IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 09.02.2007
CORAM:
THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN
S.A.No.263 of 1997
1.Lakshmi Ammal
2.N.Kasiviswanathan .. Appellants/Plaintiffs
vs.
T.M.Mohamad Kasim .. Respondent/Defendant
Prayer: This second appeal has been preferred against the
decree and judgment dated 31.07.1996 passed by the
Subordinate Judge, Nilgries, Ootacamund, in A.S.No.6 of
1995, which was filed against the decree and judgment dated
30.10.1988, in O.S.No.237 of 1986 on the file of the
District Munsif, Ootacamund.
For Appellants : Mr.S.Jayaraman
For Respondent : Mr.S.K.Rakhunathan
JUDGMENT
This appeal has been preferred against the decree and
judgment in A.S.No.6 of 1995 on the file of the Court of
Subordinate Judge, Nilgries, Ootacamund. The appellants are
the plaintiffs in O.S.No.327/1996 of the file of the Court
of District Munsif, Ootacamund.
2. The short facts of the case of the plaintiff in the
plaint relevant for the purpose of deciding this appeal are
as follows:-
2(a) The suit is for declaration in respect of
plaintiffs’ right of way over the Singiri Gowder lane by way
of easement and also for declaration that the plaintiffs
have a right of way by way of right of easment of necessity
and for consequential permanent injunction and for removal
of construction put up on a portion of the said Singiri
Gowder lane by way of mandatory injunction. The plaint
schedule property is S.No.E 33-A/2, Rs.No.2380 in Singiri
Gowder lane measuring 3.4 meters in width on the western
side and 1.9 meters on the Eastern side running to a
distance of 13.2 meters and passing through R.S.No.2380 of
Ootacamund town.
2(b) Thiru.T.Nanjundiah was the absolute owner of
the suit property Door No.16, Ward No.17, Station View,
Peyton’s Road, Ootacamund. The Said T.Nanjundiah died in or
about the year 1971 leaving behind the plaintiffs herein and
other as his legal representatives. The Plaintiffs are
looking after the property. The suit property was assessed
to house tax by Ootacamund Municipality under Assessment
No.7909 and the plaintiffs are paying the house tax for the
suit property. The defendant is the owner of the adjoining
property by virtue of sale deeds bearing Document No.798 and
799 of 1995 dated 6.9.1985 on the file of the Sub Registrar
Ottacamund. In the said title deed of the defendant itself
bearing document No.799 of 1985, it has been clearly stated
that the Northern boundary of the defendant’s property is
Singiri Gowder lane which the lane leading from Peyton’s
Road also known as Railway Station Road to the plaintiffs’
house through R.S.No.2380 of Ootacamund Town.
2(c) The said Singiri Gownder lane was and is the
approach road which starts from Peyton’s Road alias Railway
Station Road leading to the Plaintiffs’ property by passing
along the defendant’s property through R.S.No.2380 and is
the Northern boundary of the defendant. The said lane is
shown as a footpath and is coloured in Green in the plan
filed. The said lane is 3.4 meters wide on the Western end
known as Railway Station Road alias Peyton’s road and 1.9
meters wide on the Eastern end and runs to a distant of 13.2
meters from the said Railway Station Road to the Plaintiffs’
house. The said lane is situate between hotel Vijaya Vilas
building and the plaintiffs’ and defendant’s property.
2(d) The said Singiri Gowder Lane has been used
and is being used by the plaintiffs to reach their property
for long over the statutory period for over 30 years. The
plaintiffs and their predecessor in title have perfected
their right over the said lane as an easmentary right by
using the said lane to reach their house for long over the
statutory period. The said Singiri Gowder Lane is the only
approach road to reach their house and is an easement of
necessity. The plaintiffs therefore are entitled to use the
said lane both as an easementary right as also an easement
of necessity.
2(e) The defendant in the 2nd week of July, 1986,
has partly blocked the said lane with a view to prevent the
plaintiffs from going to their house. The defendant has put
up a construction on part of the said lane leaving only a
small gap between it and the adjoining property, thus
causing inconvenience to the plaintiffs and blocking part of
the right of way. The said construction is also an
unauthorised construction not sanctioned by the rules and by-
laws of the Municipality and Town planning Act and Rules.
The plaintiffs are entitled for a mandatory injunction
directing the defendant to demolish the construction put up
which blocks the said Singiri Gowder Lane.
2(f) If the defendant succeeds in blocking the
said lane the plaintiffs will be prevented from having
access to their property. The defendant who is only a
recent purchaser has no manner of right or title over the
said Singiri Gowder Lane and the defendant’s own document
would show the existence of the said lane which is his
northern boundary. Even as per the title deed of the
defendant itself, he is only entitled to use the pathway in
common with plaintiffs as was being used by his predecessors
in title. The defendant is a very influential person with
men, material and money at his command and if he succeeds in
his attempts to block the said Singiri Gowder Lane, the
plaintiffs will be put to irreparable loss and great
hardship as their very approach road to go to their property
will be lost. The plaintiffs are having the right of way
over the suit Singiri Gowder Lane. Hence, the suit.
