Madras High Court
Annapoorani vs Mohanambal on 8 December, 2023
S.A.Nos.539 and 540 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.12.2023
CORAM
THE HON'BLE Mr.JUSTICE C.KUMARAPPAN
S.A.Nos.539 and 540 of 2006
and
C.M.P.Nos.6645 of 2006
1.Annapoorani
2.Mohanraj
3.Kumar
4.Thenmozhi
5.Arulamudhan
6.Kirubavathi ... Appellants in both the appeals
- Vs -
1.Mohanambal
2.Ananda Doss … Respondents in both the appeals
PRAYER in S.A.No.539 of 2006 : This Second Appeal is filed under
Section 100 of the Civil Procedure Code against the Judgment and
Decree dated 24.06.2003 made in A.S.No.25 of 1997 on the file of the
Subordinate Judge at Poonamallee by setting aside the Judgment and
Decree dated 24.12.1996 made in O.S.No.900 of 1983 on the file of the
District Munsif, Poonamallee.
1/16
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S.A.Nos.539 and 540 of 2006
PRAYER in S.A.No.540 of 2006 : This Second Appeal is filed under
Section 100 of the Civil Procedure Code against the Judgment and
Decree dated 24.06.2003 made in A.S.No.1 of 2003 on the file of the
Subordinate Judge at Poonamallee by confirming the Judgment and
Decree dated 24.12.1996 made in O.S.No.900 of 1983 on the file of the
District Munsif, Poonamallee.
For Appellants : Mr.T.Karunakaran
M/s.G.Arulselvi
For R1 : Mr.Srinath Sridevan, Senior
Counsel
For R2 : (Served) No Appearance
*****
COMMON JUDGMENT
S.A.No.539 of 2006 is arising out of the reversal order passed in
A.S.No.25 of 1997. whereas S.A.No.540 of 2006 is arising out of a
concurrent finding recorded in A.S.No.1 of 2003.
2. Both the above first and second appeals arising against the
decree and judgment of the suit in O.S.No.900 of 1983. The said suit was
filed with the prayer for declaration and for consequential injunction to
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S.A.Nos.539 and 540 of 2006
“B” and “C” schedule properties and also sought for the relief of
declaration for “D” schedule pathway.
3. The trial Court dismissed the suit in respect of D schedule
property qua the right of access. Against which, the plaintiff preferred an
appeal in A.S.No.25 of 1997. However, the suit was decreed in respect of
“B” & “C” schedule and declaration and consequential injunction was
granted in favour of the plaintiff. Against which, the defendant preferred
an appeal in A.S.No.1 of 2003. Since both the second appeals are arising
out of a common judgment passed in A.S.No.25 of 1997 and A.S.No.1 of
2003, the said two second appeals are taken together for disposal.
4.The appellants in both the appeals herein are the legal heirs of
the first defendant before the trial Court. The respondents 1 and 2 herein
are the plaintiff and second defendant respectively before the trial Court.
The brief facts which gives rise to the instant second appeal are
that:
5. The suit A schedule property was originally belonged to one
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S.A.Nos.539 and 540 of 2006
Gabriel. The plaintiff’s predecessor-in-title Pushpammal purchased the
property from the said Gabriel under sale deed, dated 07.04.1965.
Thereafter, the plaintiff purchased the suit property from Pushpammal on
07.05.1981. According to the plaintiff, the plaintiff’s predecessor in title
had been in possession and enjoyment of “A” schedule property of an
extent of 8 cents, by putting up live fence on all the four side, and she
was also having access to MTH Road through “Fellowship street” for
more than 25 years, which is referred to as “D” Schedule property in the
suit. The “B” & “C” schedule properties are part of “A” schedule
property. The plaintiff further states that the 2nd defendant is the owner of
the site measuring 10 cents on the North of “A” schedule property,
According to the plaintiff, from 22.05.1983 onwards, the defendants
disputing the title of the plaintiff fenced on the north-eastern portion of
the “A” schedule property which is referred as “C” schedule. The 1 st
defendant has also conspired with the 2nd defendant and disputed the
plaintiff’s title in respect of north-western portion of the A schedule
property, which is referred to as B schedule property. Therefore, the
plaintiff has come up with the suit for declaration in respect of B and C
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S.A.Nos.539 and 540 of 2006
schedule property, and also seeking for declaration of right of access in
respect of D schedule property.
6. The said suit was resisted by the 1st defendant by contending that
the 1st defendant had purchased 5 cents of land in S.F.Nos.364/1 and
S.F.No.368 from one Govindasamy, under a sale deed dated 07.08.1973.
Similarly, the 2nd defendant has purchased the land measuring 10 cents in
S.F.No.364/1, now sub-divided as S.F.No.36/1D2 from the very same
person Mr.Govindasamy under the sale deed, dated 29.03.1974. As such,
both defendants' predecessor-in-title are one and the same person.
