Madras High Court

Uthumal Beevi vs Mohammed Mustapa on 1 December, 2021

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATE: 01.12.2021

CORAM

THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN

S.A.(MD) No.646 of 2021
and
C.M.P(MD) No.8656 of 2021

Uthumal Beevi Appellant

vs.

Abdul Jappar (Died)
1. Mohammed Mustapa
2. Mohammed Iqbal
3. Beer Fathima
4. Kasinnammal
5. Mohammed Ali Jinnah
6. Kalima
7. Mohammed Fathima
8. Um Musalma Rahmath
9. Abdul Jabar Badhusa
10. Beer Mohammed
11. The Tenkasi Municipality
Rep.by its Commissioner
O/o.Tenkasi Muncipality
Tirunelveli Road
Tenkasi Taluk, Tenkasi District ..Respondents

Second Appeal filed under Section 100 of CPC to set aside the

judgment and decree dated 06.01.2021 made in A.S. No.20 of 2019

on the file of the Sub Court, Tenkasi confirming the judgment and

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2

decree dated 25.07.2018 made in O.S.No.528 of 2012 on the file of

the Additional District Munsif Court, Tenkasi.

For Appellants : Mr.P.Santhana Krishnan

JUDGMENT

The present second appeal has been filed against the judgment

and decree dated 06.01.2021 made in A.S. No.20 of 2019 on the file

of the Sub Court, Tenkasi confirming the judgment and decree dated

25.07.2018 made in O.S.No.528 of 2012 on the file of the Additional

District Munsif Court, Tenkasi.

2. For the sake of convenience, the parties are referred to as, as

described before the trial Court.

3.The case of the plaintiffs, as per the averments made in the

plaint, in short, are as follows:-

(i) The plaintiff had purchased a property on 24.02.1964, for a

valid consideration along with the fourth scheduled house and

pathway. The plaintiff also purchased the 1st schedule property along

with the fourth schedule, including the house and the pathway on

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05.05.1965, for a valid sale consideration. The 3rd scheduled property

belongs to the first defendant. For the 1 to 3 scheduled properties the

fourth schedule property stands as the common pathway and to be

used as common place for their use and occupation. In the 4th

schedule property, the plaintiff or defendant has got no individual

rights and it is a common way and area. The plaintiff first schedule

property rain water collected will pass through the fourth scheduled

property only to reach common water drainage. As it is used as a

common property the first plaintiff is in possession and enjoyment of

the same from the date of purchase. The first defendant also uses the

fourth schedule property to reach the third schedule property. The

sketch would show the exact position of the property situated in the

schedule. There is a Manure pit in the said area.

(ii) There arose a dispute between the plaintiff and the first

defendant and the defendant filed a suit in O.S. No. 441 of 1994

before the District Munsif, Tenkasi and in the said judgment rendered

it was held that the disputed area should be maintained by both the

parties and they shall not cause any disturbance to the existing

structures and to be treated as common place and the path to be

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maintained as common pathway and the first schedule property rain

and other water pours into the fourth schedule property to reach the

drainage in the road. As no other area is available for the water to

reach the drainage. Accordingly, the plaintiff and the first defendant

were restrained from making any construction in the said path as it

would definitely infringe the right of the other party.

(iii) As the first defendant was not in a position to stay alone

due to her age had gone to Tenkasi and the first defendant has utilized

the said opportunity and in her absence tried to construct a house on

20.11.2012 and knowing that immediately she came to her house and

found that the physical features has been totally altered to the

maximum extent and they also removed the compound wall in the

East- West side and constructed a house between the pillar and also

damaged the roof tiles of the plaintiff's house in the first scheduled

property due to the damage water started seeping inside and the

defendant tried to encroach upon the fourth scheduled property in

total which is the common pathway for both. Immediately the second

plaintiff had approached the first plaintiff and also called for a

panchayat with the village elders and the first defendant did not accept

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for the panchayat, hence the plaintiff had given a complaint before the

municipality and to the police.

(iv)The first defendant has submitted that he has got every right

to construct a house as he has also obtained proper permission from

the municipality and he cannot stop the constructions. The complaint

was filed on 26.11.2012. The municipality came to the spot with the

surveyor and has also measured the property but directed the parties

to go for a compromise. The second plaintiff requested the second

defendant to measure the property and accordingly the Surveyor

came on 29.11.2012 to measure the same. The defendants had

obstructed the survey and did not allow them to measure the same.

(v) Hence, on 30.11.2012 the plaintiff filed a complaint before

the second respondent. The second respondent did not perform his

duty as per procedure, the first defendant's had completed the building

construction. Further if the second defendant has given any permission

to the first defendant it is against the building rules laid down for the

Municipality. Further if the second defendant had given any permission

to the first defendant against the building rules of the municipality

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and the said permission will not bind on her. Further submitted that

the said construction would definitely cause inconvenience to the

plaintiff to reach his building. Further he submitted that the said rights

of the plaintiff are being clandestinely obstructed by the defendants in

collusion. At the time of filing the suit, first defendant died and the

respondents were added as parties being the legal heirs.

