Madras High Court
Issac Ponnuthurai (Died) ... vs Natarajan Nadar on 8 July, 2021
SA.Nos.1876 & 1877 of 2002
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 21.12.2021
DELIVERED ON : 23.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.Nos.1876 & 1877 of 2002
Issac Ponnuthurai (died) .../Respondent
/Defendant in both appeals
2.Packiam
3.Beula Annabai
4.Mano Thangaraj
5.Tamilselvi
6.Raja Pandian ...Appellant/LRs of the
deceased first appellant
in both second appeals
(Appellants 2 to 6 are brought on record as legal
heirs of the deceased sole appellant vide Court order
dated 08.07.2021)
Vs
1.Natarajan Nadar
2.Chandrakala
3.Ponnammal
4.Vijayalakshmi ...Respondents/Appellants 1, 3 to 5
/plaintiff 2, 4 to 6
in both second appeals
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SA.Nos.1876 & 1877 of 2002
COMMON PRAYER: Second Appeals are filed under Section
100 of Civil Procedure Code, against the judgement
and decree in A.S.Nos.21 & 22 of 1999 on the file of
the Sub Court, Ambasamudram dated 09.08.2002
reversing the judgement and decree in O.S.Nos.32 of
1994 and 29 of 1993 on the file of the Additional
District Munsif Court, Ambasamudram dated 22.01.1999.
(In both second appeals)
For Appellants : Mr.S.Meenakshi Sundaram
Senior Counsel
for Mr.S.M.Sengu Vijay
For R1 : Mr.V.Meenakshisundaram
For Mr.A.Sankarasubramanian
COMMON JUDGMENT
S.A.No.1876 of 2002 arises out of O.S.No.32 of
1994 on the file of the Additional District Munsif
Court, Ambasamudram for the relief of declaration of
title and permanent injunction over the suit lane.
The said suit was dismissed by the trial Court. The
plaintiffs filed A.S.No.21 of 1999 before the Sub
Court, Ambasamudram. The learned Subordinate Judge
confirmed the decree with regard to declaration of
title, but granted a decree to the effect that the
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SA.Nos.1876 & 1877 of 2002
plaintiffs would be entitled to use the second
schedule pathway without effecting any alteration. As
against the same, the defendant has filed the above
second appeal.
2.S.A.No.1877 of 2002 arises out of O.S.No.29 of
1993 on the file of the Additional District Munsif
Court, Ambasamudram. The plaintiffs claimed that the
second schedule pathway is forming part of first
schedule property and claimed declaration of title
over the first schedule property and permanent
injunction restraining the defendant therein from
interfering with the plaintiffs' possession and
enjoyment over the second schedule property. The suit
was decreed as prayed for by the trial Court. The
defendant filed A.S.No.22 of 1999 before the Sub
Court, Ambasamudram. The learned Subordinate Judge
confirmed the title in favour of the plaintiffs. The
First Appellate Court confirmed the decree for
declaration of title and permanent injunction, but
granted a right for the defendant to use the second
schedule pathway without making any alteration. As
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SA.Nos.1876 & 1877 of 2002
against the same, the plaintiffs have filed the above
second appeal.
3.The plaintiff in O.S.No.29 of 1993 contended
that the suit second schedule property is forming
part of the first schedule property. The first
schedule property was originally owned by one
Madakkanu Nadar @ Manonmani Nadar. The said Madakannu
Nadar and his son have partitioned the same under
Exhibit A1 dated 11.01.1916. In the said partition,
the first schedule property and properties to the
east of the first schedule property were allotted to
the share of one Issac Gnanakannu Nadar. The said
Issac Gnanakannu Nadar had executed Exhibit A2 sale
deed on 02.04.1930 in favour of his wife
Annamuthammal. The said Annamuthammal had gifted her
undivided half share in favour of the plaintiff under
Exhibit A3 on 31.07.1974. In a family arrangement
with his uncle under Exhibit A4 dated 11.02.1980, the
suit first schedule property was allotted to the
share of the plaintiffs.
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SA.Nos.1876 & 1877 of 2002
4.The plaintiffs further contended that they are
in possession and enjoyment of the suit schedule
property for more than 100 years and they have
acquired title by adverse possession. The plaintiffs
further contended that on the western portion of the
first schedule property, the second schedule property
is located. It is an exclusive lane belonging to the
plaintiffs. According to the plaintiffs, there are
four windows and sun-shade in the western wall of the
plaintiffs. The plaintiffs further contended that the
defendant who have properties to the further west of
the second schedule property have no right title or
possession over the second schedule property. They
are attempting to open a doorway into the second
schedule property and disturb the possession of the
plaintiffs over the second schedule property. Hence,
the present suit for declaration that the second
schedule property forming part of the first schedule
property is the absolute property of the plaintiffs
and for consequential permanent injunction that the
defendant should not disturb the possession of the
plaintiffs over the second schedule property.
