Madras High Court
A.Rangarajan (Died) vs D.Gopal on 16 December, 2022
S.A.No.1829 of 1997
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.12.2022
CORAM:
THE HONOURABLE MR.JUSTICE. S. SOUNTHAR
S.A.No.1829 of 1997
1.A.Rangarajan (Died)
2.R.Thiyagarajan
3.R.Ananthi
4.R.Jayalakshmi ...Appellants
(Appellants 2 to 4 are brought on record as legal heirs of the deceased
sole appellant vide Order of this Court dated 08.01.2015 made in MP.No.
1 to 3 of 2013)
/Vs./
1.D.Gopal
2.D.Dhanapal (Died)
3.Thiruchirapalli Municipality,
Represented by its Executive Authority,
The Commissioner,
Promendade Road,
Contonment,
Trichy.
4.D.Akila
5.D.Muthukumar
6.D.Saroja
7.D.Arumugam
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S.A.No.1829 of 1997
8.D.Renuka
9.D.Shanthi
10.D.Venkatesh
11.D.Rajesh Kanna
12.D.Karthikeyan ...Respondents
(R4 to R12 are impleaded as legal heirs of the deceased second
respondent vide order of this Court dated 27.10.2017 made in
MP(MD)Nos.4 to 6 of 2013)
PRAYER: Second Appeal filed under Section 100 of Code of Civil
Procedure, to set aside the Judgment and decree dated 30.04.1997 made
in A.S.No.69 of 1996 on the file of the Subordinate Judge,
Thiruchirapalli in confirming the decree and Judgment dated 26.07.1995
made in O.S.No.1074 of 1983 on the file of the II Additional District
Munsif, Trichirapalli.
For Appellants : Mr.R.Govindaraj
For R3 : Mr.R.Baskaran
Standing Counsel
For R1, R4, R6
R8 to R12 : No appearance
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S.A.No.1829 of 1997
JUDGMENT
The first defendant in the suit is the appellant. The respondents 1
and 2 filed a suit for declaration that the suit property is a Municipal
Public Lane and for a consequential mandatory injunction directing the
appellant and his brother (who is not a party to the second appeal) to
remove the offending construction. The suit was decreed by the trial
Court and confirmed in the First Appeal. Being unsuccessful, the first
defendant is before this Court. Pending Second Appeal, the appellant,
Rangarajan passed away and the appellants 2 to 4 were brought on record
as his legal heirs. Likewise, the second respondent / third plaintiff also
passed away pending Second Appeal and the respondents 4 to 12 were
impleaded as legal representatives of the deceased second respondent.
2. According to the respondents 1 and 2 / plaintiffs 2 and 3 (First
plaintiff, mother of the respondents 1 and 2 passed away pending suit),
they are the owners of the building with Door No.14A and 10A at
Kajapet situated in T.S.Nos.2063 and 2070 relevant to the new S.Nos.90
and 97. It is stated by the respondents 1 and 2 in the plaint that the suit
property comprised in T.S.No.2066 (New S.No.93) is a Municipal Public
Lane. It acts as an access to the plaintiffs to reach the main road, namely,
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S.A.No.1829 of 1997
Kajapet Bazaar Road. It was also stated in the plaint that the appellant /
first defendant and his brother were owners of T.S.Nos.2074, 2073 and
2072 now comprised in T.S.No.199 abutting the suit property. It was
specifically averred by the respondents 1 and 2 that the appellant had put
up construction in the Municipal Public Lane situated in T.S.No.2066
obstructing the right of access available to the respondents 1 and 2
through the said lane. It was also stated that the construction put up by
the appellant was unauthorized one. Inspite of notice to the public
authorities, namely, the third respondent Municipality, no action was
taken against the offending construction put up by the appellant and
hence, the respondents 1 and 2 were constrained to file the suit for the
above said relief.
3. The appellant herein along with his brother, who is not a party to
this second appeal, filed a written statement and resisted the suit by
denying the plea raised by the respondents 1 and 2 that the suit property
was a public lane. It was also stated by the appellant that when the third
respondent Municipality tried to take action against the construction put
up by the appellant, a civil suit was filed against the third respondent,
wherein it was found that the construction put up by the appellant was
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S.A.No.1829 of 1997
within his own property. The right of access claimed by the respondents
1 and 2 over the suit property was also denied by the appellant in his
written statement.
4. The third respondent Municipality filed written statement and
had taken a stand that the suit property is a public lane vested with the
Municipality.
5. On these pleadings, the parties went to the trial. The first
respondent was examined as PW1 and Exs.A1 to A17 were marked on
the side of the respondents / plaintiffs. The deceased first appellant was
examined as DW1 and Exs.B1 to B6 were marked on the side of the
contesting defendant. Pending suit, a Commissioner was appointed for
local inspection along with Surveyor. The Commissioner's report, plan
and survey sketch were marked as Exs.C1 to C3.
6. The trial Court, on consideration of oral and documentary
evidences, came to the conclusion that the suit property was a public lane
and consequently decreed the suit as prayed for and aggrieved by the
same, the appellant / first defendant in the suit filed an appeal in A.S.No.
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S.A.No.1829 of 1997
69 of 1996 on the file of the Subordinate Court, Thiruchirapalli, and the
same was dismissed by confirming the Court findings of the trial Court.
Challenging the said Judgment, the appellant is before this Court.
7. This Court, at the time of admission framed the following
Substantial Questions of Law:
1. Whether the third respondent is estopped from claiming any
legal right over the suit property as public lane when under
Exhibit B1 dated 8.9.55, it has categorically admitted that the
suit property belongs to various third parties?
