Madras High Court
Kalimuthu vs Thangavel on 3 August, 2021
S.A.No.607 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.08.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.607 of 2019
and
C.M.P.No.10364 of 2019
1.Kalimuthu
2.R. Veluchamy Nayakar
3.Kanakaraj
4.R. Balasubramaniyam ...Appellants/Appellants/Defendants
Vs.
1.Thangavel
2.Selvaraj
3.Kuppusamy @
Kuppudurai ...Respondents/Respondents/Plaintiffs
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 23.11.2017 in
A.S.No.19 of 2014 on the file of the learned Subordinate Judge,
Udumalpet, confirming the Judgment and Decree dated 28.08.2014
made in O.S.No.63 of 2009 on the file of the learned District Munsif,
Udumalpet.
1/11
https://www.mhc.tn.gov.in/judis/
S.A.No.607 of 2019
For Appellants : Mr.D.R. Arun Kumar
For Respondents : Served - No appearance
JUDGMENT
The defendants are the appellants before this Court. The
respondents though served have not entered appearance either in
person or through pleader and they have been set ex parte. The parties,
for the sake of easy comprehension has been referred to in the same
rank as before the Trial Court.
2.The suit O.S.No.63 of 2009 was filed by the deceased 1st
respondent on the file of the learned District Munsif, Udumalpet for an
injunction restraining the defendants or their men, agents from illegally
entering and obstructing the use of the suit property.
3.The case in brief of the plaintiffs was that a larger extent
including the suit property originally belonged to one Malaiya
Gounder, the father of the plaintiffs who had got the same under a
Partition Deed dated 16.02.1944. He had gifted a portion of the
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S.A.No.607 of 2019
properties for running a School and the remaining was retained by him.
On 25.11.1997, he died intestate. Thereafter, the plaintiffs have been
in possession and enjoyment of the properties as the legal
representatives of the said Malaiya Gounder and their names were
mutated in the revenue records and patta was granted in respect of the
suit property.
4.The defendants who were the third parties to the suit properties
attempted to trespass into the same. They have their properties on the
West of the Panchayat concrete Road. The suit property is being used
by the plaintiffs as a cart track and they are not cultivating the same.
Taking advantage of the situation, the defendants are attempting to
enter into the possession. The defendants had made an attempt on
30.01.2009 and the 2nd plaintiff had registered a Complaint with
Komangalam Police Station. The Police had also warned the
defendants that they should not indulge in such activities. Angered by
the same, the defendants again made their attempts an 20.02.2009,
thereby, constraining the plaintiffs to file the above suit.
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S.A.No.607 of 2019
5.The defendants had resisted the above suit inter alia denying
the allegations contained in the Plaint though they had admitted that the
suit property was a cart track. They would however contend that to the
North of the suit pathway, the defendants were residing and to the West
of the Panchayat School, there was an area belonging to the Panchayat.
These lands have been used by the defendants and their relatives to
conduct certain functions for the women in their family. This land has
been used by the defendants for over 50 years. Therefore, the claim of
the plaintiffs that there is the cart track, is totally false and the plaintiffs
are put to strict to proof of the same.
6.The defendants would submit that since the cart track belonged
to the Panchayat, the Panchayat ought to have been made a party to the
proceedings and therefore, the suit was hit by non joinder of necessary
parties. The defendants would also contend that there is another access
available to the plaintiffs. Therefore, they would seek to have the suit
be dismissed.
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S.A.No.607 of 2019
7.The learned District Munsif, Udumalpet, had framed the issues
and on the plaintiffs' side, the 2nd plaintiff Thangavel Gounder had
adduced evidence as PW1 and marked Ex.A.1 to Ex.A.4. One
Anandha Vadivel was examined as PW2. On the side of the
defendants, three witnesses were examined and Ex.B.1 and Ex.B.2
were marked. The trial Court ultimately decreed the suit as prayed for.
Challenging the said Judgment and Decree, the appellants had filed
A.S.No.19 of 2014 on the file of the learned Subordinate Judge,
Udumalpet. The learned Subordinate Judge also confirmed the
Judgment and Decree of the trial Court by dismissing the appeal.
Aggrieved by the same, the defendants are before this Court.
8.The Second Appeal has been admitted on the following
Substantial Questions of Law:
“(a)Whether the Courts below are correct in
disbelieving the evidence of D.W.1 and D.W.2 only on
the ground that they did not say what type of functions
are conducted in the suit property?
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S.A.No.607 of 2019
(b)Whether the Courts below have committed an
error in allowing the claim of the plaintiffs only on the
weightage of Ex.P.2 without going into its veracity?
