BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 07/11/2008 Coram THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN S.A.No.492 of 2000 1.N.Revathi 2.R.Sokkammal 3.V.Panagal ... Appellants / Plaintiffs vs. R.Lakshmi Ammal ... Respondent / Defendant Prayer This second appeal has been filed under Section 100 of CPC against the decree and Judgment dated 25.03.1998 in A.S.No.12 of 1994 passed by the learned III Additional Subordinate Judge, Madurai, confirming the decree and Judgment dated 30.08.1993 in O.S.No.805 of 1991 on the file of the District Munsif, Madurai. !For Appellants ... Mr.D.Rajendran, Advocate ^For Respondent ... Mr.R.G.Shankar Ganesh, Advocate ----- :JUDGMENT
This second appeal has been preferred against the decree and Judgment in
A.S.No.12 of 1994 on the file of the III Additional Subordinate Judge, Madurai,
which had arisen out of the decree and Judgment in O.S.No.805 of 1991 on the
file of the District Munsif, Madurai. The unsuccessful plaintiffs before the
Courts below are the appellants before this Court.
2.The averments in the plaint in brief relevant for the purpose of
deciding this appeal runs as follows:-
The suit is for declaration that the plaint schedule property is a
common passage and for consequential permanent injunction restraining the
defendant and her men from putting up any construction in the suit property.
The 1st plaintiff is the owner of the building bearing Door No.5-6-11(A)
(S.No.13/2B2) and the 2nd plaintiff is the owner of the building bearing Door
No.5-6-12 (S.No.13-2A) and the 3rd plaintiff is the owner of the building
bearing Door No.7-7-1 (S.No.14/1A) respectively and the suit property is
situated in Vadiapetti Town Panchayat. The 1st plaintiff was given UDR Patta
NO.685 (Old Patta No.792) and the 2nd plaintiff was given UDR Patta No.323 and
the 3rd plaintiff was assigned UDR Patta No.829 by the Revenue Authorities.
The passage for ingress and engress to the plaintiffs property is only through
Survey No.13/74 and there is no alternate passage leading to the plaintiffs’
properties except through S.No.13/74/ The suit passage is in S.No.13/74
measuring 7.6 links east west and 28.4 links north south. The passage is in
existence from time immemorial. The defendant, who has no right to close the
entrance to Suvey No.13/74 is threatening to block the entrance and thereby
prevent the plaintiffs’ ingress and eggress and right of pathway. The defendant
attempted to close the entrance on 5.9.1991 and has also damaged the water
pipeline leading to the 2nd plaintiff’s house on 5.9.1991. Hence, the 2nd
plaintiff’s son gave a complaint to the Executive Officer of the Vadiapatti
Panchayat Board on 5.9.1991 and the Panchayat Board had also warned the
defendant not to put up any blockade of obstructions. Inspite of the warning,
the defendant is still threatening to block the entrance. S.No.13/74 is a
promboke land and used as a passage from time immemorial by the plaintiffs and
their ancestors. There is an electric lamp post in S.No.13/74 erected by the
Panchayat and from which electric connection has been taken to the plaintiffs’
houses. Taking advantage of the UDR Patta, the defendant is claiming ownership
over S.No.13/74. But the plaintiffs and their ancestors have prescribed tile to
the suit property by way of adverse possession. The defendant is attempting to
dig foundation for her proposed construction in S.No.13/74. The defendant has
also heaped bricks and sand for the proposed construction. Hence, the suit.
