Madras High Court
Pappammal vs R.Palanivel ... 1St on 13 June, 2022
S.A.(MD) Nos.93 and 94 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.06.2022
CORAM
THE HONOURABLE MR.JUSTICE N.SESHASAYEE
S.A.(MD) Nos.93 and 94 of 2011
and
M.P.(MD).Nos.1 and 1 of 2011
S.A.(MD).No.93 of 2011
1.Pappammal
2.S.Ramalingam
3.Deivanai ... Appellants/Appellants/
defendants 8 to 10
-vs-
1.R.Palanivel ... 1st Respondent/1st Respondent
Plaintiff
2.P.Shanmugam
3.M.Ramasamy
4.A.Vellaisamy Gounder
5.Palanisamy
6.S.Shathasivam ... Respondents/Respondents/Defendants
2 to 6 2 to 6 3 to 7
7.Chinna Pappammal
8.S.Saraswathi ... Respondents 7 & 8/ Respondents
7 & 8/Defendants 11 & 12
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
the decree and judgment in O.S.No.25 of 1996, dated 26.12.2007 passed by
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S.A.(MD) Nos.93 and 94 of 2011
the learned District Munsif of Vedasandur confirmed in A.S.No.29/2008
dated 29.09.2010 passed by the Principal Subordinate Judge, Dindigul.
For Appellants : Mr.Ram Sunder Vijayaraj
for veera Associates
For R1 : Mr.Anand Chandrasekar
for Sarvabhawman Associates
For R2 to R8 : No appearance
S.A.(MD).No.94 of 2011
1.Pappammal
2.S.Ramalingam
3.Deivanai ... Appellants/Appellants/
defendants 5 to 7
-vs-
1.R.Palanivel ... 1st Respondent/1st Respondent
Plaintiff
2.M.Ramasamy
3.A.Vellaisamy Gounder
4.Palanisamy
5.Chinna Pappammal
6.P.Shanmugam
7.S.Saraswathi
8.Nachammal
9.A.Shanmugam
10.Dhanda Pani ... Respondents 2 to 10/ Respondents
2 to 10/Defendants 8 to 16
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S.A.(MD) Nos.93 and 94 of 2011
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
the decree and judgment in O.S.No.786 of 1995, dated 26.12.2007 passed
by the learned District Munsif of Vedasandur confirmed in A.S.No.27/2008
dated 29.09.2010 passed by the Principal Subordinate Judge, Dindigul.
For Appellants : Mr.Ram Sunder Vijayaraj
for veera Associates
For R1 : Mr.Anand Chandrasekar
for Sarvabhawman Associates
For R2 to R10 : No appearance
COMMON JUDGMENT
The defendant, in both the suits in O.S.Nos.786 of 1995 and 25 of 1996,
having been successful before the trial Court, but suffered reversal before
the First Appellate Court, has approached this Court in this second appeal.
2.The brief facts are as follows:
Both the suits were laid by the same plaintiff, substantially against the same
set of defendants, seeking declaration of title and ancillary reliefs of
injunction viz-a-viz two stretches of the same cart track. The suits were
jointly tried. A common judgment was passed by the trial Court, dated
26.12.2007, by which, the suits came to be decreed as was indicated earlier.
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S.A.(MD) Nos.93 and 94 of 2011
During the pendency of the suits, the first defendant had passed away and
his heirs were came to be impleaded as defendants 5 to 7 in O.S.No.786 of
1995, and as defendants 8 to 10 in O.S.No.25 of 1996. Challenging the
decrees of the trial Court, the legal heirs of the first defendant in both the
suits preferred separate appeals in A.S.Nos.27 and 29 of 2008. Both the
appeals came to be dismissed by a common judgment of the First Appellate
Court, aggrieved by which, the legal heirs of the first defendant in both the
suits have preferred these appeals. The appeals are yet to be admitted.
3.The facts can be stated broadly with reference to Ext.C2/Commissioner's
plan. There is a north-south road connecting Suklampatti and
Devinayakkanpatti. To its west lies a block of property in S.Nos.540, 472
and 473 followed by S.Nos.467, 466, 468, 465, 456, 459, 457 and 458.
Between this block of land, runs a cart track said to be comprised in
S.Nos.472, 467, 468, 456, 459 and 457. On the far west is Survey No.458.
