul Khadar Sahib from whom the plaintiff had purchased the said three cents and she is in possession and enjoyment of the same. The defendant/appellant denied title and possession of the plaintiff/respondent herein. Hence, the plaintiff/respondent came forward with the above suit.
7 The learned counsel appearing for the defendant/ appellant further submits that the suit property is only a road connecting Marakkanam and Pazhayapattinam. Ex.A1 to A3 compromise decree, sale deed in favour of one Abdul Khadar Sahib and the sale deed in favour of the plaintiff are sham and nominal documents. An Advocate Commissioner was appointed and he inspected the suit property and filed a report thrice which clearly proved that it is only connecting road of Marakanam and Pazhayapattinam. It is called “njnuhLk; tPjp”. So the trial court has considered all the aspects in proper perspective and dismissed the suit whereas the first Appellate Court allowed the appeal and granted 3 ft passage which is against law. Hence he sought for allowing this appeal and dismissal of the suit.
8 The learned counsel appearing for the plaintiff/ respondent would contend that originally the suit property is an agricultural patta land. ‘A’ Register has clearly proved that it stands in the name of the plaintiff/ respondent herein and it was mentioned as “tz;og;ghij”. But it is not a “njnuhLk; tPjp” as mentioned by the defendant/ appellant herein. He further submitted that the Advocate Commissioner has inspected the suit property and he has given a report which shows that there is construction made by the plaintiff/respondent and others. Hence, the first Appellate Court has considered the same in proper perspective and on the basis of the Commissioner’s report decree has been granted in favour of the plaintiff/ respondent herein. Hence, judgment and decree passed by the first Appellate Court is not suffer from any infirmity or illegality and prayed for dismissal of the Second appeal.
9 The suit property is situated at S.No.208/3 measuring 3 cents out of 90 cents. As per Ex.A1 Compromise decree wherein the plaintiff’s/appellant’s predecessor in title, Ramabushnam and Lakshminatha Gramini are parties. As per Ex.A1, 10 cents out of 90 cents with all trees etc. in Natham S.No.208/3, Kottaikuppam Village have been allotted to Ramabushnam. So as per Ex.A1, Ramabushnam is a owner of 10 cents out of 90 cents in S.No.208/3 at Kottaikuppam Village. On 7.9.1978, Ramabushnam sold three cents in favour of one Abdul Khadar Sahib as per Ex.A2. The description of the property has been given as Patta No.666, S.No.208/3 3 cents. South of Pallivasal, West of Pillaichavadiammal’s plot, North of T.P. Mohammed Ismail, East of Marakanam road. Abdul Khadar Sahib executed sale deed under Ex.A3 on 31.5.1979 in favour of the plaintiff/respondent, wherein the boundaries and extent of 3 cents were stated as that of Ex.A2. So, it is proved that the plaintiff/respondent has purchased the suit property. The plaintiff/respondent herein has also filed kist receipts under Ex.A4 for Fasali No.1397 which stands in the name of Ramabushnam. Ex.A5 is house tax receipts which stands in the name of the plaintiff/respondent. Ex.A6 is a Field sketch for S.No.208.
