S.Dhanasekar vs G.Krishnamoorthy
2021 Latest Caselaw 9351 Mad

                                                                 S.A.No 93 of 2017

           IN THE HIGH COURT OF JUDICATURE AT MADRAS

                              DATED: 09.04.2021

                                   CORAM:
              THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
                            S.A. No.93 of 2017
               and C.M.P. Nos.17310 of 2018 and 1852 of 2017

1.S.Dhanasekar
2.S.Chandrasekar                                                   .. Appellants
                                      Vs

1.G.Krishnamoorthy
2.Anusiya
3.Hemalatha
4.S.Kishore Kumar                                               .. Respondents

       Second Appeal filed under Section 100 of Civil Procedure Code, 1908,
against the judgment and decree of the learned XV Additional Judge, City Civil
Court, Chennai, made in A.S. No.161 of 2015 dated 06.08.2016 partly
reversing the judgment and decree of the learned XVIII Assistant Judge, City
Civil Court, Chennai made in O.S. No.3986 of 2011 dated 18.02.2015.


             For Appellants           : Mr. M.Balasubramanian
             For Respondent           : Mr. M.Sankar

                                 JUDGMENT

This Second Appeal is preferred by the defendants 2 and 3 in suit in O.S.

No.3986 of 2011 on the file of the XVIII Assistant Judge, City Civil Court,

Chennai. The respondents in this second appeal filed the suit in O.S. No.3986

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of 2011 to declare the passage described in the Schedule-B in the sale deed

dated 30.07.1975 as their exclusive passage and for mandatory injunction

directing defendants 1 to 3 to remove the building erected by encroaching a

portion of the said passage. The suit is also to declare the settlement deed dated

17.10.2008, executed by the first defendant in favour of defendants 2 and 3 as

null and void in respect of half share in the pathway described as Schedule-B.

2. The case of the respondents before the trial Court is that the father of

plaintiffs 1 and 2 and the first defendant are brothers. It is admitted that the

father of plaintiffs 1 and 2 and the first defendant purchased a property bearing

old No.26, New Door No.3 Dharmaraja Street which is also known as Gopal

Menon Street, Chennai, by a sale deed dated 30.07.1975. It is also admitted that

as per the sale deed, the property more specifically described in Schedule-B

was conveyed in favour of plaintiffs 1 and 2 and the property more specifically

described in Schedule-C was conveyed in favour of first defendant. It is the

case of the plaintiffs that the Schedule-B as described in sale deed clearly

shows that the common passage marked as No.3 in the plan annexed to the sale

deed was conveyed only in favour of the father of plaintiffs 1 and 2. Stating

that the property that was conveyed in favour of the first defendant does not

include any portion of passage, it is contended that plaintiffs 1 and 2 are the

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exclusive owners of B schedule along with the common passage as per the sale

deed. In the plaint it is stated that the plaintiffs are in continuous possession

and enjoyment of the passage along with the property described as B-Schedule

in the sale deed. It is also the case of the plaintiffs that the defendants have

made temporary structure obstructing the passage and therefore they are

entitled to a decree for mandatory injunction directing the defendants 1 to 3 to

remove the building erected in the encroached portion of the passage.

3. The trial Court after framing necessary issues dismissed the suit even

after holding that the plaintiffs are entitled to use the passage described within

B schedule in the sale deed dated 30.07.1975. The trial Court considered the

admission of P.W.1 during his cross examination to the effect that a stair case

was constructed by the first defendant, facing the common passage, and that the

stair case is being used by the first defendant from the year 1978. The trial

Court, based on the admission of the plaintiff to the effect that the defendants

are also enjoying the right of easement, found that the plaintiffs cannot be

granted a decree for exclusive title over the passage in the plaint B-Schedule.

Since the passage itself is described as 'Common', the trial Court held that the

plaintiffs are not entitled for declaration that B-Schedule passage is their

exclusive passage. Since the exclusive title over plaint B-Schedule was

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negatived, the trial Court also refused to grant prayer to declare the settlement

deed as null and void. The decree for mandatory injunction was also negatived

by the trial Court. Aggrieved by the judgment and decree of the trial Court, an

appeal in A.S. No.161 of 2015 on the file of XV Additional City Civil Court,

Chennai was filed, whereupon, the lower appellate Court set aside the judgment

and decree of the trial Court and granted relief to the plaintiffs declaring the

exclusive ownership of the plaintiffs over the common passage. Consequently,

other reliefs are also granted in favour of the plaintiffs. Aggrieved by the same,

the above second appeal is preferred by defendants 2 and 3.

4. At the time of admitting the second appeal, this Court framed the

following Substantial Questions of Law:

“ 1.Whether the first appellate Court is right in holding that the plaintiffs are the exclusive owners of common passage contrary to the sale deed dated 30.07.1975 i.e. Ex.A1 and Ex.B1 joint patta dated 28.02.1978 and admissions of P.W.1 in the box?

