Madras High Court
K.Shanmuga Mudaliar vs N.Ramalingam (Died) on 5 November, 2024
2024:MHC:3767
S.A.No.2 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 30 / 10 / 2024
JUDGMENT PRONOUNCED ON : 05 / 11 / 2024
CORAM
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO.2 OF 2021
1.K.Shanmuga Mudaliar
2.V.Mahendaran ... Appellants / Appellants /
Plaintiffs
Vs.
1.N.Ramalingam (Died)
2.R.Raju @ Saravanan
3.Premalatha
4.Uma Maheswari
(R1 Died – RR3 & 4 are brought
on record as LRs' of the deceased
R1 vide Court order dated 12.02.2024
made in CMP Nos.29339, 29343 &
29344 of 2023 in S.A.No.2/2021) ... Respondents / Respondents /
Defendants
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, 1908 praying to set aside the Judgment and Decree dated
November 4, 2019 passed in A.S.No.26 of 2018 on the file of Additional
Subordinate Court, Tiruppur, whereby the Judgment and Decree dated
April 20, 2018 passed in O.S.No.326 of 2009 on the file of District Munsif
Court, Tiruppur was confirmed.
Page No.1 of 17
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S.A.No.2 of 2021
For Appellants : Ms.D.Chitra Maragatham
For Respondent 1 : Died – Steps taken
For Respondents 2 to 4: Ms.T.Sudha Gandhi
JUDGMENT
This Second Appeal is directed by the unsuccessful plaintiffs.
Challenge is to the Judgment and Decree dated November 4, 2019 passed
in A.S.No.26 of 2018 on the file of ‘Additional Subordinate Court,
Tiruppur’ ['First Appellate Court' for short], whereby the Judgment and
Decree dated April 20, 2018 passed in O.S.No. 326 of 2009 on the file of
‘District Munsif Court, Tiruppur’ ['Trial Court' for short] was confirmed.
2. Hereinafter, for the sake of convenience, the parties will be
denoted as per their array in the Original Suit.
Plaintiffs’ Case in Brief:
3. In the Plaint it is averred that the plaintiffs are the absolute
owners of house properties bearing Door Nos. 405 and 406. The second
plaintiff is the son of the first plaintiff’s brother. An open triangular space
on the southern side of Door No. 405 serves as the plaintiffs’ front yard
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and pathway, and constitutes the Suit Property. The Suit Property is a
Natham land bounded by the house of Palanisamy Mudaliar on the west,
an East-West Street on the south, and the first plaintiff’s property on the
north and the east. The plaintiffs have continuously and peacefully been in
possession and enjoyment of the Suit Property for over 80 years without
any interference.
3.1. The defendants, who are father and son, reside on the
east side of the plaintiffs’ house properties and the Suit Property. They
have no legal rights over the Suit Property. With intent to usurp the Suit
Property, one Sivabagiam attempted to obtain a Patta in her favour on
January 25, 2006. However, the first plaintiff prevented this attempt by
submitting representations to the Tiruppur Tahsildar and the Village
Administrative Officer of Veerapandi Village. Over the past two years, the
defendants have similarly sought to obtain Patta for the Suit Property
multiple times but the attempts were all thwarted by the plaintiffs. On
September 25, 2009, the defendants trespassed into the Suit Property and
attempted to remove trees planted by the plaintiffs. The plaintiffs resisted
this trespass, and then the defendants lodged a complaint with the local
police against the plaintiffs. Hence, the Suit for permanent injunction and
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costs.
Defendants’ Case in Brief:
4. The first defendant filed Written Statement and the same
was adopted by second defendant. The defendants admit the relationship
between the parties. They aver that the Suit Property does not belong to
the plaintiffs. It was originally ancestral property of one Sivathal alias
Sivabagiavathy. The second defendant purchased the Suit Property from
the said Sivabagiavathy for consideration vide Sale Deed dated July 17,
2006. Since then the defendants have been in actual possession and
enjoyment of the Suit Property by putting some wooden articles in the Suit
Property.
4.1. It is further averred that the plaintiffs sought to purchase
the Suit Property from the said Sivabagiavathy before the said Sale, and
the same was unsuccessful. Thereafter, they sought to purchase from the
defendants who also declined. Aggrieved plaintiffs set ablaze the wooden
articles. Hence, the defendants filed a complaint at Police Station, where
during investigation the plaintiffs agreed not to disturb the defendants any
more. This Suit filed thereafter is a false, frivolous and a vexatious one.
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Accordingly, they prayed that the Suit shall be dismissed.
