Madras High Court
Punnaivanam Chettiar (Died) vs Paramasivam Chettiar (Died) on 23 July, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
SA(MD)Nos.280, 656 of 2005 & CONT P(MD)No.474 of 2011
and
MP(MD) No.2427 of 2005 & Sub A(MD)No.1 of 2011 &
MP(MD)No.1, 2 of 2010 & 7 of 2011
in SA(MD)No.280 of 2005 :
1.Punnaivanam Chettiar (died)
2.Raj Chettiyar (died)
3.P.Mahalakshmi
4.S.P.Ramamoorthy
5.P.Karthigaiselvi
6.R.Radhakrishnan
7.R.Theivasigamani
8.R.Sankaranarayanan
(Appellants 3 to 8 are brought on
record as LRs of the deceased 1st appellant
vide order dated 10.01.2011) ...Appellants
Vs.
1.Paramasivam Chettiar (died)
2.Sournambigai
3.The Commissioner,
Aruppukottai Municipality,
Aruppukottai, Virudhunagar District.
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1/15
4.Ponnuthai
5.Velkamatchi
6.Gnanashankar ... Respondents
(R4 to R6 are brought on record as LRs
of the deceased 1st respondent
vide order dated 22.07.2020)
Prayer : Second Appeal filed under Section 100 of Civil Procedure
Code, to set aside the judgment and decree dated 04.02.2005 made in
A.S No.158 of 2001 on the file of the Sub Court, Aruppukkottai
confirming the judgment and decree dated 18.04.2000 made in O.S
No.371 of 1994 on the file of the District Munsif Court, Aruppukkottai.
in SA(MD)No.656 of 2005 :
The Aruppukottai Municipality,
Rep.by its Commissioner,
Virudhunagar District. ...Appellant
Vs.
1.Punnaivanam Chettiar (died)
2.Raj Chettiar (died)
3.The Commissioner,
Aruppukottai Municipality,
Aruppukottai,
Virudhunagar District.
4.Paramasivam Chettiar
5.Swarnampigai
6.P.Mahalakshmi
https://www.mhc.tn.gov.in/judis
2/15
7.S.P.Ramamoorthy
8.R.Radhakrishnan
9.R.Theivasigamani
10.R.Sankaranarayanan ... Respondents
(R5 to R7 were brought on record as
LRs of the deceased R1 and R8 to R10
were brought on record as LRs of
the deceased R2)
Prayer : Second Appeal filed under Section 100 of Civil Procedure
Code, to set aside the judgment and decree dated 04.02.2005 made in
A.S No.158 of 2001 on the file of the Sub Court, Aruppukottai
confirming the judgment and decree dated 18.04.2000 made in O.S
No.371 of 1994 on the file of the District Munsif Court, Aruppukottai.
in CONT P(MD)No.474 of 2011 :
P.Mahalakshmi ... Petitioner
Vs.
1.Paramasivam Chettiar
2.Swarnampigai ... Respondents
Prayer : Contempt Petition filed under Section 11 of the Contempt of
Courts Act, to punish the respondents for willfully disobeying the
order of this Court dated 29.11.20006 made in CMP(MD)No.4599 of
2005 in SA No.656 of 2005.
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SA(MD)No. For Appellants Mr.S.Parthasarathy
280 of 2005 For Respondents Mr.P.T.S.Narendravasan
for R2, R4 to R6
Mr.N.Dilipkumar for R3
SA(MD)No. For Appellants Mr.N.Dilipkumar
656 of 2005 For Respondents Mr.S.Parthasarathy
for R5 to R10
Cont P(MD) For Petitioner Mr.S.Parthasarathy
474 of 2011
JUDGEMENT
Both these second appeals arise out of the judgment and decree
dated 18.04.2000 made in O.S No.371 of 1994 on the file of the
District Munsif Court, Aruppukottai. The said suit was filed by one
Paramasivam Chettiar seeking the reliefs of declaration, permanent
injunction and mandatory injunction in respect of the suit property.
The suit property has been described in the plaint schedule as a
vacant site measuring 6 feet east western side and 62 feet south
northern side. The above said site is situated in S.No.165 in
Aruppukottai Town. The case of the plaintiff is that the suit property
is located in between the plaintiffs's house and the house of the
defendants 1 and 2. Aruppukottai Municipality issued notice to the
plaintiffs treating the property as a public lane. The private
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defendants also complained that the plaintiffs have been committing
encroachment therein. Therefore, the plaintiffs filed the suit seeking
declaration that the suit property is their absolute property and that
the defendants should not interfere with their peaceful possession and
enjoyment and that the first defendant must be called upon to remove
the encroachment committed by him.
2.The defendants 1 and 2 filed written statement controverting
the plaint averments. The stand of the defendants 1 and 2 was that
the suit property is actually a public lane and that it had been
dedicated to the use of the general public more than 70 years ago.
