Madras High Court
Nagavalli (Died) vs Mari on 7 March, 2022
S.A.(MD)No.13 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.13 of 2010
1.Nagavalli (died) ... Appellant / Appellant / Plaintiff
2.M.Kannan
3.K.Kayalvizhi
4.K.Dharmadurai ... Appellants
(Appellants 2 to 4 are brought on record as Lrs of the
deceased sole appellant as per order dated 05.12.2018
in C.M.P.(MD)Nos.5402 to 5404 of 2018)
-Vs-
Mari ... Respondent / Respondent / Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 12.01.2009 passed by the
Subordinate Judge, Paramakudi in A.S.No.3 of 2008 in confirming the
judgment and decree of the District Munsif Court, Paramakudi in O.S.No.
31 of 2006, dated 14.11.2007.
For Appellants : Mr.S.Ramesh
For Respondent : Mr.A.Sivaji
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S.A.(MD)No.13 of 2010
JUDGMENT
The unsuccessful plaintiff in O.S.No.31 of 2006 on the file of the
District Munsif Court, Paramakudi is the appellant in this second appeal.
2. The suit was filed for the relief of declaration that the suit property
is a pathway common to the plaintiff and the defendant and for permanent
injunction restraining the defendant from preventing the plaintiff from
using the same as a common pathway. The defendants filed written
statement controverting the plaint averments. Based on the divergent
pleadings, the trial court framed the necessary issues. The plaintiff
examined herself as P.W.1. Balasubramaniam was examined as P.W.2.
Ex.A1 to Ex.A7 were marked. The defendant Mari examined himself as
D.W.1. Ex.B1 to Ex.B7 were marked. An Advocate Commissioner was
appointed and his report and plan were marked as Court exhibits 1 & 2.
After consideration of the evidence on record, the trial court dismissed the
suit by judgment and decree dated 14.11.2007. Aggrieved by the same, the
plaintiff filed A.S.No.3 of 2008 before the Sub Court, Paramakudi. By the
impugned judgment and decree dated 12.01.2009, the first appellate court
confirmed the decision of the trial court and dismissed the appeal.
Challenging the same, this second appeal came to be filed. Though the
second appeal was filed way back in the year 2010, it has not been admitted
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S.A.(MD)No.13 of 2010
till date. In the mean while, the plaintiff / appellant also passed away and
her husband and children have been brought on record.
3. The learned counsel appearing for the appellant reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to admit this second appeal after framing the substantial question of
law and take it up 'for disposal' later.
4. Per contra, the learned counsel appearing for the respondent
submitted that the no substantial question of law arises for consideration.
5. I carefully considered the rival contentions and went through the
evidence on record.
6. The plaintiff purchased a property under Ex.A4 dated 08.02.2006.
It was executed in her favour by none other than her husband Kannan.
Kannan in turn was granted power of attorney by Rathinam Vagaiyara under
Ex.A3 dated 26.03.1997. The principals of Kannan were the legal heirs of
one Chandran Chettiar. Chandran Chettiar had purchased the property that
was eventually sold to the plaintiff from one Vellaisamy Chettiar under
Ex.A2 dated 26.11.1956. The only question that arises for consideration is
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S.A.(MD)No.13 of 2010
whether the western boundary of the plaintiff's property is a common lane.
In support of her claim, the plaintiff relied on the description set out in
Ex.A2. The schedule of property set out in Ex.A2 is as under:-
“,uhkehjGuk; khtl;lk; gukf;Fb rg;b jhYfh jh;kh]dk;
cwg;Gypy; fpoNkNyhba tPjpf;Fk; (tlf;F) eh.NrJ nrl;bahh;>
uh.rPdp nrl;bahh; ,th;fs; tPl;Lf;Fk; nghJre;Jf;Fk; (fpof;F)>
jh.rpjk;guk; nrl;bahh; M.nr.nry;yQ;nrl;bahh; ,th;fs; fhyp
nfhy;iyf;Fk; (njw;F) m.nry;yQ;nrl;bahh; tPl;Lf;Fk; (Nkw;F)
khd Nky;Guk; fPo;Guk; thhpAs;gl fPoNky; 341/2 (Kg;gJehyiw)
njd;tly; 75 (vOgj;ije;J) msTs;s kidepyKk; mjpy;
njw;Fg;ghh;j;j jiythry; itj;J rhbapUf;Fk; xl;lLf;F
kidtPL Kj;jk; elg;geilghij njU jpz;iz
nfhy;iykidepyk; xypy; jk;Kila ghfKk; vq;fspy; 1tJ
eghpd; jkadhh; gpr;ir nrl;bahh; ghfKk; nghJtpy; 3y; 2 ePf;fp
kPjk; vq;fs; ghfk; nghJtpy; 3y; xd;W jkf;F fpiuak;.”
7. It is true that the property sold under Ex.A2 is described as lying to
the east of the house of Sethu Chettiar and Seeni Chettiar and common lane.
I wanted to know if the defendant traced his title eventually through
Vellaisamy Chettiar. The answer is clear in the negative. Therefore, the
description found in Ex.A2 executed by Vellaisamy Chettiar will not bind
the defendant. Of-course, it is relevant under Section 6 of the Indian
Evidence Act. But here, the issue is more on the binding nature of the
description than on relevance.
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S.A.(MD)No.13 of 2010
8. The learned counsel appearing for the respondent clarifies that the
property that lay to the immediate west of Vellaisamy Chettiar's property
belonged in common to one Ponnathal and Seeni Chettiar. They had
divided the properties between themselves. Since the property allotted on
the northern side required access, the common lane was earmarked for that
purpose. But the lane was common only to Ponnathal and Seeni Chettiar.
Merely because, a lane lay to the west of the property, that would not
automatically mean that it is a common lane to the persons on either side of
it. In this case, the lane was meant to be common only to those who owned
the property on the western side of the common lane. The persons who
owned the property on the eastern side had no claim whatsoever on the
common lane.
9. The defendant had successfully established by adducing
documentary evidence that the suit lane would also fall within his title
document. That is why, the courts below concurrently found against the
plaintiff. The findings of the courts below are well founded and nothing
has been brought out to dislodge the said finding as perverse. I do not find
any substantial question of law arising for consideration.
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S.A.(MD)No.13 of 2010
G.R.SWAMINATHAN.J.,
rmi
10. The second appeal is dismissed. No cost.
07.03.2022
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Subordinate Judge, Paramakudi.
2.The District Munsif Court, Paramakudi.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court, Madurai.
Judgment made in
S.A.(MD)No.13 of 2010
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S.A.(MD)No.13 of 2010
07.03.2022
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