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Madras High Court
Azhagar And 2 Others vs Roman Catholic Deva Arogyamatha … on 31 October, 2000
Bench: A Rajan

ORDER

1. This Second Appeal is directed against the judgment of the learned District Judge, Ramanathapuram in A.S.No. 125 of 1987, confirming the decreeing of the suit for declaration and permanent injunction.

2. The case of the plaintiff is, the suit property is compound wall and on the north of that is the plaintiff church and on south of the compound wall, there is a public pathway through which the people of Tiruvallur village can pass. In the plaintiff church, the Christians of the village as well as others
worship. There was a door in the compound wall leading to the road which was closed temporarily. The street south of the compound wall is a common public pathway and it does not belong to any individual. The defendants are claiming that the street south of the church as their exclusive pathway and they will not permit the plaintiff to open a doorway leading to the road south of the compound wall. Therefore, suit has been filed by the plaintiff that they have got a right to have the opening on the compound wall and to go to the public road on the south of it and the defendant shall not interfere with that as they have no right for the same.

3. The case of the defendant is that the property south of the compound wall of the church is not a public pathway; It exclusively belongs to the Harijan community of Tiruvallur village; Nobody else passes through that path and nobody has got a right to pass through that path. There was never a door on the compound wall leading to the church from this pathway. This area is part of the Kali temple worshipped by the respondents. When this property was encroached some 60 years back by the first defendant’s father, Mayalugu and others representing the Harijans and the Kali temple filed a suit against Arockiya Nadar and in the suit, a compromise was entered into and thereby the said Arockiya Nadar recognized that this area belong exclusively to the Harijans of the village and accordingly, decree was granted. Subsequently, that decree was executed and encroachments were removed through Court, in accordance with the decree. Thereafter, a compound wall was constructed without any opening. The property was purchased from the son of Arockiya Nadar by the plaintiff church about ten years back. Immediately, thereafter, they wanted to make an opening on the compound wall which was objected to and the attempt was given up and the opening made was also closed. After the church was built, people go to the church through the gate on the western side of the church. In February, 1994, Xavier and Albert wanted to open a pathway leading to this area. Therefore, they had given complaint to the police as well as the revenue officials. The plaintiff church is bound by the judgment in O.S.No.294 of 1929 and E.P.No.671 of 1932. They are also estopped from claiming any right in the area south of the compound wall. The earlier decree acts as res judicata. Since they have no right of access on the south of the compound wall, the suit property was only referred to as compound wall and on that basis, they cannot claim any access into the south of the property.

4. The lower Court has decreed the suit as prayed for relying upon Ex.A.3 which is a sale deed by one of the Harijans of that locality and held that the area south of the compound wall of the church is common pathway. The trial Court relied on Exs.B.1 and B.2. and came to the conclusion that it is not clearly stated that this area is south of the compound wall and belongs exclusively to the Harijans of that village and therefore, decreed the suit as prayed for.

5. The appeal filed against that was also dismissed. The lower appellate Court also relying upon the recital in Ex.A.3 which is one of the sale deeds of a Harijan of that village and came to the same conclusion. Therefore, the appeal was dismissed. Against that, the present second appeal came to be filed.

6. In a suit for declaration, the onus is on the plaintiff to prove his title as well as his claim. The case of the plaintiff is that the area south of the suit property (only the compound wall is shown as suit property) is a public pathway; over which every person has got a right of ingress and egress. To prove that, there is no evidence whatsoever on the part of the plaintiff. No revenue records or survey records or Field Measurement Books have been filed to prove that it is the common pathway. The only document filed on the side of the plaintiff, the settlement deed, Ex.A.1 and sale deeds of the third parties who are not parties to the suit. In these documents, the area south of the compound wall has been referred as public pathway. This is not sufficient to prove that the area south to the suit compound wall is public pathway.

7. It is to be noted that Ex.B.1 is the judgment of the year 1921 and in that suit, a Commissioner was appointed and the Commissioner gave a report and also a sketch which are marked as Exs.B.3 and B.4. A perusal of that reveals that certain areas were encroached upon by the predecessors-in-title of the plaintiff and that was agreed to be removed and a compromise was entered into and on the basis of the compromise decree, after demolishing certain buildings possession was handed over to the defendants ancestors as proved by Ex.B.2. It is also seen that from Ex.B.5, that some portions demolished in excess of the compromise decree were allowed to be re-built by the order in the appeal. From this, it is clear that the area south of the suit property, viz., the compound wall of the church was not a public pathway and when that area was encroached, by the predecessor-in-title of the plaintiff, the defendants’ ancestors filed a suit and recovered possession.

8. In this suit, a Commissioner has been appointed and he has also given a report as well as a plan. The case of the plaintiff is that the street south of the suit property leads from one village to another village; but the Commissioner in his report has stated as follows:-

This pathway is not going to any other nearby villages. This pathway ends nearby with 300′ on east from the suit property. On the middle, i.e., 200′ towards east from the suit property, there is a “Kali Kovil Pedam” which is marked as “V in the plan. There is building with tiled roof which is marked as ” N Q P Q. In side the building, there is a “Pillaiyar Statue” on the cement flooring.

9. Therefore, from the Commissioner’s Report, it is seen that the pathway ends nearby at 300 feet on east from the suit property, and in the middle, there is a Kali temple and the case of the defendant is that this property belongs to the Kali temple and it is exclusively belongs to the Harijans of that village and that is the reason why they resisted the encroachment made in the 1929. Further, there is also a Pillaiyar temple in the middle which is near the suit property. The Commissioner has visited on 4.8.1985. He has stated that there was no sign of fresh and wet plastering. In the plaint also, the plaintiff has not stated that the temple was constructed recently. From these, it is seen that this area is the exclusive property of the Harijans of that village; and it is not the public pathway. From the records only, the defendants
case is proved and not the plaintiffs case as concluded by the Lower Court. Therefore, as stated above, the plaintiff has failed to prove his case.

10. Learned counsel for the respondent argued that since Ex.B.1 is a compromise decree it cannot act as res judicata and therefore, the findings are not binding in this case. It is true that a compromise decree cannot be considered as res judicata, but in this case,” the compromise decree was enforced and as per that decree, encroachments were removed. When more portions were removed, the plaintiffs’ predecessor filed an appeal and restored the area as per the decree. Further, the plaintiffs are claiming a right only through their predecessor-in-title who were the defendants in that suit. The heirs of the plaintiffs in the suit O.S. No.264 of 1929 are the defendants in the present suit. Therefore, the above suit though not act as res judicata is binding on them as judgment, inter parties.

11. Therefore, the plaintiff has to fail. Hence, this appeal is allowed and the suit is dismissed with costs, throughout.


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