BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Second Appeal No.343 of 2000 Dhandapani ... Appellant Vs Murugesan ... Respondent Prayer Second Appeal filed against the Judgment and Decree dated 08.09.1999 made in A.S. No.58 of 1998 on the file of the Sub Court, Karur, reversing the Judgment and Decree, dated 30.07.1998 made in O.S. 749 of 1994 on the file of the District Munsif Court, Karur. !For Appellant ... Mr.S.Anand Chandrasekar ^For Respondent ... No appearance :JUDGMENT
This second appeal is focussed as against the judgment and decree dated
08.09.1999 passed in A.S. No.58 of 1998 on the file of the Sub Court, Karur, in
dismissing the original suit after reversing the Judgment and Decree, dated
30.07.1998 made in O.S. 749 of 1994 on the file of the District Munsif Court,
Karur.
2. Heard the learned counsel for the appellant. Despite printing the name
of the respondent, no one appeared.
3. The parties, for convenience sake, are referred to hereunder according
to their litigative status before the trial Court.
4. Broadly but briefly, precisely but narratively, the case of the
plaintiff as stood exposited from the plaint could be portrayed thus:
The plaintiff Dhandapani filed the suit O.S.No.749 of 1994 in the Munsif
Court, Karur. The nitty-gritty, the gist and kernel of the case of the
plaintiff would run thus:
By virtue of the sale deed Ex.A.2 dated 08.07.1985, the plaintiff
purchased the “A” Schedule property described in the plaint measuring an extent
of 900 Square feet on the northern portion of the larger extent of 1800 square
feet. His predecessor in title was in possession and enjoyment of the property
purchased by him, following the same, he continued to enjoy “A” Schedule
property. While so the defendant illegally attempted to exercise right over
the “B” Scheduled property of the plaint i.e, ABFG portion, specified in the
rough sketch attached to the plaint. When the plaintiff raised a wall in the
GF portion from East to West, the defendant tried to make a hole in that wall
under the pretext of having a right to take sewage and rain water through that
wall and let it into the said ABFG portion. Thereupon the suit was filed for
injunction.
5. Denying and challenging the plaint averments defendant Murugesan filed
the refutory written statement, the nitty gritty of it would run thus:
ABFG portion described in the “B” Schedule property of the plaint, refers
to the common passage and it also forms part of the road, was used by the
defendant and that drainage water was also let into that portion. Accordingly,
he prayed for the dismissal of the suit.
6. The trial Court framed the relevant issues. During trial, the
plaintiff examined himself as P.W.1 along with P.W.2 and Exs.A.1 and A.2 were
marked. The defendant examined himself as D.W.1 along with D.W.2 and Exs.B.1 to
B.5 were marked. Ultimately, the trial Court decreed the suit.
7. Challenging the said Judgment and decree of the trial Court, the
defendant preferred appeal in A.S.No.58 of 1998, which was allowed by dismissing
the original suit filed by the plaintiff after reversing the Judgment and Decree
of the trial Court.
8. Being aggrieved by and dissatisfied with, the judgment and decree of
the first appellate Court, the present second appeal has been filed on the
grounds inter alia:
The first appellate Court after giving a finding to the effect that the
defendant is having no right to take water through the “B” Schedule property,
erroneously held that the plaintiff has not proved his title or right of
possession and accordingly dismissed the suit.
9. At the time of the admission of the Second Appeal, my learned
Predecessor framed the following questions of law:
(i) Whether the Court below erred in law in dismissing the suit for
injunction on the assumption that necessary property description is not given in
schedule property without even looking into the schedule given in the plaint and
without considering the fact that the property description is given in the
plaint was never in dispute between the parties?
(ii) Whether the lower appellate Court is right in law holding that the
appellant was in possession of the disputed property overlooking the admission
of respondent in the written statement as well as the admission of D.Ws.1 and 2
regarding possession? and
(iii) Whether the lower appellate Court is right in discarding the
material evidence, namely, Exs.A-2, B.2, C.1 and C.2; admission of D.Ws.1 and 2
and in reversing the judgment and decree of the trial Court?
Point Nos:(i) to (iii)
10. All these points are taken together for discussion as they are
interlinked and interconnected with one another.
11. The learned counsel for the plaintiff drawing the attention of this
Court to the plaint sketch as well as the two commissioners’ Report and the
Commissioners’ Sketches filed in this case, would develop his argument to the
effect that if the matter is viewed taking into consideration the description as
found in Ex.A.2, it would be explicitly and pellucidly clear that the “B”
Schedule property which is ABFG marked portion in the rough sketch is situated
to the South of Palanisamy’s land and East of South to North lane. This area
is a small area over which the dispute exists and not relating to the rest of
the area which the plaintiff purchased under Ex.A.2; the defendant is having no
right or title over the disputed area, however high-handedly he lays claim over
that area as though it was part of a lane and that it was used by him for
letting into it his drainage water and rain water from his house; and that the
first appellate Court erroneously understood as though the defendant is claiming
for the entire 900 square feet as contemplated under Ex.A.2. Here, the disputed
area is “B” Schedule property situated virtually at the North-Western corner of
the land described in Ex.A.2. The North-Western corner boundaries do tally with
the “B” Schedule portion and thereupon the first appellate Court was not
justified in raising doubt over title, ownership and in simply reversing the
judgment of the trial Court.