Trial Court:
5. At Trial, on the side of the plaintiffs, the first plaintiff
examined himself as P.W.1 and marked Ex-A.1 to Ex-A.6; J.
Sundarapandiyan, Village Administrative Officer of Veerapandi Village
was examined as P.W.2 and Ex-X.1 and Ex-X.2 were marked through him.
On the side of the defendants, the first defendant examined himself as
D.W.1 and one Kumar, Village Administrative Officer, Veerapandi
Village was examined as D.W.2. Ex-B.1 to Ex-B.14 were marked.
5.1. Upon hearing both sides and considering the oral and
documentary evidence, the Trial Court concluded that the plaintiffs have
not proved their possession and enjoyment of the Suit Property; and that
the plaintiffs have not produced any documents to establish their title over
the Suit Property. Accordingly, Trial Court dismissed the Suit without
costs.
First Appellate Court:
6. Aggrieved by the dismissal, the plaintiffs approached the
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First Appellate Court by way of an appeal under Section 96 of the Code of
Civil Procedure, 1908. The First Appellate Court upon hearing both sides
and analysing the oral and documentary evidence, concluded that the
plaintiffs neither proved their title nor pleaded and proved the alleged
easementary right of pathway over the Suit Property. Accordingly, it
concurred with the findings of the Trial Court and dismissed the appeal.
Substantial Questions of Law:
7. Aggrieved with the Judgment and Decree of the First
Appellate Court, the plaintiffs preferred this Second Appeal and the same
was admitted on February 15, 2021 on the following Substantial Questions
of Law:
“(a) Whether the suit property is Natham pathway as
admitted by P.W.2, the Village Administrative Officer, patta
not issued to anyone since it is a pathway.
(b) Whether the Additional Subordinate Judge is right
in dismissing the suit?
(c) Whether the Judgement of the Lower Appellate
Court is perverse and vitiated for failure to consider the oral
and documentary evidence in proper perspective?”
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Arguments:
8. Ms.D.Chitra Maragatham, learned Counsel for the
appellant / plaintiffs would argue that the Suit Property is comprised in
Survey No.697/6 and situated on the southern side of the plaintiffs’ house
properties which are in Survey No.696/6. The plaintiffs are using the Suit
Property as a front yard and as a pathway to access their houses. The
defendants have no right or title in the Suit Property. Though the plaintiffs
claimed possessory title in the Plaint, they prayed the First Appellate
Court to mould the relief and grant permanent injunction restraining the
defendants from obstructing the plaintiffs from using the Suit Property as
a Pathway. The evidence of P.W.1 and P.W.2 coupled with the
documentary evidence of Ex-X.1 and Ex-X.2 would establish that the
entire extent of Survey No.697/6, which includes the Suit Property, is a
Natham Pathway in which the plaintiffs have right to use pathway. The
defendants have no right to restrict the plaintiffs from using the Pathway.
Accordingly, she would pray to allow the Second Appeal and grant relief
of permanent injunction by moulding the prayer.
9. In response to the above arguments, Ms.T.Sudha Gandhi,
learned Counsel for the respondents / defendants would argue that the Suit
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Property was originally owned by one Sivabagiavathy and later sold to the
second defendant vide Ex-B.2 - Sale Deed dated July 17, 2006. The
defendants are in possession and enjoyment of the Suit Property. The
plaintiffs attempt to interfere with the same. The plaintiffs have no right or
title over the Suit Property. The Trial Court and the First Appellate Court
rightly appreciated the evidence and dismissed the Suit. There is no need
to interfere with the said findings. Accordingly, she would pray to dismiss
the Second Appeal and confirm the Judgment and Decree of the First
Appellate Court.
Discussion:
10. This Court has heard on either side and perused the
materials available on record in light of the Substantial Questions of Law.
11. In this case, the plaintiffs examined Mr.J.Sundarapandy,
Village Administrative Officer of Veerapandi Village as P.W.2 as official
witness on November 20, 2013 and through him Ex-X.1 and Ex-X.2 were
marked. Ex-X.1 is the Field Measurement Book (FMB) for Survey
No.696, and Ex-X.2 is Field Measurement Book for Survey No.697.
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Thereafter, the defendants examined Mr.P.Kumar, Village Administrative
Officer of Veerapandi Village on January 27, 2017 as D.W.2.
