Madras High Court
S.Arumuga Velar vs Jeyapal on 3 January, 2023
2023/MHC/182
S.A.(MD) No.265 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.01.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.(MD) No.265 of 2016
1.S.Arumuga Velar
2.T.Arumuga Nambi ... Appellants/Appellants/
Plaintiffs
Vs
Jeyapal ... Respondent/Respondent/
Defendant
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree dated 19.11.2010 made in A.S.No.116 of 2008 on
the file of the Sub Court, Valliyur, confirming the judgment and decree
dated 06.02.2008 passed in O.S.No.130 of 2005 on the file of the Additional
District Munsif's Court, Nanguneri.
For Appellants : Mr.KS.Sreenivasan
For Respondent : Mr.R.Manimaran
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S.A.(MD) No.265 of 2016
JUDGMENT
Plaintiffs are the appellants. The suit is for declaration and
injunction. The suit was dismissed by the trial Court and the judgment of
the trial Court was confirmed in first appeal. Aggrieved by the same, the
plaintiffs are before this Court.
2.1. According to the appellants/plaintiffs, a total extent of 1 acre and
1 cent in suit Survey No.527/1B originally belonged to one Ponnuthai. She
sold 15 cents of her property to one Kurungudi Ammal, mother of the 1st
appellant under Ex.A.2 dated 19.11.1963. The said 15 cents was inherited
by the 1st appellant by inheritance from his mother. The remaining 86 cents
were partitioned among the three daughters of Ponnuthai, after her death.
The northern 43 cents was allotted to Pushpam, one of the daughters of
Ponnuthai and the southern 43 cents was allotted to another daughter
Arumai Ranjitham. The said Pushpam sold southern 38 cents out of
northern 43 cents allotted to her to the 2nd appellant under Ex.A.3 dated
28.12.1985. She reserved her right of way in the property sold by her to
reach her remaining 5 cents on the north. Subsequently, Pushpam sold the
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S.A.(MD) No.265 of 2016
remaining 5 cents also to the 1st appellant under Ex.A.1 dated 29.12.1985.
Thus, the appellants/plaintiffs claim right over the suit properties.
2.2. It was further averred by the appellants that from 01.01.2005
onwards, the respondent/defendant without any intimation, tried to enter
into the appellants' property and used the pathway to reach the northern side
of the appellants' land. Therefore, the appellants were constrained to file a
suit for declaration of their title and for injunction restraining the respondent
from entering the suit property.
3. The respondent herein filed a written statement and claimed that he
purchased 43 cents on the south of the appellants' property from one
Nicholas Charles under Ex.B.2 dated 11.12.1986. It was specifically
claimed by him that from the recital in that document, the respondent is
entitled to use the disputed pathway in the suit property. It was further
claimed that the property purchased by him was allotted to the share of
Nicholas Charles in a partitional arrangement dated 10.11.1983. The
unregistered partition deed was marked as Ex.B.1. It was specifically
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S.A.(MD) No.265 of 2016
averred by the respondent that the disputed pathway in the suit property had
been in existence for a long time and the same is absolutely necessary for
the respondent to enjoy his property.
4. Before the trial Court, the 2nd appellant was examined as P.W.1.
The 1st appellant was examined as P.W.2. Three documents were marked on
the side of the appellants as Ex.A.1 to Ex.A.3. On behalf of the respondent,
he was examined as D.W.1 and two other independent witnesses, who are
said to be his neighbours were examined as D.W.2 and D.W.3. The sale
deed in favour of the respondent was marked as Ex.B.2 and the unregistered
partition deed, under which the property conveyed to the respondent was
allotted to the share of his vendor, was marked as Ex.B.1. The Advocate
Commissioner's report and plan were marked as Ex.C.1 and Ex.C.2. The
Surveyor's plan was marked as Ex.C.3.
5. The trial Court, on consideration of oral and documentary
evidences, came to the conclusion that the respondent/defendant proved his
right of way through the pathway situated in the suit property and hence,
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S.A.(MD) No.265 of 2016
dismissed the suit. Aggrieved by the same, the appellants had preferred a
first appeal in A.S.No.116 of 2008 on the file of the Sub Court, Valliyur, and
the same was dismissed. Hence, the appellants are before this Court
6. The learned counsel for the appellants submitted that as far as the
prayer for declaration is concerned, the dismissal of the suit is not justified
on the face of the admission by the respondent with respect to the title of the
appellants over the suit property. The learned counsel for the appellants
further submitted that the respondent, who claimed right of pathway, failed
to produce the documents in favour of his vendors to prove the existence
and exercise of the right of pathway over the suit property. The learned
counsel further submitted that Ex.B.1 partition deed produced by the
respondent is an unregistered document and the same is inadmissible in
evidence, in view of the bar created under Section 17 read with Section 49
of the Registration Act.
7. The learned counsel for the respondent submitted that the extent
and user of the suit pathway by the respondent and his predecessors in title
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S.A.(MD) No.265 of 2016
had been clearly admitted by the 1st appellant as P.W.2 and hence, both the
Courts below, based on the evidence of the appellants' own witnesses,
dismissed the suit. As far as the contention raised by the learned counsel for
the appellants with regard to the dismissal of the suit concerning the prayer
for declaration is concerned, the learned counsel for the respondent
submitted that there is no dispute with regard to the title of the appellants
and hence, there is no cause of action for the appellants/plaintiffs to
maintain a prayer for declaration.
8. Heard the arguments of the learned counsel for the appellants and
the learned counsel for the respondent. Perused the typed set of papers and
the other records.
