K.Arumugham vs P.Selvi
2023 Latest Caselaw 11236 Mad

                                                                              S.A.No.590 of 2013


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 Dated : 25.08.2023

                                                          CORAM
                              THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
                                                      S.A.No.590 of 2013
                                                       M.P.No.1 of 2013

                    1. K.Arumugham
                    2. A.Anbzhagan
                    3. Kunju @ Madheswaran
                    4. S.Chinnusamy                                            ....Appellants

                                                             Vs.


                    P.Selvi                                                   ... Respondent

                    PRAYER: Second Appeal filed under Section 100 of C.P.C., against the

                    Judgment and decree dated 21.07.2012 made in A.S.No.51 of 2010 on the

                    file of Sub-Court, Rasipuram, confirming the Judgment and decree dated

                    29.07.2010 made in O.S.No.161 of 2008 on the file of the District Munsif

                    Court, Rasipuram.



                                     For Appellants     : M/s.Zeenath Begum

                                     For Respondent     : Mr.N.Suresh




                    1/15

https://www.mhc.tn.gov.in/judis
                                                                                    S.A.No.590 of 2013


                                                        JUDGMENT

The above second appeal arises against the Judgement and decree in

A.S.No.51 of 2010 on the file of the Sub Court, Rasipuram, confirming the

judgment and decree in O.S.No.161 of 2008 on the file of the District

Munsif Court, Rasipuram.

2. The defendants are the appellants herein and the plaintiff is the

respondent herein.

3. The plaintiff filed the suit in O.S.No.161 of 2008 for permanent

injunction.

4. The brief case of the plaintiff is as follows:-

According to the plaintiff, she has purchased the suit property in

S.No.133/2 from her vendor Palanivel on 15.07.2002 and patta also was

issued to the plaintiff. From that on wards, she was absolute owner of the

suit property. The defendants 1 to 3 are fathers and sons and 4th defendant

is a close relative of the defendants 1 to 3. There was some dispute arose

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between the parties with regard to cart track exist on the eastern side of the

suit property. Further, the defendants land is situated on the southern side of

the plaintiff's land and the cart track for the defendants is available from

road to the land and there is no necessity for the defendants to enjoy any

pathway or cart track in the suit property. The defendants have purchased

property on the southern side of the plaintiff's land on 12.04.2008 and the

said sale deed clearly mentioned that there is no pathway or cart track

existing on the eastern side of the suit property. The plaintiff is the women,

so, the defendants, using their money and muscle power, attempting to lay

pathway in the suit property. On 08.09.2008 the defendants entered into the

suit property and damaged the plants which was laid by the plaintiff.at that

time, the plaintiff with the help of neighbours prevented the defendants.

However, the defendants while leaving the property stated that they will lay

cart track in the suit property. Hence, the suit.

5. The brief case of the defendants are as follows:-

According to the defendants, the plaintiff and the defendants have

purchased the property from common owner and the defendants claimed

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that there is a cart track existing on the eastern side of the plaintiff's land

and that is the access to the defendants land and Well called Andikkinaru,

except that way there is no other way to the defendants to reach the well and

operate oil engine motor pumpset for irrigating the water to this defendants

land. The above said cart track leads from North to South and end with the

defendants Well. The above said cart track was used by the vendor's

predeceased forefather for a period of more than 100 years ago and the same

also mentioned in the ancient title deeds but the plaintiff has suppressed the

entire facts and filed the suit. If there is no such cart track exist on the

eastern side of the plaintiff's land, she should have filed the commission

petition but she failed. At the instigation of her husband, the plaintiff filed

the suit. So,there is a cart track exist on the eastern side of the plaintiff's

land and the defendants are entitled to use the same for ingress and egress to

their land and Well.Hence, the defendants have no objection to decree the

suit except the above such cart track on the eastern side of the plaintiff's

land in S.No.133/2.

6. Before the trial Court, on the side of the plaintiffs, two witnesses

PW1 and PW2 were examined and Ex.A1 to Ex.A5 documents were marked

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and on the side of the defendants, three witnesses DW1 to DW3 were

examined and Ex.B1 to Ex.B4 documents were marked.

7. The trial Court after taking into consideration the oral and

documentary evidences of both sides, decree the suit.

