Madras High Court
J.Angel Mary vs Thanislas on 8 December, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 08.12.2021
CORAM
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
S.A.(MD) No.773 of 2021
and
CMP(MD) Nos.10334 and 10335 of 2021
J.Angel Mary Appellant
vs.
1. Thanislas
2. Justin
3. Venanjees ..Respondents
Second Appeal filed under Section 100 of CPC against the
judgment and decree dated 08.09.2012 passed in A.S.No.75 of 2015
on the file of the Subordinate Court, Padmanabhapuram, Kanyakumari
District confirming the judgment and decree dated 15.07.2015 passed
in O.S. No.293 of 2013 on the file of the Principal District Munsif,
Padmanapuram.
For Appellant : Mr.C.T.Perumal
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2
JUDGMENT
The present second appeal has been filed against the judgment
and decree dated 08.09.2012 passed in A.S.No.75 of 2015 on the file
of the Subordinate Court, Padmanabhapuram, Kanyakumari District,
confirming the judgment and decree dated 15.07.2015 passed in O.S.
No.293 of 2013 on the file of the Principal District Munsif,
Padmanapuram.
2. For the sake of convenience, the parties are referred to
herein, as per their own ranking, as before the Trial Court.
3.The case of the plaintiff, as per the averments made in the
plaint, in short, is as follows :
(i) The plaint 'A' schedule property is having an extent of
1312 cents comprised in Resurvey No.285/21 of Valvachagostam
village belongs to her husband and the property belongs to the first
defendant who sold the same to one Regin Merit through a sale deed
No.1667/2004 of Palliyadi Sub Registrar office including the plaint 'B'
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Schedule property. Subsequently the husband of the plaintiff
purchased the plaint 'A' schedule property and 'B' schedule property
through a sale deed No. 4251/2011 and was in possession and
enjoyment of the same. 'B' schedule property is the pathway for the 'A'
schedule property. The husband of the plaintiff is working in abroad
and due to the unexpected unlawful acts of the defendants, the
plaintiff filed this suit on behalf of her husband.
(ii) The first defendant is the owner of the adjacent property. The
second defendant is the son of the first defendant and the third
defendant is the another son of the first defendant and both are
adjacent owners. The north eastern side of the plaintiff's husband's
property is described as 'B' schedule property, which is a pathway
having an average width of four feet which leads to the public pathway
and further leads to Mulagumoodu to Marthandam National Highway. A
five feet width of concrete pathway goes from east to west direction
from the National Highways. The 'B' schedule pathway starts from the
public pathway leads to the plaintiff's husband's property. He acquired
right over the plaint 'B' pathway by easementary right of grant and
prescription as well as title holder. The plaintiff, her husband and his
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previous title holder have all along been using the 'B' schedule
pathway as of right and title. Now the defendants are making attempts
to obstruct the plaint 'B' schedule property pathway. While they have
no right on 25.11.2013 at about 5.00 p.m., due to the absence of the
husband of the plaintiff, the defendants along with his labourers
attempted to close the 'B' schedule property pathway, by putting gate
and also attempted to construct the compound wall. The same was
resisted by the plaintiff by her timely intervention. The plaintiff also
gave complaint before the Sub Inspector of Police, Thuckalay, to
prevent the illegal activities of the defendant's and they came to the
spot and asked the defendants not to obstruct the plaint 'B' schedule
property pathway, but they are not amenable to their words and the
police advised the plaintiff to seek remedy through civil Court. After
filing of this suit and obtained injunction, the first defendant continued
the constructions and encroached the 'B' schedule pathway by
projecting the sunshade of his building and suppressing the material
facts in O.S. No.40 of 2014 and got status quo order and violated the
order of the Court. Hence the plaintiff has filed a suit for declaration of
title and right of pathway over the 'B' schedule property and for
permanent injunction and also for mandatory injunction.