9. It is not in dispute that appellants 1 and 2 together entitled to 58
cents in the suit survey number. The respondent herein purchased 43 cents
on the south of the appellants' property under Ex.B.2. According to the
respondent, his vendor acquired 43 cents in a partition arrangement in his
family, which was marked as Ex.B.1. In order to prove the exercise of right
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S.A.(MD) No.265 of 2016
of pathway by the respondent and his predecessors in interest, the
respondent examined two neighbours viz., D.W.2 and D.W.3 and they
deposed in his favour. As far as the exercise of right of pathway by the
respondent and his predecessors in interest is concerned, the evidence of
P.W.2 assumes significance. The 1st appellant was examined as P.W.2 and
he admitted in his cross examination that the respondent and his
predecessors in interest had been using the suit property for quite a long
time. The relevant portion of the evidence of P.W.2 in vernacular is
extracted below:
“njw;Nf uQ;rpjk; mk;khSf;F tlf;Nf G\;gk; mk;khSf;F.
uQ;rpjk; mk;khSf;F 43 nrd;l;. ghfgphptpid nra;Ak; Kd;G
jgrpy; nrhj;Jf;F klj;J epyk;topNajhd; nrd;Wte;jhh;fs;. i\
ghij topahfjhd; Kw;ghj;jpa];jh;fs; nghd;Djha;>
nghd;dk;khs;> G\;gk; mUikuQ;rpjk; gad;gLj;jp
te;jdh;. ......... jgrpy; nrhj;jpd; fPo;Xukhf gpujpthjp ghijahf
gad;gLj;jp tUfpwhH vd;why; rhpjhd;. 2k; thjpAk; jgrpy;
nrhj;jpd; fpof;Fgf;fk; cs;s ghijia jhd; gad;gLj;jp tUfpwhh;.
38 nrd;l; epyj;jpd; fPo;gf;fk; ghijia gad;gLj;jp tUfpNwhk;
vd;gij FUq;nfhbak;khs; gj;jpuj;jpYk; fhl;lgl;Ls;sJ.
FUq;nfhbak;khs; ,we;J 2 tUlkhfpwJ. mjw;Fgpd;G ehd;
KOikahf mDgtpf;fpNwd;. mjw;F Kd;G FUf;nfhbak;khs;
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ngahpy; ,Ue;jJ. gpujpthjp jgrpy; nrhj;ij 1986y; fpiuak;
thq;fpdhh;. mth; G\;gk;;khs; ,lj;jpw;F njd;gf;fk; cs;s ,lj;ij
fpiuak; ngw;Ws;shh;. nghJ ghijahf vy;NyhUk; gad;gLj;jp
te;jhh;fs;. jw;NghJ me;jghij jdf;F ghj;jpak; vd;W fl;rp
nra;jjhy; tof;F jhf;fy; nra;Njd;. ........ mjpy; mtuJ
rNfhjuUf;Fk; ghfk; cz;L. jgrpy; nrhj;ij thq;fpa fhyk; Kjy;
Kw;ghj;jpa];jiu njhlh;e;J gpujpthjpf;Fk; chpik cz;L vd;why;
rhpay;;y.”
10. A perusal of P.W.2's evidence would suggest that he clearly
admitted that the pathway in the suit property has been used as a common
pathway by the predecessors of both the appellants and the respondent.
11. The learned counsel for the appellants mainly submitted that the
respondent failed to prove the right of easement available to the
respondent's vendor by producing documents in favour of the respondent's
vendor. However, the 1st appellant himself as P.W.2 admitted the existence
of common pathway and use of the same by the predecessors of the
respondent in his own evidence. It is settled law that “admission is a best
evidence” and hence, both the Courts below, based on the well pronounced
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S.A.(MD) No.265 of 2016
admission of P.W.2, came to the conclusion that the respondent/defendant
proved the right of way pleaded by him over the suit property.
12. The admission made by P.W.2 has been corroborated by the
evidence of D.W.2 and D.W.3, who are said to be the neighbours of the suit
property. D.W.2 in his evidence had deposed that the suit pathway had been
used by the general public for the past 30 years. After upholding the right
of pathway available to the respondent over the disputed suit pathway, the
appellate Court also said that since the title of the appellants over the suit
property had not been challenged by the respondent, there is no cause of
action for maintaining a suit for declaration. In view of the factual finding
rendered by the Courts below, based on the evidence of P.W.2, D.W.2 and
D.W.3, that the respondent proved his right of pathway over the suit
property, this Court finds no question of law, much less substantial question
of law to interfere with the factual findings rendered by the Courts below.
13. Accordingly, this Second Appeal is dismissed. In the facts and
circumstances of the case, there is no order as to costs.
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S.A.(MD) No.265 of 2016
14. The learned counsel for the appellants submitted that in view of
the dismissal of the second appeal, the respondent shall not claim that he
can use the entire suit property as a pathway.
15. It is spoken to by the witnesses examined by the appellants as
well as the respondent that the disputed pathway lies on the eastern
extremity of the suit property. Therefore, it is clarified that the
respondent/defendant is entitled to use only the existing pathway in the suit
property which lies on the eastern extremity of the suit property, not the
entire suit property.
03.01.2023
NCC : Yes
Index:Yes/No
Internet:Yes
abr
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S.A.(MD) No.265 of 2016
To
1.The Sub Judge,
Valliyur.
2.The Additional District Munsif,
Nanguneri.
3.The Section Officer, VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD) No.265 of 2016
S.SOUNTHAR, J.
abr
S.A.(MD) No.265 of 2016
03.01.2023
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