{"id":11214,"date":"2008-11-07T00:00:00","date_gmt":"2008-11-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-revathi-vs-r-lakshmi-ammal-on-7-november-2008"},"modified":"2017-12-17T14:32:57","modified_gmt":"2017-12-17T09:02:57","slug":"n-revathi-vs-r-lakshmi-ammal-on-7-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-revathi-vs-r-lakshmi-ammal-on-7-november-2008","title":{"rendered":"N.Revathi vs R.Lakshmi Ammal on 7 November, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
N.Revathi vs R.Lakshmi Ammal on 7 November, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDated: 07\/11\/2008\n\nCoram\nTHE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN\n\nS.A.No.492 of 2000\n\n1.N.Revathi\n2.R.Sokkammal\n3.V.Panagal\t\t\t    \t\t ... Appellants \/ Plaintiffs\n\nvs.\n\nR.Lakshmi Ammal \t\t\t\t ... Respondent \/ Defendant\n\nPrayer\n\nThis second appeal has been filed under Section 100 of CPC against the\ndecree and Judgment dated 25.03.1998 in A.S.No.12 of 1994 passed by the learned\nIII Additional Subordinate Judge, Madurai, confirming the decree and Judgment\ndated 30.08.1993 in O.S.No.805 of 1991 on the file of the District Munsif,\nMadurai.\n\n!For Appellants  ...   Mr.D.Rajendran, Advocate\n^For Respondent  ...   Mr.R.G.Shankar Ganesh, Advocate\n\n-----\n\n:JUDGMENT\n<\/pre>\n
\tThis second appeal has been preferred against the decree and Judgment in
\nA.S.No.12 of 1994 on the file of the III Additional Subordinate Judge, Madurai,
\nwhich had arisen out of the decree and Judgment in O.S.No.805 of 1991 on the
\nfile of the District Munsif, Madurai.  The unsuccessful plaintiffs before the
\nCourts below are the appellants before this Court.\n<\/p>\n
\t2.The averments in the plaint in brief relevant for the purpose of
\ndeciding this appeal runs as follows:-\n<\/p>\n
\t\tThe suit is for declaration that the plaint schedule property is a
\ncommon passage and for consequential permanent injunction restraining the
\ndefendant and her men from putting up any construction in the suit property.
\nThe 1st plaintiff is the owner of the building bearing Door No.5-6-11(A)
\n(S.No.13\/2B2) and the 2nd plaintiff is the owner of the building bearing Door
\nNo.5-6-12 (S.No.13-2A) and the 3rd plaintiff is the owner of the building
\nbearing Door No.7-7-1 (S.No.14\/1A) respectively and the suit property is
\nsituated in Vadiapetti Town Panchayat. The 1st plaintiff was given UDR Patta
\nNO.685 (Old Patta No.792) and the 2nd plaintiff was given UDR Patta No.323 and
\nthe 3rd plaintiff was assigned UDR Patta No.829 by the Revenue Authorities.
\nThe passage for ingress and engress to the plaintiffs property is only through
\nSurvey No.13\/74 and there is no alternate passage leading to the plaintiffs’
\nproperties except through S.No.13\/74\/  The suit passage is in S.No.13\/74
\nmeasuring 7.6 links east west and 28.4 links north south.    The passage is in
\nexistence from time immemorial. The defendant, who has no right to close the
\nentrance to Suvey No.13\/74 is threatening to block the entrance and thereby
\nprevent the plaintiffs’ ingress and eggress and right of pathway.  The defendant
\nattempted to close the entrance on 5.9.1991 and has also damaged the water
\npipeline leading to the 2nd plaintiff’s house on 5.9.1991.  Hence, the 2nd
\nplaintiff’s son gave a complaint to the Executive Officer of the Vadiapatti
\nPanchayat Board on 5.9.1991 and the Panchayat Board had also warned the
\ndefendant not to put up any blockade of obstructions.   Inspite of the warning,
\nthe defendant is still threatening to block the entrance.  S.No.13\/74 is a
\npromboke land and used as a passage from time immemorial by the plaintiffs and
\ntheir ancestors.  There is an electric lamp post in S.No.13\/74 erected by the
\nPanchayat and from which electric connection has been taken to the plaintiffs’
\nhouses. Taking advantage of the UDR Patta, the defendant is claiming ownership
\nover S.No.13\/74.  But the plaintiffs and their ancestors have prescribed tile to
\nthe suit property by way of adverse possession.  The defendant is attempting to
\ndig foundation for her proposed construction in S.No.13\/74. The defendant has
\nalso heaped bricks and sand for the proposed construction.   Hence, the suit.\n<\/p>\n
\t3.The defendant has filed a written statement contending that the
\n2nd plaintiff is the owner of the building bearing Door No.5-6-12 and the
\n3rd plaintiff is the owner of the Building bearing Door No.7-7-1.  But the
\n1st plaintiff is not the owner of the building bearing Door No.5-6-11A.  The
\nfirst plaintiff has put up a thatched house in the year 1987 only on the south
\nwest side in S.NO.13\/2B2.  The assignment of Patta No.685, 323, 829 in favour of
\nthe plaintiffs 1 to 3 respectively is not known to the defendant.  The
\nallegation that the plaintiffs are using the plaint schedule property from time
\nimmemorial as an ingress and eggress to their property is false.  In S.No.10
\nVadipatti Bus Stand is situated.  The second plaintiff has constructed his house
\nin the year 1987 and is having one door way on the south and another on the
\neast.  The second plaintiff has got one more house on the South. The Door way
\nfor that house is on the south.  The second plaintiff is using the southern Door
\nWay for her eggress and ingress to her property.   Further, the second plaintiff
\nis using the passage situated on the south of her houe ie., through the
\nS.No.s13\/98, 13\/99 and 13\/100. The first and third plaintiffs  are also using
\nthe same pathway.  They were using the pathway which is running infront of the
\nhouse of first and third plaintiffs. The third plaintiff’s entrance is facing
\nnorth, which is being prevented with an iron gate measuring a width of 12 feet.