8. Aggrieved over the Judgment and decree of the trial Court, the

defendants have preferred an appeal in A.S.No.51 of 2010 on the file of the

Sub Court, Rasipuram and the lower Appellate Court confirmed the

judgment and decree of the trial Court, dismissed the appeal with cost.

9. Challenging the said concurrent findings of both Courts below, the

defendants have preferred this Second appeal.

10. Heard M/s.Zeenath Begum, learned counsel appearing on behalf

of the appellants and Mr.N.Suresh, learned counsel appearing on behalf of

the respondent.

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11.The appellants have raised the following substantial questions of

law in the Second Appeal:

(A) When the plaintiff has suppressed material facts about

the common ownership of the properties prior to her purchase,

whether the discretionary relief of injunction should have been

granted ?

(B) When the properties in question were owned in

common and partitioned, then, whether rights obtaining in these

properties prior to partition will not ensure subsequent to partition

as contemplated under Sec.13 of the Indian Easements Act?

12.The learned counsel for the appellants argued that the Courts

below failed to appreciate the ancient documents Exs.B1 and B2 registered

in the year 1968 and 1979 respectively. Further, argued that the ancient

documents which clearly mentioned that common cart track existing on the

eastern side of the suit property in S.No.133/2. Further, the learned counsel

for the appellants argued that the trial Court erroneously concluded that

there is no cart track exist on the eastern side of the suit property, as such is

unfair and liable to be set aside. Further, the learned counsel for the

https://www.mhc.tn.gov.in/judis S.A.No.590 of 2013

appellants argued that the plaintiff has suppressed the entire facts about the

existing of the cart track and at the instigation of her husband Palanivel, the

plaintiff filed the suit. Therefore, the findings given by the Courts below is

not sustainable Hence, he prays to allow this Second Appeal.

13. Mr.N.Suresh, the learned counsel for the respondents stated that

there is no instructions from the respondent.

14. The learned counsel for the appellants submitted that the suit

property comprised in Survey No.133/2, originally was allotted to one

Palanivel, who is the son of Sengoda Gounder, by way of family partition

held in the year 1979, the said partition deed was marked as Ex.B2.

Thereafter, the said Palanivel executed the sale deed in favour of the

plaintiff in the year 2002, which was marked as Ex.A1. Further, the

defendants have not raised any objection with regard to the plaintiff's

possession of the suit property in Survey No.133/2 but they are claimed

only cart track exist on the eastern side of the suit property, which are only

way to reach their land and well. Hence, the contention of the appellants is

https://www.mhc.tn.gov.in/judis S.A.No.590 of 2013

that there is a cart track exist on the eastern side of the plaintiff's land.

15. But, on a perusal of the records, it reveals that the plaintiff filed

the suit for permanent injunction with an extent of 2.01 acres with Well

pumpset in Survey No.133/2, Patta No.904, In the description of the suit

property, the plaintiff has not mentioned about any of the cart track exist her

land in the said property. Hence, the trial Judge, based on the Ex.A1/sale

deed, held that the plaintiff is absolute owner of the suit property in Survey

No.133/2 and granted relief of permanent injunction as prayed for. Further,

both the Courts below held that the defendants have not taken any steps to

prove the existing cart track on the eastern side of the plaintiff's land in

Survey No.133/2.

16. Admittedly, on a perusal of the trial Court records, which reveals

that both parties have not taken any steps to appoint the Advocate

Commissioner to note down the physical features of the suit property and

the existing the alleged cart track on the eastern side of the suit property.

https://www.mhc.tn.gov.in/judis S.A.No.590 of 2013

17. The learned counsel for the appellant argued that they have

produced the earlier partition deed, which were marked as EX.B1 and B2,

wherein it clearly mentioned that there is a common cart track existing on

the eastern side of the plaintiff land in Survey No.133/2.