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SA.Nos.1876 & 1877 of 2002
5.The defendant filed a written statement
contending that he is admitting title of the
plaintiffs over the first schedule property excluding
the second schedule property. The defendant further
contended that the second schedule property
absolutely belongs to the defendant. The second
schedule property is the only pathway for the
defendant to reach the road on the norther side from
their houses and there is no other pathway. The
defendant further contended that they have been using
the pathway from time immemorial and hence, they have
acquired title by adverse possession. The defendant
also disputed the fact that there are windows in the
western wall of the plaintiffs.
6.The defendant also traced his title to the
second schedule property by relying upon Exhibits B6,
B7 and B8. Hence, he contended that there is no lane
on the western side of the plaintiffs' property. The
defendant further contended that the plaintiffs have
created a doorway on his western wall and they are
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SA.Nos.1876 & 1877 of 2002
attempting to encroach upon the second schedule
property which belongs to the defendant.
7.The defendant in O.S.No.29 of 1993 filed
O.S.No.32 of 1994. The suit property in O.S.No.32 of
1994 is the second schedule property in O.S.No.29 of
1993. The plaintiff in O.S.No.32 of 1994 claimed that
the schedule mentioned property belongs to them
absolutely and the defendant therein do not have any
right title or possession over the schedule mentioned
property. The averments in the written statement of
O.S.No.29 of 1993 were repeated as averments in the
plaint in O.S.No.32 of 1994. Hence, they prayed for
declaration of title and permanent injunction.
8.Both the suits were tried together. The trial
Court came to the conclusion relying upon Exhibits A1
to A4 that the suit second schedule property in
O.S.No.29 of 1993 absolutely belongs to the
plaintiffs therein. The trial Court also relied upon
east-west measurement in Exhibits A1 to A4 and
compared the said measurement with the commissioner's
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SA.Nos.1876 & 1877 of 2002
report. The trial court arrived at a finding that the
plaintiffs in O.S.No.29 of 1993 have constructed only
to an east-west measurement of 38.04 feet, but as per
document, the plaintiffs are entitled to east-west
measurement of 42.7 feet. The trial Court also
compared east-west measurement of the defendant by
relying upon Exhibits B6 and B7 along with the
commissioner's report. As per Exhibits B6 and B7, the
east-west measurement of the defendant is 27.06 feet.
As per commissioner's report, the east-west
measurement of the constructed portion of the
defendant is 27.09 feet. Hence, the trial court
arrived at a finding that the defendant has utilised
his entire east-west measurement and has put up
construction. Hence, the defendant do not have any
further vacant site on his eastern side. On the other
hand, the plaintiffs have constructed only to an
extent of 38.04 feet, but as per document, they are
having an extent of 42.07 feet. Based upon these
measurements, the trial Court arrived at a finding
that the second schedule property in O.S.No.29 of
1993 belongs to the plaintiffs therein and the
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SA.Nos.1876 & 1877 of 2002
defendant do not have any right title or possession
over it. Consequently, the plaintiffs in O.S.No.32 of
1994 do no have any title or possession over the suit
schedule property.
9.Once the trial Court arrived at a finding that
the lane in between the plaintiffs and defendant's
house belong to the plaintiffs in O.S.No.29 of 1993,
the defendant in O.S.No.29 of 1993 has to establish
either title by adverse possession or right of
easement over the second schedule property in O.S.No.
29 of 1993, in order to make a claim for the usage of
the second schedule property.
10.The trial Court found that the plaintiffs in
O.S.No.29 of 1993 have continuously using the second
schedule property. In fact, there is no doorway
opening into the second schedule property on the
western wall of the plaintiffs. The plaintiffs are
also having four windows, sun shade on their western
wall facing the second schedule property. Hence, the
plea of defendant acquiring title by adverse
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SA.Nos.1876 & 1877 of 2002
possession does not arise. The trial Court also found
that the defendant has not claimed any easmentary
right of pathway over the second schedule property.
Based upon the said finding, the trial Court decreed
O.S.No.29 of 1993 as prayed for and dismissed O.S.No.
32 of 1994.
11.The First Appellate Court independently
analysed the oral and documentary evidence on either
side and concurred with the findings of the trial
Court that the suit lane absolutely belongs to the
plaintiffs in O.S.No.29 of 1993 and the plaintiffs in
O.S.No.32 of 1994 have not established their title
or exclusive possession over the suit lane. The First
Appellate Court also confirmed the decree for
permanent injunction over the second schedule
property in O.S.No.29 of 1993 in favour of the
plaintiffs therein. However, the First Appellate
Court proceeded to grant right of usage of the second
schedule property in favour of the defendant in
O.S.No.29 of 1993 and the plaintiffs in O.S.No.32 of
1994 with a condition that they should not alter the
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SA.Nos.1876 & 1877 of 2002
physical features. As against the said concession
granted by the First Appellate Court, the plaintiffs
in O.S.No.29 of 1993 and the defendant in O.S.No.32
of 1994 have filed the above second appeals.
