ORDER
1. Plaintiff in O.S.No.490 of 1987, who is also the defendant in O.S.No.9 of 1991, is the appellant in both these appeals. O.S.No.9 of 1991 was filed by the legal representatives of one Mrs. Dare for a declaration that they are the owners of the passage described as ABCD in the plaint and, for a mandatory injunction against the defendant to remove the chain and lock and
the bar fencing. O.S. No.490 of 1987, was filed by M/s A.B.C. (India) International, represented by its Manager, against Mrs. Dare for a declaration of their title to B Schedule property and for a permanent injunction.
2. The suit property is a portion of land of an extent of 18 x 800, measuring 33 cents in S.No. 243-3D, Pudupakkam Village, Chengalpet District. The appellant, who was unsuccessful in both the Courts below, has filed the above appeals.
3. The facts of the case, briefly stated are given hereunder:
One Mrs. Dare owned an extent of 18.5 acres of land in Pudupakkam Village. According to her, she had sold all these lands, but retained 33 cents of land as pathway to reach her 11 acres of land situated on the northern side in S.No.239. According to her, the said piece of land belonged to her and to her legal representatives for the purpose of the passage, and any interference in that passage has to be injuncted.
4. The appellant herein has purchased 3.75 acres of land from one Mrs.R.Rajam under Ex.A.1 sale deed dated 22.5.1981 and the said Rajam had purchased the property from Mrs. Dare under Ex.A.2 dated 28.4.1963. According to the appellant, they were in absolute possession and continuous enjoyment of the property of 3.75 acres, and to deny their detention of the 33 cents as the passage of its utilisation, they have filed a suit for declaration of their title and an injunction. Both the suits were tried together and the suit filed by the appellant was dismissed, whereas the suit filed by Mrs. Dare was decreed and the same was confirmed in appeal. The present second appeals are against this judgment and decree.
5. Mr.R. Krishnamoorthy, learned senior counsel appearing on behalf of the appellants submitted that the appellant has got title to the suit land of an extent of 3.75, acres, including the disputed portion of about 33 cents. He submitted that by their continuous possession and enjoyment, they have prescribed title by adverse possession. According to him, the courts to below have failed to consider their title and the plea of adverse possession and there was a total misdirection of the pleas of the appellant.
6. Learned Counsel Mr. Narayanasamy appearing on behalf of the respondents submitted that the disputed passage is the only access to their property at S.No.239 and that the appellants have no title or right over the sub-divided portion in S.No.243-3D as set out in their own Ex.A.1. According to him, the suit by the appellant was not property framed and they have not established their claim to the disputed portion by adverse possession without letting in evidence on the side of their vendor.
7. The short question that arises for consideration in these appeals is whether this bit of land measuring 18 x 800 of an extent of 33 cents, which is shown as S.No.243-3D belongs to the appellant exclusively or whether this is a common passage for the respondents and also to go to their property situated on the north and whether the findings of the Courts below are vitiated by application of wrong test and ignoring the weight of evidence on the side of the appellants.
8. After notice of motion was ordered in this matter on 9.8.2000 and after several hearings, the learned senior counsel for the appellant has agreed to provide the same extent of passage on the Western Side of the property to the respondents in order to avoid division of their property into two halves, since admittedly, the alleged passage is situated in the middle of their property and also to settle the controversy and to buy peace. Though the offer of the counsel for the appellant appeared to be fair and reasonable, learned counsel for the respondents expressed his inability to persuade his clients to accept this offer after several adjournments. The only apprehension according to the respondents is that the passage, if left on the Western Side, which will be adjoining the poromboke land, may be encroached by the public also. Therefore, this Court was constrained to go into the merits of the claims of the parties.
9. The appellant bases his claim oh the sale deeds Exs.A.1 and A.2 . Ex.A.2 is a deed dated 24.8.1963. By this deed, Mrs. Dare sold an extent of 3.75 acres of land to Mrs. R. Rajam. The boundaries set out in this sate deed are as follows:
“(1) North by Varuvai Channel
(2) South by Kelambakkam-Vandalur Road?
(3) East by the land set apart for road
(4) West by Banuprasad’s land.”
10. By Ex.A.1 sale deed dated 22.5.1981, Mrs. Rajam has conveyed all the properties covered by Ex.A.2. The description contained in Ex.A.1 is as follows:
” An extent of 3.75 acres in S.No.243 bounded on:
the north by channel:
the South by Kelambakkam-Vandalur Road:
the east by the land belonging to A.B.C. (India) International: and
West by the land belonging to Smt.Leelavathi.”
Subsequent to this description, it is stated that ” the property is now sub-divided as 243-3B, 120 243-3C, 170- Total extent A.2.90.”
11. Mrs. Dare, as a plaintiff in her suit, had conceded that she had a total extent of 18.50 acres of which is S.No.243 and the remaining extent of 46 cents is kept as the only pathway to her land in S.No.239. The sale of the 3.76 acres of land to Mrs. Rajam is admitted in her plaint. The said fact is also found admitted by Mrs. Rajam in Ex.A.1 wherein an extent of 3.75 acres were sold. While so, the case of the respondents is that though 3.75 acres were sold to Mrs. Rajam, 33 cents were retained in that extent of land. Nobody can have quarrel if the 33 cents of land are available outside the 3.75 acres of land. Mrs. Dare, as a plaintiff, in her plaint, has admitted that she had sold 3.75 acres of
land to Mrs. Rajam on 24.8.1963 and from the description of the property in
Ex.A.2, it is clear that the passage is outside this 3.75 acres.
