Madras High Court
M.A.Ravi vs R.Saratha on 1 July, 2021
1 S.A.(MD)NO.978 OF 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.978 of 2011 and
M.P.(MD)No.2 of 2011
1. M.A.Ravi
2. Uma Maheswari ... Appellants/Respondents 1 & 2/
Defendants 1 & 2
Vs.
1. R.Saratha ... Respondent/Appellant/Plaintiff
2. M.P.Mohana Sundar
3. Valli Selvi ... Respondents/Respondents 3&4/
Defendants 3 & 4
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree dated 27.01.2009
made in A.S.No.3 of 2006 on the file of the Principal Sub
Court, Dindigul preferred against the Judgment and Decree
dated 09.07.2002 made in O.S.No.179 of 1997 on the file of
the District Munsif cum Judicial Magistrate, Vedasandur.
For Appellants : Mr.R.Ramadurai
For R-1 : Mr.K.S.Durai Pandian
For R-2 & R-3 : No appearance.
***
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2 S.A.(MD)NO.978 OF 2011
JUDGMENT
Defendants 1 and 2 in O.S.No.179 of 1997 on the file
of the District Munsif Court, Vedasandur, are the appellants in
the second appeal.
2. The first respondent, namely, Ms.Saratha filed the
said suit seeking the relief of declaration that the property in
question belongs to her in common and she also prayed for the
relief of permanent injunction for restraining the defendants
from interfering with her enjoyment of the suit property. The
suit property is a lane comprised in Survey Nos.2412/9 and
2411/23 measuring 3.6 feet on the east-west side and 148 feet
on the northern side.
3. The plaintiff also filed yet another suit in O.S.
No.217 of 1998 before the very same Court. Defendants filed
written statement denying the plaint averments and the suit
claim. Both the suits were taken up together and by common
judgment and decree dated 09.07.2002, O.S.No.179 of 1997
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3 S.A.(MD)NO.978 OF 2011
was dismissed, while O.S.No.217 of 1998 was decreed.
Aggrieved by the dismissal of her suit, the plaintiff filed
A.S.No.3 of 2006 before the Principal Sub Court, Dindigul.
The first appellate Court by the impugned judgment and
decree dated 27.01.2009 allowed the appeal and decreed the
suit as prayed for. Questioning the same, this second appeal
came to be filed.
4. The second appeal was admitted on the following
substantial questions of law:-
“a) Whether the non-filing of appeal as
against the decree passed in O.S.No.217 of 1998
on the file of the District Munsif cum Judicial
Magistrate Court, Vedasandhur will operate as
res judicata as against the respondents since the
trial Court by a common judgment dated
09.07.2002, decreed the said suit and dismissed
the suit in O.S.No.179 of 1997? and
b) Whether the judgment of the lower
appellate Court is sustainable, when the
plaintiff's vendor has self created right by virtue
of Ex.A.3 without any pre-existing right in the
suit property?”
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4 S.A.(MD)NO.978 OF 2011
5.Heard the learned counsel on either side.
6.The learned counsel appearing for the appellants
submitted that the plaintiff claimed her right through Ex.A.1
to Ex.A.7. Admittedly Ex.A.1 is the oldest document from
which the title can be traced. As per the description given in
the said document, the property is bounded on the south by
the property belonging to Meenakshi Iyer. Only for the first
time, through Ex.A.3 dated 29.03.1960, there is a reference to
the common lane situated on the southern side. The pointed
contention urged by the learned counsel appearing for the
appellants is that a non-existent right cannot be created for
the first time by giving misleading boundary description. The
learned counsel also would point out that as per the parent
deeds of the plaintiff, the property measures 39 feet on the
western side. The plaintiff is presently having a house bearing
door No.31/20, Swarnam Tower, Vadamadurai, Dindigul
District, situated north of the suit lane. Even according to the
plaintiff, they have left 3 feet lane on the western side. If the
impugned decree is sustained, the plaintiff will have 3 feet
extra on the western side. He submitted that the Courts below
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5 S.A.(MD)NO.978 OF 2011
have failed to take note of these aspects. He prayed for
answering the substantial questions of law in favour of the
appellants and for setting aside the impugned judgment and
decree passed by the first appellate Court.
