Madras High Court
K.Subramanian vs Kasambu @ Baby Ammal (Died) on 7 June, 2023
S.A.No.1119 of 2009
and M.P.No.1 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.06.2023
CORAM:
THE HONOURABLE MRS. JUSTICE R. HEMALATHA
S.A.No.1119 of 2009
and M.P.No.1 of 2009
K.Subramanian ..Appellant
vs.
Kasambu @ Baby Ammal (Died)
2.Dhanasekaran
3.Ravisekaran
4.G.Subramaniam
5.Sumathi
6.Uma ..Respondents
(R1 died, RR2 to 6 brought on record as LRs of the deceased R1 vide
Court order dated 30.11.2022 made in CMP.Nos.3658, 3659 & 3664 of
2020 in S.A.No.1119 of 2009)
PRAYER: Second Appeal filed under Section 100 of Civil Procedure
Code against the decree and Judgment dated 19.12.2008 in A.S.No.78 of
2007 on the file of the II Additional Sub Court, Cuddalore, upholding the
decree and Judgment dated 29.08.2007 in O.S.No.281 of 2005 on the file
of the Principal District Munsif Court, Cuddalore.
1/12
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S.A.No.1119 of 2009
and M.P.No.1 of 2009
For Appellant : Mr.K.A.Ravindran
For RR2 to 6 : Mr.T.S.Baskaran
JUDGMENT
The unsuccessful defendant before both the Courts below has
filed the present second appeal. The respondent/plaintiff filed the suit in
O.S.No.281 of 2005 (Vacation Civil Court O.S.No.40 of 2005) on the file
of the Principal District Munsif, Cuddalore, seeking for a relief of
declaration of his title to the suit property and for a consequential relief of
permanent injunction restraining the appellant/defendant from interfering
with his peaceful possession and enjoyment of the suit property. The suit
property as described in the plaint is 7 x 138 ft lane situate in Nandhavana
Street, Kurinjipadi Village, Cuddalore District, within the boundaries
stated therein.
2. For the sake of convenience, the parties are referred to as
per their ranking in the trial court and at appropriate places, their rank in
the present second appeal would also be indicated.
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S.A.No.1119 of 2009
and M.P.No.1 of 2009
3. The case of the plaintiff in nutshell is as follows:
The suit property is marked as BCDE in the plan attached with
the plaint. It is a lane situate on the eastern side of the plaintiff's house.
The suit property and the house on its western side originally belonged to
one Thaiyalnayagi Ammal wife of Vaithilinga Chettiar, who purchased the
same under a registered sale deed dated 11.08.1909 (Ex.A1) in the name
of Thaiyalnayagi Ammal and it was enjoyed in common by all the
members of the said joint family. Her sons divided the said properties
under a registered partition deed dated 10.10.1934 (Ex.A2) through which
the suit property was allotted to the share of Kumarasamy Chettiar. After
his death, his only daughter, the plaintiff succeeded to the suit property.
The defendant owns properties on the eastern side of the suit property
especially to the east of CD line shown in the plaint plan. The defendant's
grand father Murugapa Chettiar had purchased the said property from
one Arumuga Chettiar through a registered sale deed dated 12.01.1929
and a copy of the same is marked as Ex.A3. Though the defendant has no
title over the suit property, he has been attempting to trespass into the
same. One such attempt was made during the year May 2005 and the
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S.A.No.1119 of 2009
and M.P.No.1 of 2009
same was prevented by the plaintiff successfully. Since the defendant is
threatening the plaintiff that he would demolish the wall and trespass into
the suit property, the plaintiff is constrained to file the suit.
4. The suit was resisted by the defendant on the following
grounds:
i. The defendant is in possession and enjoyment of the wall and lane
marked as BCDE in the plaint plan.
ii. The plaintiff does not have any exclusive right over the said lane.