According to both the defendant, eversince the date of purchase, they
have been in actual physical possession and enjoyment of the same. It is
also the submission of the defendants that they did not encroach upon the
plaintiff’s property, and that the plaintiff do not have any right over the
“D” schedule property qua the passage. According to the defendants the
“D” schedule property is the private road, wherein, the plaintiff has no
right of access. Therefore, both the defendants pray to dismiss the suit.
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S.A.Nos.539 and 540 of 2006
Evidence and documents:-
7. Before the trial Court, the plaintiff marked four documents as
Exs.A1 to A4 and as Court documents, Seven documents were marked as
Exs.C1 to C7. Likewise, the plan of the Surveyor was marked as Ex.X1.
On behalf of the defendants, 13 documents have been marked as Exs.B1
to B13. On behalf of the plaintiff and the defendants, each two witnesses
were examined as PW1, PW2 and DW1 and DW2 respectively.
Findings of the both the Courts below:-
8. The trial Court, after considering oral and documentary evidence
decreed the suit as prayed for in respect of “B” and “C” schedule
property. However, dismissed the suit as against D schedule property.
Aggrieved by the said judgment, both the plaintiff and the 1st defendant
have preferred two separate first appeals in A.S.No.25 of 1997 and
A.S.No.1 of 2003 respectively. The First Appellate Court has dismissed
the appeal in A.S.No.1 of 2003 filed by the 1st defendant, in respect of
“B” and “C” schedule property. However, the First Appellate Court
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S.A.Nos.539 and 540 of 2006
allowed the appeal filed by the plaintiff in A.S.No.25 of 1997 by granting
right of access in the “D” schedule property namely “Fellowship Street”.
As such by virtue of the order of the First Appellate Court in both the
appeal, the suit was eventually decreed as prayed for. Aggrieved with
the findings of the First Appellate Court, the first defendant preferred
two separate second appeals.
Substantial Question of Law:-
9. At the time of admission of both the second appeals, this Court
has formulated the following common substantial questions of law :
1. Whether the finding of the lower appellate
Court is correct in respect of D schedule property when
the respondents / plaintiffs have not established their
case?
2. Has not the lower appellate Court in the
absence of material and substantial evidence
committed an error in coming to the conclusion that the
respondents/plaintiffs are entitled to D schedule
property?
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S.A.Nos.539 and 540 of 2006
3.Has the respondents/plaintiffs filed the suit for
declaration in respect of D schedule property the
burden is upon the plaintiffs to prove and establish the
same under Section 101 of the Evidence Act which was
not at all taken into consideration by the lower
appellate Court?
4. The lower appellate Court having come to the
conclusion that there is no clear document to accept the
case of the plaint, as to her right over the D schedule
has not committed serious error in holding that the
respondents/plaintiffs are entitled to decree of
declaration?
However, on perusal of the material, this Court deems it appropriate to
formulate the following additional substantial questions of law in respect
of S.A.No.540 of 2006.
“(i)Are not both the Courts have erred in coming to
the conclusion that the respondents/plaintiffs were entitled
to “B” & “C” schedule property in the absence of valid
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S.A.Nos.539 and 540 of 2006
documents and substantial evidence.
(ii)Are not that Courts below, have erred in not
having appreciated that the burden of proof is on the part
of the respondents/plaintiffs as required under Section 101
of Evidence Act.”
Submissions of either side counsel:-
10. The learned counsel for the appellants would contend that the
trial Court as well as First Appellate Court erred in holding that the B
and C schedule property belong to the plaintiff, he would further contend
that the First Appellate Court has wrongly decreed the suit in respect of
D schedule property. It is the submission of the learned counsel for the
appellants that even according to the Surveyor's Plan, “B” and “C”
schedule property is well within the boundaries of the defendants, and
that the way in which the B and C schedule property described in the
plaint is erroneous. Therefore, the learned counsel would further submit
that the decree granted by the trial Court as well as First Appellate Court
is perverse and liable to be interfered with.
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S.A.Nos.539 and 540 of 2006
11.However, the learned Senior Counsel appearing on behalf of
the respondent would vehemently contend that the appointment of the
second Commissioner without scrapping the earlier report is erroneous
and perverse. The learned Senior Counsel further submits that the
findings of fact recorded by both the trial Court as well as the First
Appellate Court is well merited and the same cannot be interfered at the
second appellate stage. He would also contend that the submission made
by the learned counsel for the appellant relying upon the subsequent
Commissioner’s report, Ex.C6 and Ex.X1 is contrary to law as there are
previous Commissioner’s Report available on record.
12. I have given my anxious consideration to either side
submission.