The local body also filed its written statement contending that the suit
property is actually comprised in Survey No.169 and that it is known
as Ganapathi Street and that the suit has been instituted to prevent
the local body from carrying out its statutory obligation of removal of
encroachment. Based on the divergent pleadings, the trial court
framed the necessary issues. An advocate commissioner was
appointed and he submitted his report and plan. The first plaintiff
was examined as PW.1. Exs.A1 to A24 were marked through him. The
first defendant examined himself as DW.1 and one Periyasamy was
examined as DW.2. On behalf of the local body, Town Surveyor
Sadhuragiri was examined as DW.3. The report and sketch prepared
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by the advocate commissioner were marked as court exhibits 1 and 2.
After consideration of the evidence on record, the trial court by the
judgment and decree dated 18.04.2000 granted the relief of
declaration as well as permanent injunction. However, the relief of
mandatory injunction was denied on the ground that the steps put up
by the first defendant were more than six years old even at the time of
the filing of the suit. The defendants 1 and 2 filed A.S No.158 of 2001
before the Sub Court, Aruppukottai. The plaintiffs as well as the local
body filed cross appeals. The first appellate court by judgment and
decree dated 04.02.2005 dismissed the appeal as well as the cross
appeals. The plaintiffs did not file any second appeal challenging the
dismissal of his cross appeal. SA(MD)No.280 of 2005 was admitted on
the following substantial questions of law :
“1.Whether Exs.B2, B11 and B12 have not been
considered by both the courts below in proper
way ?
2.Whether the courts below erred in not
considering the question that dedication can be
made even without any documents?
3.Whether both the courts below were correct in
accepting the recitals in Exs.A1 to A7 without
proper appreciation ?”
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SA(MD)No.656 of 2005 was admitted on the following substantial
questions of law :
“1.Whether the courts below have erred in law in
not drawing presumption under Section 114 of the
Evidence Act that Ex.B1, B2, B3, B6, B7, B10, B11 and
B12 are genuine and correct as the same are public
documents ?
2.Have not the courts below erred in law in
wrongly placing the burden on the appellant to prove
that the suit property was classified after issuing notice
as public street ignoring the fact that classification of
the suit property as the public street is the official duty
of the appellant which has to be presumed to have
been done properly under Section 35 of the Evidence
Act ?”
3.The learned counsel for the appellants in both the appeals
reiterated all the contentions set out in the memorandum of grounds
and called upon this Court to answer the substantial questions of law
in favour of the appellants and allow these appeals and dismiss the
suit filed by the plaintiffs. Per contra, the learned counsel appearing
for the respondents submitted that the earliest title documents of the
plaintiffs clearly show the eastern boundary of their property as
bounded by the property of one Punnaivanam Chettiar. In other
words, there was no reference to the existence of the suit lane in the
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earliest document that was marked as Ex.A1 dated 4th December
1936. Therefore, the learned counsel for the plaintiffs contended that
the suit lane should be considered as a part of their property. He
would also point out that when both the courts below after
appreciation of the evidence on record have given a factual finding
that the suit property is a part of their private property, it may not be
open to this Court to interfere with the said finding of fact in exercise
of jurisdiction under Section 100 of CPC.
4.I carefully considered the rival contentions and went through
the evidence on record. The learned counsel appearing for the private
appellants and the learned standing counsel for the Arupukkottai
Municipality pointed out that the suit property is actually comprised
in T.S No.169. My attention is drawn to the report of the Advocate
Commissioner dated 17.08.1998. In several places in the
Commissioner's report, it is categorically mentioned that the suit
property is comprised in Arupukkottai Town Ward “C” Block in T.S No.
169. The description given in the plaint schedule that the suit
property comprised in Survey No.155 is obviously incorrect. In the
plaint schedule, the suit property was mentioned as comprised in
Survey No.155. The counsel for the appellants informed that when
the first appellate court pointed this out, the plaintiffs filed a petition
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for amendment and got the survey number corrected. This
amendment made before the first appellate court may not really
advance the case of the plaintiff.
5.The learned counsel for the appellants drew my attention to
Exs.B1, Ex.B2, Ex.B10, Ex.B11 and Ex.B12. These are extracts of
the town survey records. They were marked through DW.3/Municipal
official. It can be seen therefrom that the suit property was surveyed
some 40 years even prior to the filing of the suit and specifically
demarcated as a public lane. In fact, the suit property was known as
Vathiyar Street. It is now called as Ganapathy Street. The latest
survey exercise was undertaken in the year 1988. If really the
plaintiffs felt aggrieved by the survey exercise, they ought to have
instituted a suit within three years. Section 14 of the Tamil Nadu
Survey and Boundaries Act, 1923 reads as follows :
“14.Institution of a suit in Civil Court within
three years to establish rights claimed in respect of
the boundary of the property surveyed.- Any person
deeming himself aggrieved by the determination of any
boundary under Sections 9,10,11,12-A or 12-B may,
subject to the provisions of Parts II and III of the
Limitation Act, 1963 (Central Act 36 of 1963) institute a
suit within three years from the date of the notification
under Section 13 to set aside or modify the said
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determination and survey shall, if necessary, be altered
in accordance with the final decree in the suit and the
alteration, if any, shall be noted in the record.
