Madras High Court
K.S.Ramaraj vs V.Mahendrapandian (Died) on 24 March, 2022
1 S.A.(MD)No.881 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.03.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.881 of 2010 &
S.A.(MD)No.1061 of 2011
S.A.(MD)No.881 of 2010
1. K.S.Ramaraj
2. S.Gandhi ... Appellants / Appellants /
Defendants
Vs.
1. V.Mahendrapandian (Died) ... Respondent / Respondent /
Plaintiff
2. P.Radhika
3. P.V.Vellaipandian
4. V.Rajamani
(Respondents 2 to 4 were brought on record as
LRs. of the deceased sole respondent vide Order
dated 06.03.2018 made in M.P.(MD)No.1 of 2015)
... Respondents
Prayer: Second appeal filed under Section 100 of
C.P.C., against the judgment and decree in A.S.No.32 of 2009
dated 26.11.2009 on the file of the learned Subordinate Judge,
Theni, confirming the Judgment and Decree passed in O.S.
No.55 of 2006 dated 23.12.2008 on the file of the learned
District Munsif cum Judicial Magistrate, Bodinaickanur.
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1/10
2 S.A.(MD)No.881 OF 2010
For Appellants : Mr.S.Madhavan
For R-3 & R-4 : Mr.A.Arumugam,
for M/s.Ajmal Associates.
For R-2 : No appearance.
***
S.A.(MD)No.1061 of 2011
1. K.S.Ramaraj
2. S.Gandhi ... Appellants / Appellants /
Plaintiffs
Vs.
1. The District Collector,
Collector's Office,
Madurai Road,
Theni, Theni District.
2. The Revenue Divisional Officer,
Uthamapalayam,
Theni District.
3. The Commissioner,
Bodinayakkanur Municipality,
Bodinayakkanur,
Theni District. ... Respondents / Respondents /
Defendants
Prayer: Second appeal filed under Section 100 of
C.P.C., against the judgment and decree in A.S.No.33 of 2009
dated 26.11.2009 on the file of the learned Subordinate Judge,
https://www.mhc.tn.gov.in/judis
Theni, confirming the Judgment and Decree passed in O.S.
No.13 of 2006 dated 23.12.2008 on the file of the learned
District Munsif cum Judicial Magistrate, Bodinaickanur.
For Appellants : Mr.S.Madhavan
For R-1 & R-2 : Mr.N.Muthuvijayan,
Special Government Pleader.
For R-3 : No appearance.
***
COMMON JUDGMENT
Both the second appeals relate to the property
comprised in Survey No.214/3 Bodinayakkanur. S.A.(MD)
No.1061 of 2011 arises out of O.S.No.13 of 2006 on the file of
the District Munsif-cum-Judicial Magistrate, Bodinayakkanur.
S.A.(MD)No.881 of 2010 arises out O.S.No.55 of 2006 on the
file of the District Munsif-cum-Judicial Magistrate,
Bodinayakkanur.
2. O.S.No.13 of 2006 was filed by the appellants for
declaration that the suit second and third schedule properties
belong to them and for permanent injunction that the
defendants should not interfere with their possession and
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enjoyment. The defendants are none other than the District
Collector, Theni, the Revenue Divisional Officer,
Uthamapalayam and the Commissioner, Bodinayakkanur
Panchayat. The defendants filed written statement
controverting the plaint averments. Based on the divergent
pleadings, the trial Court framed the necessary issues. The
first plaintiff examined himself as P.W.1. One Mahalingam was
examined as P.W.2. Ex.A.1 to Ex.A.22 were marked. On the
side of the defendants, two witnesses were examined. Ex.B.1
to Ex.B.5 were marked. After consideration of the evidence on
record, the trial Court by judgment and decree dated
23.12.2008 decreed that the plaintiffs have title over the
second item of the property and granted permanent
injunction. However the suit was dismissed as regards the
third item of the suit property. The third item is comprised in
Survey No.214/3. Aggrieved by the same, the plaintiffs filed
A.S.No.33 of 2009 before the Sub Court, Theni. The first
Appellate Court by the impugned judgment and decree dated
26.11.2009 confirmed the decision of the trial Court and
dismissed the appeal. Challenging the same, S.A.(MD)No.1061
of 2011 was filed.
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3. Though the second appeals were filed way back in
the year 2010, only notice was ordered and they were not
admitted till date.
