Madras High Court
Gnanam (Died) vs Kasturi on 24 June, 2021
S.A.No.1323 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.06.2021
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
Second Appeal No.1323 of 2009
and
M.P.No.1 of 2009
Gnanam (died)
W/o.Palanisamy
2.Valli
W/o.Kanagarathinam
(2nd appellant brought on record as LR
of the deceased sole appellant viz. Gnanam
vide order of Court dated 03.08.2020
made in M.P.1 to 3 of 2014 in
S.A.No.1323 of 2009 by GJJ) ... Appellant
Vs.
1.Kasturi
W/o.Govindasamy
2.Andal
W/o.Athimoolam
3.Gomathi
W/o.Purushothaman
4.Malarvizhi
W/o.Pichaimuthu
(Respondents 2 to 4 are given up as
unnecessary parties) ... Respondents
1/10
https://www.mhc.tn.gov.in/judis/
S.A.No.1323 of 2009
Prayer:- The Second Appeal filed under Section 100 of C.P.C.,
against the judgment and decree dated 31.12.2008 passed in A.S.No.144 of
2007 on the file of the Additional Sub Court, Vridhachalam, confirming the
judgment and the decree dated 18.07.2007 passed in O.S.No.294 of 2003
before the First Additional District Munsif's Court, Vridhachalam.
For Appellant : Mrs.R.Meenal
For Respondents : Mr.Amarnath for R1
R2 to R4 given up
JUDGMENT
(The case has been heard through video conference)
The appellant / 1st defendant who was unsuccessful in both the Courts
below has filed the above second appeal. Therefore, for the sake of
convenience, the appellant and the respondents will be referred to as the
defendants and the plaintiff respectively.
2.The facts in brief is necessary for disposing of the above second
appeal are as follows:
The property which is bone of contentions between the parties is the
'B' Schedule property which is situate in Gramanatham 108/4 (Old
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S.A.No.1323 of 2009
Gramanatham 60/1) in Karuveppilankurichi Village, Vridhachalam Taluk,
measuring East to West 30 standard feet, South to North 50 standard feet
within the boundaries bounded on the
South by : Karuveppilankurichi – Devangudi Road
East by : Remaining land of the plaintiff
North by: The 1st defendant's house
West by : Seliamman Temple
together with thatched house, bathroom, septic tank, pipe etc.,
3.The plaintiff's case was that the suit schedule property originally
belonged to one Thangam and her daughter Pavunammal and they have
settled the property in favour of one Adhimoola Padayachi by a settlement
deed dated 08.09.1958. The said Adhimoola Padayachi was in continuous
possession and enjoyment of the same by putting up a thatched house
therein. The said Adimoola Padayachi had enjoyed East to West 70 feet
even though the East to West measurement was referred in the settlement
deed as 50 feet. The said Adimoola Padayachi died intestate leaving behind
defendants 2 to 4 and the plaintiff to succeed his properties. Thereafter, the
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S.A.No.1323 of 2009
plaintiff and the defendants 2 to 4 have orally divided the properties thereby
the 'A' schedule property herein was allotted to the share of the plaintiff and
'B' schedule property formed part and parcel of 'A' schedule property and the
plaintiff is residing in the house situated in 'B' schedule property for more
than the statutory period and hence the plaintiff had prescribed title by
adverse possession. By recognising the possession and enjoyment of the
plaintiff to the suit property Natham patta was granted in her favour by the
Revenue authorities, however, the 1st defendant had clandestinely included
her name as joint pattadhar and attempted to interfere with the peaceful
possession and enjoyment of the suit schedule properties, thereby
constraining the plaintiff to file the suit in O.S.No.294 of 2003, which is the
genesis for the above second appeal.
4.The 1st defendant had filed the written statement interalia
contending that the suit property and surrounding properties vested with the
Government. The 1st defendant had admitted that she was in possession and
enjoyment of the property situated to northern side of the suit property, in
pursuance of the patta issued by the Government to that property on
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S.A.No.1323 of 2009
04.07.1976. Thereafter the 1st defendant had been utilising the 'B' schedule
property as access to her property and that she had been accessing her
property from the Road through this pathway. Therefore, the 1st defendant
claimed that the 'B' Schedule property was a pathway and sought for
dismissal of the suit.
5.The trial Court viz. I Additional District Munsif, Vridhachalam had
framed the following issues in the suit in O.S.No.294 of 2003;
1.Whether it is true that the plaintiff is prescribed title to the
suit property by adverse possession?
2.Whether it is true that the particulars of the suit properties
and boundaries were wrongly given?
