Madras High Court
Arasu Konar (Died) .../1St ... vs Sankaralinga Konar (Died) ... on 24 February, 2021
S.A.(MD).No.7 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 10.03.2022
JUDGMENT PRONOUNDED ON : 15 .06.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.(MD).No.7 of 2020
1.Arasu Konar (died) .../1st Respondent/Defendant
2.A.Ramalakshmi
3.V.Ulagammal
4.B.Gomathi
5.A.Murugan
6.A.Sankara Narayanan ...Appellants( Legal heirs of
of the 1st appellant)
(Appellants 2 to 6 are brought on record as L.Rs of the deceased sole
appellant vide Court order dated 24.02.2021)
Vs
1.Sankaralinga Konar (died) ..../Appellant/1st Plaintiff
2.Arumuga Durai ...2nd Respondent/2nd Respondent
/2nd Plaintiff
1/11
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S.A.(MD).No.7 of 2020
3.Arunachalam
4.Sermanathan
5.Vijaya
6. Chithra
7.Thangam ....Respondents/(Legal heirs of
the 1st Respondent)
( Respondents 3 to 7 are brought on record as LRs of the deceased
first respondent vide Court order dated 02.04.2018)
PRAYER : Second Appeal is filed under Section 100 of C.P.C, against the
judgment and decree dated 16.07.1999 made in A.S.No.121 of 1996 on the
file of the Principal Subordinate Court, Tankasi reversing the judgement and
decree dated 28.10.1996 made in O.S.No.144 of 1992 on the file of the
District Munsif Court, Tenkasi.
For Appellants : Mr.M.Saravanan
For Mr.R.Subramanian
For R2 to R7 : Mr.T.S.Mohamed Mohideen
R1 : Died
JUDGMENT
The defendant is the appellant.
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S.A.(MD).No.7 of 2020
2.The plaintiffs had filed O.S.No.144 of 1992 on the file of the
District Munsif Court, Tenkasi for the relief of declaration that the second
item of the suit schedule property belongs to the first plaintiff and for
permanent injunction. The plaintiffs had further prayed for declaration that
the third suit schedule property is a common lane belonging to the plaintiffs
and the defendant and for consequential injunction restraining the defendant
from putting up any construction in the suit lane. The suit was dismissed in
entirety by the trial Court. The plaintiffs had filed A.S.No.121 of 1996
before the Principal Subordinate Court, Tenkasi. The learned Subordinate
Judge was pleased to confirm the dismissal of the suit with regard to the
second schedule. However, the learned First Appellate Judge reversed the
judgment and decree of the trial Court with regard to the third schedule of
property and granted a decree in favour of the plaintiff. As against the same,
the present second appeal has been filed by the defendant.
3.Since the plaintiffs have not challenged the dismissal of the suit
with regard to the second schedule of property by the First Appellate Court,
the pleadings that are relevant for deciding the second appeal with regard to
the third schedule of property are extracted as follows.
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S.A.(MD).No.7 of 2020
4.The plaintiffs had contended that there was a partition within the
family members of the plaintiffs under Exhibit A2 partition deed dated
16.08.1951. Under the said partition deed, the present suit third item has
been shown as 9th schedule of property. The said 9th schedule has been
shown as a common lane for the plaintiffs and the defendant ancestrally.
The said third schedule property is shown as 'G.H.I.J' in the plaint plan.
5.The defendant filed a written statement contending that it is the
exclusive property of the defendant. Though there is a reference about the
common lane in Exhibit A2 partition deed, that would not be binding upon
the defendant, in view of the fact that the defendant is not a party to the said
document. The defendant had further contended that there was a previous
partition in the plaintiffs' family under Exhibit B1 partition deed dated
07.08.1918. In the said document, a different lane has been mentioned as a
common lane. The present third schedule property has not been shown as a
common lane in Exhibit B1. When Exhibit B1 does not disclose the present
third schedule property as a common lane, the recital in Exhibit A2 will not
confer any right upon the plaintiffs. The defendant had further contended
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S.A.(MD).No.7 of 2020
that the said third schedule property was never used by the plaintiffs to
reach the road on the northern side. In fact, the plaintiffs are only entitled to
use a common lane on the southern side to reach the southern road. Hence,
the defendant prayed for dismissal of the suit.
6.The trial court after considering the rival documents filed on either
side and the oral evidence, arrived at a finding that the plaintiffs have not
established their title or possession over the second schedule property. The
trial Court further found that since the third schedule property was not
referred to in Exhibit B1 partition deed of the year 1918, any reference in
Exhibit A2 dated 16.08.1951 will not confer any right upon the defendant.
On the said findings, the trial Court dismissed the suit with regard to the
second and third schedule of properties.
7.The First Appellate Court concurred with the findings of the trial
Court with regard to the second schedule of property and confirmed the
dismissal of the prayer with regard to the second schedule of property.
