{"id":180501,"date":"2006-01-27T00:00:00","date_gmt":"2006-01-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/lingappa-gounder-vs-palanisamy-gounder-on-27-january-2006"},"modified":"2017-09-23T00:59:48","modified_gmt":"2017-09-22T19:29:48","slug":"lingappa-gounder-vs-palanisamy-gounder-on-27-january-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/lingappa-gounder-vs-palanisamy-gounder-on-27-january-2006","title":{"rendered":"Lingappa Gounder vs Palanisamy Gounder on 27 January, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
Lingappa Gounder vs Palanisamy Gounder on 27 January, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDated: 27\/01\/2006 \n\nCoram \n\nThe Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR        \n\nSecond Appeal No.651 of 1995  \n\nLingappa Gounder                       ...                     Appellant\n\n-Vs-\n\n1.     Palanisamy Gounder\n2.      P.Shanmughasundaram  \n3.      Patchiammal\n4.      Velusamy Gounder\n5.      Krishnamoorthy                  ...                     Respondents\n\n        This second appeal has been filed under Section 100  of  the  Code  of\nCivil  Procedure  against  the  Judgment  and  Decree  dated  6.3.1995 made in\nA.S.No.136 of 1994 on the  file  of  the  Additional  District  Court,  Erode,\nreversing  that  of  the Trial Court dated 22.11.1993 in O.S.No.764 of 1987 on\nthe file of the I Additional District Munsif Court, Erode.\n\n!For Appellant          :       Mr.V.S.Sivasundaram\n                                for Mr.R.G.Narendhiran\n\n^For Respondents                :       Mr.M.M.Sundaresh\n\n:J U D G M E N T \n<\/pre>\n
        The appellant herein is the Plaintiff in O.S.No.764  of  1987  on  the
\nfile  of  the  I  Additional  District Munsif Court, Erode, who challenges the
\njudgment and decree of  the  learned  Additional  District  Judge,  Erode,  in
\nA.S.No.136  of  1994  dated  6.3.1995  reversing  that  of  the Trial Court in
\nO.S.No.764 of 1987 dated 22.11.1993.  Respondents 1 to 5 herein are defendants
\n1, 3, 6, 4 and 5 respectively  in  the  original  suit.    Respondents  4  and
\n5\/defendants  4  and  5  are  given  up  as they were set exparte in the first
\nappellate Court.\n<\/p>\n
        2.      The plaintiff filed the suit for declaration and for permanent
\ninjunction.  The brief facts as could be seen  from  the  plaint  and  written
\nstatement are as follows.\n<\/p>\n
        (a)     The cart track in old survey No.940\/3 and re-survey No.1074 is
\nthe suit  property.    The plaintiff purchased 84+ cents of land in old survey
\nNo.940\/3 and re-survey No.1074\/2 along with the right of using the  said  cart
\ntrack and  since  then  he  is  using  the cart track.  Plaintiff had no other
\ncart-track to approach his property.  By sale deed dated 28.4.1984, defendants
\n1 to 3 purchased the property lying north to plaintiff’s property to which the
\nsuit cart-track is shown as western boundary.   In  further  north,  lies  the
\nproperty of  the  5th  defendant.  It is alleged that as the defendants 1 to 3
\nwere not in good terms with the plaintiff, they were  attempting  to  cut  and
\nencroach the  cart-track.    It is specifically alleged that on 12.7.1987, the
\ndefendants 1 to 3 prevented the plaintiff from using the cart-track.   As  the
\ndefendants  have no manner of right to do so, the plaintiff filed the suit for
\ndeclaration and for consequential permanent injunction.  As the  defendants  4
\nand  5  have  also right over the cart-track, they were impleaded as necessary
\nparties to the suit.\n<\/p>\n
        (b)     In the written statement filed  by  the  defendants  1  to  3,
\nadopted by defendants 4 and 6, it is contended that as per the Tamil Nadu Land
\nSurvey  and  Boundaries  Act,  the  suit is not maintainable; that in the year
\n1980, the suit property was re-surveyed and the  same  was  published  in  the
\nGovernment Gazettee dated 28.8.1980, in which the suit cart-track did not find
\na  place;  and that during re-survey, the plaintiff had not made any objection