The defendant has been using the lane for the past 75 years and it is
common to both the plaintiff and the defendant. The description of
the suit property is also wrong and he therefore, prayed for
dismissal of the suit.
5. On the basis of the above pleadings, the trial Court Judge
framed the following issues :
i. Whether the plaintiff is entitled for a declaration of his title to the
suit property?
ii. Whether the plaintiff is entitled for a permanent injunction as
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S.A.No.1119 of 2009
and M.P.No.1 of 2009
prayed for by him ?
iii. Whether the defendant is in possession and enjoyment of the suit
property?
iv. Whether it is true that the plaintiff does not have exclusive right
over the suit property as alleged by the defendant ?
v. Whether the suit property is described properly ?
vi. Whether the Court fee has been paid properly ?
vii.To what relief, the plaintiff is entitled?
6.In the trial Court, the plaintiff examined himself and marked
Ex.A1 to Ex.A11. The defendant examined himself. However, no
documentary evidence was adduced on the side of the defendant. In the
trial Court, an Advocate Commissioner was appointed and he filed his
report and plan which were marked as Ex.C1 & Ex.C2, respectively and
the photograph taken in the site is marked as Ex.C3.
7.After full contest, the learned Principal District Munsif,
Cuddalore, decreed the suit filed by the plaintiff vide his decree and
judgment dated 29.08.2007 on the following grounds :
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S.A.No.1119 of 2009
and M.P.No.1 of 2009
i. There is no mention about the suit lane in the sale deed of the
defendant (Ex.A3).
ii. DW1 during the course of cross examination admitted that he did
not adduce any documentary evidence to show that he also has a
right to use the suit pathway.
iii. The Advocate Commissioner in his report had clearly stated that the
defendant is in possession of his property as mentioned in his sale
deed.
iv. Therefore, the defendant cannot have any access to the suit lane.
v. The defendant had not also examined any independent witness to
substantiate his contention that the suit pathway is common to both
the plaintiff and him.
8.Aggrieved over the decree and judgment passed by the trial
Court, the defendant filed an appeal in A.No.78 of 2007 before the II
Additional Sub Court, Cuddalore. The learned II Additional Subordinate
Judge, Cuddalore, after analysing the oral and documentary evidence
adduced on both sides upheld the findings recorded by the trial Court and
dismissed the appeal vide his decree and judgement dated 19.12.2008.
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S.A.No.1119 of 2009
and M.P.No.1 of 2009
9.Now the present second appeal is filed by the defendant.
Notice of motion was issued to the respondent and after several
adjournments, the case was posted today for final hearing. Substantial
questions of law raised by the learned counsel for the appellant in the
grounds of appeal are as follows:
i. "Whether the Courts below are right in decreeing the suit when the
Advocate Commissioner has categorically admits that both
plaintiff's and defendant's roofs fall down to the suit lane?
ii. Whether a mere inclusion of the suit lane in the partition deed
Ex.A2 creates interest and title to the plaintiff when the parent
document Ex.A1 is silent about the same?
iii. Whether the Courts below are right in decreeing the suit when
admittedly the suit lane has been used by both the defendant and
the plaintiff?
iv. Whether the Courts below are right in decreeing the suit when the
defendant established the usage of the lane for the past 75 years and
the supporting wall of the mother wall runs for 39 feet in the suit
lane?
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S.A.No.1119 of 2009
and M.P.No.1 of 2009
v. When the measurement in the plaintiff document Ex.A2 various
from the parent document Ex.A1.Whether the Lower Courts are
right in granting the decree?
10.Heard, Mr.K.A.Ravindran, learned counsel for the appellant
and Mr.T.S.Baskaran, learned counsel for the respondents 2 to 6.
11.Mr.K.A.Ravindran, learned counsel for the appellant would
contend that though the defendant has been using the common pathway
for the past 75 years, both the Courts below had committed an error and
granted a decree of declaration and injunction in favour of the plaintiff.