3. The defendant has filed written statement with the
following averments:-
3(a) The plaintiffs alone are not the legal heirs
of T.Nanjundiah and the plaintiffs are not entitled to file
the suit. The rest of the heirs of the deceased T.Nanjundiah
are necessary parties to the suit and the suit therefore is
bad for non-joinder of the necessary parties. Regarding the
northern boundary of the defendant’s property which has been
shown as Singiri Gowder Lane in one of the Sale deeds in
favour of the defendant, the defendant states that the said
Singiri Gowder Lane was in existence only in the sourthern
most part of the land in R.S.No.2379 adjoining R.S.No.2380
and not in the northern portion of R.S.No.2380 purchased by
the defendant.
3(b) As a matter of fact, when the defendant
purchased his property and took possession of his property,
the defendant could not see any traces of existence of any
lane at his northern boundary but there is a strip of vacant
land between the northern boundary of the defendant’s
property and the buildings in R.S.No.2379 and the width of
the said open space varies from 4 feet to 2 + feet. The
defendant’s enquiries reveal that this narrow strip of land
was called as Singiri Gowder Lane and whether the same was
used by anyone as a footbath or not is not known to the
defendant. This defendant is not concerned with the said
gap as this defendant is not using the same for any
purposes.
3(c) The alleged Singiri Gowder Lane as described
in the plaint schedule and as delineated in the plan
attached to the plaint is not in existence on the ground at
all. The description of the lane given in the plaint is
incorrect. The alleged lane had never been in existence in
any portion of the land in R.S.No.2380. The plaintiffs are
falsely claiming the pathway over the northern portion of
R.S.No.2380 with the sole objection of harassing the
defendant and putting the defendant to wrongful loss.
3(d) It is utterly false to state that the alleged
Singiri Gowder Lane passes along the defendant’s property in
R.S.No.2380. No portion of the land in R.S.No.2380
particularly the northern portion thereof constituted any
lane at any point of time. The plan filed along with the
plaint is only a self-serving document and no credence could
be attached to the same. It is utterly false to state
that the alleged lane is 3.4 meters in width on the western
end and 1.9 meters in width on the eastern end and that the
pathway runs to a distance of 13.2 meters. As a matter of
fact, the northern wall of the defendant’s building extents
up to the northern boundary line of RS.No.2380 and the
northern boundary wall of the old building also was touching
the northern boundary line of R.S.No.2380.
3(e) Even assuming the plaintiffs had used any
portion of the land as passage to have access to their house
in R.S.No.2380, the plaintiffs could have used only the
southern most portion of the land in R.S.No.2379 of
Ootacamund Town for such access and not the northern portion
of the land in R.S.No.2380 now belonging to the defendant.
The defendant has been given to understand that the owners
of the property in R.S.No.2379 viz. V.M.Chidambaram Iyer had
filed the suit O.S.No.110 of 1984 on the file of the Sub-
Court, Ootacamund against the 1st plaintiff and one of the
sons of the 1st plaintiff viz. Sivaraj for a permanent
injunction restraining them from trespassing into any
portion of the land in R.S.No.2379 of Ootacamund Town and
the said owner had also obtained an interim injunction in
I.A.No.266/1984 as early as 7th April 1984. It is evident
that it is only after the said order of injunction which has
been passed by the Court against the plaintiffs, the
plaintiffs have filed this suit with false contentions. The
plaintiffs have no right over the suit lane. If really any
lane had existed then the same could have existed only in
the southern portion of R.S.No.2379 and the plaintiffs
should have contested the suit O.S.No.110/1984 referred and
established their right for the passage in the suit site.
The plaintiffs having failed to do so cannot now falsely set
up a right of way in the northern portion of the defendant’s
land. The plaintiffs are indeed estopped from putting
forward any such claim for any passage or right of way.
Hence, the suit is liable to be dismissed. The boundaries
mentioned in the rough sketch are also not correct. The
allegation that the defendant in the second week of July
1986 with a view to prevent the plaintiffs from using the
land had partly blocked the same is misleading. The suit is
bad for non-joinder of parties. The plaintiffs have no
cause of action. Hence the suit is liable to be dismissed.
4. On the above pleading the learned trial Judge
has framed eight issues for trial. On the side of the
plaintiffs P.W.1 and P.W.2 were examined and Ex.A.1 to
Ex.A.7 were marked. On the side of the defendant, D.W.1
was examined and Ex.B.1 to Ex.B.8 were marked. After going
through the evidence both oral and documentary, the learned
trial Judge has dismissed the suit with costs. Aggrieved by
the findings of the learned trial Judge, the plaintiffs have
preferred an appeal in A.S.No.6/1995, which was also ended
against the plaintiffs. Hence, the plaintiffs are before
this Court by way of this second appeal.
