IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 27/01/2006
Coram
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
Second Appeal No.651 of 1995
Lingappa Gounder ... Appellant
-Vs-
1. Palanisamy Gounder
2. P.Shanmughasundaram
3. Patchiammal
4. Velusamy Gounder
5. Krishnamoorthy ... Respondents
This second appeal has been filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 6.3.1995 made in
A.S.No.136 of 1994 on the file of the Additional District Court, Erode,
reversing that of the Trial Court dated 22.11.1993 in O.S.No.764 of 1987 on
the file of the I Additional District Munsif Court, Erode.
!For Appellant : Mr.V.S.Sivasundaram
for Mr.R.G.Narendhiran
^For Respondents : Mr.M.M.Sundaresh
:J U D G M E N T
The appellant herein is the Plaintiff in O.S.No.764 of 1987 on the
file of the I Additional District Munsif Court, Erode, who challenges the
judgment and decree of the learned Additional District Judge, Erode, in
A.S.No.136 of 1994 dated 6.3.1995 reversing that of the Trial Court in
O.S.No.764 of 1987 dated 22.11.1993. Respondents 1 to 5 herein are defendants
1, 3, 6, 4 and 5 respectively in the original suit. Respondents 4 and
5/defendants 4 and 5 are given up as they were set exparte in the first
appellate Court.
2. The plaintiff filed the suit for declaration and for permanent
injunction. The brief facts as could be seen from the plaint and written
statement are as follows.
(a) The cart track in old survey No.940/3 and re-survey No.1074 is
the suit property. The plaintiff purchased 84+ cents of land in old survey
No.940/3 and re-survey No.1074/2 along with the right of using the said cart
track and since then he is using the cart track. Plaintiff had no other
cart-track to approach his property. By sale deed dated 28.4.1984, defendants
1 to 3 purchased the property lying north to plaintiff’s property to which the
suit cart-track is shown as western boundary. In further north, lies the
property of the 5th defendant. It is alleged that as the defendants 1 to 3
were not in good terms with the plaintiff, they were attempting to cut and
encroach the cart-track. It is specifically alleged that on 12.7.1987, the
defendants 1 to 3 prevented the plaintiff from using the cart-track. As the
defendants have no manner of right to do so, the plaintiff filed the suit for
declaration and for consequential permanent injunction. As the defendants 4
and 5 have also right over the cart-track, they were impleaded as necessary
parties to the suit.
(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.
3. On the above pleadings the trial Court framed five issues and
one additional issue. On behalf of the plaintiff Pws.1 and 2 were examined
and Exs.A- to A-4 were marked. On behalf of the defendants the first
defendant was examined as DW-1 through whom, Exs.B-1 to B-10 were marked.
Apart from these, the Commissioner’s report and plan were marked as Exs.C-1
and C-2.
4. The Trial Court, after considering the materials available on
record and after hearing both sides, decreed the suit as prayed for by its
judgment dated 22.11.1993, against which the defendants 1, 3 and 6 preferred
A.S.No.136 of 1994 on the file of the Additional District Court, Erode. The
learned Additional District Judge, Erode, by his judgment dated 6.3.1995,
placing reliance on the Commissioner’s report and plan Exs.C-1 and C-2,
allowed the appeal and set aside the judgment of the Trial Court on the ground
that the plaintiff has not legally proved his right over the suit cart-track.
It is as against the said conclusion of the first appellate Court, the
plaintiff is before this Court.
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.
7. The learned counsel for the respondents in reply submitted
that for giving up the right in the common pathway by the predecessors-intitle
of the plaintiff, they obtained 20 cents of land from the
predecessors-in-title of the defendants 2 and 3 and consequently the right of
the plaintiff to claim the cart-track as common cart-track is unsustainable.
The learned counsel further submitted that the notification having been issued
as early as on 28.8.1980, after completion of the resurvey under section 18 of
the Tamil Nadu Survey and Boundaries Act, 1923, and as the suit cart track
does not find a place in the re-survey plan, without challenging the said
re-survey, the present suit is not maintainable, particularly when the
plaintiff purchased the property after the said notification. Learned counsel
further argued that the Commissioner’s report Ex.C-1 also supports the case of
the defendants and therefore the decision rendered by the first appellate
court is legal, valid and prayed for dismissal of the second appeal.
8. I have considered the submissions made by the learned counsel
for the appellant as well as respondents. The point in issue is whether there
existed a common cart-track and the appellant/plaintiff was entitled to get
permanent injunction restraining the defendants and their men from interfering
in any manner either in the cart-track or in the user of cart track by the
plaintiff in taking any vehicles, cattle and using the same as pathway. The
Trial Court considered the relevant documents, particularly Ex.A-1, Ex.A-2,
Ex.A-3 as well as Ex.C-1 and C-2, Commissioner’s report and plan and came to
the conclusion that the suit cart track was a common cart-track. The
contention raised by the learned counsel for the respondents that in the
Gazettee notification dated 28.8.1980, issued subsequent to the re-survey
conducted under the Tamil Nadu Survey and Boundaries Act, 1923, the cart track
does not find a place and therefore the plaintiff cannot maintain the suit,
without challenging the said notification is unsustainable in view of the fact
that the notice under section 9(2) of the said Act was not issued to the
predecessors-in-title of the plaintiff and that no documentary or oral
evidence was let in to show that such a notice was issued to the
predecessors-in-title of the plaintiff.