2.Whether the first appellate Court is right in stating that the defendants are not entitled to the common passage since the defendants are not sharing the cost of construction of the wall in the common passage in the year 2008 for the damages caused by the plaintiff at the time of their contruction?

3.Whether the first appellate Court is right in setting aside the portion of the settlement deed dated 17.10.1978 executed by the first

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defendant in favour of defendants 2 and 3 with regard to the ½ share in the common passage as per Ex.A1 and Ex.B1?”

5. Learned counsel appearing for the appellants while pointing out the

judgment of the lower appellate Court submitted that the findings of the lower

appellate Court are contrary to the records particularly against the admission of

plaintiffs regarding enjoyment of property for a long time. Learned counsel

appearing for the appellants relied upon a few paragraphs of the judgment of

lower appellate Court wherein the lower appellate Court has indicated that the

disputed passage is also being used by the first defendant from the year 1978

without any objection by the plaintiff's father. Therefore it was suggested by the

counsel for the appellants that the passage should be held as common to both

plaintiffs and first defendant.

6. Learned counsel for the appellants pointed out that patta for the

passage is standing in the name of plaintiff's father and first defendant and that

therefore, the passage has to be considered as a common passage which is used

by both the plaintiff's father and first defendant for a longtime.

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7. This Court heard the arguments of both counsel appearing for the

appellants as well as the respondents, at length.

8. The first plaintiff's father and first defendant purchased certain

properties jointly. It is not in dispute that the suit B-Schedule property

comprises land measuring about 946 ¼ Sq.ft along with the common passage.

The property purchased by the father of the first plaintiff and first defendant is

described in the document of sale deed dated 30.07.1975 with reference to

boundaries and measurement. The properties are further described by referring

to a plan which was also appended / annexed to the sale deed. As per the plan,

the property marked as No.1 was annexed together with the common passage

numbered as '3'. Going by the original sale deed along with the plan, this Court

has no hesitation to hold that the plaintiffs alone were given right of ownership

over the common passage and that the defendants were not given any right in

respect of common passage.

9. The issue regarding title over the passage has to be considered based

on pleadings, documents and evidence. The document of sale marked as Ex.A1

along with plan gives a clear indication that no part of the passage was given to

the first defendant. However, this Court has noticed that the lower appellate

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Court has also observed as follows:

“...

But at the same time, the defendants cannot take advantage of absence of the objections by the plaintiff and stake claim of ownership over the passage and they can claim ownership only to the extent conveyed under Ex.A.1 sale deed i.e.891 ¾ sq.ft. alone. If at all they are entitled for any right in the passage, it can only be right of user of passage/easementary right and they can claim nothing more than that.”

10. Since the ownership and easementary right are two different rights,

the lower appellate Court has recognised the appellants right of easement to use

the passage. However, the right of easement recognised by the appellate Court

is not granted to the first defendant. It is true that the lower appellate Court

cannot grant a decree in favour of the defendants merely on the basis of

admission of plaintiffs. However, the description of passage as a common

passage and the admission as to the enjoyment of the first defendant clearly

indicate that the first defendant was using the common passage. The

construction of a building facing the passage also indicates that the first

defendant was also using the passage with the knowledge of the plaintiffs for a

longtime. Since the plaintiffs admit that the first defendant was using it for a

longtime, this Court also holds that the first defendant may claim easementary

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right to use the common passage for convenience. However, the first defendant

has not filed any suit. As pointed out earlier, the appellants have no title to the

B-Schedule property. Therefore, the lower appellate Court is right in granting a

decree for declaration as to the ownership over B-Schedule pathway in favour

of the plaintiffs. Similarly the defendants have no right to put up any

obstruction over the B-Schedule property and as such, an act of encroachment

will affect the right of plaintiffs as declared by the lower appellate Court. Since

the first defendant has no title over the B-Schedule property, the settlement

deed is also invalid as it was executed in respect of the undivided share over the

passage in favour of defendants 2 and 3. However, the defendant's right to use

the passage by way of necessity or prescription cannot be negatived.

11. This Court is of the view that the defendant's right to use the common

passage as held by the lower appellate Court is not lost by the relief granted in

favour of the plaintiffs in the suit. Hence, the judgment of lower appellate

Court or this Court on the second appeal cannot be interpreted to deny the right

to use the common passage to the limited purpose of having access to stair case

that is now constructed by the defendants. Subject to this observation, this

Court finds no merits in this second appeal.

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12. Accordingly, the Second Appeal is dismissed. No costs

Consequently, connected miscellaneous petitions are closed.

09.04.2021

Index:Yes/No Speaking order / Non speaking order bkn

To

The XV Additional Judge, City Civil Court, Chennai

S.A.No 93 of 2017

S.S.SUNDAR. J.,

bkn

S.A. No. 93 of 2017

09.04.2021