Madras High Court
Prakathambal vs Vasantha on 22 December, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 22.12.2021
CORAM
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
S.A.(MD) No.799 of 2021
Prakathambal ....Appellant / Appellant / Plaintiff
vs.
Baskar (Deceased)
1.Vasantha
2. Vijaya ....Respondents / Respondents /
Defendants
Prayer: Second Appeal filed under Section 100 of CPC against the
Judgment and Decree dated 18.09.2014 in A.S. No. 9 of 2012 on the
file of the Principal Sub Court, Kumbakonam, Thanjavur District
confirming the judgment and decree made in O.S. No.595 of 2005
dated 31.01.2012 on the file of the learned District Munsif,
Kumbakonam, Thanjavur District.
For Appellant : Mr.G.Gomathi Sankar
For Respondents : Mr. R.Suriya Narayanan
https://www.mhc.tn.gov.in/judis
2
JUDGMENT
The Second Appeal has been directed against the Judgment and
Decree dated 18.09.2014 in A.S. No. 9 of 2012 on the file of the
Principal Sub Court, Kumbakonam, Thanjavur District, confirming the
judgment and decree made in O.S.No.595 of 2005 dated 31.01.2012
on the file of the learned District Munsif, Kumbakonam, Thanjavur
District.
2. For the sake of convenience, the parties are referred to their
respective position, as before the Trial Court.
3.The case of the plaintiff, as per the averments made in the
plaint, in short, is as follows :
The plaintiff is residing in the Thirucherai Village in
Kumbakonam Taluk, Thanjavur District. The property belonged to her
husband and it is 100 years old. After the death of her husband, the
plaintiff and her daughter are the absolute owner of the property.
Since the daughter of the plaintiff is residing outstation, she is not
impleaded as party to the suit. This case is being contested as joint
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owner. The defendant have a thatched house in the southern side of
the plaintiff's house, which was constructed 25 years ago by the
predecessors of the defendants and before that it was a vacant site.
The plaintiff and the defendants property belongs to “Thirucherai
Saranatha Perumal Kovil Devasthanam”. After getting permission from
the Devasthanam, they constructed the house in the said place and
residing there. The plaintiff predecessors have been enjoying the said
house backyard and in the same way, the defendants and their
predecessor were residing in the said place. The plaintiff or the
defendant or any other person in the said area has not paid any Kist
to the “Thirucherai Saranatha Perumal Kovil Devasthanam”. The
plaintiff filed a VAO certificate to prove that she in possession and
enjoyment of the house as well as the backyard of the house. She has
also filed a sketch showing the plaintiff house and the back yard which
is shown in green colour and the defendant house and the backyard in
red colour. The plaitniff property situated in S.No.168/8 and the
defendant property in S.No.168/9. In between both the properties,
there is a small lane, which is shown in blue colour. The S.Nos.168/8
and 168/9 included the said blue line, which is shown as ABCD. In
between the plaintiff and defendants property, there is a lane, 5 feet
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breath and 130-1/2 feet length, which is disputed place . In the said
property, both the plaintiff and the defendants are enjoying the same
commonly. The plaintiff or the defendant cannot have a right to
construt or fence the property. Rain water from the roof of both the
plaintiff and the defendant will flow through the said land and it will
reach the lake area. The plaintiff is using the same to reach the
backyard and the repair the plaintiff southern area and to repair the
defendants northern side wall. The plaintiff also produced tax receipts
to prove her ownership . The defendant also used to raise some
dispute and he will close the the said lane by fencing. He will also tie
his cattle in the area and utilizing the said area for dumping unwanted
materials. The photos were also filed and the plainitff has also given
police complaint before the Nachiyar kovil police station and the
plalintiff also removed the said fencing as well as the waste materials
dumped. Water from both houses flow only on the said lane and it has
been used by both the parties. The defendant put up the fence and
tied his cattle in the dispsuted area, when the plaintiff went out of
station. Due to which, the southern side compound wall has been
damaged. On 08.09.2009, the plaintiff requested the defendant to
remove the encroachment made by the defendant. But the defendant
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was trying to construct the compound wall. Hence, she has filed the
suit.
