P.Selvam vs P.Rajagopal
2021 Latest Caselaw 2048 Mad

                                                                      S.A.No.37 of 2021 & CMP.No.982 of 2021

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 01.02.2021

                                                           CORAM :

                           THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
                                                    S.A.No.37 of 2021
                                                 and CMP.No.982 of 2021

                P.Selvam                                                           ... Appellant

                                                            Versus

                1.P.Rajagopal
                2.Tmt.Rajammal
                3.R.Deivasigamani
                4.R.Dharmalingam
                5.Jayabal
                6.Vasu
                7.Gopalakannan                                                     ... Respondents
                                   Second Appeal is filed under Section 100 of the Code of Civil
                Procedure, to set aside the Judgement and decree dated 29.11.2017 in
                A.S.No.31 of 2016 on the file of the II Additional Subordinate Judge, Salem
                confirming the Judgement and decree dated 22.06.2015 in O.S.No.969 of 2009
                on the file of the Principal District Munsif, Salem and pass such other further
                orders as may be necessary under the circumstance of the case.
                                           For Appellant       : Mr.V.Sekar

                                                            ****


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                                                                         S.A.No.37 of 2021 & CMP.No.982 of 2021

                                                       JUDGMENT

This Second Appeal has been filed against the Judgement and decree

dated 29.11.2017 in A.S.No.31 of 2016 on the file of the II Additional

Subordinate Judge, Salem confirming the Judgement and decree dated

22.06.2015 in O.S.No.969 of 2009 on the file of the Principal District Munsif,

Salem.

2.The learned counsel appearing for the appellant would contend that

the suit was filed by the appellant/plaintiff for restraining the defendants from

in any way tresspassing into the suit property for causing damage to the crops

available in the suit property and from in any way grabbing the suit property in

the northern and eastern portion in the suit property and from in any way

altering the physical features of the suit property.

3.According to the appellant, the courts below found that there was a

path way in S.No.184/5A1. Both the courts below came to the conclusion that

in the Ex.B1 Partition Deed, the path way has been mentioned. However, in the

subsequent sale deeds the same path way has not been mentioned, as the same

was extinguished long back as there was no trace of pathway.

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S.A.No.37 of 2021 & CMP.No.982 of 2021

4.The learned counsel appearing for the appellant further contended

that adjacent to the first defendant's land there is a pathway, thus, there is no

necessity for the first defendant to use the present pathway. Therefore, both the

appellate court as well as the trial court have not considered all these aspects, in

proper way. The Court below also appointed an Advocate Commissioner and

found that there was no path way, without taking all these aspects, both the

courts below dismissed the suit. Therefore, he contended the Judgment and

Decree is perverse and the same is liable to be set aside.

5.Therefore, the learned counsel appearing for the appellant has

suggested to frame the following substantial question of law and admit the

appeal:

“i. When the existence of pathway and its identity is not proved by proper evidence, are the Courts below correct to hold that the availability of pathway in Ex.B1 is the reason to dismiss the suit?

ii. Are the Courts below failed to take note of non-existence of pathway at present as per the F.M.B. Plan and whether could it be relied upon for the availability of pathway mere reliance of Ex.B1, without sufficient proof?

iii. When the Counter Claim Petition file by the defendants claiming the right of pathway was dismissed,

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S.A.No.37 of 2021 & CMP.No.982 of 2021

are the Courts below right in granting pathway under Ex.B1 in favour of the defendants to use the lands of the plaintiff as pathway?”

6.This court heard the submission of the learned counsel for the

appellant and perused the Judgment and Decree of the trial court as well as the

appellate court.