18. On Considering the partition deed dated dated 20.03.1968, it

reveals that the entire properties belongs to one Kandappa Gounder who

died leaving behind his sons namely Sengoda Gounder, Muthu Gounder and

after the death of Kandappa Gounder, his sons partitioned the properties in

which, 'A' schedule property was allotted to Sengada Gounder and 'B'

schedule property was allotted to Muthu Gounder.The description of the

partition deed/Ex.B1 is hereunder

bghJ tspfs; bfhz;lf;fy; !;jyj;Jf;Fk; Fj;jpf;fhL !;jyj;Jf;Fk; ,Ughf!;jh;fSk; nghf tu MW Kgk; mfy; bjd;tly; jlj;ij ehk; bghJtpy; cgnahfpj;Jf; bfhs;s ntz;oaJ/

nkw;go jlj;jpy; K:f;Fj;jpfhL nkw;g[w vyiyapy; (Xk;) bg/,uhika ft[z;ld; gd";rhhp gf;fKs;s bfhf;fp kuj;ij bghJjlj;jpw;Fk; fpisfs; ,il";ry; ,d;wp mt;tg;nghJ, mjpfk; tsu tplhky; btl;of;bfhs;s nt;zoaJ/ V ghf!;jhpd; flik Mfk;/ ,jpy; gp ghf!;jh;fSf;F tHp ,ila{W ,d;wp ele;J bfhs;s tif bra;tJ/ V ghf!;jphpd; bghWg;g[ Mfk;/

https://www.mhc.tn.gov.in/judis S.A.No.590 of 2013

nkw;go jlj;jpy; eLtpy; K:f;Fj;jp fhl;L nehpy; gd";rhhpf;Fk; tlg[uk;. gp ghf!;jh;fSf;Fk;. nkw;go gd";rhhpf;Fk Xukha;. V ghf!;jUk; gpwF ,ila{W ,y;yhky; ML khLfis nka;j;J;f bfhs;s ntz;oaJ/ nkny brhy;ypago me;je;j ghf!;jh;fs; mtuth;fs; ghfj;jpy; tsUk; vUjiHfis cgnahfpj;Jbfhs;sjf;fJ/

ft[z;ld; khtpaj;Jf;Fk; Mz;o fpzW e";irf;Fk; ,U ghf!;jUf;Fk; bghJtpy; 6 KH tz;o jlj;jpy; nghf tu chpik cz;L/

bghd;lf;fy; bfhl;lhapypUe;J/ ghg;ghf;fz;L tHpahf nghFk; 6 KH mfy bghJ jlj;jpy; ehk; ,U ghf!;jh;fs; kl;Lk; ekf;F chpa vy;yh epy;j;jpw;Fk; khKyhf tz;o fhy;eil Ml;fs; nghf tu chpik cz;L/ rh;f;fhh;f;F ,l;l buz;L thpfis ,dp me;je;j ghf!;jh;fns brYj;jpf; bfhs;s jf;fJ/ (Xk;/) ,uh/ ikaft[[z;ld;/ bghJtpy; rk;ge;jg;gl;l tHpfspy; mUfpy; ,ila{whf kuk;. Bro tiffis vtUk; gaph; bra;tJ TlhJ/ mtuth;fs; ghf vy;iyf;F mg;ghy; 15 mo js;sp njit Mdhy; kuk; tifawh fpzW Mfpa trjp bra;J bfhs;syhk;/

19. Hence, as per the partition deed, the defendants are entitled to use

the common pathway way to access their land Further, Ex.B1/partition

deed, clearly reveals that the properties were belongs to common owner one

Kandappa Gounder and the same was divided by his two sons.