The plaintiff in such suit shall join as parties to it
all persons whom he has reason to believe to be
interested in the boundary which is the subject of the
suit.”
Of course, if the survey exercise had taken place behind the back of
the plaintiff, then, the limitation period of three years would start
running only from the date when the plaintiff acquired knowledge.
But, in the case on hand, one can easily infer that the plaintiffs always
knew the character of the property as a public lane. Ex.A3 and Ex.A4
dated 14.09.1972 are documents that were executed among the
members of the plaintiffs's family. In those documents, the suit
property has been mentioned as a lane. The suit in question was
instituted only in the year 1994, ie., six years after the survey exercise
had already taken place. Therefore, the suit is barred by limitation
and hit under Section 14 of the Act.
6.The learned counsel for the appellants has raised another
formidable contention. The property purchased by the plaintiffs on
the northern side can only measure 35 feet and 9 inches. Therefore,
on the very face of it, the judgment of the courts below suffer from an
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apparent error. The learned counsel for the appellants drew my
attention to the decision of the Madras High Court reported in 2011-1-
LW.149 (Samsudeen vs. S.Appannan). It is also relevant to note
here that this decision also arises from Aruppukottai. After referring
to Tamil Lexicon published by University of Madras, the learned Judge
observed as follows :
“Reference has been made in Tamil Lexicon
published by University of Madras-1982 Edition-Volume
III-Part I at Page 1712, wherein the word thatchumulam
has been described as follows :
“jr;Rf;Nfhy; taca-k-kol, n. jr;rd; Carpenter's or
mason's cubit = 33 in; 33-mq;FyKs;s jr;RKok; (C.G).”
The above said fact would render ample assistance
to this Court to hold that one thatchumulam ie., one
carpenter's cubit is equal to 33 inches viz., 2 feet and 9
inches.”
7.In the light of the advocate commissioner's sketch and plan, I
come to the conclusion that one feet and nine inches alone
immediately abutting the suit property will belongs to the plaintiffs
herein. The learned counsel for the appellants pointed out that the
courts below have misconstrued the nature of version projected in the
written statement. The stand of the private defendants that the suit
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property has been dedicated to the use of the general public for over
70 years ago. The stand of the Arupukottai Municipality is that the
suit property is a public lane. The courts below have proceeded on
the premise that dedication means divestment of a right of an
individual in favour of larger cause. This approach is patently
incorrect. In P.Ramanatha Aiyar's Advanced Law Lexicon, 5th Edition,
the expression “dedication” has been defined as follows :
“An appropriation of land to some public use,
made by the owner and accepted for such use by or on
behalf of the public”...
The Hon'ble Supreme Court in U.P.Sunni Central Board of Wakf
vs. Mazhar Hasan and Ors. (2001) 6 SCC 289 held that if a property
is set apart for a definite purpose, such property would become
'dedicated' for that purpose.
8.The courts below have thus misdirected themselves and
misconstrued the nature of pleadings projected by the defendants. It
is true that in Ex.A1, the eastern boundary of the plaintiffs' property
has been mentioned as the property belonging to the forefather of the
defendants. Merely because the forefather of the plaintiffs have
described as their eastern boundary as that of the plaintiffs, that does
not mean that the suit property is a part and parcel of the plaintiffs
property. As already pointed out, in the official records, the suit
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property has been referred to only as a lane. In fact, in some of the
documents, namely, Ex.A12 and Ex.A21, the residential address of the
plaintiffs has been given with reference only to the suit lane. The
courts below have failed to take note of these aspects. Hence, the
findings of the courts below will have to be necessarily characterized
as perverse. Therefore, I answer the substantial questions of law in
favour of the appellants. The judgments and decrees passed by the
courts below are set aside. These second appeals are allowed. The
suit is dismissed. However, the local body will not take any step for
removal of the steps and pial that has already been put up by the
plaintiffs. I am of the view that this is falling within one feet and nine
inches immediately abutting the plaintiffs' house property. In other
words, the status quo that is obtaining as on date will continue. I
make it clear that this benefit will extend only to the steps and pial
already put up by both the parties. The suit property is vested in
Arupukottai Municipality and will be maintained as a public lane.
9.The second appeals stand allowed. Contempt Petition stands
closed and other connected miscellaneous petitions are also closed.
No costs.
23.07.2021
Index : Yes / no,
Internet : yes / no
skm
https://www.mhc.tn.gov.in/judis
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.
To:
1.The Sub Judge, Aruppukkottai.
2.The District Munsif, Aruppukkottai.
3.The Commissioner,
Aruppukottai Municipality,
Virudhunagar District.
Copy to : The Record Keeper, V.R. Section,
Madurai Bench of Madras High Court, Madurai.
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G.R.SWAMINATHAN, J.
skm
SA(MD)Nos.280, 656 of 2005 &
CONT P(MD)No.474 of 2011
23.07.2021
https://www.mhc.tn.gov.in/judis
