Madras High Court
Saradambal vs Krishnamurthy on 10 August, 2023
S.A No.507 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.08. 2023
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
S.A No.507 of 2013
1.Saradambal
2.N.Venkatesan
3.Vijayalakshmi
4.Nirmala(died)
5.S.Sekar
6.S.Baskar
7.S.Praveen Kumar
(Appellants 5 to 7 brought as legal heirs of deceased 4th appellant vide order
dated 28.06.2019 made in CMPs No. 12200 to 12202 of 2019 in S.A No.
507 of 2013)
... Appellants
Vs.
1.Krishnamurthy
2. Santha
3.Prema
4.Sagunthala
5.Indira
6.Mahalakshmi
...Respondents
PRAYER: This Second appeal filed under Section 100 of the Code of Civil
Procedure to set aside the judgment and decree dated 24.09.2012 made in
1
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S.A No.507 of 2013
A.S No. 16 of 2011 on the file of the Sub Judge, Vellore, confirming the
judgment and decree dated 27.10.2010 made in O.S No. 765 of 1985, on the
file of the Principal Munsiff, Vellore and dismiss the said suit in O.S No.
765 of 1985, on the file of the Principal Munsiff, Vellore, with exemplary
costs.
For Appellants : Mr.P.Elayaraj Kumar
For Respondents : Mr.V.Raghavachari
JUDGMENT
This second appeal has been filed to to set aside the judgment
and decree dated 24.09.2012 made in A.S No. 16 of 2011 on the file of the
Sub Judge, Vellore.
2. The appellants 1 to 4 herein are the original plaintiffs in Suit
O.S No. 765 of 1985, on the file of the District Munsif Court, Vellore, since
fourth appellants died his legal heirs were impleaded as appellants 5 to 7.
3. For the sake of convenience, the parties denoted as per the
suit O.S No. 765 of 1985. Originally the suit was filed by the plaintiffs for
the relief of declaration and permanent injunction pertaining to the suit
property more particularly 84 square feet suit lane. The suit lane originally
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S.A No.507 of 2013
belongs to the plaintiffs in which the defendants caused interference. Hence
the suit.
4. The defendants denied the plaintiffs' claim stating that their
predecessor in title enjoyed the suit lane annexed with property, after the
purchase from their predecessor they enjoyed the suit lane from the year
1968 onwards. After the purchase they enjoyed the same till date as their
property and also perfected title by way of adverse possession. Hence he
prays to dismiss the suit.
5. The Trial Court appointed the Advocate Commissioner, and
his report was filed. Thereafter considering the oral and documentary
evidence the Trial Court held that suit property is not under the enjoyment
of the plaintiff and also as per the Advocate Commissioner's report the suit
property is Municipality lane with survey No. T.S No. 661. Accordingly
dismissed the suit.
6. Aggrieved over the same, the plaintiffs' preferred an appeal
before the Sub Court, Vellore, which independently analysed the facts and
evidence concluded that suit lane is forming part fo the Municipality lane in
T.S No. 661 and it is not under the separate possession of the plaintiffs nor
specifically belongs to the defendants and dismissed the appeal.
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S.A No.507 of 2013
Challenging the said findings the plaintiffs' preferred this second appeal.
7. The learned Counsel for the appellant submitted that both the
Court below failed to take note of the fact that as per Ex.A3 as well as
Ex.C3 clearly shows that the suit scheduled property is coomprised in T.S
No. 677 but the the court below erroneously dismissed the suit by stating
that suit property is Municipality lane as such is erroneous and liable to be
set aside. Further he stated that the Court below failed to take note of the
fact that the the plaintiff the left the suit property as vacant land for the
purpose of enjoying free light and air and that beyond the said property the
defendants property is situated which is bounded by the constructed wall.
The plaintiff had further pleaded and proved that the defendants trying to
encroach upon the suit property and put up constructionover the same and
therefore the findings of the Court that plaintiff did not establish the short
fall in the extent of land is not acceptable and liabel to be set aside. Hence
the Court below without considering the oral and documentary evidence
dismissed the suit as such is unfair and liable to be set aside and prays to
allow this second appeal.
8. This court admitted the second appeal with the following
substantial questions of law:
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S.A No.507 of 2013
1. Whether the Courts below were right in rejecting the plea of
declaration of title when the defendants had themselves pleaded
adverse possession thereby admitting the title of the plaintiff in the
suit?
2. Whether the courts below were right in placing reliance on oral
evidence contrary to the contents of the documents. When the
documentary evidence clearly establishes the title, can the courts
below merely refer to the oral evidence and negate the proving of fact
by document as primary evidence?
