Madras High Court
Rukmani vs Arumugam on 14 June, 2022
S.A(MD).No.833 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.06.2022
CORAM: JUSTICE N.SESHASAYEE
S.A(MD).No.833 of 2013
Rukmani .... Appellant/Respondent/Defendant
Vs
Arumugam ... Respondent/Appellant/Plaintiff
Prayer : Second Appeal filed under Section 100 of Code of Civil
Procedure, against the judgment and decree dated 24.07.2013 in A.S.No.15
of 2013 on the file of the Principal Subordinate Judge, Dindigul reversing
the judgement and decree dated 29.11.2012 in O.S.No.541 of 2008 on the
file of the Principal District Munsif Court, Dindigul.
For Appellants : Mr.R.Subramanian
For Respondent : Mr.H.Lakshmi Shankar
JUDGMENT
The defendant in O.S.No.541 of 2008, which is laid seeking both mandatory
and prohibitory injunction, is the appellant herein. The suit was dismissed
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S.A(MD).No.833 of 2013
by the trial court but this verdict was reversed by the first appellate court in
A.S.No.15 of 2003.
2. The dispute is over a lane measuring 21 feet x 5 feet, and the same is
described as II schedule property in the plaint. For a descriptive
understanding of the property, a rough sketch is also produced by the
plaintiff and is available on record as Ext. A.1. The case of the plaintiff is
that:
● A certain Karuppana Pandithar was entitled to a block of land in
Survey No.1416/A1A. On his demise, it devolved on his wife
Pitchammal, who on 28-12-1954 had sold it to one Chinnasamy
Servai under ExtA-2 sale deed. This property sold under Ext.A-2 has
a dimension of 64' East-West x 45' North-South, and is bounded on
the north by a 20 ft. long pathway and on the west by a public road.
Later Chinnasamy Servai settled the western half of the property
covered under Ext. A-2 to one Innasiammal Vide Ext. A.3 settlement
deed dated 10.10.1979. She in turn sold it to the plaintiff under
Ext.A-4 sale deed dated 11.03.1994. The plaintiff is none other than
the son of the above referred to Chinnasamy Servai.
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S.A(MD).No.833 of 2013
● In the meantime, Chinnasamy Servai had also sold the eastern half
covered under Ext. A.2 to one Lourdhumary.
● While so, the defendant's mother Pitchammal had purchased a piece
of property to the south of the property purchased by Chinnasamy
Servai under Ext. B4 and Ext. B5. A well is situated on the far east of
the defendant's property. Chinnasamy Servai had a specific right to
procure water from the aforesaid well.
● To state the physical feature of the property, the plaintiff's portion is
on the north, the defendant's portion is to its south, and in between
the two runs the disputed lane, and to the east of the defendant's
property and the south-east of plaintiff's property is the well, and the
main road is on the west. The disputed lane leads to the main road on
the West and well on the east.
When the defendant attempted to put up a wall in this land, the plaintiff
objected to it and filed the suit seeking both prohibitory injunction as well
as mandatory injunction.
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S.A(MD).No.833 of 2013
3. Refuting the allegations on which the plaintiff rested the cause of action
for the suit, the defendant principally contends that the predecessor in title
of the property had granted Chinnasamy Servai only the right to draw water
from the common well, and that he was not given any right over the Item
No.2 pathway. Even that well ceased to exist for well over 25 years prior to
the filing of the written statement, and hence, the plaintiff's right over the
common lane is extinguished.
4.1. The matter went to trial. Before the trial court, both sides adduced both
oral and documentary evidence. For the plaintiff, he examined himself as
P.W.1, and had also examined one Sebastin as P.W.2 and he produced Ext.
A.1 to Ext. A.12. For the defendant she examined herself as D.W.1 and she
also examined one Lakshmanan as D.W.2. She produced Ext. B1 to Ext. B5.
4.2. On appreciating the evidence, the trial court dismissed the suit,
essentially on the ground that the plaintiff's father Chinnasamy Servai was
granted only the right to draw water from the common well, and inasmuch
as the well ceased to exist, there is no more need for the plaintiff to use Item
No.2 lane.
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S.A(MD).No.833 of 2013
5. Aggrieved by the line of reason of the trial court, the plaintiff preferred
A.S.No.15 of 2013 before the Principal Sub Court, Dindigul. The Sub-Court
re-appraised the evidence before it and found reasons to decree the suit. For
appreciating the line of reasons of the first appellate Court it may be
necessary to introduce two relevant facts:
● The defendant traced her title to the sale obtained by her mother
Palaniammal Vide Ext. B4 and Ext. B5 and to Ext. B6 and Ext. B7
settlement deeds under which Palaniammal had settled the property in
favour of the defendant. The defendant's mother, while describing the
property dealt with thereunder, has indicated that the northern
boundary of the said property is a common pathway.