10 It is pertinent to note that whether Mohammed Bee and five others filed a suit against Ameena Bee in O.S.No.383 of 1986 on the file of the Principal District Munsif, Tindivanam, for declaration that the suit property is a Common pathway and also for injunction and the same has been disposed of on 26.11.1992. In the judgment, it was held that there is only 1 feet and 9 inches lane is available on the north side of Ameenabee’s house (defendant therein) and the suit was decreed declaring that the said 1 feet and 9 inches passage as pathway and injunction has also been granted in favour of the plaintiffs therein. Judgment and decree of the above suit are marked as Exs.A7 and A8. In the description of Property under Ex.B2 Compromise decree, relied on by the learned counsel appearing for the defendant/appellant herein, it was stated that in S.No.295, bghJ ghl;ilf;F nkw;nf bghJ re;Jf;F bjw;nf thjpapd; giHa tPl;ow;F. tlf;nf cga ghh;l;ofs; tPl;ow;F fpHf;nf. On 15.5.1963 one Kiliammal purchased the property under S.No.208/3 from one Munusamy Gramini under Ex.B3 wherein the southern boundary was stated as “ghl;il” In the description of the property under Ex.B4, sale deed executed in favour of one Mohammed Imam Sahib by Vijayambal, Vedammal, Visalakshiammal and Rukmani ammal, it was stated that Patta No.664, S.No.208/3, 3 cents out of 90 cents, “v’;fs; ghijf;F bjw;nf/ fpspak;khs; kidf;F fpHf;nf” So it shows that pathway belongs to Vijayambal and others. Ex.B5 also pertains to the property situated in S.No.208/3, wherein it was stated that “v’;fs; ghijf;F bjw;nf” that means the vendor Vijayammal and others have their own pathway. Admittedly, S.No.208/3 is old Survey number and new Survey is 389/11. In Ex.A6 sketch the suit survey number and suit property were mentioned. But in Ex.B6, neither the suit property nor the suit survey number was mentioned. The suit in O.S.No.383 of 1986 has been filed on the file of Principal District Munsif, Tindivanam by one Mohammed Bee, Kiliammal and others on the basis of Exs.B3, B4 and B5 stating that northern boundary of the property is only pathway. Those documents being came into effect in the year 1963 to 1966. Patta number has been mentioned as 666 and Survey No.208/3. All the above three documents clearly proved that there is a pathway on north of the property. Ex.B7 is Mortgage deed alleged to be executed by one Arumugam Pillai in favour of one Natesa Mudaliar on 22.01.1932. On the basis of Exs.B3, B4 and B5 the first Appellate Court came to the conclusion that there is a pathway on north of the suit property and granted decree that the plaintiff is entitled to declaration of title to the suit property and injunction as prayed for in the plaint except 3 ft. pathway to the west of the plaintiff’s house.
11 It is appropriate to consider Advocate Commissioner’s report. Advocate Commissioner has inspected the property on 16.3.1980 as soon as the suit was filed. In para 3, it was mentioned that there is a new construction in the suit property which according to him is an obstruction on the lane which runs east from Pondi Marakanam road. On the southern side of the lane, there are 7 houses out of which three are pucka buildings and four are thatched shed. The lane is 17 ft. breadth. The measurement of construction shown as A,B, C,D in the plan. The construction measures 37 ft. East-West, 16= ft. North-South. The Commissioner’s plan shows that the construction marked as A, B, C, D is obstructing the pathway which leads to Pondy Marakkanam main road. The measurement of construction marked in the plan as AB, CD is 16= ft and AC BD is 37 ft. and south of this property mass coconut thope and Abdul Rahman coconut thope. In the north, house of Kiliammal, Kasim Abdul Rahman were situated.
12 At this juncture, it is appropriate to consider ‘A’ Register. In that it was mentioned that S.No.208/3 Ryotwari punja 0.05.0 ares. Patta No.1975 stands in the name of one Hanifa. In col.11 of ‘A’ Register it was stated that “epytpay; tz;og;ghij” (Cart pathway). But it is not Government poramboke. S.No.207 is Government porampoke and it was mentioned as “Pallivasal” and S.No.208/12 is Government poramboke. It was mentioned as “Kuttai” and altered as “natham” and S.No.209/2 Government Poramboke 0.03.0 ares mentioned as Cart pathway. So while considering Ex.C3 ‘A” Register, S.No.208/3 is a Cart pathway which stands in the name of Hanifa. It is not Government poramboke. It is pertinent to note that during the pendency of the appeal, an Advocate Commissioner was appointed once again and inspected the suit property and filed a report that has been marked as Ex.C5. In Ex.C5, the Advocate Commissioner has stated that on the north of this property, there is a coconut thope, Hanifa’s vacant site, thatched shed and foundation has been laid by Singapore Hanifa. On the south of the suit property Door No.26A, the property belonging to the plaintiff and it having doorway in ECR road.
13 The Commissioner in his report Ex.C6 has stated that the suit property is related to old S.No.208/3 and S.No.389/11 is new survey number as per ‘A’ register. He further adds that land measuring 0.05.0 ares has been registered as Cart Pathway (epytpay; tz;og;ghij) as pointed out by the Village Administrative Officer. In para 4 of his report, he has stated that it is very clear that on the eastern side of the suit property, adjacent to Pattina- pathai, a building measuring 2.6 meter breadth was constructed by Ameenabee and there is a passage only to the extent of 1.4 meter width on the west of Pazhaya pattinapathai. Considering the ‘A’ Register Ex.C3 along Ex.C2 and C6 sketch and report of the Advocate Commissioner, the First Appellate Court came to the conclusion that the plaintiff is not entitled to west of the plaintiff’s/respondent’s house, i.e. 3 ft. pathway and except this 3 ft. pathway, she is entitled to declaration of title in respect of the other portion of the suit property and also injunction as prayed for in the plaint.
