Madras High Court
K.Gomathi vs Devarajan on 3 March, 2021
S.A.No.1675 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.03.2021
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S.A.No.1675 of 2008
K.Gomathi ... Appellant
Vs.
Devarajan ... Respondent
Prayer: The second appeal has been filed under Section 100 of C.P.C.
against the judgment and decree dated 29.03.2006 passed in A.S.No.125 of
2005 on the file of the Principal Subordinate Court, Erode, confirming the
judgment and decree dated 21.09.2005 passed in O.S.No.79 of 2004 on the
file of the II Additional District Munsif Court, Erode.
For Appellant : Mr.Thirugnanam
For Respondent : Mr.G.Karthikeyan
JUDGMENT
Challenge in this second appeal is made to the judgment and decree
dated 29.03.2006 passed in A.S.No.125 of 2005 on the file of the Principal
Subordinate Court, Erode, confirming the judgment and decree dated
21.09.2005 passed in O.S.No.79 of 2004 on the file of the II Additional
District Munsif Court, Erode.
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S.A.No.1675 of 2008
2.For the sake of convenience, the parties are referred to as per their
rankings in the trial Court.
3.The second appeal has been admitted on the following substantial
questions of law:
"(1).Whether the Courts below were right
in law in holding that the properties were
originally belong to one common owner and was
subsequently divided into parts, when admittedly
there was no such pleadings by the respondent
herein?
(2).Whether the appreciation of the
Advocate Commissioner's report and plan by the
Courts below is perverse and sustainable in law?
(3).Whether the Courts below were right
in holding that the respondent is entitled to use
the north-south itteri when admittedly there is a
well laid road is available to reach his lands
from his house?"
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S.A.No.1675 of 2008
4.Considering the issues involved between the parties lying in a
narrow compass, it is unnecessary to dwell into the facts of the case in
detail.
5.The plaintiff in O.S.No.79 of 2004, who has lost in the Courts
below, is the appellant in the second appeal.
6.Suit has been laid simplicitor for the relief of permanent injunction.
7.The plaintiff claims the relief of permanent injunction based on the
title deeds marked as Exs.A1 and A2. It is the case of the plaintiff that the
defendant, without any entitlement, is attempting to disturb the plaintiff's
possession and enjoyment of the suit property and hence, according to her,
the suit has come to be laid for appropriate relief.
8.However, considering the pleas and the materials placed on record
put forth by the respective parties, it is seen that the parties are at issue only
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S.A.No.1675 of 2008
with reference to the north-south itteri lying on the eastern side of the
plaintiff's property. The plaintiff would claim that north-south itteri is not
lying on the eastern side of the plaintiff's property, by contending that the
same is not at all used by any one including the defendant and would also
contend that the defendant has no necessity to use the north-south itteri to
reach his land across the LBP canal. However, as rightly concluded by the
Courts below, when the documents of title projected by the plaintiff marked
as Exs.A1 & A2 clearly depict that the property comprised therein is lying
to the west of north-south itteri and furthermore, when from the
Commissioner's report and plan, the existing of north-south itteri on the
eastern side of the plaintiff's property is also noted, the plaintiff cannot, as
held by the Courts below, claim any portion on the eastern side of her
property i.e. in the north-south itteri. The problem had arisen between the
parties, when the plaintiff endeavored to put up the fence on the eastern side
annexing the portion of north-south itteri, which had been used by the
defendant to reach his property and resultantly, the suit has come to be laid
by the plaintiff for the relief of permanent injunction.
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S.A.No.1675 of 2008
9.When considering the materials available on record, particularly,
the documents of title projected by the plaintiff as well as the documents of
title projected by the defendant marked as Exs.B1 & B2, it is seen that the
defendant has also been granted the right to use the itteri in question and
therefore, the claim of the plaintiff that no such itteri is in existence and the
defendant is not using the said itteri, as such, cannot be accepted and rightly
disbelieved and negatived by the Courts below.
10.From the materials available on record, when it is noted that the
defendant and his predecessor in title had been using the north-south itteri
as a matter of right, the Courts below had rightly held that the contention of
the plaintiff that the defendant is claiming only easementary right over the
north-south itteri, as such, cannot be countenanced.