4. One Mahendra Pandian was having a piece of land
lying to the west of Survey No.214/3. He filed O.S.No.55 of
2006 before the District Munsif-cum-Judicial Magistrate,
Bodinaickanur, for declaration that the suit properties
comprised in Survey No.214/3 is a common pathway and
prayed for permanent injunction restraining the appellants
from interfering with his right up to use the same as a
common path way. The appellants herein who were the
defendants in O.S.No.55 of 2006 filed written statement
asserting that the properties comprised in Survey No.214/3 is
their exclusive path way and not a common path way. Based
on the divergent pleadings, the trial Court framed the
necessary issues. The plaintiff Mahendra Pandian examined
himself as P.W.1 and one Subramani was examined as P.W.2.
Ex.A.1 to Ex.A.12 were marked. The first appellant examined
himself as D.W.1. One Seeninaicker was examined as D.W.2.
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Ex.B.1 to Ex.B.9 were marked. After consideration of the
evidence on record, by judgment and decree dated
23.12.2008, the trial Court decreed the suit in O.S.No.55 of
2006 as prayed for. Aggrieved by the same, the appellants
herein filed A.S.No.32 of 2009 before the Subordinate Judge,
Theni. By the impugned judgment and decree dated
26.11.2009, the first Appellate Court confirmed the decision of
the trial Court and dismissed the appeal. Challenging the
same, S.A.(MD)No.881 of 2010 came to be filed.
5. During the pendency of the appeal, the sole
respondent herein / plaintiff passed away and his wife and
children came on record.
6. Since both the appeals pertain to the very same
property, they were heard together. The learned counsel
appearing for the appellants reiterated all the contentions set
out in the memoranda of grounds and called upon this Court
to frame substantial questions of law and admit the appeals
and taken them up for disposal later.
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7. Per contra the learned counsel appearing for the
respondents in S.A.(MD)No.881 of 2010 and the learned
Special Government Pleader appearing for the respondents in
S.A.(MD)No.1061 of 2011 submitted that no substantial
question of law arises for consideration and prayed for
dismissal of the second appeal.
8. I carefully considered the rival contentions and
went through the evidence on record.
9. The appellants herein are the purchasers under the
sale deed dated 24.03.1972. It is true that under Ex.A.10, the
appellants herein had purchased the property comprised in
Survey No.214/3 from their vendor. On this, there is no
dispute. Survey No.214/3 has been described in the sale deed
marked under Ex.A.10 in O.S.No.13 of 2006 only as a
pathway. Mahendra Pandian had purchased the land belonged
to the west of Survey No.214/3 under the sale deed dated
30.01.1995 (Ex.A.2). The eastern boundary of the property
purchased by Mahendra Pandian has been described as a
north-south road.
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10. It is now stated by the learned Special
Government Pleader that apart from Mahendra Pandian, two
other persons have purchased the properties to the west of
Survey No.214/3. It is true that Survey No.214/3 was
classified as a public road only from the year 1995. I would
sustain the contention of the learned counsel appearing for
the appellants that the jurisdiction of the civil Court to go into
the issue of title cannot be taken away by any classification
made in the revenue records. But the fact remains that Survey
No.214/3 was a path way. The only question is whether it can
be treated as a common pathway or pathway exclusive to some
private individuals. The plaintiff in O.S.No.55 of 2006 has the
property abutting the pathway. He therefore has every right to
access the same at any point.
11. The Courts below rightly decreed O.S.No.55 of
2006. No substantial question of law arises for consideration.
S.A.(MD)No.881 of 2010 is dismissed. No costs.
https://www.mhc.tn.gov.in/judis
12. Coming to S.A.(MD)No.1061 of 2011, though I
find the contention of the learned counsel appearing for the
appellants to be quite persuasive, since for a very long time,
the property in question has been used only as a pathway and
also it was also classified as a public pathway in the revenue
record, both the Courts below have concurrently found against
the appellants. I do not find fit and appropriate to interfere
with the said concurrent finding. No substantial question of
law arises for the consideration. S.A.(MD)No.1061 of 2011 is
dismissed. No costs.
24.03.2022
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The Subordinate Judge,
Theni.
2. The District Munsif cum Judicial Magistrate,
Bodinaickanur.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.881 of 2010 &
S.A.(MD)No.1061 of 2011
24.03.2022
https://www.mhc.tn.gov.in/judis