4.Resisting the claim made by the plaintiff, the defendant filed a
written statement contending among other things that the boundaries
and measurement given in the description of the property are denied
and it is not correct. The plantiff is also not entitled for permenant and
mandatory injunction without proper description of the property. The
plaintiff's house is situated in the northern end of the street and the
suit property is situated in the near the Thirucheri, Kumbakonam taluk
and the defendant house is situated in the southern side of the platinff
house which is also a very old 100 years building. Both the plaintiff's
and the defendant's house property owned by 'Arulmighu Saranatha
Samy Temple'. The lane between the plaintiff's house and the
defendant's house is not a common lane. It absolutely belongs to the
defendant, which is 5 feet width to 132 ½ feet length. The land
enjoyed by the plaintiff is absolutely false and the defendant is the
owner of the land. The plaitniff was always residing in the place and
the plaintiff put the fence and stored articles in the lane was also not
accepted and as he is residing in the southerm side of the suit
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property. The father of the defendant was residing in the property
for seven decades and the house tax receipt stands in the name of
the father of the defendant and the plaintiff has no access to enter
into the suit property. The defendant put up a thatched house in the
said lane several decades ago and there is a toilet and septic tank in
the lane and the defendant has also stocked the haystack in the lane.
The defendant construted the house in the year 2004 and the lane has
been in the absolutely possession of the defendant and the defendant
is enjoying the suit property and the palintff has got nothing to do with
the lane and further stated that one of the relative of the plaintiff is
tring to encroach upon the suit property, which was thwarted by the
pachacyat. The plaintiff is not entitled for the same. Hence he prays
for dismissal of the suit.
5. During the trial, the plaintiff herself was examined as P.W.1
and one Govindarajan was examined as P.W.2 and on the side of the
plaintiff 6 documents were marked as Exs.A1 to A6. On the side of the
defendants two witnesses were examined as D.W.1 and D.W.2 and 12
documents were marked as Ex.B1 to Ex.B.12. Two court documents
were marked as Ex.C1 and Ex.C2.
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6. On the basis of the rival pleadings made on either side, the
trial Court, after framing necessary issues and after evaluating both
oral and documentary evidence, had dismissed the suit.
7. Aggrieved by the Judgment and Decree passed by the trial
Court, the plaintiff, as appellant, had filed an Appeal Suit in A.S. No.9
of 2012 on the file of the Principal Sub Court, Kumbakonam. 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.
8. 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.
9. Heard the learned counsel appearing for the appellant /
plaintiff and the learned counsel appearing for the respondents /
defendants.
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10. The learned counsel appearing for the appellant / plaintiff
would submit that the enjoyment of the suit property by the plaintiff
has been admitted by the defendants. The Courts below has failed to
see that the plaintiff and the defendants together are the common
owners of the land and therefore, they are using the same as common
and therefore, the defendants should be restrained from making any
obstacle on the lane and the court ought to have decreed the suit in
favour of the plaintiff. The plaintiff is using the lane for more than
100 years and it was proved through independent evidence and the
same was not considered by the Courts below. The Courts below have
failed to see that the lane belongs to temple and the temple is not
taking any steps to remove the encroachment, but the defendants are
having right to remove t he encroachment. As per the Commissioner's
report, the defendants made an obstacle, based on the same, the
Courts below ought to have decreed the suit.
11. Per contra, the learned counsel appearing for the
respondents / defendants has vehemently opposed this Second
Appeal by contending that the well considered judgments of the Courts
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below need not be interfered with, as there is no question of law
involved in this Second Appeal and prayed for the dismissal of the
same.
12. This Court paid its anxious consideration to the rival
submissions made and also carefully perused the materials placed on
record.
13. According to the plaintiff, she is residing in the Thirucherai
Village in Kumbakonam Taluk, Thanjavur District. The property in
which she is residing belongs to her husband and it is 100 years old.
After the death of the plaintiff's husband, the plaintiff and her daughter
are the absolute owner of the property. The defendant have a
thatched house in the southern side of the plaintiff's house, which was
constructed 25 years ago by the predecessors of the defendants and
before that it was a vacant site. The property of the plaintiff and
the defendants belongs to “Thirucherai Saranatha Perumal Kovil
Devasthanam”. After getting permission from the Devasthanam, they
constructed the house in the said place and residing there. The
plaintiff has filed a VAO certificate to prove that she is in possession
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and enjoyment of the house as well as the backyard of the house. The
plaitniff's property is situated in S.No.168/8 and the defendant's
property in S.No.168/9. In between the plaintiff and defendants
property, there is a lane, 5 feet breath and 130-1/2 feet length, which
is the disputed place. In the said property, both the plaintiff and the
defendants are enjoying the same commonly. The defendants put up
the fence and tied his cattle in the dispsuted area, when the plaintiff
went out of station. Due to which, the southern side compound wall
has been damaged. On 08.09.2009, the plaintiff requested the
defendants to remove the encroachment made by the defendants. But
the defendant was trying to construct the compound wall.
14. According to the defendants, the boundaries and
measurement given in the description of the property is not correct.
It is for the plaintiff to prove that the property in which she is residing
is more than 100 years. Both the plaintiff's and the defendant's
house properties are owned by 'Arulmighu Saranatha Samy Temple'.
