Vadivel ... 1St vs Thangathurai ... 1St
2021 Latest Caselaw 1755 Mad

                                                                             SA(MD)No.524 of 2020

                              BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                             Dated : 27.01.2021

                                                     CORAM

                               THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN


                                             S.A(MD)No.524 of 2020
                                         and C.M.P(MD)No.5800 of 2020
                     1.Vadivel               ... 1st Appellant/2nd Respondent/2nd Defendant

                     Thangappan (died)

                     2.Kanagam

                     3.Thangam Rani

                     4.Suyambukani

                     5.Jeya

                     6.T.Vaigundabalan

                     7.Lakshmi                     ...Appellants 2 to 7/Respondents 4 to 9
                                                   Vs.
                     1.Thangathurai                ... 1st Respondent/Appellant/Plaintiff

                     2.Nagercoil Municipality
                     Rep. by its Commissioner,
                     Municipal Office,
                     Nagercoil,
                     Kanyakumari               ...2nd Respondent/3rd Respondent/3rd Defendant

                     PRAYER:- Second Appeal is filed under Section 100 of C.P.C against the
                     judgment and decree dated 19.02.2020 made in A.S.No.49 of 2017 on the
                     file of the II Additional Sub Court, Nagercoil by reversing judgment and
                     decree dated 20.04.2017 made in O.S.No.519 of 2012 on the file of the
                     Principal District Munsif, Nagercoil.
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                                                                                   SA(MD)No.524 of 2020

                                    For Appellants         : Mr.P.Arun Jayatram
                                    For R1                 : Mr.S.Meenakshisundaram
                                                             Senior Counsel
                                                             for Mr.M.Sengu Vijay
                                    For R2                 : No appearance

                                                     JUDGMENT

The legal heirs of the first defendant and the second defendant in

O.S.No.519 of 2012 on the file of the District Munsif, Nagercoil who were

able to convince the trial court to dismiss the suit for declaration, permanent

injunction and mandatory injunction filed by the plaintiff/first respondent

upon its reversal by the lower appellate court have come up with this

Second Appeal against the plaintiff and the third defendant.

2. The suit was laid by the plaintiff claiming that the suit 'B' schedule

property, which is situated north to the suit 'A' schedule property is a public

road and the plaintiff being the owner of the suit 'A' schedule property is

entitled to access to suit 'B' schedule property from every point of his land

that abutts the suit 'B' schedule property. Complaining that the defendants 1

and 2 had encroached upon the suit 'B' schedule property and put up

construction thereby preventing the access to the plaintiff, the plaintiff has

come up with the above suit. It was claimed that the defendants 1 and 2 had

encroached upon a portion of the suit 'A' schedule property also and

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therefore, the decree for mandatory injunction was also sought for removal

of the construction.

3. The suit was resisted by the defendants contending that the suit 'B'

schedule property was not a part of the road. According to the defendants,

Vadaseri Handloom Co-operative Society had allotted the extent of 5 cents

to the first defendant 60 years prior to filing of the suit. Subsequently,

according to the defendants, the Nagercoil Municipality laid a road cutting

across the five cents allotted to the first defendant leaving a major portion

on the north and small portion on the south of the road. The defendants

would further contend that while the first defendant had put up a

construction on the north of the road and was residing in the same, the

second defendant has put up a construction on the south of the road and

was residing there. Since mud walls were destroyed, the second defendant

had converted the same into the brick house. It was claimed that taking

advantage of the same, the plaintiff had launched the present suit in an

attempt to grab the land of the defendants 1 and 2.

4. At trial, the wife of the plaintiff was examined as P.W.1 and

Exts.A1 to A8 were marked, while the second defendant was examined as

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D.W.1 and one Malarvizhi was examined as D.W.2. Exts.B1 to B7 were

marked on the side of the defendants. The report and plan of the

Commissioner was marked as Exts.C1 and C.2 and other document was

marked as Ex.C.3.

5. Upon consideration of the evidence on record,the learned trial

Judge came to the conclusion that the plaintiff has not established his claim

that the suit 'B' schedule property form part of the road. The learned trial

Judge took into consideration the description in the plaint in an earlier suit

namely, O.S.No.498 of 2002 filed by the present plaintiff seeking a certain

relief as against certain other persons with reference to the pathway situated

on the western side of his property. Taking note of the description of the

northern property as shown in the earlier suit, the learned trial judge namely,

the District Munsif Nagercoil, came to the conclusion that the plaintiff's

claim that the suit B- Scheduled property is a road or the part of the road is

not established. Upon the said conclusion, the learned trail judge dismissed

the suit.

6. Aggrieved, the plaintiff preferred A.S.No.49 of 2017 on the file of

on the file of the II Additional Sub Court, Nagercoil. The learned

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II Additional Subordinate Judge, upon re-consideration of the evidence on

record, concluded that the plaintiff had established his claim that 'B'

schedule property is a road. The appellate Judge also found that according

to the report filed by the Advocate Commissioner there is an encroachment

over a portion of the 'A' schedule property, which admittedly belonged to

the plaintiff. The appellate court rejected the report and plan of the

Advocate Commissioner filed in the earlier suit on the ground that the

Commissioner was not examined. On the above finding, the appellate court

decreed the suit as prayed for. Aggrieved,the second defendant and the legal

heirs of the first defendant are on this Second Appeal.

