Madras High Court
Kamaraj vs Vijayakumar on 8 February, 2022
CRP.No.2621 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.02.2022
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
CRP.No.2621 of 2021
and C.M.P.No.19460 of 2021
Kamaraj ...Petitioner
Vs
Vijayakumar ...Respondent
PRAYER Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the Judgment and Decree passed by
Learned Subordinate Judge, Chidambaram, in I.A.No.283 of 2021 in
O.S.No.68 of 2013 dated 26.08.2021.
For Petitioner : Mr.T.Saravanan
For Respondent : Mr.A.Muthukumar
ORDER
Challenging the order passed by the learned Subordinate Court,
Chidambaram in allowing an amendment petition filed in
I.A.No.283 of 2021 in O.S.No.68 of 2013 by the plaintiff/respondent the
defendant is before this Court. The brief facts of the case are as follows:-
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CRP.No.2621 of 2021
2.The plaintiff had filed the suit O.S.No.68 of 2013 on the file of
the learned Subordinate Judge, Chidambaram seeking a declaration that
the Sale deed dated 16.08.2011 has been fraudulently obtained by the
defendant from the plaintiff and therefore the same is null and void and
unenforceable or in the alternative cancel and set aside the said Sale deed
and also for an injunction restraining the defendants their men and agents
for interfering or obstructing the plaintiff's use of the 'B' schedule
property.
3.The respondent/plaintiff had contented that the defendant is his
maternal uncle. Four items of property had been described in the plaint
plan and all these four items were comprised in T.S.No.977. This
property was owned by a religious institution called “Thiruppanandhal
Sri Kaashi Madam”.The portion marked 'A' in the plaint plan was
purchased by the plaintiff on 09.04.2008. The defendant on the very
same day had purchased the site marked as 'B' and 'C' to the north of the
property that the plaintiff purchased. This site also measured 20 ft east
west and 41 ½ ft north south . Under two Sale deeds the vendor had also
conveyed a portion described as D measuring 3 ft east west on the
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CRP.No.2621 of 2021
northern side and 0 ft east west on the southern side with a total
measurement of 83 ft north south. This portion was specifically conveyed
for use as a pathway to reach the property of the plaintiff from the street.
4.When the properties were purchased the entire property was a
vacant site. After the purchase the plaintiff and the defendant wanted to
put up separate residential houses in their respective properties. The
plaintiff was not in a position to freely take men and material through
this pathway marked as 'D'. The plaintiff therefore requested the
defendant to provide an additional extent of 3 ft east west and 41 ½ ft
north south on the eastern side to be used as a pathway in common by
both of them. The defendant also agreed to the said suggestion and the
plaintiff had also agreed to compensate the defendant. In pursuance of
this agreement the defendant had executed a Sale Deed on 18.03.2011
earmarking 3 ft and 41 ½ ft pathway on the eastern side of the site on the
north and conveying half share of this 3 ft and 41 ½ ft extent which is
marked as 'C' in the plaint plan. By reason of this, the pathway on the
eastern side became wider and its measurement was 6 ft on the northern
side and 4ft 6inches at the end of the 41 ½ on the south side. The
plaintiff would submit that except for this pathway he had no other
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CRP.No.2621 of 2021
access to reach his property. The defendant approached the plaintiff in
the month of August 2011 and informed him that he was arranging for a
loan for constructing his house and for which a registered document has
to be executed confirming that the pathway belongs to both of them and
for which purpose the plaintiff should execute a deed. Believing his
words, the plaintiff had gone to the Registrar Office on 16.08.2011 and
the plaintiff was surrounded by 5 to 6 unknown persons. As soon as the
defendant entered the Registrar's office, the plaintiff was rushed into
signing the document. The plaintiff had not entertained any doubt with
regard to the document, since the defendant was his maternal uncle and
he has not suspected anything amiss.
5.After the execution of the document also the plaintiff continued
to use 'C' and 'D' lane in the plaint plan and it was not objected by the
defendant. The defendant thereafter constructed a house once again
leaving the 'C' portion as a lane. Thereafter the plaintiff obtained a
permission from the Municipality for constructing a residential house in
his pathway. He got a permission on 22.06.2012 and when he started
construction, the defendant requested him to sell his property to him, so
that he could extend his construction. Since the plaintiff was keen on
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CRP.No.2621 of 2021
living in the said premises, he did not agree to the same. Thereafter the
defendant started disturbing the usage of the pathway and the plaintiff
was then informed on 16.08.2011 the document that the defendant had
executed was a Sale Deed in which the plaintiff had conveyed his half
share in the pathway to the defendant thereby making the defendant the
sole owner of the pathway. This document is the result of a fraudulent
act. Therefore the plaintiff had come forward with the present suit.
