Madras High Court
Ramar vs S.Muthuvalli on 31 March, 2023
S.A.(MD).No.516 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 31.03.2023
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
S.A.(MD).No.516 of 2017
and
C.M.P.(MD).No.11031 of 2017
1.Ramar
2.Malarkodi ... Appellants/Appellants/Defendants
Vs.
S.Muthuvalli ...Respondent/Respondent/Plaintiff
Prayer: Second Appeal is filed under Section 100 of CPC to set aside the
judgment and decree dated 16.08.2017 passed in A.S.No.8 of 2017 on the file
of the 2nd Additional Subordinate Court, Madurai by confirming the judgment
and decree dated 25.11.2016 passed in O.S.No.20 of 2012 on the file of the
Additional District Munsif, Madurai by allowing this appeal.
For Appellants : Mr.A.R.Sethupathy
For Respondent : Mr.S.Arivalagan
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S.A.(MD).No.516 of 2017
JUDGMENT
This Second Appeal has been filed challenging the concurrent findings of
the Courts below. The appellants are the defendants in the suit in O.S.No.20 of
2012 on the file of the Additional District Munsif Court, Madurai. The suit was
filed for mandatory injunction to remove the gate put up by the
appellants/defendants on the EF portion on the western side of the EFGH
portion of the common pathway and for permanent injunction restraining the
appellants/defendants from preventing the respondent/plaintiff from using
EFGH common pathway.
2. In the forthcoming paragraphs, the parties are described as per their
litigative status in the suit. The plaintiff claims right over the EFGH common
pathway mentioned in the suit schedule and traces the title to the same as
follows:
a) The plaintiff purchased the suit schedule property from R.Subramani
by a sale deed dated 31.07.1995 registered as Document No.1947/1995.
According to the plaintiff, as per the said sale deed, on the northern side, there
is a 3 feet common pathway and the measurement of the North-South on the
western and eastern side is 21¼ feet.
b) According to the plaintiff, her vendor got the suit schedule property by
way of a registered settlement deed dated 12.08.1971.
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S.A.(MD).No.516 of 2017
c) According to the plaintiff, as per the settlement deed, her vendor and
the northern side owner had to form a common pathway by allotting 1½ feet
each and thereafter, they formed a common pathway in order to enable both the
parties to carry out necessary repairs on both sides of the properties.
d) Further, it is the case of the plaintiff that the joint family property
allotted to R.Subramani, her vendor by oral partition and the seller of the suit
schedule property and the seller of the defendants' portion were jointly owned
property belonging to R.Subramani and others.
e) The plaintiff filed O.S.No.659 of 1994 against her vendor in respect of
the suit schedule mentioned property and it ended in compromise and the said
R.Subramani sold the same to the plaintiff.
f) According to the plaintiff, in the first week of October 2011, dispute
arose between the plaintiff and the defendants in respect of the suit schedule
mentioned property and the EFGH portion in the plaint plan is a common
pathway and ABCD portion belongs to the plaintiff and IJKL belongs to the
defendants.
g) According to the plaintiff, the defendants put up the gate on the EF
portion on the EFGH common pathway. The plaintiff lodged a complaint
before the Police against the defendants on 10.10.2011 in respect of the
encroachment. The North-South measurement on the western and eastern side
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S.A.(MD).No.516 of 2017
is 21¼ feet and according to the plaintiff, at present the measurement is 19 feet.
The plaintiff claims that her share in the common pathway is 1½ feet and the
defendants have encroached more that ¾ feet of the plaintiff's share. Since the
defendants did not remove the gate put up in the EF portion of the common
pathway despite the reminders sent by the plaintiff, the suit was filed.
3. However, the defendants, as seen from the written statement filed by
the first defendant, have stated that they are not parties to the suit in O.S.
No.659 of 1994 and the compromise decree passed therein cannot bind them.
They have stated that the measurement in the rough sketch of plaint is false and
EFGH portion is part and parcel of the defendants' property. Therefore, they
have stated that the plaintiff does not have any right, title or interest over the
EFGH portion as the said property is the exclusive property of the defendants.
They have denied that the gate was put up by the defendants only in the month
of October 2011, as according to them, the gate is in existence for several years.
They have stated that there is no common pathway and therefore, the question
of preventing the plaintiff to enter the EFGH portion does not arise. They have
also pleaded that the suit is bad for non-joinder of proper and necessary parties
and the Court fees of the said property were not valued by the plaintiff properly.
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S.A.(MD).No.516 of 2017
4. The Trial Court based on the pleadings of the respective parties framed
the following issues:
"a) Whether the plaintiff is entitled to the relief of
mandatory injunction as prayed for?
b) Whether the plaintiff is entitled to the relief of permanent
injunction as prayed for?
c) Whether the suit is bad for non-joinder of necessary
parties?
d) To what other relief the plaintiff is entitled there to?"
5. Before the Trial Court, the plaintiff filed five documents, which were
marked as exhibits A1 to A5 and two witnesses were also examined on her side,
namely, the plaintiff herself as P.W.1 and Mr.R.Vadivelu as P.W.2. On the side
of the defendants, three documents were filed, which were marked as exhibits
B1 to B3. The first defendant R.Ramar was examined as D.W.1 on the side of
the defendants.
6. The Trial Court has decreed the suit in favour of the plaintiff by giving
the following reasons:
a) Ex.A5, the compromise decree passed in O.S.No.659 of 1994 in the
suit filed by the plaintiff against her vendor discloses that there was a common
pathway as claimed by the plaintiff in the suit.