12. I could see considerable force in the submission made by the learned
counsel for the plaintiff for the reason set out infra:
Ex.A.2 would contemplate the following description:
“fUh; hpo mutf;Fwpr;rp rg;o fUh; jhY]f;fh uh$g[uk; fpuhkk; f!;ghtpy; 1.66
i& fjtpyf;fkpl;l tPL twt[f;F rf;Fge;jp fpHBky; Buhl;Lf;Fk; tlf;F, bjd;tly; bghJ
re;Jf;Fk; Bkw;F, KUBfrd; twh tPl;Lf;Fk; bjd;tly; re;Jf;Fk; fpHf;F gHdpr;rhkp twh
tPl;Lf;Fk; bjw;F, njd; kj;jpapy; fpHBky; KHk; Rkhh; 20 (30 mo) bjd;tly; KHk;
Rkhh; 40 (60 mo) njpy; tlg[wk; ghjp 900 r.mo epyKk; njpy; fl;oa[s;s tlf;F
ghh;j;j Tiu tPLk; mijr; Brh;e;j fl;ol rhkhd;fSk; fjt[ epyt[ fl;Lf;Bfhg;g[ Kd;
thry; gpwtil i& brhj;Jf;F khKy; tHp eilghij ghj;jpaA;fs; rfpjKk; Brh;e;J fpwak;
i& brhj;J ej;jk; rh;Bt 628 rp-y; cs;sJ.”
(emphasis supplied)
A mere perusal of the boundaries as found set out would make the point clear
that the “B” Schedule property marked as ABFG in the rough sketch is forming
part of the North-Western portion of the property purchased under Ex.A.2. No
doubt in the Commissioner’s Report there is no clarification as to whether that
area is forming part of that 900 square feet or not. But in this case the first
appellate Court was not expected to go into all
those details as the defendant has no locus-standi to question all those
aspects.
13. The plaintiff on the one hand asserts his right basing on the
boundaries as found set out in Ex.A.2. Whereas the defendant would contend
that it is a public road/lane and that it was under his usage for letting into
it his drainage and rain water. The first appellate Court in para No.13 of its
judgment clearly and categorically held that the defendant never used that “B”
Schedule property for letting into it his drainage and rain water. Nonetheless
it does not confirm the trial Court’s verdict. However, it raised doubt
regarding the description of property as well as the ownership over it. To the
risk of repetition without being tautologous, the first appellate Court has
failed to see that the suit property is very much within the boundaries as
contemplated under Ex.A2. ABFG area found in the rough sketch clearly situated
to the South of Palanisamy’s house. Here, the sketch drawn by the first
Commissioner, who visited the suit property during trial stage, clearly pointed
out that a third party is enjoying area to the North of the “B” Schedule
property and as such the Northern boundary is as contemplated under Ex.A.2. The
South to North lane virtually proceeds to the West of the Palanisamy’s land. As
such the disputed area is to the South of Palanisamy’s area. In such a case the
disputed area can not form part and parcel of the South to North lane. It
obvious and apparent that the South to North lane is situated to the West of
both the plaintiff’s and Palanisamy’s land, in such a case the doubt developed
by the first appellate Court is not at all well founded and it was based on
misconception of facts.
14. Quite against the trial Court’s detailed judgment, the first appellate
Court for the purpose of ascertaining further about the physical features once
again appointed a Commissioner and that Commissioner submitted his Report and
sketch relating to the use of the disputed area and based on that the first
appellate Court gave a finding that the disputed area could not have been used
as a place for letting into it drainage water or rain water of the defendant.
Hence, in these circumstances, in view of the factual circumstances as well as
the physical features the first appellate Court was not right in giving an
adverse finding as against the plaintiff.
15. The burden of proof is not static. No doubt initially the burden of
proof was on the plaintiff and he clearly proved both by oral and documentary
evidence that “B” Schedule property was in the possession of his predecessor in
title and following his possession he came into possession of the suit property.
As such despite the burden of proof got shifted to the defendant’s side, the
defendant has not proved that the disputed property was either part of the
public road or lane or under the public use including the defendant’s use and he
has not also proved that the disputed property was used for letting into it his
drainage and rain water. Even D.W.2, the relative witness of the defendant would
clearly and categorically admit that the vendors of the plaintiff used the
disputed property as the place for drying their potteries as they were doing
pottery fabrication business. The learned counsel for the plaintiff would
correctly raise the point that had really the defendant been letting his
drainage and rain water into it, the plaintiff could not have used the disputed
property for drying the potteries.
16. No doubt, Ex.A.2 would refer to a rectangular area, but here the
sketch shows “L” shape area. The defendant is trying to argue that the disputed
area in that “L” shaped area should be completely severed away from plaintiff’s
area as in Ex.A.2 and it should be treated as pathway. Such an argument could
not be countenanced because the boundary do tally as already cited supra and in
such a case the Judgment and Decree of the trial Court should not have been
interfered with by the I Appellate Court.
17. Accordingly, the first substantial question of law is answered that
the first appellate Court has erred in law in dismissing the suit for
injunction on the assumption that necessary property description is not given in
schedule of property. Consequently the second question of law does not arise
because the lower Court does not give any finding that the defendant was in
possession of the suit property. In fact the first appellate Court gave a
finding the disputed area was never used by the defendant for drainage purpose.
Infact the evidence of D.W.2 is quite against the case of the
defendant. The third substantial question of law is answered to the effect that
the first appellate Court was wrong in discarding the material evidence viz.
Exs.A.2, B.2, C.1 and C.2 and it misunderstood Commissioner’s report and sketch.
18. Accordingly, the Second Appeal is allowed setting aside the decree and
judgment of the first appellate Court and the decree and judgment of the trial
Court are restored. In the facts and circumstances of the case, there is no
order as to the costs.
sj
To
1.The Subordinate Judge, Karur.
2.The District Munsif, Karur.