14 But the learned counsel appearing for the defendant/appellant would contend that during pendency of the suit, she encroached upon the property and she made construction and the property was assessed to property tax. So she is not entitled to declaration of title and injunction. At this juncture, it is appropriate to consider the previous suit filed by the Mohammed Beevi and others against Ameena Beevi in O.S.No.383 of 1986 on the file of Principal District Munsif, Tindivanam. The above suit has been filed during pendency of the present suit. It is true that the suit in O.S.No.383 of 1986 has been disposed of on 26.11.1992. But the present suit filed by the plaintiff/ respondent was disposed of on 7.1.1984. The suit in O.S.No.383 of 1986 has been filed only after disposal of the present suit. The plaintiff/appellant has preferred an appeal which was party allowed on 17.3.1987 granting decree that the plaintiff is entitled to declaration of title to the suit property and injunction as prayed for in the plaint except 3 ft. pathway to the west of the plaintiff’s house. Aggrieved over the judgment and decree passed by the first Appellate Court, the defendant/appellant herein has preferred an appeal in S.A.No.1271 of 1987 which was remanded back to the First Appellate Court for re-examination of the witnesses and to decide the matter afresh.
15 In such circumstances, no relevance can be placed on Ex.A7 which came into existence during pendency of the present suit. Ex.A1 has clearly proved that in the partition deed, a compromise has been entered into between Ramabushnam gramini and others for 90 cents. In the suit survey number, 10 cents out of 90 cents were allotted to the share of Ramabushnam. He sold 3 cents under Ex.A2 to Abdul Kathar Sahib. Admittedly, it is the duty of the plaintiff/ respondent to prove that the suit property mentioned in Ex.A2 and A3 are not related to pathway mentioned in ‘A’ Register. During Commissioner’s visit, Ex.A2 and A3 were not given to the Commissioner and asked him to verify the same, whether this property is situated ?. As per the report filed under Ex.C1 and C2 report clearly proved that there is 17 ft. pathway connecting both pazhayapattinam road and Pondi Marakanam main road. Admittedly, neither the plaintiff/respondent nor the defendant/appellant has filed objection to the Commissioner’s report. So suit property is a property mentioned as AB, CD in the Commissioner’s plan. Even though the plaintiff/respondent herein purchased the property in the year 1979, no construction has been put up. It was used only as pathway which was evidenced by Commissioner’s report. After filing the suit, she made construction and during pendency of the suit, she completed the construction and obstructed the pathway connecting Pondi Marakanam main road and 17 ft. road. In such circumstance, the first Appellate Court has not considered the same that the plaintiff/respondent has encroached upon the suit property during pendency of the suit and made construction. Therefore, the plaintiff/respondent herein has no proof of having title and possession over the property.
16 The first Appellate Court has committed an error in allowing the appeal and granted decree for declaration of title to the suit property and injunction as prayed for in the plaint except 3 ft. pathway to the west of the plaintiff’s house.
17 It is true that the first Appellate Court is the last fact finding Court. But the first Appellate Court has not considered the Commissioner’s report even though the Commissioner’s report has been treated as form and part of the decree. During pendency of the suit only, construction has been made by the respondent/plaintiff and caused obstruction to the said pathway. Revenue records ‘A’ register clearly mentioned that it is Cart pathway. In such circumstances, the finding of the First Appellate court is perverse. Hence, this Court has empowered to re-appreciate the oral and documentary evidence and decide the matter in accordance with law. Therefore, findings of the first Appellate Court is erroneous and the same is liable to be set aside.
18 In the result,
(i) the Second Appeal is allowed. No costs.
(ii) Judgment and decree passed in A.S.No.15 of 1984 on the file of the Principal Subordinate Judge, Tindivanam (first Appellate Court) is hereby set aside.
(iii) Judgment and decree passed in O.S.No.2328 of 1979 on the file of the District Munsif Court, Tindivanam (trial court) is restored.
vaan
To
1 The Principal Subordinate Judge, Tindivanam
2 The District Munsif, Tindivanam.
3 The Record Keeper, V.R.Section, High Court,
Madras