12.The second appeals have been admitted on the
following substantial questions of law.
SA.No.1876 of 2002
“1.Whether the Lower Appellate Court erred in
granting easement right to the respondents to use
the second schedule property in O.S.No.29 of 1993
as a pathway especially when the respondents have
not produced any document to substantiate the
alleged right?
2.Whether the Lower Appellate Court failed to
note that the easement right in favour of the
respondents in respect of the said second
schedule property cannot be granted especially
when the respondents have a pathway on the
western side of the property of respondents?
3.Whether the Lower Appellate Court failed to
note that the respondents claimed title over the
said second schedule property and when the
respondents have not proved title, they cannot
claim easment right since claim of the right are
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SA.Nos.1876 & 1877 of 2002
contradictory to each other?
4.Whether the lower Appellate Court failed to
note that the respondents were using the suit
property only on the permission granted by the
Appellant and the respondents began to claim
right in the suit property only after such
permission was cancelled by the Appellant?
5.Whether the Lower Appellate Court failed ot
note that the property covered in Ex.B6 is a
different property from the disputed property?
6.Whether the Lower Appellate Court failed to
note that the respondents did not explained how
the breadth of their lane became 11 ½ CC while
the earlier documents of the respondents show the
breadth of the land as 10 C.C.?
7.Whether the Lower Appellate Court failed to
note that Exs.B6 to B.9 are not binding on the
appellant?”
SA.No.1877 of 2002
“1.Whether the Lower Appellate Court erred in
granting easement right to the respondents to use
the second schedule property as a pathway
especially when the respondents have not produced
any document to substantiate the alleged right?
2.Whether the Lower Appellate Court failed to
note that the easement right in favour of the
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SA.Nos.1876 & 1877 of 2002
respondents in respect of the suit second
schedule property cannot be granted especially
when the respondents have a pathway on the
western side of the property of respondents?
3.Whether the Lower Appellate Court failed to
note that the respondents claimed title over the
suit second schedule property and when the
respondents have not proved title, they cannot
claim easment right since claim of the right are
contradictory to each other?
4.Whether the lower Appellate Court failed to
note that the respondents were using the suit
property only on the permission granted by the
Appellant and the respondents began to claim
right in the suit property only after such
permission was cancelled by the Appellant?
5.Whether the Lower Appellate Court failed to
note that the property covered in Ex.B6 is a
different property from the suit property?
6.Whether the Lower Appellate Court failed to
note that the respondents did not explain how the
breadth of their lane became 11 ½ CC while the
earlier documents of the respondents show the
breadth of the land as 10 C.C.?
7.Whether the Lower Appellate Court failed to
note that Exs.B6 to B9 are not binding on the
appellant?”
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SA.Nos.1876 & 1877 of 2002
13.The learned Senior Counsel appearing for the
appellants contended that the plaintiffs in O.S.No.29
of 1993 / appellants herein have established their
title and possession over the second schedule
property by producing Exhibits A1 to A4. The trial
Court as well as the Appellate Court have found that
east-west measurement mentioned in Exhibits A1 to A4
include the second schedule property. On the other
hand, the east-west measurement mentioned in Exhibits
B6 and B7 do not include the second schedule
property. Both the Courts below have arrived at a
concurrent finding that the plaintiffs in O.S.No.29
of 1993 are the absolute owners of the second
schedule property. He further contended that both the
Courts blow have also granted a decree for permanent
injunction in favour of the plaintiffs in O.S.No.29
of 1993.
14.The learned Senior Counsel appearing for
appellants further contended that after granting a
decree for permanent injunction in favour of the
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SA.Nos.1876 & 1877 of 2002
plaintiffs in O.S.No.29 of 1993, the First Appellate
Court ought not to have granted permission to the
defendant in O.S.No.29 of 1993/ plaintiffs in O.S.No.
32 of 1994 to use the second schedule property
pathway without altering any physical feature. He
further contended that once the plaintiffs have
established their possession and the defendant has
not proved his plea of adverse possession, the First
Appellate Court ought not to have granted the said
concession in favour of the defendant.
15.The learned Senior counsel appearing for the
appellants further contended that the defendant in
O.S.No.29 of 1993/plaintiffs in O.S.No.32 of 1994
have never admitted title of the plaintiffs in
O.S.No.29 of 1993. The defendant in O.S.No.29 of 1993
has also not pleaded right of easement over the
second schedule property. When there is no pleading
with regard to the easementry right, the First
Appellate Court ought not to have granted the right
of usage for the defendant in O.S.No.29 of 1993.