However, the First Appellate Court arrived at a finding that there is a
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S.A.(MD).No.7 of 2020
reference about the third schedule common pathway in Exhibit B1 partition
deed also. The First Appellate Court also relied upon Exhibit A6 Town
Survey Field register to arrive at a point that the said document discloses it
as a common pathway belonging to the plaintiff's and the defendant's
ancestors. The First Appellate Court also relied upon Exhibit A4 series of
photographs to come to a conclusion that these photographs will indicate
the nature of third schedule is a lane. On the said findings, the First
Appellate Court reversed the judgment and decree of the trial Court with
regard to the third schedule and granted a decree in favour of the plaintiffs
with regard to the third schedule of property. As against the said decree, the
defendant has the above second appeal.
8.The learned counsel for the appellants had contended that the First
Appellate court has erroneously arrived at a conclusion that there is a
reference about the third schedule of property in Exhibit B1 partition deed.
He had further contended that what is referred to as a common lane in
Exhibit B1 is on the southern side of the common courtyard. The First
Appellate Court has misunderstood the said common lane as a suit lane
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S.A.(MD).No.7 of 2020
described as third schedule of property. He had further contended that the
entire burden is upon the plaintiffs to establish that the suit third schedule
of property is a common lane of the plaintiffs and the defendant. Since the
First Appellate Court has misdirected itself in appreciating Exhibit B1
document, he prayed for admission of the above second appeal.
9.Per contra, the learned counsel for the respondents had contended
that there is a reference about the third schedule of property even in Exhibit
B1 document. The learned counsel had relied upon Exhibit A6 Town Survey
Register to impress upon the Court that the third schedule of property has
been described as a common lane belonging to the plaintiffs and the
defendant ancestors. He had further contended that apart from a sale deed
executed by the ancestors of the defendant, no other document has been
filed on the side of the defendants for claiming exclusive right over the third
schedule of property. Hence, he prayed for confirming the judgment and
decree of the First Appellate Court with regard to the third schedule of
property.
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S.A.(MD).No.7 of 2020
10.I have given anxious consideration to the submissions made on
either side.
11.The scope of the present second appeal is restricted to the prayer
for declaration of title and permanent injunction over the third schedule of
property. The plaintiffs have specifically contended that the third schedule
property is shown as a common lane under Exhibit A2 partition deed dated
16.08.1951 which has taken place among the family members of the
plaintiffs. The plaintiffs had also relied upon Exhibit A6 Town Survey
Register to impress upon the Court that the said third schedule property is
shown as a common lane to the plaintiffs and the defendant ancestors in
title. However, the defendant has contended that there is no reference about
the common lane in Exhibit B1 partition deed which is anterior to Exhibit
A1. The defendant had further contended that a common lane meant for the
plaintiffs as mentioned in Exhibit B1 is a public lane on the southern side
and hence, the present lane namely the third schedule of property for
reaching the norther side road is not a subject matter of Exhibit B1 partition
deed.
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S.A.(MD).No.7 of 2020
12.A perusal of Exhibit A2 discloses that the present third schedule
property is shown as a common lane between the plaintiffs and the
defendant's ancestor. Though the defendant contended that this has been
inserted only to create trouble to the defendant, no contra, oral or
documentary evidence has been let in by the defendant to establish the said
fact. Exhibit A2 document is more than 40 years old when the same was
presented before the Court. The contention of the defendant that there is no
reference about the third schedule property under Exhibit B1 is factually
correct. There is every possibility that the lane came into existence after
Exhibit B1, in view of some road formation on the northern side of the
property of the defendant. That apart, Exhibit A6 is a public document
namely Town Survey Register which discloses the fact that the third
schedule property is a common lane of the plaintiffs as well as the
defendant. There is no explanation whatsoever on the side of the defendant
for Exhibit A6 which is a public document. Hence, I find that the First
Appellate Court was right in arriving at a conclusion that the third schedule
of property is a common lane of the plaintiffs as well as the defendant. That
apart, except Exhibit B1 Will, no other anterior document has been filed by
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S.A.(MD).No.7 of 2020
the defendant to claim title to the said third schedule property. By
comparing the competing documents on either side, the First Appellate
Court has arrived at a finding that the third schedule property is a common
lane belonging to the plaintiffs and the defendant. I do not find any
illegality or infirmity in the order of the First Appellate Court.
13.In view of the above said discussions, the judgement and decree of
the First Appellate Court is confirmed. The second appeal is dismissed. No
costs.
15.06.2022
Index : Yes / No
Internet : Yes / No
msa
To
1.The Principal Subordinate Judge, Tenkasi
2.The District Munsif, Tenkasi
3.The Section Officer
V.R.Section
Madurai Bench of Madras High Court
Madurai
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.7 of 2020
R.VIJAYAKUMAR,J.
msa
Pre-delivery Judgment made in
S.A.(MD).No.7 of 2020
15.06.2022
https://www.mhc.tn.gov.in/judis