3. Can the report of the Advocate Commissioner referring to the title to
the property be relied by the court when the said Advocate
Commissioner was appointed only for the purpose of noting down the
physical features of the suit schedule property?
9. Heard the submissions of the learned counsel for the
appellants and the learned counsel for the respondents.
10. Admittedly, the relationship between the parties and title of
the property is not disputed the only dispute is with regard to the enjoyment
of the suit lane as described in the schedule(i.e. 84 feet lane ). According to
the plaintiff, they claimed suit lane is belongs to them, which is forming
part of the T.S No. 677, 655-1B and they enjoyed the same from the date of
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S.A No.507 of 2013
their purchase from their vendor from the year 1966. Thereafter, they made
some alterations and improvements in the suit property and left suit propery
vacant for the enjoyment to enable air light to be free and the rain water as
well as drainage water from the house to be drained out through
Municipality lane in T.S No. 611. The first defendant is plaintiff's brother's
wife purchased the property on the Eastern side of the suit property in T.S
No. 657 in the year 1968, as plaintiff and defendant's husband doing their
family trade and also buying and selling the Cows they together used the
suit propety. Therefter, they got separated from the business and the suit
property was exclusively enjoyed by the plaintiffs along with his patta land.
But the defendants admitted to put up construction hence the suit was filed.
11. But the defendants totally denied the plaintiff's contention
stated that for more than 50 years the suit property has become the part and
parcel of her property which was purchased by the defendants in the year
1968 and plaintiff also having separate lane to acess their property from the
main road and also they are not used the suit property which was
exclusively under the possession of the defendant thereby they claiming
right over the suit lane by way of adverse possession. The Advocate
commissioner was appointed by the Trial Court and he filed his report.
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S.A No.507 of 2013
Further, sale deed belongs to the plaintiffs and the defendants were
adduced. Here the dispute is with regard to suit lane which is the subject
issue, the parties bound to prove their exclusive possession over the suit
lane but as per the Advocate Commissioner report suit lane is forming part
of T.S No. 661 which is Municipality lane and was encroached by both
parties. Furthermore, the said S.F No. 661 was mentioned as Poramboke
land and diputed lane is continuation of the municipality lane and as per the
Advocate commissioner's report there is a encroachment by both the
plaintiff and defendant from North to South lane by putting up construction
even defendants also encroached in S.F No. 661 by putting up road and
same was mentioned in the commissioner plan in the commissioner report.
Though the plaintiff claiming that said property left out out by him to enable
air, light to be free and the rain water as well as drainage water from the
house to be drained out through the municipal lane but report of the
commissioner reveals that suit property is forming part of T.S No. 661
/Municipality lane. On the other side, the plaintiffs failed to prove the suit
property is forming part inT.S No. 677 and 665/1B. The said suit lane also
extended beyond plaintiff's and the respondents property and connected
with muicipal lane, it is true that plaintiff is having accesses from the main
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S.A No.507 of 2013
road. Therefore, neither the plaintiff nor the defendants entitle to the suit
lane absolutely, and it is not a exclusive property of both parities and also
the defendant's plea claiming by way of adverse possession is rightly
negatived by the Courts below. So also plea of exclusive title claimed by the
plaintiff as such also rightly declined by the Courts below. But the learned
counsel for the appellants argued that even in the Advocate commissioner's
report defendants encroached small portion of suit lane, but he is also not
entitle to put up construction in the suit municipality lane therefore the
findings of the Court below needs no interference and which is forming part
of the municipality lane. As discussed above, plaintiffs and the respondents
are not entitled to claim exclusive possession or right over the suit lane
since because it is municipality lane. Accordingly first question of law is
answered.
12. It is true that Advocate commissioner's report is not a
document to prove the title of the property but with regard to physical
feature his report clearly reveals that suit lane is forming part of the T.S No.
661 which classified as Municipality lane to that extent it can be taken
into consideration same was rightly relied by the Courts below.
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S.A No.507 of 2013
Accordingly question of law 2 and 3 are answered.
13. Hence, second appeal is dismissed as devoid of merits. No
cost. Consequentially connected miscellaneous petition is closed.
10.08.2023
pbl
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S.A No.507 of 2013
T.V.THAMILSELVI,J.
Pbl
To
1. The District Court, Perambalur.
2. The Subordinate Judge, Ariyalur.
3. The Section Officer,
V. R Section.
SA.No.507 of 2013
& M.P No.1 of 2013
10.08.2023
https://www.mhc.tn.gov.in/judis