(vi) It is seen that the first defendant has filed a written

statement wherein he has stated that the plaintiff has got right over

the property in the fourth scheduled, 2 item only and the first and

second document does not have any relevance. He had further

submitted that as per the Town Survey register this suit is not

maintainable and further the documents does have any relevance to

the record of the revenue department and further these documents

have been made use by the plaintiff for giving a complaint. Further

submitted that only after the completion of the building the suit has

been filed which is would definitely fall on the doctrine of latches had

dismissed the suit and no cause of action arises and further submitted

that the disputed property is not correct and further prayed for

dismissal of the suit.

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4. Resisting the claim made by the 1st plaintiff, the 1st defendant

filed a written statement contending interalia that the plaintiff has got

right over only the property in the fourth scheduled, 2 item and the

first and second document does not have any relevance. He further

submitted that as per the Town Survey and Register, the Suit filed by

the 1st plaintiff is not maintainable and further the documents does

have any relevancy to the records of the Revenue Department.

Further submitted that only after the completion of the building, the

suit has been filed, which is would definitely fall on the Doctrine of

Latches and therefore, prayed for dismissal of the suit.

5. The second defendant had filed a counter and denied all the

submissions made by the plaintiff as if they have not issued any such

building permission and if they have issued any such valid permission

it has to be proved by the concerned parties only as per the rules and

regulations they have given permission and further submitted that if

there is any contravention of rule is found the second defendant will

not grant any sanction and planning permission. As they are not

necessary parties, prayed for dismissal of the same.

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6. During trial, the second plaintiff was examined as PW.1 and

marked 11 documents as Ex.A1 to Ex.A11. The first defendant herself

was examined himself as D.W.1 and one document was marked as

Ex.B1. The court document was also marked as Ex.C1 to C5.

7.On analysis of the oral and documentary evidence, the Trial

Court had allowed the suit. Aggrieved by the same, the 1 st defedant

has preferred an appeal in A.S. No.528 of 2012, on the file of the

Principal Sub Court, Tenkasi.

8. The first appellate court, after considering the oral and

documentary evidence of the parties, had dismissed the appeal suit.

Aggrieved by the Judgment and decree passed by the first appellate

Court, the present Second Appeal has been filed by the 1st defendant

on various grounds.

9. The learned counsel appearing for the appellant/ 1 st defendant

would vehemently contend that both the courts below erred to

consider the valid and vital document produced by the appellant/1st

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defendant to prove the case and the appellant / 1 st defendant had ot

produced any document to prove her case over the suit schedule

property. Further both the Courts have erred to consider the document

Ex.B.1 which is the agreement, executed between the 1 st plaintiff and

the 1st defendant on 26.06.2011, which reveals that the appellant /

1st defendant is entitled to make contruction over the suit property.

Further boh the courts below erred to note that the sale deeds

produced by the first plaintiff are not related to the suit property and

under the said situation no decision can be taken regarding the suit

property unless and until the valid and related document is produced.

Further the Courts below erred to note that the 1 st plaintiff has

unnessarily implicated the Tenkasi Municipality as one of the defendant

to the proceedings and infact the Municipality is not a necessary party

to the proceeding and the suit can be dismissed on the ground of

misjoinder further the appellant / 1st defendant had made construction

over the suit property only after getting approval from the Tenkasi

Municipality and in the present case also they have appeared and not

contested the case of the 1st defendant and the presumption of both

the Courts that the construction made by the 1 st defendant is proper

cannot be accepted.

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10. The learned counsel appearing for the respondent /

defendant would submit that the well considered Judgments of the

Courts below need not be interfered with, as there is no question of

law involved in this Second Appeal and prayed for dismissal of the

Second Appeal.

11. This Court paid its anxious consideration to the rival

submissions made and also carefully perused the materials placed on

record.

12. According to the plaintiff, the 1st plaintiff had purchased a

property on 24.02.1964, for a valid consideration along with the

fourth scheduled house and pathway. The plaintiff also purchased the

1st schedule property along with the fourth schedule, including the

house and the pathway on 05.05.1965, for a valid sale consideration.

The 3rd scheduled property belong to the first defendant. For the 1 to 3

scheduled properties the fourth schedule property stands as the

common pathway and common place for their use and occupation. In

the 4th schedule property, the plaintiff or defendant has got no

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individual rights and it is a common pathway. According to the

plaintiffs, they have have right to pass water both dirty and rain water

through the 4th schedule property, which is a common pathway to the

1st plaintiff and the 1st defendant. The first defendant also uses the

fourth schedule property to reach the third schedule property. The

sketch would show the exact position of the property situated in the

schedule. Accordingly, the 1st plaintiff and the 1st defendant cannot

make any construction in the said path, as it would definitely infringe

the rights of the other party. In these, circumstances, the 1 st

defendant constructed a house encroaching the 4th schedule property,

which is a pathway, which was objected by the 1st plaintiff. Hence, on

30.11.2012 the plaintiff filed a complaint before the second

respondent. Despite taking action, the second defendant had given

permission to the first defendant contrary to the law. Therefore, the

1st plaintiff filed a suit.