\nregarding the suit cart-track and hence the suit should have  been  laid  only
\nagainst the  Land  Survey  Department.    It  is  also contended that the suit
\ncart-track ends with the southern side of defendants’s property;  that  during
\n1956  when  the  Lower  Bhavani  Project was introduced, the suit property was
\naffected and the itteri (narrow path between two fields) was also  used  along
\nwith  the  suit  cart-track for taking the carts; and that the predecessors of
\nthe defendants gave 20 cents of lands to the predecessors of the plaintiff  in
\nlieu of the suit cart-track and hence the plaintiff had no right over the suit
\ncart-track.  It is further contended that the brother of the defendants is the
\nvendor  of  the  plaintiff,  at whose instance the suit is filed with ulterior
\nmotive.  The defendants categorically stated that they alone are  entitled  to
\nthe  suit  cart-track and denied the allegation that they attempted to prevent
\nthe plaintiff from using the suit cart-track.  It is also submitted  that  the
\ndefendants  4  and  5  have  no  right  over  the  suit  property and they are
\nunnecessary parties to the suit.\n<\/p>\n
        3.      On the above pleadings the trial Court framed five issues  and
\none additional  issue.    On behalf of the plaintiff Pws.1 and 2 were examined
\nand Exs.A- to A-4 were  marked.    On  behalf  of  the  defendants  the  first
\ndefendant  was  examined  as  DW-1  through whom, Exs.B-1 to B-10 were marked.
\nApart from these, the Commissioner’s report and plan were  marked  as  Exs.C-1
\nand C-2.\n<\/p>\n
        4.      The  Trial Court, after considering the materials available on
\nrecord and after hearing both sides, decreed the suit as  prayed  for  by  its
\njudgment  dated  22.11.1993, against which the defendants 1, 3 and 6 preferred
\nA.S.No.136 of 1994 on the file of the Additional District Court, Erode.    The
\nlearned  Additional  District  Judge,  Erode,  by his judgment dated 6.3.1995,
\nplacing reliance on the  Commissioner’s  report  and  plan  Exs.C-1  and  C-2,
\nallowed the appeal and set aside the judgment of the Trial Court on the ground
\nthat  the plaintiff has not legally proved his right over the suit cart-track.
\nIt is as against the  said  conclusion  of  the  first  appellate  Court,  the
\nplaintiff is before this Court.\n<\/p>\n
        5.      The  second  appeal  was admitted on the following substantial
\nquestion of law,
\n        “Whether the lower appellate Court erred in law in  holding  that  the
\nappellant\/plaintiff  has not proved the existence of cart way without applying
\nits judicial mind to the documentary evidence let in under Exs.A-1 to A-3  and
\nthe Commissioner’s report and plan under Exs.C-1 and C-2 ?”\n<\/p>\n
        6.      The learned counsel for the appellant during the course of his
\narguments  submitted  that the lower appellate Court erroneously set aside the
\njudgment of the Trial Court and therefore the same is bound  to  be  restored.
\nIn  support  of  his  submissions the learned counsel submitted that in Ex.A-1
\nviz., sale deed dated 29.8.1986, by which the  plaintiff  purchased  the  suit
\nproperty,  there is a clear recital to the effect that the plaintiff purchased
\nthe 84+ cents in Old Survey No.940 \/3  and  re-survey  No.1074\/2  in  Sivagiri
\nvillage,  Erode  Taluk,  Periyar  District, along with the standing trees, the
\nusufructs therein and the  irrigation  rights  of  the  lands,  including  the
\neasementary  rights  to  use  the  cart-track  running  south-north for taking
\nvehicles and cattles and to use the same as  pathway.    The  learned  counsel
\nfurther pointed out that the parent document viz., Ex.A-2 dated 16.9.1980 also
\ndescribes  the  existence  of the cart-track and the right of the purchaser to
\nuse the said cart track for movement of cattles  and  also  use  the  same  as
\npathway.  It is further pointed out that Ex.A-3 Sale Deed dated 28.4.1984 also
\nmentions  about  the  common cart track and therefore, the existence of common
\npathway as found by the Commissioner in his report Ex.C-1 is beyond any doubt.