Subsequently, in the year 1979 through Ex.B2/partition deed, Sengoda

Gounder divided the property among his sons and daughter. Admittedly, as

per the partition deed, the said Palanivel was allotted 'C' schedule property

https://www.mhc.tn.gov.in/judis S.A.No.590 of 2013

and his brother namely Kandasamy Gounder was allotted 'A' schedule

property. The defendants have purchased the properties from Kandasamy

Gounder and the description of partition deed/B2 is hereunder

rp ghf!;jh; epyj;jpy; fpGg[wk; Xukhf fpHnky; 12 yp';!; mfyKk; bjd; tlypy; ngha; r/be/ 127-4 d; nkw;F g[wk; bjd; tlyhf cs;s v. gp. Rp jhuh;fspd; Ms;. ML. khLfs; tz;o thfdhjpfs; rh;f;fhh; bghJ jlk; tiuapy; nghf tu ghj;jpak; r/be. 126-2 y; cs;s epyj;jpy; fpHg[[wk; fpHnkyhf 15 yp';!; MfyKs;s jlj;jpy; bjd;tlyhf mde;jf;ft[z;lk;ghisak; fpuhkk; r/be/ 411 f;F gp ghf!;jh; r/ne/ 34-76-15 ,itfspypUe;J tz;o. Ms;. ML. khLfs; nghf tu khK:y; jlghj;jpak;//// jdf;fhft[k;. ikdUf;Fk; br';nfhl ft[z;lh; fPuy; mj;jhak;khs;. V!;fe;jrhkp fPuy; bghparhkp. GHdpnty 15 kpd;df;fy; mf;ufhuk; fpuhkk; r/be/ 133-2 y; fpHg[wk; Xukhf fpH nky; 12 yp';!; mfy;k; bjd; tlyhf V ghf!;jh; tz;o Ms;. ML. khLfs; nghf tu jlghj;jpak; Mde;j ft[d;lk;ghisak; fpuhkk; r/be/ 8 y; cs;s bek;gh;fSf;F nghf!;jh; Vw;fdnt cs;s khK:y; jlghj;jpaj;jpy; tz;o thfdhjpfs; Ms; ML. khLfs; nghf tu jl ghj;jpaKk;. V.gp/rp ghf!;jh;fs; mtuth; ghf';fSf;Fs;s khK:y; thhptha;f;fhy; mDgtpj;Jf; bfhs;s ntz;oaJ/

20. Therefore, both the plaintiff and the defendants were entitled to

use the common pathway to reach their land. Admittedly, the facts reveals

that the properties which was allotted as per the Ex.B1 partition deed ,

subsequently, divided among the sons of the Sengoda Gounder.

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21.Admittedly, the defendants have purchased the properties in

Survey Nos.133/3, 133/4 and 133/5 from their vendor namely Kandasamy

Gounder. Indeed as per partition deed/Ex.B2, common pathway was given

to both parties. More particularly, Ex.B2, it is clearly mentioned that

common pathway exist on the eastern side of the survey No. 133/2 with 12

links breadth in which the owner of 'A' schedule property is entitled to use

the cart track to reach their land. Therefore, through Exs.B1 and B2

partition deed, the defendants have established their case. Further, the

defendants are not disputing the title of the plaintiff over the suit property

but their only claim is that they are having right in the cart track on the

eastern side of the suit property.

22. But the Courts below without appreciating the ancient document,

erroneously concluded that the defendants have not proved their case

through revenue records and Advocate commissioner.Therefore, in Exs.B1

and B2, which clearly shows that there is a common cart track exist on the

eastern side of the suit property. But the plaintiff has approached the Court

without mentioning the said cart track itself shows that the plaintiff not

approached the court with clean hands and suppressing the existence of the

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common pathway. Even in the sale deeds submitted by the defendants

which shows that there is a cart track exist on the eastern side of the

plaintiff 's land but the Courts below failed to accept their partition deeds.

23. Therefore, through Exs. B1 and B2 partition deed, which is

clearly mentioned that there is a common pathway exist on the eastern side

of the suit property. Hence, the defendants are entitled to use the said

common pathway on the eastern side of the suit property in S.No.133/2. But

suppressing all these facts, the plaintiff approached the Court which is

abuse of process of law, she is not entitled for relief of Permanent

injunction.

24. Hence, the defendants are entitled to use the said cart track exist

on the eastern side of the suit property in S.No.133/2 by way of easement

which cannot be interfered by the plaintiff. Therefore, the findings of the

both Courts below are liable to be set aside. Accordingly, the substantial

question of law Nos.1 and 2 are answered.

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25. Accordingly, this second appeal is allowed and the findings given

by both Courts below are set aside. Thus, the suit is dismissed.

Consequently, connected miscellaneous petition is closed.

25.08.2023

Speaking / Non Speaking order Neutral Citation : Yes/No Index :Yes/No msrm

To

1. The Sub-Court, Rasipuram.

2. The District Munsif Court, Rasipuram.

3. The Section Officer, V.R,Section

https://www.mhc.tn.gov.in/judis S.A.No.590 of 2013

T.V.THAMILSELVI, J.

msrm

S.A.No.590 of 2013 M.P.No.1 of 2013

25.08.2023

https://www.mhc.tn.gov.in/judis