12. It is true that there is a discrepancy in Ex.A.1 Schedule. While it clearly states that the total extent of land is 3 acres and 75 cents, there is an interpolation squeezed in between two sentences as to the particulars of the sub-divided extents and the total extend of 2.90 acres. Admittedly, there is no mention of the passage in the boundaries. Apart from this discrepancy, I find that the appellant’s vendor had purchased 3.75 acres of land under Ex.A.2, sale deed of the year 1963 and that the appellant has, in turn, purchased the very same property under Ex.A.1 in the year 1981. Nobody disputes the purchase of 3.75 acres by Mrs. Rajam from Mrs. Dare. Even assuming for the sake of argument that Mrs. Rajam has conveyed only 2.90 acres, no person under Mrs. Rajam claims the remaining extent of property. However, the vendor of Mrs. Rajam namely Mrs. Dare, after having sold 3.75 acres as early as in 1963, now, taking advantage of a discrepancy in Ex.A.1 in the year 1981, claims that an extent of 33 cents had been retained by her as a passage in the property sold to Mrs. Rajam. Admittedly, Mrs. Dare has not filed any document of title to prove the claim of the 33 cents as passage. However, she appears to have managed to obtain a patta for this piece of land. The appellant, therefore, has rightly claimed title as per the document as well as by prescription of user for more than 12 years from the year 1963.
13. An additional issue has been specifically framed by the District Munsif on adverse possession. The learned District Munsif, without considering the issue, has simply stated on this issue as follows:
” The defendant in this case has not proved his possession and title. Even the plaintiff himself proved his title and possession only with regard to 2.90 acres. Since the defendant has not proved his possession, the question of adverse possession does not arise. Hence, this issue is decided against the defendant.”
The appellate Court held that in order to prove adverse possession for the balance land, the appellant’s vendor namely Mrs. Rajam has not been examined or any person connected with Mrs. Rajam has not been examined and therefore, the appellant miserably failed to prove his title to the extent of 3.75 acres. Thus, the appellate Court rejected the plea of adverse possession on the ground that Mrs. Rajam was not examined to establish the title. Both the courts below failed to see that P.W.1 has categorically stated in his re-examination on this point that Mrs. Rajam is not alive today. D.W.1 has also admitted in her cross-examination that she does not know whether Mrs.Rajam is alive or not. But, she has admitted that her mother had sold 3.75 acres in the year 1963. Whereas, Mrs. Rajam has sold only an extent of 2.90 acres of property to the appellate company. In other words, the claim of the respondents is that within the property sold to Mrs. Rajam, they have taken back an extent of about 33 cents for the purpose of passage. They have neither pleaded title nor adverse possession or easementary right over this land.
14. On the contrary, the appellant has pleaded and proved their title over the property both on the basis of documents as well as by adverse possession.
Admittedly, the property was sold to Mrs. Rajam in the year 1963 and the same was sold to the appellant in the year 1981. In the body of the sale deed, Ex.A.1, it is stated that she had sold all the property that was purchased by her in the year 1963, which is the subject matter of the document dated 27.8.1963. However, taking advantage of a discrepancy in the description of the schedule of property in the sale deed, Mrs. Dare and her heirs are now claiming that Mrs. Rajam was not given 3.75 acres, for which there is absolutely no evidence. The finding of the trial court that nobody is able to explain as to what happened to the remaining extent (85 cents) and the finding of the appellate court that to reach the property on the northern side, the passage was retained appears to be reasonable and acceptable cannot be sustained. Both the Courts have found clearly that the respondents Mrs. Dare and her legal representatives have not proved title either to the 33 cents or the 85 cents of land in S.No.243-5D and the finding of the court below that while selling the property to Mrs. Rajam in the year 1963, a road portion had been retained has not been established. If there is any road beyond the 3.75 acres it is quite understandable but to claim 18 x 800 as a passage within the 3.75 acres cannot be sustained without any document of title. The findings are, therefore, on the basis of conjectures and assumptions.
15. It is further not in dispute that the respondents have an alternative access to their property on the north immediately to the west of the appellant’s property. P.Ws.1 to 3 have deposed to that effect. P.W.2 is one of the Villagers; he has admitted that the suit property of an extent of 3.75 acres has been enclosed by a fence. He has also stated that there is a separate road leading to the northern side of the property. P.W.3 also, who is a villager, aged 70 years, has stated that the property has been fenced for more than 15 years and that there is no passage within the suit property. He has also stated in the Chief Examination that there is an alternative passage to reach the northern side of the property. No cross-examination was done on his evidence. D.W.1 has also stated in her cross-examination that to reach their property, there is a way through the poromboke land. Though she has claimed that there is a villager plan showing the village passage, she has not produced the same.
16. From the evidence, the documents and the arguments, it is clear that the Court’s below have ignored the documents of title and failed to consider the specific plea of adverse possession of the appellant. The respondents, have admittedly, no document of title nor pleaded any adverse possession on the suit passage. Thus, the courts below failed to determine the material issue and there are substantial errors resulting in a patently erroneous finding. Therefore, in my view, the appellant has made out a case for declaration and injunction.
17. Accordingly, the suit in O.S.No.490 of 1987 is decreed as prayed for and the suit O.S.No.9 of 1991 is dismissed. The appeals are allowed. No costs. Consequently, C.M.P.Nos.11312 and 11313 of 2000 are closed.