2. Whether the findings of the courts below that continuous use
of an alley make it a public street is justifiable, in the absence
of necessary pleadings, evidence to that effect to establish the
long and continuous use of the suit property as an alley?
8. The learned counsel appearing for the appellant elaborating the
Substantial Questions of Law, submitted that in an official
communication sent by the third respondent Municipality under Ex.B1,
they admitted that 108 private persons were entitled to the suit property
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S.A.No.1829 of 1997
and hence, the finding rendered by the Courts below that it is a public
lane is not correct. The learned counsel also by relying on the Judgment
of this Court in S.A.(MD)No.70 of 2017, dated 11.11.2019, in the case of
Thiyagarajan @ Karunanithi and another vs. Malarkantham and
Others submitted that the suit for declaration that the suit property is a
public lane is not maintainable without impleading the public, who are
using the said property. Further, the learned counsel submitted that the
respondents 1 and 2 / plaintiffs failed to lead any evidence to prove the
long user of the suit property by public and hence, the finding rendered
by the Courts below that the suit property is a public lane is liable to be
interfered with.
9. Though the contesting respondents 1 and 2 entered appearance
through their counsel, there is no representation for the respondents 1
and 2.
10. The learned counsel appearing for the third respondent
Municipality submits that as per the Municipal Survey Documents,
namely, Ex.A1, A15 and A16, the suit property is recorded as a
government poramboke and it is also specifically mentioned that the suit
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S.A.No.1829 of 1997
property is used as a lane. Therefore, it is the submission of the learned
counsel appearing for the third respondent that as per the records
available with the Municipality, the suit property is a lane meant for user
of general public and consequently, the finding rendered by the Courts
below requires no interference from this Court.
11. Heard the arguments of the learned counsel appearing for the
appellants and the learned counsel appearing for the third respondent.
Perused the records and typed set of papers.
12. A perusal of Ex.A16, Town Survey Field Register would
suggest that the suit property with New Survey No.93 is classified as a
Government poramboke. In the remarks column, it is clearly mentioned
that the suit property is used as a lane. Once in the Town Survey Field
Register, a property is mentioned as a lane, it implies that the property is
used as an access by the general public. It is the specific case of the
plaintiffs that the suit property is used an access to reach the main road
from their property. The deceased first appellant herein, who was
examined as DW1 clearly admitted that the property of the respondents 1
and 2 / plaintiffs is situated abutting the lane portion. It is settled law
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S.A.No.1829 of 1997
that the owners of the plot adjoining the lane are entitled to use the lane
portion as an access. Therefore, the finding reached by the Courts below
that the suit property is a public lane based on Ex.A16 cannot be said to
be incorrect.
13. The learned counsel appearing for the appellants, by relying on
Ex.B1, Communication issued by the Commissioner of 3rd respondent
Municipality to one Kavery Ammal, forcefully submitted that as per the
Official Communication of the third respondent Municipality, the suit
property with Old S.No.2066, originally stood in the name of 180
persons and therefore, it cannot be treated as a lane. Ex.B1 is only a
Communication issued by the Commissioner to one Kavery Ammal. In
the light of the documentary evidence available under Ex.A16, the
Communication of the third respondent under Ex.B1 cannot be given any
weightage. The deceased first appellant has not examined any persons to
prove Ex.B1. DW1 is not a competent witness to prove Ex.B1 and he is
not a party to Ex.B1. On the other hand, Ex.A16 is a public document
maintained by the Municipality certified by the Officials under their seal.
Therefore, the permanent document, namely, Town Survey Field Register
would outweigh any communication under Ex.B1. Therefore, this Court
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S.A.No.1829 of 1997
finds no reason to interfere with the finding of the Courts below that the
suit property is a public lane.
14. The learned counsel appearing for the appellant, relied on the
Judgment of this Court in S.A.(MD)No.70 of 2017, dated 11.11.2019, in
the case of Thiyagarajan @ Karunanithi and another vs.
Malarkantham and Others for the proposition that while seeking a
declaration that the suit property is a public lane of the general public
and public authority shall be made as a party to the suit. Admittedly, in
this case, the public authority namely, Trichy Municipality is impleaded
as one of the defendants in the suit. Therefore, the judgment relied on by
the learned counsel appearing for the appellant may not be helpful to
advance his case.
15. It is pertinent to mention that the appellant himself as DW1
admitted that suit property with Old S.No.2066 is a lane. Further he also
admitted that portion of his building stands in T.S.No.2066. DW1 also
admitted that the Advocate Commissioner in his report mentioned that
portion of his property lies in the suit property. During the course of
cross examination, the appellant as DW1 also admitted that due to his
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S.A.No.1829 of 1997
construction, the width of the suit lane got reduced from 20 feet to 12
feet. He also specifically admitted that T.S.No.2066 namely the suit
property is a Municipal street. Further, there is also clear admission on
the part of the appellant that he has not obtained any approval from local
body for the construction which he had put up in the suit property.
16. In view of the fatal admissions made by the appellant as DW1,
the Courts below correctly came to the conclusion that the suit property
is a public lane and the appellant had put up construction in the portion
of the suit property and thereby reduced its width. I do not find any
reason to interfere with the findings rendered by the Courts below and
consequently, both the questions of law are answered against the
appellants. Consequently, this Second Appeal stands dismissed.
However, in the circumstances of the case, there will be no order as to
costs.
16.12.2022
Index: Yes / No
Internet: Yes / No
Sm
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S.A.No.1829 of 1997
S. SOUNTHAR, J.
Sm
TO:
1.The Subordinate Judge, Thiruchirapalli.
2.II Additional District Munsif, Trichirapalli.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.No.1829 of 1997
Dated:
16.12.2022
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