Madras High Court
Munusamy vs V.Govindaraj (Died) on 8 March, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.03.2022
CORAM:
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
SA.No.666 of 2013
and MP No.1 of 2012
1. Munusamy
2. Gangammal
3. Mani
4. UlaganathanAppellants
....Defendants / Respondents/Appellants
Vs.
1. V.Govindaraj (died)
2. Mohankumar
3. Minor Srinivasan
4. Padma
5. G.Jeevitha
(R4 and 5 brought into record as legal representatives
of the deceased R1 viz V. Govindaraj vide Court order
dated 18.02.2022 made in CMP Nos.19215 and 19218 of
2021 in SA No.666 of 2013 by NAVJ)
.. Plaintiffs/Appellants / Respondents
Prayer: Second Appeal filed under section 100 of the Code of Civil
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2
Procedure to set aside the Judgement and decree in A.S.No.28 of 2012
on the file of the Subordinate Court, Vellore dated 05.03.2013 in
reversing the judgement and decree in C.S.No.584 of 2009 on the file
of the District Munsif Court, Katpadi (OS.No.243 of 2005) on the file of
the District Munsif Court, Vellore) dated 08.08.2011.
For Appellants : Mr. V.Raghavachari
For Respondents : Mrs.R.T.Sundari
JUDGMENT
The defendants are the appellants in this second appeal.
The respondents / plaintiffs filed a suit seeking for the relief of
permanent injunction restraining the defendants from claiming any right
of channel over the A schedule property and claiming any pathway right
over the A schedule property.
2. The case of the plaintiffs is that the 1st plaintiff, 1st
defendant and one Chinnapaiyan @ Chinappan are brothers. The 2nd
defendant is the wife of the 1st defendant and defendants 3 and 4 are
the sons of the 1st defendant. The 2nd and 3rd plaintiffs are the sons of
the 1st plaintiff.
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3. It is stated that the plaintiff, 1st defendant and the said
Chinappan constituted a joint family and they effected a division in the
family properties through a registered partition deed dated 11.12.1992,
marked as Ex.A1. By virtue of this partition deed, the 1st defendant was
alloted E schedule property, Chinappan was alloted items 3 to 5 in the A
Schedule property and the 1st plaintiff was alloted items 1 and 2 in the
A schedule property. The 2nd and 3rd plaintiffs subsequently purchased
the property of Chinappan which are items 3 to 5 in the A schedule
property under the partition deed. The sale took place through a
registered sale deed dated 18.11.2004, marked as Ex.A2.
4. The grievance of the plaintiffs is that the defendants
attempted to tress pass into the suit property by claiming a right over
the channel and the pathway that fell in the share of the plaintiffs.
Hence, the relief of permanent injunction was sought for against the
defendants.
5. The 1st defendant filed a written statement. He took a
stand that the well that was situated in Survey No.820/5 measuring an
extent of 0.09 cents out of the 21 cents was the source of irrigation for
all the properties. Hence, even at the time of entering into partition, the
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rights in the channel, pump set and the well were kept in common.
According to the defendant, prior to the partition all the brothers had
access to their lands only through their lands which leads to the
common well and this continues even after the brothers entered into a
partition deed. Therefore, the defendant took a categoric stand that the
plaintiffs cannot prevent the defendant from exercising their
easementary right and they cannot be injuncted from using the
channel and the pathway in the A schedule property.
6. The Trial Court on considering the facts and circumstances
of the case and after appreciating the oral and documentary evidence,
came to a conclusion that the plaintiffs have not made out a case and
dismissed the suit through a judgment and decree dated 08.08.2011.
Aggrieved by the same, the plaintiffs filed an appeal before the Sub
Court, Vellore in A.S.No.28 of 2012. The Lower Appellate Court on re-
appreciation of evidence available on record and after considering the
findings of the Trial Court, came to a conclusion that the plaintiffs are
entitled for the relief sought for and allowed the appeal through a
judgment and decree dated 05.03.2013 and thereby, the judgement
and decree of the trial Court was set aside. Aggrieved by the same, the
defendants have filed the present second appeal before this Court.