7. Per contra the learned counsel appearing for the
plaintiff would submit that the impugned judgment passed by
the first appellate Court does not call for any interference.
8. I carefully considered the rival contentions and
went through the evidence on record.
9. The plaintiff examined herself as P.W.1 and a
resident of the locality, namely, Dhandapani as P.W.2. Ex.A.1
to Ex.A.18 were marked. On the side of the defendants, D.W.1
and D.W.2 were examined and Ex.B.1 to Ex.B.13 were marked.
An Advocate Commissioner was appointed and his sketch and
plan were marked as Ex.C.1 and Ex.C.2. The revenue records
were also marked.
10. The property originally belonged to one Muthan
Servai and he sold the same in favour of Varadharaju Iyer vide
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6 S.A.(MD)NO.978 OF 2011
Ex.A.1 dated 10.08.1926. The said Varadharaju Iyer in turn
sold the same to Nagalinga Nadar vide Ex.A.2 dated
20.04.1932. Nagalinga Nadar passed away and the property
devolved on his wife Sornathammal. Sornathammal executed a
sale deed vide Ex.A.3 dated 29.03.1960 conveying a portion of
the northern side of the property in favour of Damayandhi
Ammal. But in the boundary description, there is a reference
to the suit lane. The plaintiff Saradha is none other than the
daughter of Damayandhi Ammal. The plaintiff claims right
over the property in question by virtue of Ex.A.3 dated
29.03.1960 and the Will executed by Sornathammal vide Ex.A.
6 dated 06.12.1991.
11.The only question that arises for my consideration
is to whether the lane on the southern side of the property is
the exclusive property of the defendants or it is a common
lane.
12.As already mentioned above in the title deeds of
the defendants, the northern boundary has been described as
the house of Sornathammal. However, it is beyond dispute
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7 S.A.(MD)NO.978 OF 2011
that during UDR a sub division took place and the suit
property was described as a lane and it is comprised in survey
Nos.2412/9 and 2411/23. That the suit property bore the
character of a lane even in the year 1960 is evident from
Ex.A.3. Of course, as rightly contended by the learned counsel
appearing for the appellants, if the property did not belong to
Sornathammal, Sornathammal could not have described it as a
common lane. There is considerable merit in the contention of
the appellants' counsel that by an unilateral description of the
southern boundary, the property cannot be converted as a
common property. Even though I have to answer the first
substantial question of law in favour of the appellants, the
appellants have one formidable difficulty. P.W.2 who was an
attestor of Ex.A.3 had also mentioned that the suit property
was always used as a common lane. Atleast for more than forty
years prior to the institution of the suit, the suit property bore
the character of a lane. That is why in the UDR, it was sub
divisioned and described as a lane. If the defendants felt
aggrieved by the same and if according to them, it is their
exclusive property, the defendants ought to have instituted a
civil suit for declaration that it is their exclusive property.
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8 S.A.(MD)NO.978 OF 2011
They have not done so. That apart, as noted by the first
appellate Court, the defendants have not established their
case with reference to their title documents that the suit
property also falls within their boundary.
13.For these two reasons, I have to necessarily hold
that the suit property will have to be maintained as a common
lane only. This is all the more so because, the house of the
plaintiff has a door on the southern side facing the suit lane.
Therefore, the character of the property will have to be
maintained as a lane.
14.In this view of the matter, the judgment and
decree passed by the first appellate Court are confirmed. The
second appeal is dismissed. No costs.
01.07.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized 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.
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9 S.A.(MD)NO.978 OF 2011
To:
1. The Principal Sub Judge, Dindigul.
2. The District Munsif cum Judicial Magistrate, Vedasandur.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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10 S.A.(MD)NO.978 OF 2011
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.978 of 2011
01.07.2021
https://www.mhc.tn.gov.in/judis