11.The contentions have also put forth by the plaintiff that as there is
no over bridge to cross the canal have the right of usage of the itteri is lost
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S.A.No.1675 of 2008
has also considered by the Courts below and held that the intervention of
the canal in the north-south itteri would not deter the defendant to claim his
right and the enjoyment of the same and particularly, when the materials
point out that the defendant is using the north-south itteri, as a matter of
right, the plaintiff's contention that the defendant by way of using the north-
south itteri has attempted to interfere with her property, as such, cannot be
accepted and the abovesaid issue had been rightly assessed, considered and
determined by the Courts below.
12.As above pointed out, the plaintiff has laid the suit for permanent
injunction and the grant of the relief sought for by the plaintiff in the nature
of permanent injunction being discretionary and equitable remedy, the
plaintiff should make out the case for claiming the said relief. When
according to the title deeds projected by the plaintiff marked as Exs.A1 and
A2, the property acquired by her lies only to the west of north-south itteri,
further, with a view to mislead the Court and obtain the relief of permanent
injunction, the plaintiff is found to have wrongly described the property in
the plaint, while describing the suit property, he has shown the same as
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S.A.No.1675 of 2008
lying to the west of the third party, whereas, in the title deeds of the
plaintiff, the eastern boundary is shown as north-south itteri, the abovesaid
aspects have been taken into consideration by the Courts below and rightly
held that the plaintiff, as per the title deed marked as Ex.A1, would be
entitled to only the property that lies on the west of north-south itteri and on
the other hand, with a view to grab the portion of north-south itteri, the
plaintiff has wrongly given the boundaries of the suit property and
therefore, as rightly contended by the defendant, only with a view to annex
the portion of the north-south itteri, the plaintiff has misdescribed the suit
property and the Courts below had correctly held that the plaintiff has come
forward with the plaint seeking the equitable remedy with unclean hands
and by suppressing the material facts and when it is the specific case of the
defendant that he is not claiming any ownership over the property acquired
by the plaintiff under Ex.A1, on the other hand, when considering the
materials available on record in entirety, it is found that it is only the
plaintiff, with a view to annex the north-south itteri lying on the eastern side
of her property and to prevent the defendant from enjoying the same, has
come forward with the suit giving wrong particulars, particularly, as regards
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S.A.No.1675 of 2008
the description of the suit property and in such view of the matter, the
Courts below are found to be justified in not granting the relief of
permanent injunction as sought for by the plaintiff.
13.The reasonings and conclusions of the Courts below for rejecting
the plaintiff's case being based upon the proper appreciation of the materials
available on record including the Commissioner's report and plan and the
right of the defendant over the usage of north-south itteri, which has been
established to be in existence and when they are found to be based on the
factual matrix and not involving any question of law, as such and when they
are not show to be in any manner perverse, illogical and irrational, in my
considered opinion, no reason is warranted to interfere with the same.
Resultantly, in my considered opinion, no substantial question of law is
found to be involved in the second appeal. Be that as it may, the substantial
questions of law formulated in the second appeal are, for the reasons
aforestated, accordingly answered against the plaintiff and in favour of the
defendant.
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S.A.No.1675 of 2008
In conclusion, the judgment and decree dated 29.03.2006 passed in
A.S.No.125 of 2005 on the file of the Principal Subordinate Court, Erode,
confirming the judgment and decree dated 21.09.2005 passed in O.S.No.79
of 2004 on the file of the II Additional District Munsif Court, Erode, are
confirmed. Accordingly, the second appeal is dismissed with costs.
Consequentially, connected miscellaneous petition, if any, is closed.
Index : Yes/No 03.03.2021
Internet:Yes/No
sms
Copy to
1.The Principal Subordinate Court, Erode.
2.The II Additional District Munsif Court, Erode.
3.The Section Officer, V.R.Section, High Court, Madras.
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S.A.No.1675 of 2008
T. RAVINDRAN, J.
sms
S.A.No.1675 of 2008
03.03.2021
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