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4. Resisting the claim made by the plaintiff, the defendants filed
a detailed written statement contending interalia that the third
defendant in this suit as plaintiff has filed another civil suit in O.S. No.
40 of 2014 before the District Munsif Court, Padmanabhapuram
against certain persons. In the above suit, the plaintiff has claimed
relief for permanent injunction against the defendants from drawing
electric line and water supply line to the building situated in the
property of defendants 1 and 2 in R.S. No.285/21A of Valvachagostam
Village through or over any portion of the suit property including the
permitted pathway to defendants 1 and 2 in R.S.No.285/8 of
Valvachagostam Village through or over any portion of the suit
property including the permitted pathway to defendants 1 and 2 in
R.S. No.285/8 of Valvachagostam Village. The property is having an
area of 6 cents in R.S. No.285/8 belongs to the first defendant and in
the property an area of 0.250 cents in the 'B' schedule property.
5. It is the further contention of the defendants that the third
defendant also got title, possession and enjoyment over the property,
as per the settlement deed No.1181 dated 14.05.2013 executed by his
father, who is the first defendant. The said property is a house and
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house site of the third defendant. The first defendant got title,
possession over the property through the partition deed No.
1485/1984. In the said partition deed, 'B' scheduled property stated
in that deed was allotted to him and he was in possession and
enjoyment as per the settlement deed dated 14.05.2013 in favour of
the third defendant. The first defendant is also having property to an
area of 5.5 ares in R.S. No.285/21. The property lies adjacent to the
previous property on the west and on the south. Due to the repeated
request of his close relative by name A.Regin Merit he has sold an area
of 5.312 cents on the western portion of the said property to him. The
area sold to him was sub divided as 21A and the area left to the first
defendant was marked as 21 B. As the property sold is not touching
the public pathway available on the north, the first defendant has
permitted the purchaser Mr.A.Regin Merit to walk or pass through the
western side of the property in R.S. No.285/8. The said permission
was granted to the purchaser to walk or passes through the said
property and the same will not confer any title or possession over any
portion of the suit property.
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6. Further, after purchase, the plaintiff and her husband also
used the pathway provided in the suit property in R.S. No.285/8 for
the property in R.S. No.285/21A. In the plot left out as R.S.No.
285/21B, the second defendant has put up his building as his own
even though the title over the property is vested with his father. The
first defendant also permitted the second defendant and his family
members to walk or pass through the pathway provided to Regin
Merit. The said right to walk or pass through the said property is not
transferable and the said Regin Merit is not competent to execute the
sale deed transferring the right to walk or pass through the property
in R.S.No.285/8. In the above circumstances, the plaintiff and her
husband are attempting to draw electric line and water pipe
connection to their property in R.S. No.285/21A through the property
in R.S. No.285/8. If electric line and the water connection to be given
through the patta land of the first defendant the permission is
necessary. As per the settlement deed dated 14.05.2013, the third
defendant is having perfect title over the entire suit property. The
plaintiff and her husband are not having any manner of title over the
property. The third defendant did not grant any permission or no
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objection letter to the Tamil Nadu Electricity Board or TWAD Board.
Now the plaintiff and her husband are attempting to put another
building in their property and also attempting to draw E.B connection
and water connection through the disputed property. They can draw
the same from the existing building. The authorities of Tamil Nadu
Electricity Board had visited the suit property on 23.01.2014 for the
purpose of giving E.B connection to the plaintiff. As such the
authorities of the TWAD Board also visited the suit property on
30.01.2014 for the purpose of giving water connection. If the proposed
attempt of the plaintiff and her husband are not stopped, it will cause
huge damage to the third defendant and prayed for dismissal of the
suit as they have got no right over the same.
