Gnanam (Died) vs Kasturi
2021 Latest Caselaw 12315 Mad

                                                     S.A.No.1323 of 2009
         IN THE HIGH COURT OF JUDICATURE AT MADRAS

                          DATED : 24.06.2021

                                 CORAM

            THE HONOURABLE MR.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
  nd

(2 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
     Prayer:- The Second Appeal filed under Section 100 of C.P.C.,
1/10
                                                              S.A.No.1323 of 2009
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) st

The appellant / 1 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

Gramanatham 60/1) in Karuveppilankurichi Village, Vridhachalam Taluk,

measuring East to West 30 standard feet, South to North 50 standard feet

S.A.No.1323 of 2009 within the boundaries bounded on the

South by : Karuveppilankurichi – Devangudi Road

East by : Remaining land of the plaintiff st

North by: The 1 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

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

S.A.No.1323 of 2009 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

st

Revenue authorities, however, the 1 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.

st

4.The 1 defendant had filed the written statement interalia contending

that the suit property and surrounding properties vested with the

st

Government. The 1 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

st

04.07.1976. Thereafter the 1 defendant had been utilising the 'B' schedule

property as access to her property and that she had been accessing her

S.A.No.1323 of 2009 st

property from the Road through this pathway. Therefore, the 1 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

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

S.A.No.1323 of 2009 st st

possession of the 1 defendant as the 1 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.

st

Having admitted so, the 1 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

st

West, which is confirmed by the fact that the 1 defendant is using the

pathway abutting the 'B' schedule property and the temple. The trial Court

had therefore decreed the suit as prayed for.

st

7.The said judgment and decree was taken on appeal by the 1

defendant to the Additional Sub Court, Vridhachalam in A.S.No.144 of 2007.

The learned Additional Sub Judge, Vridhachalam confirmed the judgment

and decree of the trial Court. Challenging the said concurrent judgments and

S.A.No.1323 of 2009 st

decree, the 1 defendant has preferred the present second appeal.

st

8.Mrs.Meenal, the learned counsel who appears on behalf of the 1

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.

st

9.Mr.Amarnath, the learned counsel appearing on behalf of the 1

respondent / plaintiff would contend that both the Courts below have

considered the evidence on record and passed the judgments and this Court

ought not to re-appreciate the evidence since no substantial question of law

has been raised by the appellant.

S.A.No.1323 of 2009

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

st

clearly clarify this point since according to the 1 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

st

admission, the defence of the 1 defendant that the 'B' schedule is a pathway

st

crumbles. The argument of the learned counsel for the appellant / 1

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. Therefore, the

arguments of the learned counsel cannot be countenanced.

S.A.No.1323 of 2009

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

P.T.ASHA, J.

kas

To:

S.A.No.1323 of 2009

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