\nThe above mentioned pathway alone is being used by the plaintiff to get ingress
\nand eggress to their respective properties and to reach the bus stand. Some
\neight years back the second plaintiff had put up a toilet on the south-eastern
\nportion and also a staircase on the north-eastern portion within her property
\nand has also constructed a septic tank and the drainage on the eastern side.
\nThe second plaintiff is using the eastern doorway only to reach the toilet and
\nstaircase.  She never used the said property as a passage to have ingress and
\neggress to her house. This defendant and three other persons are joint owners of
\nS.No.13\/74. The said survey number has been included in patta No.936, which was
\nissued in favour of the defendant and three others.   This defendant is the
\nowner of the northern portion of S.No.13\/74. The measurements given in the
\nplaint for the plaint schedule property is incorrect. This defendant’s property
\nis measuring south east 30 feet and north south 35 feet. The same was originally
\nbelonged to the defendant’s fatehr Venkita Reddi. By virtue of a registered Will
\ndated 4.9.1939 the said Venkita Reddi bequeathed the suit property alongwith
\nsome other properties in favour of his wife Ellammal.  The said Ellammal is
\nstill alive.  With the consent of the above said Ellammal, the patta has been
\ntransferred in favour of this defendant in respect of the properties bequeathed
\nunder the Will. The said Venkita Reddi died in the year 1945.  After his death,
\nthe Will has come into force and the defendant’s mother Ellammal was in
\npossession and enjoyment of the suit property and now the defendant is in
\npossession and enjoyment of the same paying revenue taxes.  The defendant’s
\nhouse bearing Door NO.5-6-22 is also situated very nearer to the suit property.
\nAfter the death of the said Venkita Reddi, the defendant’s mother and defendant
\nwere using the suit propety as a cattle shed.  The defendant and her mother
\nremoved the cattle shed very recently for the construction of a residential
\nhouse for the occupation of the defendant’s elder son.  The suit property is a
\npatta land.  The second plaintiff has no space on the east of her eastern wall.
\nThere was an attempt to measure the suit property and the property belonging to
\nthe defendant in the presence of panchayatars viz., 1)K.Ramasamy Reddiar,\n<\/p>\n
2)Govindaraju, 3)Srinivasan.  Before the panchayatars, the defendant’s western
\nboundary was fixed and marked by planting of stones. Thereafter, the defendant
\nbegan to construct her house leaving a space of 4 feet on the west.  The said
\nspace was left for the convenient enjoyment of defendant’s property. The
\nallegation that the defendant had made an attempt to damage the water pipeline
\nand attempted to close the entrance from 5.9.1991 are all false.  At the time of
\ndigging the foundation the second plaintiff has voluntarily removed the pipeline
\nat the request made by the defendant.  The second plaintiff is not the owner of
\nthe house situated on the west of the suit property.  The plaintiffs are not
\nentitled to S.No.74.  The suit property is a patta land belonging to the
\ndefendant.  There is no cause of action to file the suit.  S.No.13\/74 is
\nbelonging to the defendant and three others.  Plaintiffs 1 to 3 are unnecessary
\nparties to the suit.  The suit is bad for non-joinder of necessary parties.