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7. Heard the learned counsel appearing on either side and
this Court has carefully perused the materials available on record and
the findings of both the Courts below.
8. The Lower Appellate Court took into consideration two
main factors while reversing the judgment and decree of the Trial
Court. The first main factor that was considered was the specific
clauses that were available in the partition deed marked as Ex.A1. The
2nd important factor that was considered by the Lower Appellate Court
was that the Trial Court had virtually granted a relief to the defendants
even without there being any counter claim. On these two issues, the
judgment and decree of the Trial Court was interfered by the Lower
Appellate Court.
9. The specific case of the plaintiffs is that the parties are
governed by the terms of the partition deed marked as Ex.A1 and in the
partition deed it is specifically provided as follows:-
,d;W Kjy; mtuth; nrl;a[y; nrhj;Jf;fspy; mtuth;
ifg;gw;wpf;nfhz;L rh;t Rfe;jpukha; jq;fspy; tpUg;gk;
Nghy; Mz;L mDgtpj;Jf; nfhs;st[k; ,d;W Kjy;
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xUth; ghf nrhj;jpy; kw;wtUf;F vt;tpj ghj;jpwKk;
gpd; njhlh;r;rpak; fpilahJ.
According to the plaintiffs, the defendants in defiance to
the specific clause found in the partition deed, were attempting
to enter upon the property belonging to the plaintiffs by claiming
a right. The Lower Appellate Court therefore found that
defendants cannot claim any right over the property that fell
within the shares of the plaintiffs.
10. The Lower Appellate Court also took into
consideration the main issue that was framed by the Trial Court
and which is extracted hereunder :-
“ Whether the defendants are having access to the
“B” and “C” Schedule properties from the 'E'
Schedule properties through the “A” Schedule
Property?”
11. The Trial Court virtually dealt with this issue as if it is
considering the case of the defendants in a counter claim and
gave a finding to the following effect:-
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“Therefore this Court holds that the defendants
are having access to the 'B' and 'C' schedule
properties from the 'E' Schedule properties
through the 'A' Schedule properties. Thus the 1st
issue is answered.”
12. The Lower Appellate Court took the above finding
into consideration and found that the Trial Court had virtually
granted a relief to the defendants without there being any
counter claim.
13. In the considered view of this Court, the Lower
Appellate Court had assigned sufficient reasons to interfere with
the findings of the Trial Court and this Court does not find any
perversity on the reasoning given by the Lower Appellate Court.
Those findings are based on the materials available on record. If
the defendants wanted to establish their right of easement over
the A schedule property in the suit, they should have
independently filed a suit or a counter claim and established
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their right. The defendants cannot be permitted to get a relief in
a suit that was filed by the plaintiffs. The findings of the Trial
Court in this regard is totally unsustainable and the Lower
Appellate Court was perfectly right in interfering with the same.
In any event, this Court does not find any substantial question of
law involved in this Second appeal.
14. In the result, this Second appeal is dismissed. If the
defendants are claiming any independent easement right over
the suit property, they have to work out their remedy only in the
manner known to law and not in the suit that was filed by the
respondents. Considering the facts and circumstances of the
case, there shall be no order as to costs. Consequently, the
connected miscellaneous petition is closed.
08.03.2022
Speaking Order
Index : Yes / No
Internet : Yes / No
rka
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N.ANAND VENKATESH.,J
rka
To
1. The Subordinate Court, Vellore
2. The District Munsif Court, Katpadi
3. The District Munsif Court, Vellore
Copy To:-
The Section Officer
VR Section, High Court
Madras.
SA.No.666 of 2013
08.03.2022
https://www.mhc.tn.gov.in/judis
