IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 13.9.2010 Coram The Honble Mr.Justice M.JEYAPAUL Second Appeal No.324 of 2006 Thukkaram Appellant vs. 1. Shanthi Varadharajan 2. Kasthuri Bai Respondents For appellant : Mr.R.Thirugnanam For respondents: No appearance Prayer:- Second Appeal against the judgment and decree of the learned VI Additional Judge, City Civil Court, Chennai dated 7.12.2004 made in A.S.No.109 of 2002 preferred against the judgment and decree of the learned XIII Assistant Judge, City Civil Court, Chennai dated 30.4.2001 made in O.S.No.7760 of 1988. JUDGMENT
The plaintiff, who lost his case for declaration of title and for permanent injunction before both the courts below, is the appellant herein.
2. It is the case of the plaintiff/appellant that he is the absolute owner of the A schedule property including the common pathway measuring 2-1/2 feet in width and 42-1/2 feet in length. The plaintiff, his tenant and the first defendant are using the said common pathway to reach their respective portions. Contending that there is no other pathway for the plaintiff to reach the rear portion of the property and that the first defendant is attempting to interfere with the plaintiff’s right to use the common pathway, the plaintiff has filed the suit for declaration of title and also for permanent injunction.
3. The first defendant, who is the purchaser of the rear portion of the A schedule property from the wife of the plaintiff, who has been arrayed as second defendant, would contend in the written statement that with the knowledge of the plaintiff, the entire right of using the suit pathway was sold away to the first defendant. It is contended that the plaintiff, who is aware of the alienation of the pathway by his wife, the second defendant herein, has now come forward with the relief of declaration of title and permanent injunction. The first defendant allowed the plaintiff and his tenants to use the pathway only on licence basis. The first defendant has terminated the licence granted to the plaintiff by issuing a legal notice. Therefore, it is contended by the first defendant that the plaintiff has no right in the pathway, which has been exclusively purchased by the first defendant.
4. The second defendant, who is none other than the wife of the plaintiff, would contend in the written statement that what was conveyed was only B schedule property with the common pathway measuring 42-1/2 feet x 2-1/2 feet from Singanna Chetty Street. The second defendant has virtually supported the case of the plaintiff.
5. On the side of the plaintiff, the plaintiff was examined as PW1 and Basiya Ramanujadhasan was examined as PW2 and the sale deed dated 24.3.1983 standing in the name of the plaintiff was marked as Ex.A1, the sale deed dated 18.4.1983 standing in the name of the second defendant was marked as Ex.A2 and the sale deed dated 23.5.1985 standing in the name of the first defendant was marked as Ex.A5 and the exchange of notices were marked as Exs.A3 and A4. On the side of the defendants, one Varadarajan was examined as DW1 and an attestor to Ex.A5 was examined as DW2 and as many as 15 documents were marked on the side of the first defendant. The second defendant Kasthuri Bai was examined as DW3 in this case.
6. The following substantial questions of law were formulated at the time of admitting this second appeal:-
“Whether the courts below were correct in dismissing the suit when the suit passage was mentioned as common passage under Exs.A1 and A2 and in holding that the appellant did not prove that the suit passage as common passage.
b) Whether the courts below were correct in holding that the appellant had the knowledge about the sale of the suit common passage as absolute passage of the first respondent by the second respondent since the appellant attested the sale deed under Ex.A5.”
7. Learned counsel appearing for the appellant would contend that the Trial Court has failed to refer any of the documents in the judgment it pronounced and both the courts below have returned a perverse finding. It is his further submission that the second defendant has no right to convey what she has not got under the sale deed, Ex.A2. Knowledge as to the content of Ex.A5 cannot be attributed to the plaintiff simply because he attested the document, Ex.A5. The courts below have failed to appreciate the stand of the second defendant in her written statement and also in her deposition. It is his further submission that the first appellate court refused to entertain an application seeking amendment on the ground that the application was time barred and that the plaintiff had no right in the pathway. Therefore, it is his submission that the courts below have erred in arriving at a conclusion that the first defendant has got exclusive right over the disputed pathway measuring 42-1/2 feet x 2-1/2 feet.
8. The respondents were served with notice and their names were also printed in the cause list. But, there was no appearance for the respondents. The respondents also were not present.
9. On a thorough perusal of the judgment rendered by the Trial Court, it is found that the Trial Court had not adverted to any of the documents filed on the side of the respective parties. The Trial Court has rendered its verdict simply based on the sale deed, Ex.A5 executed by the second defendant in favour of the first defendant. The first appellate court also accorded primary importance only to Ex.A5 and not the parent documents of title, Exs.A1 and A2 which specifically refer to the existence of common pathway. The first appellate court also, without taking note of the subsequent developments in the case during the pendency of the appeal, simply dismissed the application filed by the plaintiff praying for amendment to introduce an additional prayer for mandatory injunction on the ground that the application itself had become time barred and that the plaintiff had no right over the pathway.
10. At the outset, it is found that the findings recorded by both the courts below are totally perverse, inasmuch as both the courts below have failed to appreciate the materials on record in a proper perspective. If the courts below have weighed and appreciated the description of the property found in Exs.A1 and A2, they would not have given a finding that the first defendant has acquired absolute right over the disputed common pathway.