3.The defendant has filed a written statement contending that the
2nd plaintiff is the owner of the building bearing Door No.5-6-12 and the
3rd plaintiff is the owner of the Building bearing Door No.7-7-1. But the
1st plaintiff is not the owner of the building bearing Door No.5-6-11A. The
first plaintiff has put up a thatched house in the year 1987 only on the south
west side in S.NO.13/2B2. The assignment of Patta No.685, 323, 829 in favour of
the plaintiffs 1 to 3 respectively is not known to the defendant. The
allegation that the plaintiffs are using the plaint schedule property from time
immemorial as an ingress and eggress to their property is false. In S.No.10
Vadipatti Bus Stand is situated. The second plaintiff has constructed his house
in the year 1987 and is having one door way on the south and another on the
east. The second plaintiff has got one more house on the South. The Door way
for that house is on the south. The second plaintiff is using the southern Door
Way for her eggress and ingress to her property. Further, the second plaintiff
is using the passage situated on the south of her houe ie., through the
S.No.s13/98, 13/99 and 13/100. The first and third plaintiffs are also using
the same pathway. They were using the pathway which is running infront of the
house of first and third plaintiffs. The third plaintiff’s entrance is facing
north, which is being prevented with an iron gate measuring a width of 12 feet.
The above mentioned pathway alone is being used by the plaintiff to get ingress
and eggress to their respective properties and to reach the bus stand. Some
eight years back the second plaintiff had put up a toilet on the south-eastern
portion and also a staircase on the north-eastern portion within her property
and has also constructed a septic tank and the drainage on the eastern side.
The second plaintiff is using the eastern doorway only to reach the toilet and
staircase. She never used the said property as a passage to have ingress and
eggress to her house. This defendant and three other persons are joint owners of
S.No.13/74. The said survey number has been included in patta No.936, which was
issued in favour of the defendant and three others. This defendant is the
owner of the northern portion of S.No.13/74. The measurements given in the
plaint for the plaint schedule property is incorrect. This defendant’s property
is measuring south east 30 feet and north south 35 feet. The same was originally
belonged to the defendant’s fatehr Venkita Reddi. By virtue of a registered Will
dated 4.9.1939 the said Venkita Reddi bequeathed the suit property alongwith
some other properties in favour of his wife Ellammal. The said Ellammal is
still alive. With the consent of the above said Ellammal, the patta has been
transferred in favour of this defendant in respect of the properties bequeathed
under the Will. The said Venkita Reddi died in the year 1945. After his death,
the Will has come into force and the defendant’s mother Ellammal was in
possession and enjoyment of the suit property and now the defendant is in
possession and enjoyment of the same paying revenue taxes. The defendant’s
house bearing Door NO.5-6-22 is also situated very nearer to the suit property.
After the death of the said Venkita Reddi, the defendant’s mother and defendant
were using the suit propety as a cattle shed. The defendant and her mother
removed the cattle shed very recently for the construction of a residential
house for the occupation of the defendant’s elder son. The suit property is a
patta land. The second plaintiff has no space on the east of her eastern wall.
There was an attempt to measure the suit property and the property belonging to
the defendant in the presence of panchayatars viz., 1)K.Ramasamy Reddiar,
2)Govindaraju, 3)Srinivasan. Before the panchayatars, the defendant’s western
boundary was fixed and marked by planting of stones. Thereafter, the defendant
began to construct her house leaving a space of 4 feet on the west. The said
space was left for the convenient enjoyment of defendant’s property. The
allegation that the defendant had made an attempt to damage the water pipeline
and attempted to close the entrance from 5.9.1991 are all false. At the time of
digging the foundation the second plaintiff has voluntarily removed the pipeline
at the request made by the defendant. The second plaintiff is not the owner of
the house situated on the west of the suit property. The plaintiffs are not
entitled to S.No.74. The suit property is a patta land belonging to the
defendant. There is no cause of action to file the suit. S.No.13/74 is
belonging to the defendant and three others. Plaintiffs 1 to 3 are unnecessary
parties to the suit. The suit is bad for non-joinder of necessary parties.
Hence, the suit is liable to be dismissed.
4.In the Additional Written statement the defendant would contend that the
Court fee paid is not correct and the suit is bad for non-joinder of necessary
parties. In the reply statement the plaintiffs have denied the averments in the
written statement filed by the defendant.