(c)Whether the Courts below are justified in
decreeing a permanent injunction suit while the title of
the plaintiffs are specifically denied at the outset?”
9.The Courts below have held that the suit pathway has been
formed by the plaintiffs from out of their lands. The learned counsel
for the appellants/defendants would argue that once the property is a
Grama Natham it can be used only as a house site and cannot be put to
any other use. He would further argue that the Courts below have
overlooked the fact that the Village Administrative Officer who has
adduced evidence as P.W.2, had admitted that the suit property is being
used by the defendants for conducting their functions.
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S.A.No.607 of 2019
10.The learned counsel would rely upon the following admission
during the cross examination of P.W.2:
“tHf;Fr; brhj;jpy; fk;gsj;J ehaf;fh;
rK:fk; rPh; kw;Wk; rl';Ffs; bra;jhh;fs; vd;W
vdJ tprhuizapy; vdf;F bjhpa te;jJ/”
11.Heard the learned counsel for the appellants and perused the
papers.
12.The case of the plaintiffs is that the suit property formed part
of a larger extent which had been allotted to their father's share under a
Partition Deed dated 16.03.1994. The copy of the Partition Deed has
been marked as Ex.A.1 on the side of the plaintiff. Out of the property
that fell to their share, the father of the plaintiffs had gifted a portion
for running a School and thereafter, used the portions of the remaining
lands (the suit property) as a pathway to reach his other lands. The
patta in respect of the property which has been issued in favour of the
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S.A.No.607 of 2019
plaintiffs has been marked as Ex.A.2. Therefore, the title of the
plaintiffs have been proved under Ex.A.1 and Ex.A.2. The existence of
the pathway is also admitted by the defendants in their Written
Statement itself. It is no doubt true that the property in question is a
Grama Natham. In the Judgment reported 2012 2 CTC 315 [State of
Tamil Nadu rep. by the Collector, Virudhunagar v. Madasami and
others] which has also been referred to by the Lower Appellate Court,
it has been held that once a person occupies the Grama Natham and has
put construction, the vacant site abutting the house can be put to any
use as the occupier of the property chooses. Therefore, the conversion
of their lands into pathway cannot be called in question at this juncture.
13.The suit property is a portion of the property covered under
Ex.A.1 and taking note of Ex.A.2-Patta, it is crystal clear that the
property belongs to the plaintiffs. That apart, the defendants have
claimed that they have prescribed title to the same by adverse
possession. This admission by itself would prove that the plaintiffs are
the owners of the suit property. As rightly pointed out by both the
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S.A.No.607 of 2019
Courts below, the defendants have not proved their contentions that
they are also using the said pathway. The suit is one for a bare
injunction and once the plaintiffs are able to prove their title to the
same and that their possession is being disturbed by the defendants
they are entitled to a Decree. The very Written Statement and the
evidence adduced by the defendants would clearly establish the fact
that the defendants are attempting to assert a claim to use the pathway.
The Courts below have rightly decreed the suit. The defendants have
not rebutted the documents filed by the plaintiffs to prove their title and
therefore, the Substantial Questions of Law (b) and (c) are answered
against the defendants. Further, the Courts below have not allowed the
claim of the plaintiffs only on the basis of Ex.A.1 / Ex.B.2 – Partition
Deed of the year 1944 but also taking into account the usage to which it
has been put to relying upon the evidence of P.W.1 and admission of
D.W.1.
14.As regards the Substantial Question of Law (a), the Courts
below have disbelieved the evidence on the ground that DW1 and
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S.A.No.607 of 2019
DW2 were not able to describe the functions conducted in the suit
property. The defendants in one breadth contends that the suit was
used to conduct functions but in the other breadth would also call it a
cart track. [tz;og;ghij] Therefore, the Substantial Questions of Law (a)
is answered against the plaintiffs.
In fine, the Second Appeal is dismissed. The Judgment and
Decree of the Courts below is confirmed. There shall be no order as to
costs. Consequently, connected Miscellaneous Petition is closed.
03.08.2021
Index : Yes/No
Internet : Yes/No
mps
To
1.The Subordinate Judge,
Udumalpet.
2.The District Munsif,
Udumalpet.
https://www.mhc.tn.gov.in/judis/
S.A.No.607 of 2019
P.T. ASHA, J,
mps
S.A.No.607 of 2019
and
C.M.P.No.10364 of 2019
03.08.2021
https://www.mhc.tn.gov.in/judis/