7. Notice was ordered by this Court on 23.11.2020.

8. I have heard Mr.P.Arun Jayatram, learned counsel appearing for

the appellants and Mr.S.Meenakshisundaram, learned Senior Counsel for

Mr.M.Sengu Vijay, learned appearing for the first respondent.

9. Mr.P.Arun Jayatram, learned counsel appearing for the appellants

would vehemently contend that the description of property in the plaint in

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the earlier suit filed by this very plaintiff showed that the northern boundary

is a land belonging to the Society and therefore, the plaintiff is precluded

from now contending that it is a road. It is the learned counsel's further

contention that even in the Commissioner's plan in the earlier suit, the

northern boundary was not shown as road. Therefore, according to him, the

learned appellate Judge was not right in relying the recitals in the self

serving documents produced by the plaintiff to conclude that the 'B'

schedule property in fact is a road.

10. I have considered the submissions of the learned counsel for the

appellants.

11. The lower appellate court has found that the plaintiff has

established the fact that 'B' schedule property is a part of the road. In order

to come to the said conclusion, the learned appellate Judge referred to the

documents namely, the sale deeds filed by the plaintiff. Ex.A.2 is a sale

deed dated 23.12.1992 in and by which the plaintiff had purchased the suit

'A' schedule property. The boundary description in the said sale deed as

pointed out by the appellate court shows that the 'A' schedule property is

shown to be bounded on the north by the road. Not stopping there, the

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plaintiff has also produced the sale deed dated 20.11.1981 under which his

vendor Muthuswamy had purchased the property form one Martin Jones

Albari. Even in the description of property in the said document, northern

property is shown as road. Considering the recitals in those two documents

and physical features pointed out by the Commissioner appointed in this

suit, the appellate court has come to the conclusion that the suit 'B' schedule

property is in fact a road. The description of the property in the earlier suit

namely, O.S.No.498 of 2002 cannot be taken aid of by the plaintiff to seek

the relief in the present suit. First of all, the earlier suit did not relate to the

property now in dispute. Even otherwise, a reading of the plaint as a whole

shows that the plaintiff specifically stated in the said plaint which is marked

as Ext.B.1 that there is a 'thar road' on the north of the 'A' schedule property

and the property in dispute in that suit is the north-south lane is situated on

the west of the plaintiff's property. Even in the pleadings, it is stated that the

plaintiff is using the lane to reach the road on the north. These facts have

been overlooked by the learned District Munsif and when he concluded that

the plaintiff has not established 'B' schedule property is a road.

12. Apart from the above evidence, the Commissioner's report filed in

this suit very clearly shows that the northern property is a road and that 'B'

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schedule property is part of the road. The physical features pointed out by

the Commissioner shows that the existence of overhead tank for drawing

water from the pipe in the 'B' schedule property was erected by the

municipality. This is a factual finding. On the part of the appellants, it is

pointed out that in 'B' schedule property or part of the 'B' schedule property

is the land that was given to them by the Society. Ofcourse in a suit for

declaration of a right and for consequential permanent injunction and

mandatory injunction, it is for the plaintiff to prove his case. At the same

time, if the defendants set up a tile to property, it is for the defendants to

produce certain documents in support of their claim.

13. A perusal of the judgment of the courts below would show that

the defendants have not produced even a scrap of paper to establish their

claim that the property that was given to the first defendant by the Society

was split into two portions for formation of the road and a major portion fell

on the north and a very small portion fell on south of the road. In the

absence of any such evidence, I am unable to fault the appellate court for

having come to the conclusion that the plaintiff has- established his case and

is entitled to a decree.

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14. Despite his best efforts, Mr.P.Arun Jayatram, learned counsel

appearing for the appellants is unable to point out any perversity in

appreciation of evidence by the appellate court. The appellate court has

considered the entire evidence as a whole and had arrived at certain factual

findings. I do not think that I can go into the correctness of those factual

findings in the absence of those findings being based on no evidence. I am

therefore unable to agree with the learned counsel appearing for the

appellants.

15. There is no question of law much less substantial question of law

involved in this appeal to enable me to interfere with the conclusion of the

appellate court.

16. In the result, this Second Appeal is dismissed without being

admitted. No costs. Consequently, connected miscellaneous petition is also

closed.

27.01.2021

Index : Yes/No Internet: Yes/No CM

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To:

1.The II Additional Sub Court, Nagercoil

2.The Principal District Munsif, Nagercoil.

3. The Section Officer VR Section, Madurai Bench of Madras High Court, Madurai.

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R.SUBRAMANIAN. J.,

CM

S.A(MD)No.524 of 2020 and C.M.P(MD)No.5800 of 2020

27.01.2021

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