Madras High Court
K.Ariyasamy (Died) vs M.Lakshmi ... 1St on 31 March, 2022
S.A.(MD)No.732 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.732 of 2010
1.K.Ariyasamy (died)
2.K.Alagarsamy
3.K.Perumal
4.K.Velayutham ... Plaintiffs / Respondents 1 to 4 / Appellants
5.Vijayalakshmi
6.Sukumari
7.Pandiammal
8.Parameshwari
(Appellants 5 to 8 are suo motu impleaded as Lrs of the
deceased 1st appellant vide order dated 04.03.2022)
-Vs-
1.M.Lakshmi ... 1st Defendant / Appellant / 1st Respondent
2.M.Mohankumar ... 2nd Defendant / 5th Respondent / 2nd Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree of the District Court, Sivagangai in
A.S.No.1 of 2009, dated 30.10.2009 reversing the judgment and decree of
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S.A.(MD)No.732 of 2010
the Principal District Munsif Court, Sivagnagi in O.S.No.60 of 2001 dated
20.03.2002.
For Appellants : Mr.S.Natarajan
For R1 & R2 : Mr.V.Janakiramulu
JUDGMENT
The plaintiffs in O.S.No.60 of 2001 on the file of the Principal
District Munsif Court, Sivagangai are the appellants in this second appeal.
2. The suit was for the relief of declaration that the suit property
described as A B C D in the rough plan belongs in common to the plaintiffs
and the defendants and for permanent injunction restraining the defendants
from putting up any construction thereon. The first defendant is the mother
of the second defendant. The defendants filed written statement
controverting the plaint averments. Based on the rival pleadings, the trial
court framed two issues. The first plaintiff examined himself as P.W.1. One
Murugesan was examined as P.W.2. Ex.A1 to Ex.A5 were marked. The
first defendant Lakshmi examined herself as D.W.1. Two other witnesses
were examined on her side. The municipal surveyor was examined as D.W.
3. Ex.B1 to Ex.B12 were marked. An Advocate Commissioner was
appointed and his report and plan were marked as Ex.C1 & C2. The
photographs in respect of the suit property were marked as Ex.C3 to Ex.C6.
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S.A.(MD)No.732 of 2010
After considering the evidence on record, by judgment and decree dated
20.03.2002, the trial court decreed the suit as prayed for. Aggrieved by the
same, the first defendant filed A.S.No.1 of 2009 before the District Court,
Sivagangai. The first appellate court by the impugned judgment and decree
dated 30.10.2009 reversed the decision of the trial court and allowed the
appeal and dismissed the suit. Challenging the same, this second appeal
came to be filed. The second appeal was admitted on 24.08.2010 on the
following substantial questions of law:-
“1.Whether the lower appellate court's judgment is erroneous as it did not
frame the points for determination as contemplated under Order 41 Rule 31 of
C.P.C., when the appellate court thought it fit to reverse the trial court judgment?
And
2. Whether the judgment of the lower appellate court reversing the
judgment and decree of the trial court suffers from error and misconception of
the reliefs sought for in the plaint?”
3. The learned counsel appearing for the appellants reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to answer the substantial questions of law in favour of the appellants
and set aside the impugned judgment and decree and restore the decision of
the trial court.
4.Per contra, the learned counsel appearing for the respondents
submitted that the impugned judgment and decree do not call for any
interference.
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S.A.(MD)No.732 of 2010
5. I carefully considered the rival contentions and went through the
evidence on record.
6. The dispute regarding the suit property is whether it is a lane
common to the plaintiffs and the defendants or whether it is the exclusive
property of the defendants. In support of their contention that the suit
property is a common lane, the plaintiffs relied on Ex.A2 dated 21.08.1953.
Ex.A2 is the sale deed executed by one Visalakshi in favour of Krishnan
Chettiar. Krishnnan Chettiar is none other than the father of the plaintiffs.
In the said document, the property sold under Ex.A2 has been described as
lying to the west of Ramasamy's property and lane. The very same
description is found in the other documents such as Ex.A3 dated
24.08.1943, Ex.A4 dated 24.08.1943 & Ex.A5 dated 09.10.1968.
