IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.11.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Second Appeal No.1116 of 2002 1. Arumugam 2. Periasami .. Appellants Vs. 1. Vellaiyan 2. Thangavel @ Madhappan 3. Palanisamy .. Respondents
Second Appeal against the judgment and decree dated 21.7.2001 in A.S.No.112 of 1999 on the file of the Subordinate Judge’s Court, Mettur, against the judgment and decree dated 10.2.1998 in O.S.No.81 of 1993 on the file of the District Munsif Court, Mettur.
For appellants : Mr.P.Mani For respondents : No appearance Judgment
The Second Appeal has been filed against the judgment and decree dated 21.7.2001 in A.S.No.112 of 1999 on the file of the Subordinate Judge’s Court, Mettur, confirming the judgment and decree dated 10.2.1998 in O.S.No.81 of 1993 on the file of the District Munsif Court, Mettur.
2. The averments in the plaint are as follows:
Molaya Gounder was the owner of the properties in S.Nos.32/2 and 32/4. He had two sons, namely Kullavedi and Vedi; Kullavedi is the father of the first plaintiff and grandfather of the second plaintiff. Kullavedi and Vedi have partitioned the properties. The properties in S.No.32/2 and S.No.32/4 fell into the share of Kullavedi; the property in S.No.32/3A and another land fell into the share of Vedi. The plaintiffs are in possession and enjoyment of S.Nos.32/2 and 32/4; the first plaintiff’s paternal junior uncle is Vedi and the said Vedi’s sons are Palaniappan, Molaya Gounder, Subramanian, Arumugam and Nagappan and they sold the share of property in S.No.32/3A and another portion to the first defendant in 1962, from the date of oral partition, Kulla Vedi and Vedi used all the mamool way at the field; subsequent to the oral partition, there was a road earmarked in the breath 10 feet x length 100 feet, in the land of Vedi in S.No.32/3A, which is the only way to the plaintiffs to reach their lands in S.No.32/4 and the Panchayat Road. The plaintiffs were using the suit way without any hindrance and disturbance. On 12.2.1993 night, the defendants’ henchmen destroyed their way and prevented them from going through the way. Hence, the plaintiffs were constrained to file the suit for declaration that the plaintiffs’ right of way across the land in S.No.32/3A of Kolnayaganpatti Village, belongs to them and also for mandatory injunction to restore the suit pathway; and also for payment of costs and accordingly prayed for a decree.
3. The gist and essence of the written statement filed by the second defendant and adopted by the other defendants, are as follows:
There is no such pathway in existence in the name of cart track to the extent of 10 feet breath x 100 feet length. The plaintiffs must establish the existence of the suit property, i.e. cart-way. The first defendant purchased the property bearing S.No.32/3A from his vendor Vedi and the first defendant earmarked his purchased property with boundaries. There was no easementary right at the time of purchase, either in favour of the plaintiffs or anyone else. There is no such road in existence on the date of purchase in 1962 in S.No.32/3A. On the western side of the plaintiffs’ lands, there is a well-beaten road for the plaintiffs to reach another field. There is also another road which is on the northern side of the plaintiffs’ lands, which runs east to west and after the defendants’ lands, it takes diversion on the southern side and reach the plaintiffs’ another land. When the first defendant purchased the property form his vendor Vedi, there was no joint family status between the first defendant’s vendor Vedi and the first plaintiff’s father Kulla Vedi. In fact, D1 has been enjoying 1.19 cents as absolute property and has also been enjoying 10 cents adjoining to S.No.32/3A. In 1985, when the updating of patta scheme was introduced, D1 obtained patta for 10 cents in his favour. There is no cart-track in existence on 12.2.1993 and by long enjoyment of the entire lands in S.No.32/3A, the defendants’ family perfected their rights, including the alleged road. After the purchase by the defendants, the lands in S.No.32/3A , neither the plaintiffs nor anybody else were enjoying any right in S.No.32/3A and so, the plaintiffs are not entitled to ask for the relief of declaration and injunction; there is no cause of action for filing the suit. Hence, the defendants pray for dismissal of the suit.
4. The trial Court, after considering the averments both in the plaint and in the written statement, framed necessary issues and considering the oral and documentary evidence, it dismissed the suit, against which, the plaintiffs preferred First Appeal, and the first appellate Court, after considering the arguments of both sides, concurred with the findings of the trial Court and dismissed the First Appeal. Aggrieved by the same, the present Second Appeal has been preferred by the plaintiffs.
5. At the time of admission of the Second Appeal, the following substantial question of law has been framed by this Court:
“Whether in law, the judgment and decree passed by the Courts below, are sustainable, when they have failed to consider and appreciate the evidence on record in their proper perspective and based their conclusions on mere surmises and conjectures ?”
6. Learned counsel for the appellants/plaintiffs submitted that the suit property originally belonged to Molaya Gounder and he was the owner of S.Nos.32/2, 32/3 and 32/4 and S.Nos.32/2 and 32/4 were allotted to Kulla Vedi and S.No.32/3 was allotted to Vedi and to reach the property, i.e. S.No.32/4, there was 10 feet pathway in S.No.32/3 and it was enjoyed by the plaintiffs and forefather, before and after oral partition between Vedi and Kulla Vedi. As per Ex.A-3 sale deed, D1 purchased S.No.32/3 and the right to way was mentioned, excluding the said pathway. Both the Courts below came to the conclusion that the plaintiffs have not proved their case for existence of the pathway, which is not correct. D.W.2 VAO’s evidence has not been property considered by both the Courts below. P.W.2 is an old person, aged 75 years and he is the attestor to Ex.A-3 sale deed, and in his evidence, he has stated that the right of pathway was in enjoyment of the plaintiffs, and so, both the Courts below have not considered the same and the learned counsel for the appellants/plaintiffs prayed for setting aside the judgment and decree passed by both the Courts below and for allowing the Second Apepal.