7.The trial court after considering the Ex.A1 to A9 and B1, the

deposition of PW1 and DW1 came to the conclusion that a path way is exist

and the relevant portion of the Judgment of the trial court is extracted as under:

''25. The plaintiff has sought for three injunction

reliefs. One to injuct the defendants from trespassing into

the suit property for causing damage to the crops available

in the suit property. The second one is to restrain the

defendant from grabbing the northern and eastern portion of

the suit property. The thrid relief is to restrain the defendant

from any way altering the physical feature of the suit

property. From the description of property, it could be seen

that there are two items of suit properties. The first item

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

S.A.No.37 of 2021 & CMP.No.982 of 2021

measures to an extent of 38 cents in Survey No.184/4A and

the second item measures to an extent of 1.15 acres in

Survey No.184/5A1. But the extent of second item has been

wrongly typed in the description of property to the plaint as

0.15 cents instead of 1.15 acres. Whereas the extent of the

second item has been mentioned as 1.15 acres in Ex.A2 sale

deed and there is no dispute regarding the extent. The

plaintiff has not whispered anything about the alleged cart

track or common pathway which runs in Survey No. 184/5A1

as mentioned in Ex.B1 partition deed. The 1st defendant and

5th defendant are brothers. Both are parties to Ex.B1

partition deed. As already stated, the 1st defendant was

allotted 4th schedule and the 5th defendant was allotted 5th

schedule under Ex.B1 partition deed. A portion of land

allotted to the 5th defendant was reserved for cart track to

be used by all the parties to Ex.B1 partition deed. There are

recitals to that effect in Ex.B1 partition deed. Whereas the

5th defendant has sold away an extent of 1.53 acres to the

plaintiff through his power agent and son namely Kamaraj.

The said 5th defendant has not stated anything about the https://www.mhc.tn.gov.in/judis/

S.A.No.37 of 2021 & CMP.No.982 of 2021

cart track in these two documents. Taking advantage of the

same, the plaintiff want to contend that there is no pathway

in the land allotted to Seetharaman and that all the revenue

records were mutated in the name of plaintiff. The plaintiff

also garner support from Ex.A9 partition deed to say that in

the plan appended to Ex.A9 partition deed, the alleged cart

track was not shown. When it is clear from Ex.B1 partition

deed that the cart track is reserved for the use of all the

parties to the partition deed, the 5th defendant cannot sell

away the land including the cart track. The other contention

raised on the side of the plaintiff is that there is no 15 ft.

pathway and it can be seen from the photographs that there

is not 15 ft. pathway. However, the plaintiff has admitted

that there is existence of pathway. If all the parties to the

partition decd have jointly executed another document

subsequent to partition deed and in that document the

alleged cart track was not shown, then the plaintiff can

contend that they have abandoned the pathway right. Hear is

a case where one of the executions of the partition deed has

sold away his share without disclosing the pathway right of https://www.mhc.tn.gov.in/judis/

S.A.No.37 of 2021 & CMP.No.982 of 2021

others. Therefore Ex.A1, A2 are only self serving documents.

In Ex.A9 partition deed, the intention of the parties is to

retain the common pathway rights as mentioned in their

parental document and it can be seen from page No.29 of

Ex.A9. It has been stated that the pathway rights should be

maintained as such. Therefore the prayer for injunction as

sought for by the plaintiff against the defendants restraining

them is not at all maintainable since the defendants have got

pathway right which is running in survey No.184/5A1 and

therefore the plaintiff is not entitled for the reliefs of

permanent injunction as prayed for.''

8.On perusal of the above, the court below has elaborately analysed

all the oral and documentary evidences and it has come to the conclusion that

there is a path way exist in S.No.184/5A1. On perusal of Ex.B1 partition deed,

which was executed in the year 1968, it is seen that both the plaintiff and all the

defendants 1 to 7 are entitled to use the path way mentioned in S.No.184/5A1.