Hence, he contended that the respondent in second
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SA.Nos.1876 & 1877 of 2002
appeal will not be entitled to use the second
schedule property without any legal right. Hence, he
prayed for allowing the second appeals.
16.Per contra, the learned counsel for the
respondent contended that the defendant in O.S.No.29
of 1993 has established that he has also using the
suit second schedule property pathway. According to
the learned counsel for the respondent, the
Commissioner's report clearly reveals that the water
pipelines in the defendant's property are embedded in
the second schedule property. That apart, the sewage
channel running from the house of the defendant is
also passing through the second schedule property.
The learned counsel for the respondent further
pointed out that both the Courts below have given a
finding that the second schedule property has been
used by both the parties to the suit. In the said
circumstances, the decree granted by the First
Appellate court permitting the defendant in O.S.No.29
of 1993 to use the second schedule pathway cannot be
found fault with. Hence, he prayed for dismissal of
the second appeal.
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SA.Nos.1876 & 1877 of 2002
17.I have carefully considered the submissions
on either side.
18.The trial Court as well as the Appellate
Court have granted a decree for declaration of title
over the second schedule property in O.S.No.29 of
1993 in favour of the plaintiffs therein. The
defendant in O.S.No.29 of 1993 has not filed any
second appeal challenging the granting of the said
prayer for declaration of title. That part, both the
Courts below have granted a decree for permanent
injunction in favour of the plaintiffs in O.S.No.29
of 1993. This has also not been challenged by the
defendant in O.S.No.29 of 1993 by filing any second
appeal. Hence, the decree for declaration of title
and permanent over the second schedule property in
O.S.No.29 of 1993 has become final. The second
schedule property in O.S.No.29 of 1993 is the suit
schedule property in O.S.No.32 of 1994. The said suit
has also been concurrently dismissed by the Courts
below. The plaintiffs in O.s.No.32 of 1994 have also
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SA.Nos.1876 & 1877 of 2002
not challenged those decrees by way of filing the
second appeal.
19.From the above said discussion, it is clear
that the suit lane lying between the properties of
the plaintiffs and the defendant, is the absolute
property of the plaintiffs in O.S.No.29 of 1993 and
the defendant has no right whatsoever over the suit
second schedule property.
20.The learned counsel for the respondent had
contended that the commissioner's report would reveal
that the water pipelines and sewage of the
defendant's house are running through the second
schedule property. From the pleadings and evidence,
it can be seen that the plaintiffs in O.S.No.29 of
1993 have not objected to the laying of the water
pipelines or sewage line in the second schedule
property. There is no prayer for mandatory
injunction for removal of the same in O.S.No.29 of
1993. That part, when the second schedule property
has been declared to be the absolute property of the
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SA.Nos.1876 & 1877 of 2002
plaintiffs, the defendant should have a right to
maintain his western wall. The said maintenance can
be carried out only by entering into the second
schedule property. Considering these aspects, this
Court can safely come to a conclusion that the
defendant in O.S.No.29 of 1993 can be granted a
limited right of entering into the second schedule
property only for repairing and maintaining of their
western wall after giving reasonable notice to the
plaintiffs. The plaintiffs in O.S.No.29 of 1993 shall
not be entitled to remove the water pipeline or
sewage line of the defendant which are running
through the second schedule property. The First
Appellate Court after confirming the declaration and
injunction decree of the trial Court ought not to
have granted permission to the defendant in O.S.No.29
of 1993 for continuos usage of the second schedule
property.
21.In view of the above said discussions, the
substantial questions of law in both the second
appeals are answered in favour of the appellants. The
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SA.Nos.1876 & 1877 of 2002
judgment and decree of the First Appellate Court are
set aside and the judgment and decree of the trial
Court are restored in both the suits. However, the
defendant in O.S.No.29 of 1993 shall be entitled to
use the second schedule property only for the purpose
of repairing and maintaining his western wall once in
a year after giving reasonable notice to the
plaintiffs in O.S.No.29 of 1993. The water pipelines
and sewage channels emanating from the defendant's
property in O.S.No.29 of 1993 and running through the
second schedule property shall not be disturbed by
the plaintiffs.
22.With the above observations, both the second
appeals are partly allowed. No costs.
23.02.2022
Index : Yes / No
Internet : Yes / No
msa
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SA.Nos.1876 & 1877 of 2002
To
1.The Subordinate Judge
Ambasamudram
2.The Additional District Munsif
Ambasamudram
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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SA.Nos.1876 & 1877 of 2002
R.VIJAYAKUMAR,J.
msa
Pre-delivery Judgment made in
S.A.Nos.1876 & 1877 of 2002
23.02.2022
https://www.mhc.tn.gov.in/judis