There is a lane between the plaintiff's house and the defendants
house, which is 5 feet width and 132 ½ feet length, but it is in
exclusive usage of the defendants. The defendants' father was residing
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in the souther portion of the suit property for long years. The plaintiff
encroached the land by fencing the same and the proble resolved
through a panchayat.
15. It is not in dispute that the suit property is owned by
'Arulmighu Saranatha Samy Temple'. It is also not in dispute that there
is a lane between the plaintiff's house and the defendants house,
which is 5 feet width and 132-½ feet length. It is seen from the
records that though the plaintiff in her evidence had deposed that the
lane has been used as common lane and common pathway by both
the parties, in her cross examination she has deposed that she has
not purchased the said property along with the title of common
pathway. She has not produced any document to substantiate her
claim that the lane belonged to the both and used as common lane.
PW2, who was examined on the side of the plaintiff, had deposed his
examination that generally the lane is jointly used by the plaintiff and
the defendants. Except P.W.1 and P.W.2, no witness was examined on
the side of the plaintiff to prove her claim that the lane is a common
lane.
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16. Ex.C1, dated 02.11.2009 is the report of the Advocate
Commissioner. Ex.C2, dated 02.11.2009 is the Sketch, prepared by
the Advocate Commissioner. On careful scrutiny of Ex.C1 and Ex.C2
would show that there is no way to reach the backyard of the plaintiff
through the lane. On the other hand, Ex.B1 to B12 adduced on the
side of the defendants would show that the souther side of the suit
property belonged to the defendants. It is argued on the side of the
plaintiff that the lane is used for maintaining the southern side of
plaintiff's house. Of course, it may be true. But the plaintiff has not
adduced any evidence to substantiate her claim that the lane is a
common lane and both the plaintiff and the defendants are using the
same. Further the rain water of both the houses flow through the lane
in question was accepted by the defendants, he never objected for the
rain water falling from the roof of the plaintiff thorugh the common
lane and he further submitted that even for white washing he has not
objected.
17. It is seen from the records that physical features and
topography of the disputed property was also not proved by the
plantiff concerned. The Advocate commissioner in his report had
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pointed out that there are some constructions like cow shed and
another thatched shed in the said lane and that the plaintiff is entitled
for maintaining the southern side of the wall alone. It is also seen that
the defendants did not object for the water falling from the roof of the
plaintiff house and maintaining the southern side wall. The trial court
has given a finding that the plaintiff is entitled to maintan the
southern side wall by getting prior permission from the defendants
and the same shall not be objected by the defendants.
18. On going through the evidence, the appellate court has also
come to the conclusion that the property belongs to “Thirucherai
Arulmighu Saranatha Perumal Kovil Devasthanam” and the
predecessors of the plaintiff and the defendants got permission from
the Devasthanam and for generation they have been residing in the
place. The lane between two buildings, which was seen from the
Advocate commissioner report, the plaintiff 's southern side wall till
Krishnan’s house, fencing has been found, PW1 has also accepted that
he used to go to the said lane for white washing the house and also
go to take the fallen coconut and the same has been used by both the
parties. The plaintiff has accepted that there is a cow shed, septic
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tank, bathroom and toilet which has been accepted and they have
been in existence there for more than 10 years. From the above
admission it is found that the defendant has contructed them 10 years
back which was not objected and now the plaintiff cannot come and
claim that the lane belongs to her. As the plaintiff is not in a position
to prove her right over the said lane, the trial Court as well as the
appellate court has come to the conclusion that the plaintiff is not
entitled the relief as sought for. The defendants have proved their
rights over the property thorugh documents. It is left open to the
plaintiff to use the said pathway / lane after obtaining prior permission
from defendants, for maintenance of wall and to take the fallen
coconuts. Only a amicable solution has been found for the issues
between the parties by the Courts below.
19. The plaintiff's case was rightly rejected by the Courts below,
and 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 involved in this Second Appeal
for consideration. Accordingly, the Second Appeal is liable to be
dismissed.
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20. In fine, this Second Appeal is dismissed, confirming the
Judgment and Decree passed by the learned Principal Subordinate
Judge,Kumbakonam made in A.S.No.9 of 2012, confirming the
Judgment and Decree in O.S. No.595 of 2009, on the file of the
learned Principal District Munsif, Kumbakonam. However, there shall
be no order as to costs.
22.12.2021
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 Principal Sub Court,
Kumbakonam,
Thanjavur District
2. The District Munsif,
Kumbakonam,
Thanjavur District
https://www.mhc.tn.gov.in/judis
V. BHAVANI SUBBAROYAN, J.
aav
S.A.(MD) No.799 of 2021
22.12.2021
https://www.mhc.tn.gov.in/judis