The courts below had rejected the counter claim filed by the defendants

claiming the exclusive right of the pathway holding that right to use the

pathway is available to both plaintiff and for all defendants in terms of Ex.B1 https://www.mhc.tn.gov.in/judis/

S.A.No.37 of 2021 & CMP.No.982 of 2021

Partition Deed. Therefore, neither of the parties to the suit have any exclusive

right to use the pathway. Thus, both the appellant and the respondents are

entitled to use the path way as it is a common path way, for all the parties to the

suit. This Court also concur with the said finding of the trial court.

9.As aggrieved by the said judgment, the appellant had preferred an

appeal in A.S.No.31 of 2016 before the first appellate court. The first appellate

court also after analysing all the oral and documentary evidences confirmed the

judgment of the trial court. It would be appropriate to extract the relevant

paragraph No.25 to 28 of the judgment of the first appellate court as under:

''25. The main contention of the appellant is that

the suit properties were purchased by him under Ex.A1 and

Ex.A2 from D5 in the year of 2001, there is no existence of

cart track in the suit property from time immemorial, the

defendants wants to purchase the suit property, the same

was refused by plaintiff, that is why they interfere the

peaceful possession of the plaintiff, hence the suit filed, the

main contention of the defendants 1 to 4 is that the suit

properties and other properties are originally belonged to

Palani Gounder, they entered into Partition in the year of https://www.mhc.tn.gov.in/judis/

S.A.No.37 of 2021 & CMP.No.982 of 2021

1968, in that partition the suit properties was allotted to 5th

defendant Seetharaman, the right of cart track of all parties

is reserved in the land comprised in the S.No.184/5 of

Pallipatty village, that property was alone sold to plaintiff,

the plaintiff has obtained the patta for suit property

suppressing the existence of cart track in the suit property,

the defendants have right to use the cart track which is

running on east-west in S.No.184/5A1, the existence of cart

track in the suit property is also proved through Advocate

Commissioner and through Ex.B1.

26. On perusal of Ex.Al to Ex.A5 this court is

found that the suit properties were purchased by plaintiff on

09-08-2001 and the revenue records were also mutated in

his name, on perusal of Ex.A9 this court is found that the

right of using cart track in S.No.184/5A1 is reserved to the

sharers of that partition deed, the Ex.A9 is the SRO copy of

partition deed entered in between defendants 1 to 4,

admittedly the same was originated after institution of suit,

at this juncture it would be more useful to refer the relevant

portion of the Ex.B1 for effective adjudication of the dispute https://www.mhc.tn.gov.in/judis/

S.A.No.37 of 2021 & CMP.No.982 of 2021

involved in this case.

The relevant portion of Ex.B2 (in page No.7) is

read as follows :-

nkw;go fpuhkk; r/be/184-5 g[??1/80f;F jP/5/62

,jpYs;s ,tuJ brhl;lha; ghf epyk;. ,tuJ brhe;j

fpuaj;jpw;F tlf;F + nkw;F rPj;jhuhkd; epyj;jpw;F

bjw;F. rPj;jhuhkd; epyj;jpw;Fk; bjw;Fk;+nkw;Fk; ,jd;

kj;jpapy; cs;s 0/01f;F

The relevant portion of Ex.B2 (in page No.9) is

read as follows :-

4 ,uf;fkpl;ltUf;F gs;spg;gl;o fpuhkk;

r/be/184-5y; cs;s bfhl;lha; ghfj;jpypUe;J nkw;Fg[wkhf

5 ,yf;fkpl;lth; ghf epyj;jpy; hprh;t; bra;ag;gl;l bghJ

tz;o ghijia khK:yha; ngha; te;J bfhz;oUg;gij

kw;Wk; nkw;go tz;o jlj;jy; cgnahfpj;J bfhs;Sk;

chpikfSk; tz;ojlj;;jpd; K:yk; gs;spg;gl;of;F bry;y

khK:y; bghJ Ms; eil ghj;jpa';fSk; cilatuhth;. 5

,yf;fkpl;ltUf;F 4 ,yf;fkpl;ltuJ gha epyj;jpd;