\nThe learned counsel further argued that the contention of defendants 1  and  3
\nmade  in  the written statement that re-survey of Sivagiri Village was pleaded
\nand notified in the District Gazettee dated 28.8.1980 as per the provisions of
\nthe Tamil Nadu Survey and Boundaries Act, 1923, and in that, the existence  of
\nthe  suit  cart-track  does  not  find  a  place,  will  not hold good, as the
\npredecessors-in-title of the plaintiff were not issued with any  notice  under
\nSection 9(1)  of  the  Tamil Nadu Survey and Boundaries Act, 1923.  In view of
\nnon-issuance of the statutory notice, according to the  learned  counsel,  the
\ncompletion  of re-survey as notified on 28.8.1980, will not bind the plaintiff
\nand the sam e cannot be put against the rights of the plaintiff.  The  learned
\ncounsel  further  argued  that  the  contention of defendants 1 and 3 that the
\npredecessors-in-title of the plaintiff and  the  defendants  entered  into  an
\narrangement  under  which  the  predecessor-in-title of the defendants 2 and 3
\nwere allowed to annex the itteri along with their  share  without  giving  any
\nright in the itteri to the predecessors-in-title of the plaintiff and in turn,
\nthe  plaintiff’s  predecessors-in-title were given an extent of 2 0 cents from
\nout of the share of the  predecessors-in-title  of  defendants  2  and  3  and
\nconsequently  the  owners  of  the plaintiff’s share discontinued to enjoy the
\nsuit itteri eversince 1956 and that the suit cart track has  been  exclusively
\nused by the defendants and their predecessors-in-title, cannot be accepted due
\nto  the  reason  that the alleged giving of 20 cents is totally a false story.
\nLearned counsel submitted, as per section 19 of the Indian  Registration  Act,
\nthe  Value  of  the property involved is above Rs.100\/- and the same has to be
\ncompulsorily registered to convey the title.  In the absence of any registered
\ndocument to show that the predecessors-in-title  of  the  defendants  gave  20
\ncents  to  the predecessors-in-title of the plaintiff, the alleged transfer of
\n20 cents cannot be accepted.    Therefore,  the  counsel  submitted  that  the
\nexistence of common pathway having been admitted by the defendants themselves,
\nbased  on  which the Trial Court arrived at the conclusion, is perfectly legal
\nand the findings given by the lower appellate Court for setting aside the well
\nconsidered judgment of the trial court are unsustainable.\n<\/p>\n
        7.      The learned counsel for the  respondents  in  reply  submitted
\nthat for giving up the right in the common pathway by the predecessors-intitle
\nof    the   plaintiff,   they   obtained   20   cents   of   land   from   the
\npredecessors-in-title of the defendants 2 and 3 and consequently the right  of
\nthe  plaintiff  to claim the cart-track as common cart-track is unsustainable.