9. In the decision of this Court reported in 97 Law Weekly 198 (
Paramakudi Sri Sundararaja Perumal Devasthanam v. S.K.C.Kanakasabapathy
Chettiar and others), this Court considered the scope and ambit of Section 13
of the Tamil Nadu Survey and Boundaries Act, 1923 and also about the issuance
of notice under Section 9(2) to the parties concerned. Relying upon the
earlier decisions of Division Bench as well as the single Judge of this Court,
held that where the party affected had no notice of the survey as contemplated
by Section 9(2) of the Madras Survey and Boundaries Act, it cannot be said
that there has been a completion of the survey in accordance with the orders
passed under Section 9 within the meaning of Section 13 and, therefore the
party adversely affected thereby is not bound to file a suit within three
years to set aside the order of the survey officer. Thus, this Court held
that the question of title cannot be decided by the survey authorities finally
and conclusively and even if an indirect decision is rendered by the survey
authorities, the finality under section 13 will arise only if the notice of
the proceedings has been served on the affected party as contemplated under
Section 9(2) of the Act. In the said judgment, an earlier Division Bench
decision of this Court reported in ILR 1553 Madras 158 = 65 Law Weekly 364
(Mariyam Umma v. Ummer Kutti) was also relied on.
10. In an another Division Bench decision of this Court reported
in 1974 TLNJ 145 (State of Madras v. Kasthuri Ammal and others), it is held
that though in an earlier survey one portion of the suit site might have been
labelled as a road poramboke, such action by the survey authorities cannot
affect the plaintiff in any manner unless the defendants establish that due
notice of the result of the survey was given and the latter acquisced in the
correctness of the operations. The law is that a party concerned by an
adverse survey to whom no notice of the survey was given is not bound to file
a suit within three years to set aside the order of the survey officer because
he had no notice of the survey, and the orders on it cannot be said to be
correctly passed under Section 13 of the Act and binding on the party.
11. From the decisions referred to above, which are also relied on
by the Trial Court, this Court is of the considered view that nonmentioning of
existence of the common cart-track in the re-survey will not in any way affect
the rights of the plaintiff as it is not proved that notice was issued by the
Survey Authorities as required under Section 9(2) of the Tamil Nadu Survey and
Boundaries Act, 1923, to the predecessors-in-title of the plaintiff.
12. The second contention raised by the learned counsel for the
respondents/defendants is that though the existence of common cart-track is
admitted, the right of enjoyment of the same by the appellant/ plaintiff had
been lost, due to giving up of the said right by the predecessors-in-title of
the plaintiff by accepting 20 cents of land from the predecessors-in-title of
the defendants, even prior to 1956. As rightly contended by the learned
counsel for the appellant/plaintiff, no document was produced to prove the sai
d case of the respondents/ defendants. Also, it is neither the case pleaded
in the written statement nor in the oral evidence of the first defendant. In
the cross examination DW-1 admitted that he was not aware of the date, month
and year and before whom the said arrangement/settlement was effected. DW-1
had also admitted that the land value was roughly about Rs.50,00 0/- to
Rs.60,000/- per acre and that of one cent would be around Rs.5 00/- to
Rs.600/-. From the above statement of DW-1 it is clear that the 20 cents of
land allegedly settled in favour of the predecessors of the plaintiff by the
predecessors of the defendants 2 and 3, was worth more than Rs.100/- and
admittedly the said transaction was not registered. Section 17 of the Indian
Registration Act contemplates that the interest on immovable properties, more
than Rs.100/-, are transferable only through a registered document. Even the
unstamped and unregistered document is not admissible in evidence as per the
decision of a Division Bench of this Court reported in 2005 (1) Law Weekly 343
(R.Deivanai Ammal (Died) & Another v. G.Meenakshi Ammal and others), wherein
in paragraph 23, the Court relied on the earlier Division Bench decision
reported in 2001 (1) CTC 112 (Lakshmipathy, A.C. v. A.M.Chakrapani Reddiar).
In another decision reported in 1991 (1) CTC 361 (Ranganatha Gounder v.
Perumal Nattar), this Court held that a document compulsorily registerable, if
not registered, is inadmissible in evidence. In the said decision the learned
single Judge followed the Division Bench decisions reported in ILR (20) Madras
367 ( Rangayya Appa Rau v. Kameswara Rau) and AIR 1972 Calcutta 190 (M.S.Ram
Singh v. B.S.Surana).
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.
15. For the foregoing reasons, I am of the considered view that
the judgment and decree of the lower appellate Court are liable to be set
aside and that of the Trial Court are to be restored.
16. In the result, the second appeal is allowed. The judgment and
decree of the lower appellate Court in A.S.No.136 of 1994 dated 6.3.19 95 are
set aside and that of the Trial Court in O.S.No.764 of 1987 dated 22.11.1993
are restored. No costs.
vr
To
1. The Additional District Judge, Erode
2. The District Munsif, Erode.