K:yk; nryk; mU:h; nuhLf;F nghf Ms; eil jl

ghj;jpa';fSk; cilatuhth;/

27. It is seen from the relevant portion of the

description of property alloted to D1 Rajagopal and recital

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S.A.No.37 of 2021 & CMP.No.982 of 2021

of Ex.B1, they would shows that the right of using cart track

was allotted to D1 Rajagopal through the land of D5

Seetharaman, similarly the right of using foot path to D5

Seetharaman through land of D1 Rajagopal to reach the

Salem - Harur Road is also reserved in the Ex.B1, from the

earlier description of property alloted to D1 Rajagopal it is

came to know that the S.No.184/5A1 is situated on the

western side of bfhl;lha; ghfk; which is alloted to D1

Rajagopal, so it is made clear that the right of using cart

track running in the S.No.184/5A1 to 1st defendant

Rajagopal is reserved Under Ex.B1.

28. On perusal of Ex.A1 and Ex.A2 it is found

that there is no whisper about the cart track running in

S.No.184/5A1, the D5 Seetharaman and plaintiff have

conveniently omitted to mention about the cart track in

S.No.184/5A1, the learned counsel for appellant has intend

to mark the FMB of S.No.184 of Pallipatty village, to prove

the non existence of cart track in the suit property, but when

the ancient document Ex.B1 shows the existence of cart

track in suit property, the FMB not attached much https://www.mhc.tn.gov.in/judis/

S.A.No.37 of 2021 & CMP.No.982 of 2021

significance, so this court has not admit the FMB as

additional evidence, the Advocate Commissioner has also

clearly mentioned about the mud path way running east-

west towards the respondents house in the suit property, the

Advocate Commissioner had inspected the property on 31-

10-2009, very next day of date of filing this suit, Ex.A6 to

Ex.A8 are carefully perused, Ex.A6 to Ex.A8 are clearly

shows that there is a cart track running towards the

respondents house, the learned counsel for appellant has

contended that it is only ridges width of 4 feet, but the

photos clearly shows that the cart track might have 8 to 10

feet width, from the above discussion and on the basis of

documentary evidence this court is come to conclusion that

the cart track is exists on east-west in S.No.184/5A1 and the

respondents 1 to 4 proved that they have right to use cart

track which is guaranteed under Ex.B1, the point 1 and 3 are

answered accordingly. ''

10.From the perusal of the Judgment passed by the First Appellate

Court, it is clear that it has come to the conclusion after analysing all the aspect https://www.mhc.tn.gov.in/judis/

S.A.No.37 of 2021 & CMP.No.982 of 2021

including the oral and documentary evidence that there is an existing pathway

on East to West in Survey No 184/5A1. The Trial Court also traced the said

pathway. The Advocate Commissioner's report also shows that there was a

mud pathway running in the Survey No.184/5A1. Therefore, the Appellate

Court has no reason to disbelieve Ex.B1 and the Advocate Commissioner's

report. Hence, it has upheld the Judgment of the Trial Court as this Court

already concurred the finding of the Trial Court. I do not find any infirmities

in the Judgment and Decree passed by the First Appellate Court.

11.Therefore, there is no merit in this second appeal and this court

does not find any substantial question of law that arises for consideration as

suggested by the learned counsel for the appellant. Hence, this second appeal

deserves to be dismissed.

12.In view of the above, this second appeal stands dismissed. No

costs. Consequently, the connected miscellaneous petition is closed.

01.02.2021

Index: Yes/No Internet: Yes/No Speaking Order/Non Speaking Order ah

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S.A.No.37 of 2021 & CMP.No.982 of 2021

To

1.The II Additional Subordinate Judge, Salem.

2.The Principal District Munsif, Salem.

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

S.A.No.37 of 2021 & CMP.No.982 of 2021

KRISHNAN RAMASAMY, J., ah

S.A.No.37 of 2021 and CMP.No.982 of 2021

01.02.2021

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