3.Whether it is true that the 'A' schedule property belongs to
the defendant and the defendant acquired title to the 'B' schedule
property by adverse possession?
4.Whether the plaintiff is entitled for the relief of declaration
and permanent injunction as prayed?
6.The learned Judge had considered the description of four boundaries
in Ex.A1, in which, the Northern boundary of the property that was settled
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S.A.No.1323 of 2009
has been described as a “Kuttai” and concluded that the property settled in
Ex.A1 is the 'A' schedule property in the suit. Therefore, the Northern
boundary which is described as a Kuttai is the property presently in the
possession of the 1st defendant as the 1st defendant had admitted the same
while deposing as D.W.1. In her cross examination she has admitted that
her property was originally a Kuttai. The trial Court has also taken into
consideration her admission as D.W.1 that the pathway through which she
had access to the Road, south of the 'A' schedule property was a pathway
existing between the Seliamman temple and the 'B' schedule property.
Having admitted so, the 1st defendant's case that she has been using the 'B'
schedule property as a pathway stands extinguished. From the year 1958 the
plaintiff's predecessor in title has been in enjoyment of 70 feet in East to
West, which is confirmed by the fact that the 1st defendant is using the
pathway abutting the 'B' schedule property and the temple. The trial Court
had therefore decreed the suit as prayed for.
7.The said judgment and decree was taken on appeal by the 1st
defendant to the Additional Sub Court, Vridhachalam in A.S.No.144 of
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S.A.No.1323 of 2009
2007. The learned Additional Sub Judge, Vridhachalam confirmed the
judgment and decree of the trial Court. Challenging the said concurrent
judgments and decree, the 1st defendant has preferred the present second
appeal.
8.Mrs.Meenal, the learned counsel who appears on behalf of the 1st
defendant had challenged the concurrent judgment and decree on the ground
that in Ex.A1 it was only an extent of 50 feet East to West that was given to
the predecessor in title to the plaintiff. She would further argue that
although in the suit the plaintiff had only sought for a relief with reference to
an extent of 50 feet, the decree clarifies the same by stating that in the sale
deed East to West measurement is 50 standard feet, however possession with
regard to 70 standard feet east to west which according to her is a glaring
error and an over reach.
9.Mr.Amarnath, the learned counsel appearing on behalf of the 1st
respondent / plaintiff would contend that both the Courts below have
considered the evidence on record and passed the judgments and this Court
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S.A.No.1323 of 2009
ought not to re-appreciate the evidence since no substantial question of law
has been raised by the appellant.
10.Heard the counsels and perused the materials on record. This
Court had only ordered notice for admission vide order dated 30.12.2009.
The short fact involved in the above second appeal is whether the 'B'
schedule property is a pathway or the property in which the plaintiff is in
enjoyment by putting up a house and the other utilities. The evidence of
DW1 would clearly clarify this point since according to the 1st defendant the
pathway which she has been using is only a pathway abutting the 'B'
schedule property and the Seliamman temple. In the light of such
categorical admission, the defence of the 1st defendant that the 'B' schedule
is a pathway crumbles. The argument of the learned counsel for the
appellant / 1st defendant that the decree has exceeded the description of the
property in the plaint, may not be correct since the 'A' schedule property has
been described as measuring east to west 70 standard feet and south to north
50 standard feet. The 'B' schedule property has been shown as measuring 30
standard feet and east to west is 50 standard feet and south to north.
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S.A.No.1323 of 2009
Therefore, the arguments of the learned counsel cannot be countenanced.
11.That apart a perusal of the judgment of the trial Court would
further indicate that Ex.A3 viz. F.M.B sketch would go to show a lane in
existence in Survey No.108/1 which is abutting the property assigned to the
defendant in Survey No.108/3. Therefore, the argument of the learned
counsel that this is only a pathway to reach her property situates north to the
'A' schedule property also fails. The appellant has not made out any
substantial question of law warranting interference by this Court.
12.In the result this Second Appeal stands dismissed. There shall be
no order as to costs. Consequently, the connected miscellaneous petition is
also dismissed.
24.06.2021
kas
Index : yes / no
Internet : yes / no
Speaking / Non Speaking order
https://www.mhc.tn.gov.in/judis/
S.A.No.1323 of 2009
P.T.ASHA, J.
kas
To:
1.The I Additional District Munsif Court
Vridhachalam
2.The Additional Sub Court
Vridhachalam
S.A.No.1323 of 2009
and
M.P.No.1 of 2009
24.06.2021
https://www.mhc.tn.gov.in/judis/