5. The substantial questions of law involved in this
second appeal are as follows:-
i) Whether the Court below was right
in law, in rejecting the evidence afforded
by Ex.B.2 merely on the surmise that the
description of the Singiri Gowder Lane as
the Northern boundary of the property
coveyed thereunder to the respondent is a
mistake without there being any plea and
evidence irrespect thereof?
ii) Whether the Court below is right
and justified in rejecting I.A.No.146 of
1996 merely for the reason that the
appellants had not filed a petition for
appointment of a commissioner in the trial
court?
iii)Whether the court below was right
in law in rejecting I.A.No.168 of 1996
filed by the Appellants herein under Order
41 Rule 27 CPC for letting additional
evidence in the shape of two photographs
showing the existence of the lane, when the
geniuses thereof was not disputed?
6.The Points:-
6(a) The suit property is a lane by name Singiri
Gowder Lane shown in green coloured portion in the rough-
sketch attached to the plaint. According to the plaintiffs,
the said disputed land is in S.No.E 33-A/2 in R.S.No.2380.
Admittedly both the plaintiffs and the defendant are having
land in S.No.2380. In the plaint schedule property, the
plaintiffs would say that the said Singiri Gowder lane is
going along R.S.No.2380.
6(b) The learned counsel for the appellants
relying on the description in Ex.B.2-sale deed infavour of
the defendant would contend that the said Singiri Gowder
Lane is on the north of his property purchased under Ex.B.2.
The exact recital in Ex.B.2-sale deed dated 6.9.1985 in
favour of the defendant-Mohamad Kasim runs as follows:-
In S.No.E 33-A/2 R.S.No.2380, out of 0.02
11/16 cents 0.01 6/16 cents were sold with the
following boundaries:-
East – House of Subramanian
West – Railway station road
North – Singiri Gowder Lane
South – Remaining portion of the house
A perusal of the rough sketch will go to show that there isno house on the East of S.No.2380 belonging to Subramanian.
The learned counsel for the appellants would fairly concede
that the description of the property on the East to Ex.B.2
is incorrect, at the same time he relied on the description
of the boundary for northern side for the property purchased
under Ex.A.2 which is Singiri Gowder Lane. Either the
plaintiff should rely on the four boundaries in entirety or
to leave it in toto. He cannot approbate and reprobate.
Either he must stick to the boundary description in entirety
or to discard the same in toto. So the claim of the
plaintiff is on the basis of the boundary recitals in Ex.B.2
to show that Singiri Gowder Lane is in existence on the
north of R.S.No.2380. But to the dismay there is no mention
about Singiri Gowder Lane in plaintiffs’ document Ex.A.1.
6(c) Both the Courts below have disallowed the
contentions of the plaintiffs only on the ground that the
plaintiffs’ document Ex.A.1 has no boundary description
comprising the Singiri Gowder lane. No doubt, the
plaintiffs have failed to take any steps before the trial
Court for appointment of a Commissioner to show that there
is a lane on the north of R.S.No.2380.
6(d) The learned counsel for the appellant relying
on the evidence of D.W.1 in the cross-examination, would
contend that the existence of Singiri Gowder Lane has been
admitted by the defendant. But D.W.1 would say in the cross-
examination that the extent of Singiri Gowder Lane is 10 +
cents and he does not know the length and width of the said
lane. Even the suit property scheduled to the plaint is
that 3.4 meters in width on the western end and 1.9 meters
on the eastern end running for the distance of 13.2 meters
only. So it must be roughly around 2 cents. So the
contention of the learned counsel for the appellant that the
extent of the lane itself has been admitted by the defendant
cannot hold any water because even according to the
plaintiffs the extend of Singiri Gowder Lane is not 10 +
cents. I am of the considered opinion that unless and until
the suit lane viz. Singiri Gowder Lane is fixed on land,
there cannot be an effective finding rendered in the suit.
Points are answered accordingly.
7. In the result, the appeal is allowed and the decree
and judgment in A.S.No.6/1995 on the file of the Court of
Subordinate Judge, Nilgries, is set aside and the matter is
remanded to the trial Court (Court of District Munsif,
Ootacamund). The trial Court is directed to appoint an
Advocate Commissioner to localize whether Singiri Gowder
Lane is situated or not with the help of a Taluk Surveyer,
and dispose of the case according to law, within a period of
two months from the date of receipt of copy of this order.
Both parties are at liberty to let in further evidence.
ssv
To,
1.The Subordinate Judge,
Nilgries,
Ootacamund.
2.The District Munsif,
Ootacamund.