12.Per contra, Mr.T.S.Baskaran, learned counsel for the
respondents 2 to 6 would contend that the defendant is in possession of
his property as per his sale deed (Ex.A3). However, he did not adduce any
oral and documentary evidence to show that he has been enjoying the suit
pathway. According to him, both the Courts below had properly analysed
the oral / documentary evidence adduced on both sides and decreed the
suit and therefore, no interference is warranted especially when there is no
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S.A.No.1119 of 2009
and M.P.No.1 of 2009
substantial questions of law involved in the present second appeal.
13.The plaintiff has filed the suit for declaration and for
permanent injunction in respect of the suit lane measuring 7 x 138 feet.
The case of the plaintiff is that the suit property originally belonged to one
Thaiyalnayagi Ammal through a registered sale deed dated 11.08.1909
(Ex.A1). Subsequently, all the properties belonging to the family were
divided under a registered partition deed dated 10.10.1934 (Ex.A2), in
which the suit property was allotted to the share of Kumarasamy Chettiar,
the father of the plaintiff. After his death, he (plaintiff) inherited the
property under Section 8 of the Hindu Succession Act.
14.The case of the defendant is that the suit property (lane) is a
common pathway and the plaintiff cannot claim any exclusive right over
the same. However, it is pertinent to point out that the defendant did not
adduce any acceptable oral / documentary evidence to substantiate his
contention that he also has got a right over the suit lane. In fact, the
registration copy of the sale deed of the defendant was marked by the
plaintiff as Ex.A3. In Ex.A3 nothing is mentioned about the existence of
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S.A.No.1119 of 2009
and M.P.No.1 of 2009
pathway on the western side of the property. The Advocate Commissioner
was examined as C.W.1 and he has deposed that the defendant is in
possession of his property as per the sale deed (Ex.A3). The defendant
was examined as DW1 and he also during the course of cross examination
admitted that he did not adduce any documentary evidence to show that
he has a right of way through the suit pathway. He further admitted that a
drainage pipe line was laid by the plaintiff in the suit lane and that he does
not have any access to the suit lane abutting his western side wall. Thus, it
is seen from the oral and documentary evidence adduced on both sides
that the defendant could not have right to access the suit lane and the
photograph (Ex.C4) filed by the Advocate Commissioner also proves the
same. Therefore, both the Courts below were right in holding that the
plaintiff has got right, title, interest over the suit lane. In fact, there are no
substantial questions of law involved in the present second appeal.
15.It is pertinent to mention that this a second appeal under
Section 100 of the Code of Civil Procedure where the jurisdiction of the
High Court is confined to a substantial question of law. A full Bench of
the Supreme Court in Bholaram Vs. Ameerchand reported in AIR 1981
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S.A.No.1119 of 2009
and M.P.No.1 of 2009
SC 1209 has held that the High Court cannot interfere with the concurrent
factual findings of courts below in a second appeal. In fine, the second
appeal fails and is dismissed.
16.In the result,
i. the Second Appeal is dismissed. No costs. Consequently, connected
Miscellaneous Petition is closed.
ii. The decree and Judgment dated 19.12.2008 in A.S.No.78 of 2007
on the file of the II Additional Sub Court, Cuddalore and the decree
and Judgment dated 29.08.2007 in O.S.No.281 of 2005 on the file
of the Principal District Munsif, Cuddalore, are upheld.
07.06.2023
mtl
Index : Yes/No
Speaking / Non-speaking order
https://www.mhc.tn.gov.in/judis
S.A.No.1119 of 2009
and M.P.No.1 of 2009
R.HEMALATHA, J.
mtl
To
1. The II Additional Sub Court, Cuddalore.
2. The Principal District Munsif Court, Cuddalore.
3. The Section Officer, VR Section, High Court, Madras.
S.A.No.1119 of 2009
and M.P.No.1 of 2009
07.06.2023
https://www.mhc.tn.gov.in/judis