\nThe learned counsel further submitted that the notification having been issued
\nas early as on 28.8.1980, after completion of the resurvey under section 18 of
\nthe Tamil Nadu Survey and Boundaries Act, 1923, and as  the  suit  cart  track
\ndoes  not  find  a  place  in the re-survey plan, without challenging the said
\nre-survey, the  present  suit  is  not  maintainable,  particularly  when  the
\nplaintiff purchased the property after the said notification.  Learned counsel
\nfurther argued that the Commissioner’s report Ex.C-1 also supports the case of
\nthe  defendants  and  therefore  the  decision rendered by the first appellate
\ncourt is legal, valid and prayed for dismissal of the second appeal.\n<\/p>\n
        8.      I have considered the submissions made by the learned  counsel
\nfor the appellant as well as respondents.  The point in issue is whether there
\nexisted  a  common  cart-track and the appellant\/plaintiff was entitled to get
\npermanent injunction restraining the defendants and their men from interfering
\nin any manner either in the cart-track or in the user of  cart  track  by  the
\nplaintiff in  taking  any vehicles, cattle and using the same as pathway.  The
\nTrial Court considered the relevant documents,  particularly  Ex.A-1,  Ex.A-2,
\nEx.A-3  as  well as Ex.C-1 and C-2, Commissioner’s report and plan and came to
\nthe conclusion that the  suit  cart  track  was  a  common  cart-track.    The
\ncontention  raised  by  the  learned  counsel  for the respondents that in the
\nGazettee notification dated 28.8.1980,  issued  subsequent  to  the  re-survey
\nconducted under the Tamil Nadu Survey and Boundaries Act, 1923, the cart track
\ndoes  not  find  a place and therefore the plaintiff cannot maintain the suit,
\nwithout challenging the said notification is unsustainable in view of the fact
\nthat the notice under section 9(2) of the said  Act  was  not  issued  to  the
\npredecessors-in-title  of  the  plaintiff  and  that  no  documentary  or oral
\nevidence  was  let  in  to  show  that  such  a  notice  was  issued  to   the
\npredecessors-in-title of the plaintiff.\n<\/p>\n
        9.      In  the decision of this Court reported in 97 Law Weekly 198 (
\nParamakudi Sri  Sundararaja  Perumal  Devasthanam  v.    S.K.C.Kanakasabapathy
\nChettiar  and others<\/a>), this Court considered the scope and ambit of Section 13
\nof the Tamil Nadu Survey and Boundaries Act, 1923 and also about the  issuance
\nof notice  under  Section  9(2)  to  the  parties concerned.  Relying upon the
\nearlier decisions of Division Bench as well as the single Judge of this Court,
\nheld that where the party affected had no notice of the survey as contemplated
\nby Section 9(2) of the Madras Survey and Boundaries Act,  it  cannot  be  said
\nthat  there  has been a completion of the survey in accordance with the orders
\npassed under Section 9 within the meaning of Section  13  and,  therefore  the
\nparty  adversely  affected  thereby  is  not bound to file a suit within three
\nyears to set aside the order of the survey officer.   Thus,  this  Court  held
\nthat the question of title cannot be decided by the survey authorities finally
\nand  conclusively  and  even if an indirect decision is rendered by the survey
\nauthorities, the finality under section 13 will arise only if  the  notice  of
\nthe  proceedings  has  been served on the affected party as contemplated under
\nSection 9(2) of the Act.  In the said  judgment,  an  earlier  Division  Bench
\ndecision  of  this  Court  reported in ILR 1553 Madras 158 = 65 Law Weekly 364
\n(Mariyam Umma v.  Ummer Kutti)<\/a> was also relied on.\n<\/p>\n
        10.     In an another Division Bench decision of this  Court  reported
\nin 1974  TLNJ  145 (State of Madras v.  Kasthuri Ammal and others<\/a>), it is held
\nthat though in an earlier survey one portion of the suit site might have  been
\nlabelled  as  a  road  poramboke, such action by the survey authorities cannot
\naffect the plaintiff in any manner unless the defendants  establish  that  due
\nnotice  of  the result of the survey was given and the latter acquisced in the
\ncorrectness of the operations.  The law  is  that  a  party  concerned  by  an
\nadverse  survey to whom no notice of the survey was given is not bound to file
\na suit within three years to set aside the order of the survey officer because
\nhe had no notice of the survey, and the orders on it  cannot  be  said  to  be