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S.A.(MD).No.516 of 2017
b) The plaintiff's witness, namely, P.W.2, the Surveyor has also deposed
and Ex.X1 was marked through him and in Ex.X1, yellow colour indicates 0.6
metres of the disputed property.
c) P.W.2, the Surveyor, has also deposed that in Ex.A1 sale deed, the
description of the property shows that on the northern side of the plaintiff's
property, there is a 3 feet common pathway.
d) The Advocate Commissioner's report and the rough sketch, which
have been marked as exhibits C1 and C2, also shows that a gate was put up by
the defendants.
e) D-D1 in the rough sketch of the Advocate Commissioner's report
measures 0.6 metres and in Ex.C1 Advocate Commissioner's report and as per
the Surveyor's report, T.S.No.3340/47 belongs to Sangumani Paradesi Trust,
whereas, the defendants have stated that it was purchased by them.
f) In the Advocate Commissioner's report (Ex.C1), it has been stated that
as per the Surveyor, the suit property was within the defendants' property.
g) The Surveyor was examined as P.W.2 and his report (Ex.X1) has found
that the disputed suit property is 0.6 metres, but the common pathway of EFGH
portion has to be 3 feet and during cross-examination of P.W.2, he deposed that
in Ex.X1, the yellow colour portion indicated therein, which is the disputed
property, is a common pathway.
h) The plaintiff has discharged her burden of proof to prove the suit claim
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S.A.(MD).No.516 of 2017
and the burden of proof is therefore shifted to the defendants to disprove the
contentions of the plaintiff.
i) The first defendant has been examined as D.W.1 and during his
cross-examination, he has deposed that there is a common pathway measuring 3
feet between the plaintiff and the defendants' property.
j) In Ex.B1 sale deed dated 28.07.1993, the schedule of the property in
the said document reveals that on the northern side of the plaintiff's property,
there is a common pathway measuring 3 feet.
k) During the cross-examination, D.W.1 has admitted Ex.A1 and
similarly D.W.1 has admitted that in Ex.B1, there was a common pathway for 3
feet and for each 1 ½ feet share and the property was purchased from the same
vendor as that of the plaintiff.
l) The Trial Court has observed that no documentary evidence was
produced by the defendants to show that the plaintiff has constructed her
building on her 1½ feet share in the common pathway measuring a total extent
of 3 feet.
m) In the Advocate Commissioner's report, it has been stated that the
defendants have put up the gate on EFGH portion in EF portion restraining the
plaintiff from using the common pathway. The plaintiff claimed that the
measurement on the western and eastern side is 21¼ feet, but at present, the
measurement is 19 feet only and in Ex.X1 in that 5.6 metres, the measurement
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S.A.(MD).No.516 of 2017
converted into feet for convenience, the North-South measurement on the
western and eastern side is 19 feet and it was also stated in Ex.C2. As per
Ex.A1 and Ex.B1, there should be 21¼ feet and there is an encroachment by the
defendants. Hence, the plaintiff has a share of 1½ feet in the common pathway
in EF portion on the western side of EFGH portion as per the plaint plan.
Only based on the oral and documentary evidence available on record,
the Trial Court has decreed the suit in favour of the plaintiff as prayed for in the
plaint as the defendants have encroached upon the common pathway by putting
up a gate.
6. The Lower Appellate Court by its judgment and decree dated
16.08.2017 in A.S.No.8 of 2017 has also rightly confirmed the findings of the
Trial Court by dismissing the first appeal filed by the defendants.
7. This Court on 30.11.2017 admitted the Second Appeal by formulating
the following substantial questions of law:
"a) Whether the first appellate Court is right in confirming
the decree of Lower Court without a prayer for declaration of title
by the plaintiff/respondent?
b) Whether the decree for mandatory injunction is
sustainable in the absence of other owner Trust in respect of one of
the pillars which is admittedly in the site belonging to a Trust?"
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S.A.(MD).No.516 of 2017
8. This Court is of the considered view that there is no necessity for the
plaintiff to file a suit for declaration when the documents filed by both the
parties to the suit, which have been marked as exhibits and the Advocate
Commissioner's report supported by plans clearly establishes the plaintiff's
claim that there is a common pathway measuring 3 feet on the northern side of
her property. Only when there is a cloud over the rights of the plaintiff over the
common pathway, the necessity to file a suit for declaration will arise.
Therefore, the first substantial question of law formulated by this Court at the
time of admission of the Second Appeal is answered against the
appellants/defendants.
9. Insofar as the second substantial question of law formulated by this
Court, namely, whether the decree for mandatory injunction is sustainable in the
absence of other owner Trust in respect of one of the pillars which is admittedly
in the site belonging to a Trust is concerned, the said question of law is also
answered against the appellants/defendants by this Court as the plaintiff has
discharged her burden of proving the suit claim through her oral and
documentary evidence, whereas, the appellants/defendants have not produced
any documentary evidence before the Trial Court to establish their claim that
the plaintiff is not entitled for 3 feet common pathway, which is the subject
matter of dispute in the suit.
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S.A.(MD).No.516 of 2017
10. For the foregoing reasons, there is no merit in this Second Appeal as
the issues raised by the appellants in the grounds of appeal have all been
correctly considered by the Courts below against the appellants/defendants. In
the result, this Second Appeal is dismissed. There shall be no order as to costs.
Consequently, connected miscellaneous petition stands closed.
31.03.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
Lm
To
1.The II Additional Sub Court,
Madurai.
2.The Additional District Munsif Court,
Madurai.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.516 of 2017
ABDUL QUDDHOSE, J.
Lm
S.A.(MD).No.516 of 2017
31.03.2023
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