7. Additional written statement was also filed by the defendants
stating that there was illegal construction as alleged in the plaint and
also the present construction were made after filing of the suit. The
plaintiff is not competent to challenge or question the constructions put
up as alleged. The plaintiff or her husband is not having any manner of
exclusive title and possession over the suit property. The plaintiff can
walk through the suit property on the permission of the defendants. A
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person permitted or allowed to walk cannot have exclusive title and
possession over the suit property and they cannot have relief of
mandatory injunction. He further submitted that if at all any right is
given to the plaintiff by the said Regin Marit that will not confer any
right over them and only permission was given to the plaintiff vendor
to walk through.
8. Before the trial Court, the plaintiff was examined as PW.1 and
Exhibits A1 to A7 were marked. Commissioner's report and plan were
marked as Ex.C.1 and Ex.C.2. One Stella Mary was examined as PW.2
and through her no exhibits were marked. On the side of the
defendant first defendant was marked as DW.1 and Ex.B.1 was marked
through him.
9. On the basis of the rival pleadings made on either side, the
trial Court, after framing necessary issues and after evaluating both
the oral and documentary evidence, had dismissed the suit.
10. Aggrieved by the Judgment and Decree passed by the trial
Court, the plaintiff, as appellant, had filed an Appeal Suit in A.S. No.75
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of 2014, on the file of the Subordinate Court, Padmanabhapuram,
Kanyakumari District. The first appellate Court, after hearing both
sides and upon reappraising the evidence available on record, had
dismissed the appeal and thereby confirmed the Judgment and Decree
passed by the trial Court.
11. Challenging the said concurrent Judgments and Decrees
passed by the Courts below, the present Second Appeal has been
preferred at the instance of the plaintiff, as appellant.
12. The learned counsel appearing for the appellant / plaintiff
would submit that the Court below has failed to consider that there
was a pathway in 'B' schedule property, which has not been identified
by the appellant which is against both the documentary and oral
evidence. Further the court below has erroneously come to the
conclusion that Ex.A2 does not convey absolute right over the 'B'
schedule property to the appellant and they also failed to note that
Ex.A.2 wherein pathway right of the property was purchased for
consideration of Rs.100/- by the husband of the plaintiff was not taken
into account. Further the Court below failed to admit the evidence of
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DW1 that the pathway right in the 'B' schedule property is conveyed to
the vendor of the plaintiff through Ex.A.1. The courts below placed
much reliance on Ex.C1 and C2, which is not on sound legal principles.
Hence, the learned counsel prays for setting aside the Judgments of
the courts below by allowing the appeal.
13. This Court paid its anxious consideration to the submission
made by the learned counsel for the appellants / plaintiff and also
carefully perused the materials placed on record.
14. Originally the suit was filed by the plaintiff seeking for the
relief to declare his title and right of pathway over plaint the 'B'
scheduled property by grant and prescription and to restrain the
defendants from making obstructions in the plaint 'B' Schedule
properties and also for mandatory injunction, to dismantle the
projected building in the plaint 'B' schedule pathway.
15. The case of the plaintiff is that the plaint 'A' schedule
property is having an extent of 5.312 cents comprised in Resurvey No.
285/21 of Valvachagostam village belongs to her husband. The plaint
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'B' schedule property is the pathway for the 'A' schedule property.
Originally, both 'A' and 'B' Schedule property belonged to the 1st
defendant, who sold the same to one Regin Merti through the sale
deed No.1667/2004 of Palliyadi Sub Registrar office, for valid
consideration. Subsequently the husband of the plaintiff purchased
the plaint 'A' and 'B' schedule properties through a sale deed No.
4251/2011. The first defendant is the owner of the adjacent property.
The defendants 2 and 3 are the sons of the first defendant. The north
eastern side of the plaintiff's husband's property is described as 'B'
schedule property, which is a 4 feet pathway, which leads to the public
pathway and further leads to Mulagumoodu to Marthandam National
Highway. The plaintiff's husband acquired right over the plaint 'B'
schedule pathway by easementary right of grant, prescription as well
as title holder. On 25.11.2013 at about 5.00 p.m., due to the
absence of the husband of the plaintiff, the defendant attempted to
put up gate and compound wall, obstructing the compound wall. The
same was resisted by the plaintiff and filed a suit and getting an order
of injunction. But, the first defendant continued the construction and
encroached the 'B' schedule pathway.