\ncorrectly passed under Section 13 of the Act and binding on the party.\n<\/p>\n
        11.     From the decisions referred to above, which are also relied on
\nby the Trial Court, this Court is of the considered view that nonmentioning of
\nexistence of the common cart-track in the re-survey will not in any way affect
\nthe  rights of the plaintiff as it is not proved that notice was issued by the
\nSurvey Authorities as required under Section 9(2) of the Tamil Nadu Survey and
\nBoundaries Act, 1923, to the predecessors-in-title of the plaintiff.\n<\/p>\n
        12.     The second contention raised by the learned  counsel  for  the
\nrespondents\/defendants  is  that  though the existence of common cart-track is
\nadmitted, the right of enjoyment of the same by the appellant\/  plaintiff  had
\nbeen  lost, due to giving up of the said right by the predecessors-in-title of
\nthe plaintiff by accepting 20 cents of land from the predecessors-in-title  of
\nthe defendants,  even  prior  to  1956.    As rightly contended by the learned
\ncounsel for the appellant\/plaintiff, no document was produced to prove the sai
\nd case of the respondents\/ defendants.  Also, it is neither the  case  pleaded
\nin the  written statement nor in the oral evidence of the first defendant.  In
\nthe cross examination DW-1 admitted that he was not aware of the  date,  month
\nand year  and  before whom the said arrangement\/settlement was effected.  DW-1
\nhad also admitted that the land  value  was  roughly  about  Rs.50,00  0\/-  to
\nRs.60,000\/-  per  acre  and  that  of  one  cent  would be around Rs.5 00\/- to
\nRs.600\/-.  From the above statement of DW-1 it is clear that the 20  cents  of
\nland  allegedly  settled in favour of the predecessors of the plaintiff by the
\npredecessors of the defendants 2 and 3,  was  worth  more  than  Rs.100\/-  and
\nadmittedly the  said transaction was not registered.  Section 17 of the Indian
\nRegistration Act contemplates that the interest on immovable properties,  more
\nthan Rs.100\/-,  are transferable only through a registered document.  Even the
\nunstamped and unregistered document is not admissible in evidence as  per  the
\ndecision of a Division Bench of this Court reported in 2005 (1) Law Weekly 343
\n(R.Deivanai Ammal  (Died) & Another v.  G.Meenakshi Ammal and others<\/a>), wherein
\nin paragraph 23, the Court relied  on  the  earlier  Division  Bench  decision
\nreported in 2001 (1) CTC 112 (Lakshmipathy, A.C.  v.  A.M.Chakrapani Reddiar).
\nIn<\/a>  another  decision  reported  in  1991  (1)  CTC 361 (Ranganatha Gounder v.
\nPerumal Nattar),<\/a> this Court held that a document compulsorily registerable, if
\nnot registered, is inadmissible in evidence.  In the said decision the learned
\nsingle Judge followed the Division Bench decisions reported in ILR (20) Madras
\n367 ( Rangayya Appa Rau v.  Kameswara Rau) and AIR<\/a> 1972 Calcutta 190  (M.S.Ram
\nSingh v.  B.S.Surana).\n<\/p>\n
        13.     It  is  also to be noted that even if the exchange of 20 cents
\nwas made orally in lieu of the right of enjoyment of the cart  track,  by  the
\npredecessors-in-title of the defendants in favour of the predecessors-in-title
\nof  the  plaintiff, followed by delivery of possession as claimed, mutation of
\nrevenue records is mandatory.  In this connection, the  decision  reported  in
\nAIR 1990  Punjab  and  Haryana  89  (  Bhagwan  Kaur  v.  Ranjit Singh) can be
\nusefully referred to.  In the said decision it is held that  the  exchange  of
\nproperty  can  be  made orally followed by delivery of possession and the same
\ncan be accepted if entries are made in the mutation register.  In the case  on
\nhand,  admittedly there is no entry in the mutation register about the alleged
\nexchange of property.  The alleged exchange is said to have been made prior to
\n1956.  Ex.A-1 is dated 29.8.1986 wherein the recitals contain the existence of
\nthe suit common cart track.  Ex.A-2 dated 16.9.1980, the  parent  document  of
\nEx.A-1  also  describes  the  existence of the cart track and the right of the
\npurchaser of the land to enjoy the suit cart track.  In Ex.A-3 sale deed dated
\n28.4.1984 also there is a mention  about  the  common  cart  track.    On  the
\ncontrary,  DW-1  merely  states  that the said recitals are made mistakenly by
\nfollowing the earlier document at the time of registration of those documents.