7. The learned counsel appearing for the appellants laid considerable
stress on this description found in the parent document. He also pointed out
that the courts below have concurrently rendered a finding that the use of
the eastern boundary of the plaintiff's property is as a lane. It is fortified by
the fact that the plaintiffs have opened as many as three windows on the
eastern wall which are projecting towards the suit property. There is also a
drainage pipe opening into the suit property. The trial court was swayed by
this considerations and decreed the suit.
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S.A.(MD)No.732 of 2010
8. Now the question is whether reversal of the trial court's decision by
the first appellate court is justified. The first appellate court though had not
framed the precise points for determination, still it did come to grips with
the evidence on record and chose to render the impugned judgment.
Therefore, on the technical ground that Order 41 Rule 31 of C.P.C., has not
been complied with, I am not inclined to interfere with the impugned
judgment of the first appellate court. The first substantial question of law
is answered against the appellant.
9. Now let me go into the merits of the matter. It is true that the
eastern boundary of the plaintiff's property has been consistently described
as a lane. But neither the defendants nor their predecessor-in-title are
parties to the said documents. Therefore, the description found in plaintiff's
title documents cannot by itself bind the defendants. It cannot be
conclusive of the character of the suit property.
10. Coming to the evidence adduced by the defendants, it is seen that
the defendants claim title under Ex.B7 dated 18.08.1938 sale deed
executed by Shanmugam in favour of Silambayee, wife of Ramasamy
Servai. She is the mother-in-law of the first defendant and grandmother of
the second defendant.
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S.A.(MD)No.732 of 2010
11. I went through the description of the property given in Ex.B7.
The property purchased under Ex.B7 lies to the south of the street and to
the north of the vacant site of Subbiah Kothanar and to the east of Velu
Servai's house and to the west of the thatched house belonging to the
Silambayee herself. Therefore, Ex.B7 cannot be a title document in respect
of the suit property. However, Ex.B7 can be relied upon for the purpose of
coming to the conclusion that even though the property that lay to the west
of the property purchased under Ex.B7 also belonged to Silambayee, the
property purchased under Ex.B7 measures 40 feet east-west on the northern
side.
12. I went through the plan submitted by the Advocate
Commissioner. The suit property is 'A B C D'. A to K measures only 38.3
feet. Therefore, the property presently under the enjoyment of the
defendants appears to be a little less than what was purchased by them
under Ex.B7.
13. The learned counsel appearing for the respondents laid
considerable emphasis on Ex.B10 and Ex.B12. Ex.B10 is the surveyor's
sketch. Ex.B12 is the adangal. Both were marked through D.W.1. The
municipal surveyor was examined as D.W.3. D.W.3 spoke about the
contents of Ex.B10 as well as Ex.B12. There is no dispute that the suit
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S.A.(MD)No.732 of 2010
property is comprised only in Survey No.19/1. As per the revenue records,
survey No.19/1 is standing only in the name of Silambayee. That is why,
the first appellate court rendered a finding that though the plaintiffs have
also been using the suit property as a lane, they still cannot be granted the
relief of declaration because there is nothing on record to show that they
were using it as a matter of right. At the same time, it is evident that the
windows installed on the eastern wall of the plaintiff's property has been
opening only towards the suit property. The courts below have also set out
few other features indicating the use of the property as a lane. It is
undertaken by the respondents that these features shall not be disturbed.
Likewise, the plaintiffs can use the suit property for the purpose of carrying
out the repair works on their eastern wall. The second substantial question
of law is also answered against the appellant.
14. Recording the undertaking given by the defendants before this
Court, the impugned judgment and decree is sustained. The second appeal
is dismissed. No cost.
31.03.2022
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.732 of 2010
G.R.SWAMINATHAN.J.,
rmi
To
1.The District Court, Sivagangai.
2.The Principal District Munsif Court, Sivagnagi.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.732 of 2010
31.03.2022
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