Analysis of the submissions:-
13. The sum and substance of the submission on either side is,
(i)as to whether the plaintiff has got any right to have an access in respect
of D schedule property and (ii)whether the plaintiff has established his
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S.A.Nos.539 and 540 of 2006
right and title over the property of “B” and “C” schedule property and the
alleged encroachment of the defendants. In respect of “D” schedule
property, admittedly, there are no documents available to prove the
alleged easementary right over “D” schedule property. However, the
learned Senior counsel appearing on behalf of the respondents would
vehemently submits that through the electricity pole situate in the “D”
schedule property, the plaintiff have been drawing electricity to their
premises, therefore, the plaintiff has got right over the said passage. But,
this Court is not persuaded by the submission made by the learned senior
counsel.
14.Further on perusal of the record, as rightly contended by the
learned counsel for the appellants, the title deed of the plaintiff namely
Ex.A1 as well as his predecessor-in-title deed - Ex.A2 do not contain any
recital as to the alleged plaintiff’s right of access over the “D” schedule
property. Further more, in order to have a easement by presumption, the
plaintiff ought to have used the said passage for a statutory period.
Whereas, the plaintiff purchased the property only during 1981 and filed
a suit within a period of two years. Therefore, the question of claiming
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S.A.Nos.539 and 540 of 2006
any easementary right by prescription also does not arise in this matter.
Therefore, this Court is of the firm view that the decree granted in respect
of “D” schedule property is without any evidence and therefore, this
Court is constrained to interfere with the order of both the Courts below.
15.In respect of “B” & “C” schedule property, the learned counsel
for the appellant has invited the attention of this Court in respect of
Surveyor's Plan-Ex.X1. Wherein, the Surveyor, who was examined as
PW2 has categorically stated that “B” and “C” schedule properties are
situate within the boundary of the appellant and the surveyor also drawn
a plan evidencing such factum. The same is marked as Ex.X1.
16. On perusal of Ex.X1, the “B” and “C” schedule property comes
within the boundaries of the defendants 1 and 2. Apart from that, the
learned counsel for the appellants/defendants would also invite the
attention of this Court in respect of the inscrutable and confounding
description of property referred in the plaint as well as in the plaint plan.
As rightly submitted by the learned counsel for the appellant, the burden
of proof is heavily upon the respondent/plaintiff to establish
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S.A.Nos.539 and 540 of 2006
encroachment. Here except his ipse dixit no other documents are in his
favour. Whereas the surveyor report Ex.X.1 demonstrate that there are no
encroachment. Further the alleged encroachment of “B” and “C”
schedule property by 1st and 2nd defendants also appears to be illogical as
the 1st defendant has property here “C” schedule and 2nd defendant has
property adjacent to “B” schedule. Hence, this Court is in full agreement
with the submission made by the learned counsel for the appellants based
on the Commissioner's report - Ex.X1.
17. It is also further contended by the learned counsel for the 1st
defendant that originally the plaintiff’s predecessor in title had 10 cents
of property and in that plaintiff has purchased only to an extent of 8 cents
through Ex.A1. Therefore, according to the appellant either one of the
boundary of the suit property should be his predecessor's remaining
property. But, while describing the “A” schedule property, there is no
reference as to the remaining extent of 2 cents which belongs to the
plaintiff’s predecessor-in-title. Therefore, this Court is of the firm view
that the plaintiff has not described the suit property in its right
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S.A.Nos.539 and 540 of 2006
perspective. Apart from that, on perusing Ex.X1 Plan, the alleged B and
C schedule property comes within the boundaries of the defendants.
Therefore, this Court is of the view that the findings recorded by the trial
Court as well as the First Appellate Court is either without any evidence
or by misreading of the same. Therefore, under Section 100 CPC, this
Court has ample power to interfere with the palpable perverse concurrent
findings. Therefore, in view of the above detailed discussion, the
Substantial Questions of Law and additional substantial question of law
are decided in favour of the appellants, and S.A. Nos.539 and 540 of
2006 are ordered to be allowed.
18. In the result, both the appeals are allowed. As a concomitant
the judgment and decree dated 24.06.2003 made in A.S.No.25 of 1997
and A.S.No.1 of 2003 on the file of the Subordinate Judge at
Poonamallee and the Judgment and Decree dated 24.12.1996 made in
O.S.No.900 of 1983 on the file of the District Munsif, Poonamallee are
hereby set aside. Resultantly, the suit is O.S.No.900 of 1983 is dismissed.
No costs.
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S.A.Nos.539 and 540 of 2006
08.12.2023
ssn
Index : yes/no
Speaking/Non Speaking Order
Neutral Citation Case: Yes/No
To
1. The Subordinate Judge,
Poonamallee.
2. The District Munsif,
Poonamallee.
C.KUMARAPPAN, J.,
ssn
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S.A.Nos.539 and 540 of 2006
S.A.Nos.539 and 540 of 2006
and
08.12.2023
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