11. As rightly contended by the learned counsel appearing for the plaintiff, the second defendant could convey only the right and title that she had acquired under Ex.A2. She has no right to convey what she had not acquired under Ex.A2. Here is a case where the second defendant, who had acquired only common right in the pathway measuring 42-1/2 feet x 2-1/2 feet under Ex.A2, has alienated the entire common pathway absolutely in favour of the first defendant under Ex.A5. It is quite clear that the second defendant had conveyed under Ex.A5 what she had not got under Ex.A2. In other words, though she was entitled only to a right in the common pathway as described under Ex.A2, she has chosen to convey the absolute right over the common pathway in which the plaintiff also has common right to use the same, as per the sale deed, Ex.A1. Therefore, it is held that the courts below have erred in not properly appreciating Ex.A5 in the background of the parent documents, Exs.A1 and A2.
12. There is no dispute to the fact that the plaintiff figures as one of the attesting witnesses to Ex.A5 executed by the second defendant in favour of the first defendant. DW2, the other attesting witness to Ex.A5 would depose that an Advocate, who drafted Ex.A5, read over the content of the document not only to the defendants but also to the plaintiff. But, the plaintiff and the second defendant stoutly deny such a version of the first defendant projected through DW2. The second defendant, who was examined as DW3, has deposed that she intended to convey only half right in the common pathway and not the absolute right in the common pathway under Ex.A5 in favour of the first defendant. Even otherwise, DW3 has no right to convey the absolute right in the common pathway as her husband, the plaintiff herein has got half right in the pathway under Ex.A1. The second defendant cannot also convey the half right in the common pathway of her husband viz., the plaintiff herein.
13. If at all the first defendant was inclined to purchase the absolute right over the common pathway, she should have got the sale deed executed not only by the second defendant but also by the plaintiff, as both of them have got common right over the pathway under respective sale deeds, Exs.A1 and A2. The plaintiff has contended that he was not aware of the content of the document, Ex.A5 which purportedly conveys absolute right over the common pathway.
14. A person, who attests a document, is not supposed to have thorough knowledge of the content of the document. The execution of the document by the executant with the knowledge that he conveys the property with full knowledge under the subject document alone is attested by the attestor to the document. Therefore, it cannot be safely attributed that the plaintiff was very much aware of the content of the document, Ex.A5 which purports to convey absolute right over the common pathway by the second defendant in favour of the first defendant. Even assuming for the sake of argument that the plaintiff was aware of the content of the document, the first defendant cannot make a claim over the absolute right of the entire common pathway on the basis of the sale deed, Ex.A5, inasmuch as the plaintiff had not joined as one of the vendors to Ex.A5 to convey his half right in the common pathway.
15. The first defendant has come out with a cock and bull story that after purchasing the property from the second defendant, she granted licence to the plaintiff and his tenants to use the pathway. Firstly, such a stand taken by the first defendant was not substantiated. Secondly, the second defendant had no right to grant any licence to a person who has also got half right over the common pathway.
16. The plaintiff has rightly approached the first appellate court seeking for amendment of the prayer to remove the wall put up on the common pathway by the first defendant as it obstructed the right to use the common pathway. The plaintiff had approached the first appellate court with an application seeking amendment, immediately after the ingress and egress to the first floor was obstructed by putting up a wall on the common pathway by the first defendant. The first appellate court has casually dismissed the application on the unsustainable ground that the application was filed belatedly. Further, it is now made out that the plaintiff has got half right over the common pathway under the sale deed, Ex.A1 and the second defendant has got only half right in the common pathway under ExA5, though there is an invalid description in the sale deed, Ex.A5 that the entire right over the common pathway was conveyed by the second defendant in favour of the first defendant.
17. The first defendant has no legal right to put up any wall obstructing the ingress and egress of the plaintiff who is entitled to enjoy his right over the common pathway. Therefore, the plaintiff is entitled not only to the relief of declaration of his common right over the pathway but also to the relief of permanent injunction restraining the first defendant from interfering with his enjoyment of the common pathway. Mandatory injunction also will have to be issued to the first defendant to remove the wall put up by him on the common pathway in the guise of the sale deed, Ex.A5 during the pendency of the lis.
18. In such circumstances, Application No.1684 of 2002 filed by the plaintiff before the first appellate court seeking amendment is allowed. The Registry is directed to carry out the amendment in the plaint before drafting the decree.
19. In the result, holding that the plaintiff is entitled to a declaration of his right to use the common pathway, permanent injunction restraining the first defendant and his men from interfering with his right to use the common pathway and also mandatory injunction directing the first defendant to remove the wall put up by him obstructing the ingress and egress of the plaintiff are granted. The suit is accordingly decreed. The first defendant shall remove the wall put up by him on the common pathway obstructing the ingress and egress of the plaintiff within a period of three months from the date of the judgment. The second appeal is allowed in the aforesaid terms. There is no order as to costs.
13.9.2010.
Index: Yes.
Internet: Yes.
Ssk/trp.
To
1. VI Additional Judge,
City Civil Court, Chennai.
2. XIII Assistant Judge,
City Civil Court, Chennai.
M.JEYAPAUL, J.
ssk/trp.
S.A.No.324 of 2006
13.9.2010.