It belongs to the plaintiff, having been purchased by the mother of the
plaintiff vide Ext.A4/sale deed, dated 16.07.1981. The adjacent property on
its east is in S.No.459, and south is S.No.457. Whileso, the plaintiff vide
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S.A.(MD) Nos.93 and 94 of 2011
Ext.A3/sale deed, dated 21.04.1997, had purchased 10 cents in S.No.459
from the second defendant. It is an admitted fact that there is a cart track
that runs through Survey Nos.456, 458, 457 and 472 to access the main road
in the far east. The plaintiff claims that not only he has been using it, for the
enjoyment of his property in S.No.458, which is in the far west, but all the
other land owners to the west of the aforesaid main road on the east used the
aforesaid cart track for reaching the main road. According to him, some of
the defendants required the plaintiff to sell his property in S.Nos.458 and
459, and since he refused, they prevented the plaintiff from using the road.
4.The suit was essentially contested by defendants 1 to 3. In both the suits,
their contention is that the original pathway run through their property, and
it was widened by an agreement among all the co-sharers of the entire block
of property between S.Nos. 458 and 472 by Ext.A17=Ext.B-1, by which, all
the land owners in S.Nos.457, 468, 467 and 472 parted with small portion of
the property in the north for widening the existing pathway, and that this
pathway belongs exclusively to them.
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S.A.(MD) Nos.93 and 94 of 2011
5.The matter went to trial, where both sides produced oral evidence and
ample amount of documentary evidence. Besides, the trial Court has also
appointed a Commissioner for local inspection, and his reports came to be
marked as Ext.C1 and Ext.C2. After appreciating the evidence, more
particularly Ext.A3 and Ext.A4 and the Commissioner's reports, the trial
Court chose to decree the suits. In the appeals preferred by the legal heirs
of the first defendant, the First appellate Court concurred with the findings
of the trial Court and dismissed the appeals.
6.Heard Mr.Ram Sunder Vijayaraj, learned counsel for the appellants. The
learned counsel for the appellants made valiant efforts to convince the Court
that the Courts below have egregiously erred in ignoring the fact that
Ext.A1=Ext.B-1 was executed between the parties thereto, for their
convenience and had parted the property for widening the cart track. He
submitted that at no point of time, none other than the parties to
Ext.A17=Ext.B-1 have used the property.
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S.A.(MD) Nos.93 and 94 of 2011
7.This Court finds it difficult to subscribe to the statements made by the
learned counsel for the appellants. If the facts are appreciated along with
the undisturbed Commissioner's Report, it could be seen that the property
in S.No.458 exists in the far west and S.No.472 exists in the far east. In
between lies the other survey Numbers in S.Nos.459, 456, 468, 467 from
west to east. The far western property, as already indicated, was purchased
by the mother of the plaintiff under Ext.A4. This property would be land-
locked if there is no access to the main road on the east.
8.Here, it is pertinent to note that the plaintiff had purchased a portion of the
property in S.No.459 from the second defendant under Ext.A3 essentially
to have an access to the pathway. Now, the plaintiff would have some
property on the far west. The main road is on the far east. Admittedly, there
is a pathway/cart track which might have been a narrow one prior to
Ext.A17= Ext.B-1. But, as on today, the parties to Ext.A17=Ext.B-1 have
parted with the land for widening it. This in effect would mean that they
have parted the northern extremity of their property in S.Nos.456, 468, 467
and 472. Once they blend this portion of their land with the existing
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S.A.(MD) Nos.93 and 94 of 2011
pathway and without demarcation, they cannot claim exclusive interest over
the pathway/cart track. Even otherwise, law frowns at any plea that would
advocate a land-locked property.
9.The finding on this by the Court below appears to be proper and does not
shake the conscience of this Court. This Court does not find any merit in
entertaining these appeals. Hence, these second appeals are dismissed. No
costs. Consequently, the connected miscellaneous petitions are dismissed.
13.06.2022
Internet:Yes
Index:Yes/No
vsg
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https://www.mhc.tn.gov.in/judis
S.A.(MD) Nos.93 and 94 of 2011
To
1.The District Munsif Court,
Vedasandur.
2.The Principal Subordinate Judge,
Dindigul.
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https://www.mhc.tn.gov.in/judis
S.A.(MD) Nos.93 and 94 of 2011
N.SESHASAYEE, J.
vsg
S.A.(MD) Nos.93 and 94 of 2011
and
M.P.(MD).Nos.1 and 1 of 2011
13.06.2022
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https://www.mhc.tn.gov.in/judis