6.The defendant had filed a written statement inter-alia denying
the claim and stating that the pathway belongs to him exclusively. When
the suit was posted for the cross examination of PW1, the plaintiff had
come forward with an application for amending the plaint, primarily to
seek a declaration that he has easementary right over the suit pathway.
Since the plaintiff has no other pathway except this pathway in dispute,
the plaintiff had asked for a alternative relief of a decree to declare the
plaintiff's easementary right over the 'B' schedule property to reach 'A'
schedule. In the description of property in the 'B' schedule he had sought
to delete the alphabets 'B' and 'C' and substitute it as 'C' and 'D'.
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CRP.No.2621 of 2021
7.The respondent had filed a counter contending that it is belated
and that a new case was sought to be introduced by way of an
amendment and in case amendment is allowed the very nature of the suit
would change. The defendant would also contend that if plaintiff is
entitled to easementary right, he has to file a separate suit.
8.The learned Subordinate Judge, Chidambaram, after hearing the
learned Counsel on either side allowed the application. Aggrieved by this
order that the revision petitioner/defendant is before this Court.
9.Mr.T.Saravanan who appears on behalf of the revision petitioner
would contend that the plaintiff has already sought for a relief in respect
of the pathway and there was no necessity to once again seek the very
same relief. According to him the amendment is redundant. He would
submit that the plaintiff has already sought for an injunction with
reference to the suit pathway which has been described as the 'B'
schedule property and the grant of the injunction itself would suffice and
there was no necessity to grant the relief of declaration.
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CRP.No.2621 of 2021
10.Mr.Muthukumar appearing on behalf of the respondent would
submit that the revision petitioner/defendant has denied the right and title
of the plaintiff to the suit pathway. Infact in the written statement they
have clearly and categorically contended that the pathway is the
exclusive pathway of the defendant. He would submit that no new case
was introduced, since in the plaint the plaintiff has clearly set out in
detail the usage of the pathway and the fact that there is no other
alternative pathway available. So therefore, it is that no new case was
being introduced and that apart PW1 is yet to start his cross examination
and therefore no pre-judice would be caused to defendant. Hence, the
application is allowed.
11.Heard the Counsels and perused the records. The plaintiff has
in extenso set out his enjoyment of the pathway in paragraph 5 of the
plaint the petitioner has set out as follows:-
“..
(5).The plaintiff has no other access to reach his
property on the south except this pathway (C & D). It
was only with the intention and object of providing a
pathway the vendor originally conveyed the eastern
portion 'D” as pathway. Later for purpose of
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CRP.No.2621 of 2021
convenience the plaintiff purchased half share in the
defendant's property marked as 'C'. Thus the plaintiff is
entitled to the easement of pathway as an easement by
grant and also as an easement of necessity. The
easement cannot be revoked, cancelled or disturbed and
must continue to exist as pathway and amenity eternally.
This pathway portion marked as 'C' and 'D' in the plaint
plan is described as 'D' schedule property.”
The usage of this pathway further reiterated in paragraph 7 which
reads as follows:-
“..
(7)Even after the execution of the document the plaintiff
continued to use the 'C' and 'D' portion lane ('B'
schedule property) as before and it was never objected
to, by the defendant at any time thereafter.
Subsequently the defendant constructed a house in his
property leaving 'C' portion as lane. Still later the
plaintiff also obtained permission from the Municipality
for construction of a residential house in his property
i.e. 'B' portion in the plan. He got permission on
22.06.2012. He started construction thereafter. During
that process, he carried all the materials only through
the lane and all his men engaged in the construction
work used only the suit pathway to reach the plaintiff's
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CRP.No.2621 of 2021
'A' schedule property. The building has been
constructed upto the ceiling level and finishing work is
to be done.”
12.Therefore the pleadings are already available and the plaintiff is
not seeking to introduce any new case. The only amendment that is
sought for is a declaration that the pathway is the only pathway which is
used to reach the 'A' schedule property. The application has come to be
filed only on account of the fact that the defendant has denied the
petitioner's right to even access the pathway.
13.The learned Subordinate Judge, Chidambaram has take into
account all these factors before allowing the application. Therefore, I do
not see any reason to disagree with this well considered order of the
learned Judge and accordingly, the CRP stands dismissed. The connected
miscellaneous petition is closed. No costs. The suit is for the year 2013,
therefore, a direction is issued to the learned Subordinate Judge,
Chidambaram to dispose of the suit in O.S.No.68 of 2013 on or before
30.06.2022.
08.02.2022
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CRP.No.2621 of 2021
Index : Yes/No
Internet : Yes/No
Speaking Order/Non Speaking Order
gd
To
The Subordinate Judge,
Chidambaram
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CRP.No.2621 of 2021
P.T.ASHA, J,
gd
CRP.No.2621 of 2021
08.02.2022
https://www.mhc.tn.gov.in/judis