● About 5 years, prior to the institution of the present suit, the
defendant had laid O.S.No.585 of 2003 against some neighbors,
wherein she had made a categorical assertion about the existence of a
5 feet wide common pathway in Survey No.1416/A1A, matching the
description of item No.2 of the property. That suit filed by the
defendant came to be decreed on 28.04.2005. The copy of the said
judgment is Ext. A11 and the said decree is Ext. A12.
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S.A(MD).No.833 of 2013
The first appellate court relied on admission as to the existence of a
common pathway either in the title document of the defendant, or in her
plaint in O.S.585 of 2003, and used the same against the defendant in the
present suit.
6. This second appeal is admitted for considering the following questions of
law:
i. Whether the Courts below have rendered a perverse finding
that the suit lane is a common lane, relying on the recitals
found in Exs.A.3 and Ext.A.4, while holding that the said
documents have not been proved?
ii. Whether the courts below have committed an error in casting
the burden on the defendants to prove the land to be their
separate lane, when the plaintiff has not adduced sufficient
evidence to prove that the suit lane is a common lane in which
he also has got a right?
7. The learned counsel for the appellant made a valiant effort to convince
this Court that the plaintiff, who is claiming under Chinnasamy Servai
cannot seek any right in excess of that which Chinnasamy Servai had
obtained under Ext. A.2, and inasmuch as well, to procure water from which
the disputed pathway might be necessary, had fell into disuse few decades
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S.A(MD).No.833 of 2013
prior to filing of the suit, the need to use the pathway also ceases. This
apart, he submitted that even the plaintiff has conceded that the defendant
had put up a toilet in the lane sometime in 1988, which implies the suit for
mandatory injunction cannot be sustained. He has also argued that the first
appellate Court has not raised any points, issues as under Order 41 Rule 31
C.P.C.
8. The learned counsel for the respondent would submit that the trial court
had dismissed the suit essentially because it centered its line of reasoning on
the right over the well, and ignored the admission of the defendant
regarding the character of the disputed lane as a common pathway as seen in
Ext. A.11, Ext. A.12 and Ext. B.7. He also added that in between, there
was yet another document executed by the defendant's mother, a deed of
mortgage dated 23.03.2003 in which she again denotes the common
pathway on north in describing the property mortgaged. This document is
now produced Vide C.M.P.(MD)No.1279 2020.
9. After weighing the rival submissions, this Court finds that there is a very
limited merit in the submission of the learned counsel for the appellant that
Chinnasamy Servai had obtained only right to draw water from the common
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S.A(MD).No.833 of 2013
well, and it stops there. To access it from the plaintiff's property a pathway
was necessary. But the point is not about whether the pathway ceases to be
a pathway because the well has fell into disuse, but more about how the
parties understood it. Here, the defendant does not trouble the court. She
had earlier filed O.S.No.585 of 2003, and the judgment of that suit, marked
Ext. A.11, wherein she had asserted about existence of 5 feet wide common
pathway. In the same year in which she laid the suit, she had executed
Ext.B-6, 14-10-2003 as regards one half of her property in which she
describes the northern boundary as the 5 feet wide common pathway, the
Item No.2 of property herein. And, in 2005, she obtained a decree on her
pleadings in O.S.585 of 2003, but curiously enough, some three years later
she would plead that the plaintiff's right over the pathway had extinguished.
The defendant traces her title through her mother, and if Ext. B.4 and Ext.
B.5, under which the defendant's mother had purchased the property from
its erstwhile owner is perused, it shows that the north-south measurement is
given as 18 feet and it enlarges suddenly and without any legitimate basis to
24.5' on west and 26.5' on east. This discloses that the defendant had over
ambitiously stretched her northern boundary well into the common lane.
Though this aspect has not been adequately highlighted in the judgment of
the First Appellate Court, this Court had the advantage of spotting it.
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S.A(MD).No.833 of 2013
10. In conclusion, this Court finds that the approach of the first appellate
court cannot be faulted on any scores as to warrant an interference. All the
questions of law are against the appellant and consequently, dismissed the
Second Appeal as devoid of merits. No costs.
14.06.2022
Index : Yes/No
Internet: Yes/No
CM
To
1.The Principal Subordinate Judge, Dindigul
2.The Principal District Munsif Court, Dindigul.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD).No.833 of 2013
N.SESHASAYEE, J.
CM
S.A(MD).No.833 of 2013
14.06.2022
https://www.mhc.tn.gov.in/judis