5.On the above pleadings the learned trial Judge has framed 6 issues,
which were recast subsequently as 4 issues. Before the trial Court the
plaintiff has examined P.W.1 to P.W.4 and exhibited Ex.A.1 to Ex.A.35. On the
side of the defendant, D.W.1 to D.W.4 were examined and Ex.B.1 to Ex.B.12 were
marked. After considering the oral and documentary evidence, the learned trial
judge had come to the conclusion that the relief asked for in the plaint cannot
be granted, had dismissed the suit with costs. Aggrieved by the findings of the
learned trial Judge, the plaintiff has preferred A.S.no.127 of 1997 before the
first appellant Judge, who after giving due consideration to the submissions
made by the learned counsel on both sides, finding no reasons to interfere with
the decree and judgment of the learned trial Judge, had dismissed the appeal
thereby confirming the decree and judgment of the learned trial Judge, which
necessitated the plaintiff to approach this Court by way of this Second appeal.
6.The following Substantial Questions of Law are formulated in this Second
Appeal:-
1)whether the Judgment and Decree of the Courts below are vitiated for non
appreciation of the evidence in the proper perspective, resulting in perverse
findings rendered thereon, particularly without reference to the recitals in
Ex.A.37 & Ex.A.38 which clearly reveal that the suit property is a common
pathway which has been in existence from time immemorial?
2)Whether the Courts below had erred in failing to consider Ex.A.37 &
Ex.A.38, which clearly establish the nature, character and usage of the suit
pathway as a common pathway?
3)Whether the Courts below had failed to consider Ex.C.1 and Ex.C.2, the
Commissioner’s report and plan, which clearly reveal the existence and usage of
the suit property as a common pathway, and moreso when there is no alternate way
to reach the plaintiff’s house?
7. Substantial Questions of Law Nos.1 to 3:- The plaint schedule property
is a vacant site measuring 7.6 links east west (about 6 feet) and 28.4 links
(about 20 feet) north south in Ward No.5, Vadipatti Town Panchayat Neeratham
Village, Vadipatti Taluk. A Commissioner was appointed, who had filed before
the trial Court Ex.C.2-plan and Ex.C.1-report identifying the plaint schedule
property. According to the plaintiffs, the plaint schedule property is a common
pathway, which is being used to get ingress and eggress to the properties of the
plaintiffs, which are situated on the west. Both Ex.A.37 and Ex.A.38 were
marked before the first appellate Court by the appellants / plaintiffs. But the
learned first appellate Judge has rejected both Ex.A.37 Ex.A.38 on the ground
that both the plaintiffs and the defendant are not parties to Ex.A.37 and the
subject matter in Ex.A.37 is S.No.13/8 and not S.No.13/7. Even in the plaint
schedule, the plaintiff has not mentioned Survey Number for the plaint schedule
property. So, it is highly doubtful whether the plaint schedule property comes
within S.No.13/7. In the plaint the plaintiffs would contend that the
plaintiffs and their predecessors were in possession and enjoyment of the
plaint schedule property from time immemorial. Further, the plaintiffs would
contend that they have also prescribed tile by way of adverse possession. Once
the plaintiffs plead adverse possession then they must admit that the plaint
schedule property belongs to the defendant. The house tax receipts and water
tax receipts produced by the plaintiffs relates to the Vadipatti Panchayat
Union. Further the plaintiffs are not very definite in their plaint whether the
suit property is a patta land or poramboke land belonging to the Government.
This fact has been taken note of by the learned trial Judge in his judgment and
on that score alone the trial Judge had held that the relief of declaration that
the suit property is a common pathway asked for by the plaintiffs cannot be
granted. The learned first appellate Judge has also observed that as per
Ex.B.4, joint patta has been granted in respect of S.No.13/74. This second
appeal has been preferred against the concurrent findings of the Courts below.
There is no substantial question of law involved in this second appeal. Unless
it is shown before this Court that the findings of the Courts below are perverse
in nature and that the Courts below have failed to consider the evidence
produced before them, this Court sitting in second appeal cannot interfere with
the concurrent findings of the Courts below. Substantial Questions of law No.1
to 3 are answered accordingly,
8.In fine, the second appeal fails and the same is hereby dismissed
confirming the decree and judgment of the learned first appellate Judge in
A.S.No.12 of 1994 on the file of the Court of III Additional Subordinate Judge,
Madurai. No costs.
ssv
To,
The III Additional Subordinate Judge, Maduria.