13. According to the 1st defendant, he had constructed the

building as pex Ex.B1, agreement entered into between the 1st plaintiff

and the 1st defendant. The 1st defendant did not violate the terms and

conditions contained in Ex.B1. If there is any contravention of Rules

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the second defendant will not grant sanction and planning permission

to construct the building. Hence, prayed for dismissal of the suit. But,

accroding to the 2nd defendant, the sanction and planning permission

has been given as per the Rules.

14. It is not in dispute that the 4 th schedule property is a

common pathway. According to the plaintiff, the 1st defendant have no

right to construct a building in the 4th schedule property, as it is a

common pathway both to the plaintiffs and the defendants. According

to the 1st defendant, as per the agreement Ex.B1, dated 26.06.2001,

entered into between the 1st plaintiff and 1st defendant, the 1st

defendant constructed the building. When P.W.1 was examined on the

side of the first defendant, P.W.1 has stated as follows:-

“1k; gpujpthjpAk; vd; jfg;gdhuhd 1k; thjpAk;

                                    2001k; tUlk; I{d; khjk; 26k; Njjp jhth nrhj;J
                                    rk;ge;jkhf    xU    Xg;Ge;jk;       nra;J   nfhz;lhh;fs;
                                    vd;W    nrhd;dhy;          mjd;     cs;slf;fk;    vdf;F
                                    njhpahJ. Mdhy; jw;NghJ              vd;dplk; fhl;;lg;gLk;
                                    me;j    xg;ge;jj;jpd;      efypy;   cs;s      ifnaOj;J
                                    vd;Dila            jfg;gdhUilaJjhd;.              Nkw;gb
                                    xg;ge;jkhdJ             vq;fs;       iftrk;      cs;sjh




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                                    Njbg;ghh;j;Jjhd;          nrhy;y      ,aYk;.       Nkw;gb
                                    xg;ge;jj;jpw;F cl;gl;L jhd; 1k; gpujpthjp             tPL
                                    fl;bAs;shh; vd;Wk; mjid kiwj;J ,t;tof;if

jhf;fy; nra;Js;Nshk; vd;Wk; nrhd;dhy; rhpay;y”

15. Furthermore, the defendants have not produced any

documents like sale deed, plan approval etc., to prove the fact that the

building was constructed based on the terms and conditions contained

in the agreement and the defendants has to prove the same, but failed

to do so. Therefore, this Court has no hesitation in holding that the

construction made by the 1st defendant in the property in dispute is an

unauthorized construction. The said agreement is a xerox copy and the

said agreement has not been produced.

16. As per the admission made by the 1st defendant, he

constructed the building as per Ex.B1, Agreement Deed, executed on

26.06.2001. On perusal of the Advocate Commissioner's Report

confirms the fact that there was a building in the common pathway

that an unauthorized construction was made over the 4th Schedule in

2nd item of property. On perusal of records it is seen that the 1st

defendant had admitted in his cross examination that at the time of

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filing the suit, he had constructed the builing in the east- west

direction, as per the permission granted by the plaintiff, but which has

not been proved by adducing any evidence. Further, in the town

survey register it has been found that it is the common pathway.

When that being the case, the plaintiffs or the defendants cannot

have an exclusive right over the common pathway and they

themselves cannot enter into an agreement and construct a building,

which would definitely obstruct the pathway. As per the judgment in

O.S. No.528 of 2012 they are estopped from doing so.

17. In view of the forgoing discussions, this Court finds no

reason to interfere with the well reasoned Judgments of the Courts

below and also there is no question of law much less substantial

question of law arises for consideration in this Second Appeal

Accordingly, the Second Appeal is liable to be dismissed.

18. In fine, the Second Appeal is dismissed, confirming the

Judgment and Decree in A.S. No.20 of 2019 on the file of the Sub

Court, Tenkasi in confirming the Decree and Judgment in O.S.No.528

of 2012 on the file of the Additional District Munsif Court,

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Tenkasi. The appellants / defendants are directed to vacate the 4th

schedule, 2nd item of the suit property, within a period of three

months from the date of receipt of a copy of this Judgment. However,

there shall be no order as to costs. Consequently, connected

miscellaneous petition is closed.

01.12.2021 Index: Yes/No.

Internet: Yes/No.

aav

Note: In view of the present lock down owing to COVID 19 pandemic, a web copy of the order may be utilised for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned.

1. The Sub Court, Tenkasi

2. The Additional District Munsif Court, Tenkasi.

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V. BHAVANI SUBBAROYAN, J.

aav

S.A.(MD) No.646 of 2021 and C.M.P(MD) No.8656 of 2021

01.12.2021

https://www.mhc.tn.gov.in/judis