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16. The case of the defendants is that the third defendant in this
suit as plaintiff had filed another suit in O.S. No.40 of 2014 before the
District Munsif Court, Padmanabhapuram. In the above suit, the
plaintiff has claimed relief for permanent injunction against the
defendants from drawing electric line and water supply line to the
building situated in the property of defendants 1 and 2 in R.S. No.
285/21A of Valvachagostam Village. The 1st defendant got title and
possession over the said property through the partition deed executed
in between him and his brothers in the year 1984. The property is
having an area of 6 cents in R.S. No.285/8 and the property an area of
0.250 cents in the 'B' schedule property belonged to the first
defendant. On request of the close relative Regin Merit, he has sold an
area of 5.312 cents on the western portion of the said property to him.
The said property was sub divided as 21 and the area left to the 1st
defendant was marked as 21B. As the said property sold is not
touching the public pathway available on the north, the 1st defendant
permitted the said Regin Merit to walk or to pas through the western
side of the property in R.S.No.285/8 and the same also noted in the
sale deed in favour of the Regin Merit. Subsequently, the said Regin
Merit sold the property purchased in R.S.No.285/21A to the husband of
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the plaintiff on 28.12.2011. After the said purchase, the plaintiff and
her husband are also using the pathway provided in the property in
R.S.No.285/8. The permission given to the Regin Merit to walk on the
western side of the property is not transferable. That property is
shown as suit 'B' schedule property. Now the plaintiff is attempting to
draw electric line and water pipe connection to be given through the
patta land of the first defendant.
17. On perusal of the materials, it is seen that the dispute
between the parties is only with respect of 'B' schedule pathway.
Ex.A1 is the sale deed, executed in favour of one Regin Merit along
with pathway right through the western side of the property in R.S.No.
285/8. Through Ex.A1, sale deed, the said Regin Merit has not
purchased any specific portion as pathway. Ex.A2 is the sale deed
through which, the said Regin Merit has conveyed specific portion as
pathway in R.S.No.285/8 having an extent of 0.250 square links,
having 4 feet width. The contention of the defendant is that the 1st
defendant has not conveyed any specific portion in the property in
R.SNO.285/8 and the pathway right given to the plaintiff's husband
and his vendor is only permissive one. The plaintiff's husband claimed
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right over the specific portion in R.S.No.285/8 stating that he acquired
right over the 'B' schedule property by grant, prescription and also
claiming title over the said property. When a person claiming title over
a property then he cannot claim easementary right over the said
property. To claim an easement by prescription, according to Section
15 of the Indian Easement Act, the plaintiff is required to plead and
prove that he was in peaceably, openly and interrupted enjoyment of
the right for a period of 20 years ending within 2 years next before the
institution of the suit. Admittedly, the property was purchased by the
plaintiff's vendor in the year 2004 and before that both A and B
schedule property was in the hands of the 1st defendant. In such
circumstances, plaintiff cannot claim that she and his vendor used the
pathway for the past 20 years and the claim of plaintiff over B
schedule property on the ground of easement by prescription fails.