\nHence, the suit is liable to be dismissed.\n<\/p>\n
\t4.In the Additional Written statement the defendant would contend that the
\nCourt fee paid is not correct and the suit is bad for non-joinder of necessary
\nparties.  In the reply statement the plaintiffs have denied the averments in the
\nwritten statement filed by the defendant.\n<\/p>\n
\t5.On the above pleadings the learned trial Judge has framed 6 issues,
\nwhich were recast subsequently as 4 issues.  Before the trial Court the
\nplaintiff has examined P.W.1 to P.W.4 and exhibited Ex.A.1 to Ex.A.35.  On the
\nside of the defendant, D.W.1 to D.W.4 were examined and Ex.B.1 to Ex.B.12 were
\nmarked.  After considering the oral and documentary evidence, the learned trial
\njudge had come to the conclusion that the relief asked for in the plaint cannot
\nbe granted, had dismissed the suit with costs.  Aggrieved by the findings of the
\nlearned trial Judge, the plaintiff has preferred A.S.no.127 of 1997 before the
\nfirst appellant Judge, who after giving due consideration to the submissions
\nmade by the learned counsel on both sides, finding no reasons to interfere with
\nthe decree and judgment of the learned trial Judge, had dismissed the appeal
\nthereby confirming the decree and judgment of the learned trial Judge, which
\nnecessitated the plaintiff to approach this Court by way of this Second appeal.\n<\/p>\n
\t6.The following Substantial Questions of Law are formulated in this Second
\nAppeal:-\n<\/p>\n
\t1)whether the Judgment and Decree of the Courts below are vitiated for non
\nappreciation of the evidence in the proper perspective, resulting in perverse
\nfindings rendered thereon, particularly without reference to the recitals in
\nEx.A.37 & Ex.A.38 which clearly reveal that the suit property is a common
\npathway which has been in existence from time immemorial?\n<\/p>\n
\t2)Whether the Courts below had erred in failing to consider Ex.A.37 &
\nEx.A.38, which clearly establish the nature, character and usage of the suit
\npathway as a common pathway?\n<\/p>\n
\t3)Whether the Courts below had failed to consider Ex.C.1 and Ex.C.2, the
\nCommissioner’s report and plan, which clearly reveal the existence and usage of
\nthe suit property as a common pathway, and moreso when there is no alternate way
\nto reach the plaintiff’s house?\n<\/p>\n
\t7. Substantial Questions of Law Nos.1 to 3:- The plaint schedule property
\nis a vacant site measuring 7.6 links east west (about 6 feet) and 28.4 links
\n(about 20 feet) north south in Ward No.5, Vadipatti Town Panchayat Neeratham
\nVillage, Vadipatti Taluk.  A Commissioner was appointed, who had filed before
\nthe trial Court Ex.C.2-plan and Ex.C.1-report identifying the plaint schedule
\nproperty.  According to the plaintiffs, the plaint schedule property is a common
\npathway, which is being used to get ingress and eggress to the properties of the
\nplaintiffs, which are situated on the west.  Both Ex.A.37 and Ex.A.38 were
\nmarked before the first appellate Court by the appellants \/ plaintiffs.  But the
\nlearned first appellate Judge has rejected both Ex.A.37 Ex.A.38 on the ground
\nthat both the plaintiffs and the defendant are not parties to Ex.A.37 and the
\nsubject matter in Ex.A.37 is S.No.13\/8 and not S.No.13\/7.  Even in the plaint
\nschedule, the plaintiff has not mentioned Survey Number for the plaint schedule
\nproperty.  So, it is highly doubtful whether the plaint schedule property comes
\nwithin S.No.13\/7.  In the plaint the plaintiffs would contend that the
\nplaintiffs and their predecessors  were in possession and enjoyment of the
\nplaint schedule property from time immemorial.  Further, the plaintiffs would
\ncontend that they have also prescribed tile by way of adverse possession.  Once
\nthe plaintiffs plead adverse possession then they must admit that the plaint
\nschedule property belongs to the defendant.    The house tax receipts and water
\ntax receipts produced by the plaintiffs relates to the Vadipatti Panchayat
\nUnion.  Further the plaintiffs are not very definite in their plaint whether the
\nsuit property is a patta land or poramboke land belonging to the Government.
\nThis fact has been taken note of by the learned trial Judge in his judgment and
\non that score alone the trial Judge had held that the relief of declaration that
\nthe suit property is a common pathway asked for by the plaintiffs cannot be
\ngranted.  The learned first appellate Judge has also observed that as per
\nEx.B.4, joint patta has been granted in respect of S.No.13\/74.  This second
\nappeal has been preferred against the concurrent findings of the Courts below.
\nThere is no substantial question of law involved in this second appeal.  Unless
\nit is shown before this Court that the findings of the Courts below are perverse
\nin nature and that the Courts below have failed to consider the evidence
\nproduced before them, this Court sitting in second appeal cannot interfere with
\nthe concurrent findings of the Courts below. Substantial Questions of law No.1
\nto 3 are answered accordingly,<\/p>\n
\t8.In fine, the second appeal fails and the same is hereby dismissed
\nconfirming the decree and judgment of the learned first appellate Judge in
\nA.S.No.12 of 1994 on the file of the Court of III Additional Subordinate Judge,
\nMadurai.  No costs.\n<\/p>\n
ssv<\/p>\n
To,
\nThe III Additional Subordinate Judge, Maduria.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court N.Revathi vs R.Lakshmi Ammal on 7 November, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-11214","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nN.Revathi vs R.Lakshmi Ammal on 7 November, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/n-revathi-vs-r-lakshmi-ammal-on-7-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"N.Revathi vs R.Lakshmi Ammal on 7 November, 2008 - 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