7. Though the respondents/defendants entered appearance through counsel, there is no representation for the respondents/defendants at the time of hearing the Second Appeal. It is the contention of the defendants in their written statement that since the appellants/plaintiffs are claiming right of way, it is the duty of the plaintiffs to prove the same for existence of the pathway and they have not filed any single document to show the existence of the cart-way and prayed for dismissal of the suit.
8. Admittedly, S.Nos.32/2, 32/3 and 32/4 belong to Molaya Gounder and he was having two sons, one Kulla Vedi and another, Vedi. The said Kulla Vedi’s son is Arumugham, the first plaintiff and his only son is Periasami, the second plaintiff. During the oral partition between Vedi and Kulla Vedi, S.Nos.32/2 and 32/4 were allotted to Kulla Vedi. S.No.32/3 was allotted to Vedi as per Ex.A-3 sale deed, dated 10.5.1962, and to prove the ownership of S.Nos.32/2 and 32/4, the appellants/plaintiffs have filed Ex.A-1 Chitta for the Fasli 1394, Ex.A-2 Adangal for Fasli 1402 and 1403 and Ex.A-3 sale deed in favour of the first defendant, which is the registration copy of the document, even though the said Exs.A-1 to A-3 were marked subject to objections, since the original sale deed is with D1, the registration copy has been filed in respect of Ex.A-3 and to prove the same, the attestor to Ex.A-3 sale deed has also been examined as P.W.2. While perusing the document Ex.A-3, it is seen that Kuppa Kali Gounder P.W.2, was one of the attestors to Ex.A-3 sale deed, and so, Ex.A-3 is admissible in evidence. While perusing Ex.A-3, it is specifically mentioned therein that the vendors sold S.No.32/3, 16-1/2 cents out of 2 acres 44 cents on the west of Palaniappa Gounder’s share and east of Kulla Vedi’s share and south of Gopal Iyer’s land and north of Aanaiammal’s share and within the boundaries; furthermore, in S.No.32/3 East of Reddiyur Natham and north and south of Kulla Vedi’s land, west of Kallankuthu within the boundaries of 1 acre 19 cents, except the pathway 10 feet breadth x 100 feet length.
9. In Ex.A-3 sale deed, the property is described as follows:
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10. So, at the time of sale in favour of D1, 10 feet x 100 feet pathway was shown and that factum has not been considered by both the Courts below. Both the Courts below have not considered Ex.A-3 sale deed, being registration copy, even though to prove Ex.A-3, P.W.2 was examined.
11. It is true that the Commissioner was not appointed to find out as to whether there is any cart-way in existence in S.No.32/3 and the field measurement plan was also not marked. But however, in Ex.A-3 sale deed, it was clearly mentioned that except 10 feet x 100 feet pathway, the other properties have been sold to the first defendant. So, the first defendant is not the owner of the suit property, i.e. 10 feet x 100 feet cart pathway, as per Ex.A-3.
12. At this juncture, it is appropriate to consider DW2’s oral evidence, who is the VAO and he has fairly conceded that the field measurement plan will not mention the pathway in the patta property and if any pathway was in existence in the Government poramboke, it will only be mentioned in the field measurement plan and so, non-filing of the field measurement plan will no way affect the case of the appellants/plaintiffs.
13. In such circumstances, both the Courts below have committed error in not considering Ex.A-3 sale deed in proper perspective. The appellants/plaintiffs are not claiming easement of necessity and they are claiming that they are having a right in the suit-pathway to reach their lands and that has been clearly mentioned in Ex.A-3 sale deed and that portion is 10 feet x 100 feet pathway, which has not been conveyed to the defendants and the defendants have no right over the pathway.
14. Hence, I am of the view that in the Second Appeal under Section 100 CPC, this Court is empowered to re-appreciate the oral and documentary evidence, since Ex.A-3, the material evidence was not considered by both the Courts below and so, this Court can interfere with the concurrent findings of both the Courts below. As the findings of both the Courts below are perverse, and they were based on non-consideration of Ex.A-3 and non-appreciation of the evidence on record, i.e. D.W.2 VAO, this Court, after re-appreciating the oral and documentary evidence, in the Second Appeal stage, comes to the conclusion that the appellants/plaintiffs are entitled to declaration of their right of pathway in 10 feet x 100 feet in S.No.32/3A. Since the respondents/defendants destroyed the same, the appellants/plaintiffs are entitled to mandatory injunction to restore the same.
15. For the reasons stated above, the substantial question of law is answered accordingly. The Second Appeal is liable to be allowed and the judgments and decrees of both the Courts below are liable to be set aside.
16. In the result:
(a) The Second Appeal is allowed.
(b) The judgments and decree of both the Courts below are set aside.
(c) The suit in O.S.No.81 of 1993 is decreed as prayed for.
(d) The appellants/plaintiffs are entitled to get declaration of title and mandatory injunction, as prayed for in the plaint.
(e) Two months’ time from today, is granted to the respondents/defendants to restore the suit pathway.
(f) No costs.
08 .11.2010 Index: Yes Internet: Yes cs To 1. The Subordinate Judge, Mettur. 2. The District Munsif, Mettur. 3. The Record Keeper, V.R. Section, High Court, Madras. R.MALA, J cs Judgment in S.A.No.1116 of 2002 08.11.2010