18. Further, it is seen from the records that the plaintiff has filed
the suit without getting any power of attorney from her husband and it
could be deduced from her evidence, which reads as follows:-
“ehd; ,e;j tof;if 02.12.2013 y; jhf;fy;
nra;Njd; vd;why; Qhgfkpy;iy. tof;fpd; 'V'
gl;bif vdJ fzthpd; ngahpy; cs;s nrhj;J
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MFk;. tof;F V gl;bifr; nrhj;J vdJ
fztUf;F chpikg;gl;l nrhj;J vd;whYk; vdf;F
ve;j chpikAk; fpilahJ vd;why; rhpjhd;. ,e;j
tof;if jhf;fy; nra;Ak; rkak; vdJ
fzthplkpUe;J mjpfhug;gj;jpuk; vJTk;
thq;ftpy;iy vd;why; rhpjhd;. tof;F jhf;fy;
nra;Js;s mjpfhug;gj;jpuj;ij vdJ fzth; rTjp
mNugpahtpy; ,Ue;J mDg;gp je;jhh;. ,e;j tof;F
jhf;fy; nra;ag;gl;Ls;s tptuk; vdJ fztUf;F
njhpAk;. vdJ fzth; CUf;F te;jpUe;j rkak;
mjpfhug; gj;jpuk; ,q;F itj;J vOjpj; juhjjw;F
VjhtJ fhuzk; cz;lh vd;why; mth;
Rfk;; ,y;yhky; CUf;F te;jpUe;jhh;. mth; 15
ehl;fs; kUj;Jtkidapy; mDkjpf;fg;gl;bUe;jhh;.
vdJ fzth; jdJ ngahpy; ,Uf;Fk; nrhj;J
rk;ge;jkhf tof;F elj;Jtjw;fhf tof;fpy;
jhf;fy; nra;Js;s mjpfhug;gj;jpuj;ij je;jhh;.
Tof;F nrhj;J tof;F jhf;fy; nra;Ak; rkak;
vdJ fzthpd; nrhj;J vd;gjhy; mtuJ
mjpfhug;gj;jpuk; ,y;yhkYk; ve;j
chpikAk; ,;y;yhky; jhf;fy;
nra;Js;sjhy; ,e;j tof;F epiyf;fj;jf;fjy;y
vd;why; rhpay;y. vdJ fzthpd;
mjpfhuk; ,y;yhky; ehd; tpsk;Gif ghpfhuk;
Nfl;L jhf;fy nra;Js;s ,e;j tof;F
epiyf;fj;jf;fjy;y vd;why; rhpay;y”
19.As per Order 3 Rule 1 C.P.C., the suit must be in the name of
the party, who is entitled to legal character and right to the property
and the plaint must be signed by a power of attorney. But, in this
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case, the said procedure was not followed. That being the position,
the suit filed by the plaintiff to declare the right of her husband over
the schedule properties is not maintainable and the plaintiff is not
entitled for the relief of declaration.
20. Ex.C1 and Ex.C2 are the Commissioner's Report. On perusal
of Ex.C1 and Ex.C2 makes it clear that the extent of B schedule
property is shown as 506 square links. This clearly shows that the
extent of B schedule pathway is not property identified by the plaintiff.
As per the Commissioner's report, the length of B schedule pathway is
17 meters and the width is 1.2 meter. If measurement is taken to,
then the extent of 'B' schedule property will come to 506 square links
and not 0.250 square links. That being the case, the vendor of the
plaintiff's husband has not purchased the pathway right showing any
specific width and length and extent. When the plaintiff claims
mandatory injunction, she has to establish the extent of B schedule
property in a proper manner, which the plaintiff has not done, as could
be seen from the records.
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21. In view of the forgoing discussions, this Court is not of the
view that the findings rendered by the trial court and upheld by the
first appellate Court, do not warrant any interference of this Court, as
the findings given on the issues framed by the Courts below as well as
specifically taken up by this Court to reach the root of the controversy,
appears to be based upon correct appreciation of oral as well as
documentary evidence. Hence, the present appeal fails and is
dismissed, accordingly. No costs. Consequently connected
miscellaneous petitions are closed.
08.12.2021
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.
To
1. The Subordinate Court, Padmanabhapuram, Kanyakumari District .
2. The Principal District Munsif, Padmanapuram
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V. BHAVANI SUBBAROYAN, J.
aav
S.A.(MD) No.773 of 2021
and
CMP(MD) Nos.10334 and 10335 of 2021
08.12.2021
https://www.mhc.tn.gov.in/judis