\nIn addition to that, there is no pleading  to  the  effect  that  mutation  of
\nrecord  had  taken  place  at any point of time after the alleged giving of 20
\ncents by  the  predecessors-in-title  of  the  defendants  in  favour  of  the
\npredecessors-in-title  of  the  plaintiff in lieu of giving up of the right of
\nenjoyment of the common cart track.  Hence the contention  of  the  defendants
\nthat the appellant\/plaintiff cannot maintain the suit in view of the giving up
\nof  the  right by their predecessors-in-title, is clearly unsustainable and on
\nthat score  a  lso  the  findings  given  by  the  lower  appellate  Court  is
\nunsustainable.\n<\/p>\n
        14.     The  third  contention  raised  by the learned counsel for the
\nrespondents\/defendants that the Commissioners plan Ex.C-2 does not contain the
\ncommon pathway was also dealt by the trial Court and a  specific  finding  was
\ngiven  in  so  far  as  the  non-existence  of  alternative cart track and the
\nexistence of the suit cart track.  In the plan submitted by the  Commissioner,
\nthe existence  of  the  suit  cart  track  is clearly mentioned.  A perusal of
\nExs.C1  and  C2,  Commissioner’s  report  and  plan  clearly  establishes  the
\nnecessity of    the    appellant\/plaintiff    to   file   the   suit.      The
\nrespondents\/defendants accepted the Commissioner’ s  report  as  no  objection
\nthereto was  filed.    As  per Order 36 Rule 9 of Code of Civil Procedure, the
\nCommissioner’s report is an evidence.  Taking all these into consideration,  I
\nhold  that  the  findings  given by the learned Trial Judge that the suit cart
\ntrack is a common cart track is perfectly legal and valid in the light of  the
\nmaterials on  record.    Consequently  I  hold that the appellant\/plaintiff is
\nentitled to get the relief sought for in the plaint.\n<\/p>\n
        15.     For the foregoing reasons, I am of the  considered  view  that
\nthe  judgment  and  decree  of  the lower appellate Court are liable to be set
\naside and that of the Trial Court are to be restored.\n<\/p>\n
        16.     In the result, the second appeal is allowed.  The judgment and
\ndecree of the lower appellate Court in A.S.No.136 of 1994 dated 6.3.19 95  are
\nset  aside  and that of the Trial Court in O.S.No.764 of 1987 dated 22.11.1993
\nare restored.  No costs.\n<\/p>\n
vr<\/p>\n
To\n<\/p>\n
1.  The Additional District Judge, Erode\n<\/p>\n
2.  The District Munsif, Erode.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Lingappa Gounder vs Palanisamy Gounder on 27 January, 2006 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 27\/01\/2006 Coram The Hon’ble Mr.Justice N.PAUL VASANTHAKUMAR Second Appeal No.651 of 1995 Lingappa Gounder … Appellant -Vs- 1. Palanisamy Gounder 2. P.Shanmughasundaram 3. Patchiammal 4. Velusamy Gounder 5. Krishnamoorthy … Respondents This second appeal […]<\/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-180501","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nLingappa Gounder vs Palanisamy Gounder on 27 January, 2006 - 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\/lingappa-gounder-vs-palanisamy-gounder-on-27-january-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Lingappa Gounder vs Palanisamy Gounder on 27 January, 2006 - 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