12. P.W.2 in his evidence has deposed that Survey No.696/6
stands in the name of Plaintiff No.1; and that as per records, entire extent
of Survey Nos.697/6 is Natham Pathway. In this regard, D.W.2 has
deposed along the lines of P.W.2. This Court has perused Ex-A.1-Natham
Chitta, Ex-X.1 & Ex-X.2. Ex-A.1 shows that Survey Nos.696/6, 696/8,
696/9 and 696/4 are Natham Land and Survey No.696/6 stands in tehname
of 1st plaintiff. Exs-X.1 and X.2 are FMBs' as stated supra. Oral evidence
of P.W.2 & D.W.2 are in consonance with Ex-A.1, Ex-X.1 and Ex-X.2
documents. Cumulative reading of the evidence of P.W.2 and D.W.2 along
with Ex-A.1, Ex-X.1 and Ex-X.2 documents would show that Survey
No.109 was bifurcated into Natham Survey Nos.691 to 708 and
Government assessed tax under the Natham Land Tax Scheme in the year
1992. That is to say the Suit Property which is in Survey No.697/6 was
originally a Patta Land and later it was converted into a Natham Land.
D.W.1 in his evidence has admitted the aforesaid facts. Hence, no doubt
that since 1992, Survey No.697/6 (Suit Property) stands as Natham
Pathway. Relevant portion of D.W.1’s evidence reads thus:
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“ . . .1992k; Mz;nl fapj;jkiy Kjypahh; kf;fSf;F
gl;lh tH';fg;gl;l tptuk; vdf;F bjhpa[kh
vd;why; 1992k; Mz;nl ej;jk; gl;lh
bfhLf;fg;gl;Ltpl;lJ fapj;jkiy Kjypahh;
kfd;fs; gl;lh th';fpapUf;f khl;lhh;fs; vd;W
ehd; epidj;Jf; bfhz;nld;. 1992k; Mz;L vdf;F
ej;jk; gl;lh tH';fg;gl;lJ vd;why; rhpjhd;.
1992k; Mz;nl ,Ltk;ghisak; fpuhkj;jpYs;s
ej;jk; epy';fSf;F gl;lh tH';fg;gl;Ltpl;lJ
vd;why; rhpjhd;. ,Ltk;ghisak; fpuhk kf;fSf;F
bfhLf;fgl;l ej;jk; gl;lh Kiwahf muR jhspy;
btspaplg;gl;lJ vd;why; rhpjhd;. fapj;jkiy
Kjypahh; kfd;fSf;F gl;lh bfhLj;jij
Ml;nrgid bra;J ehsJ njjptiu kD
bra;njdh vd;why; ,y;iy. ej;jk; gl;lh
tH';Ftjw;F Kd;g[ Kiwahf m';F mDgtk;
bra;jth;fSf;F muR mwptpg;g[ bfhLj;jJ vd;why;
rhpjhd;. gp.jh.rh.M.2 fpuag;gj;jpuj;jpy; jhd; fpuak;
bgw;wjhf brhy;Yk; f.r.vz;zpy; cl;gphpt[
Fwpgplg;gl;Ls;sjh vd;why; ,y;iy. gp.jh.rh.M.2
brhj;J tptuj;jpy; f.r.vz;.696/6 kw;Wk; 697/6 vd
Fwpg;gpl;L brhy;yg;gltpy;iy vd;why; rhpjhd;.
f.r.vz;.696/6f;F bjd;g[uj;jpy; f.r.vz;.697/6 cs;sJ
vd;why; rhpjhd;. f.r.vz;.696/6f;F bjd;g[uk;
f.r.vz;.697/6 tPjp vd;Wk; mjw;F ahh; bgahpYk;
gl;lh tH';fg;gltpy;iy vd;why; rhpjhd;.
f.r.vz;.697/6 MdJ tPjpahf cs;sjhy; mjpy; ehd;
vt;tpj chpika[k; nfhuKoahJ vd;why; rhpay;y.”
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13. The defendants claim title to the Suit Property vide Ex-
B.2 - Sale Deed dated July 17, 2006. This Court has perused the same.
Under Ex-B.2, one Sivabagiavathy sold the Suit Property to the second
defendant in the year 2006. The twist here is that the Suit Property was
sold to the defendants in the year 2006 i.e., after it was converted into a
Natham Pathway in the year 1992. The question of validity of Ex-B.2 -
Sale Deed cannot be dealt with in this case and is left open.
14. With the evidence available on record, this Court can treat
the Suit Property situated in Survey No.697/6 only as a Natham Pathway.
The plaintiffs’ house properties situated in Survey No.696/6 abut the
northern side of Survey No.697/6. P.W.1 in his evidence has deposed that
he is using the Suit Property as a front yard. Survey No.697/6 being a
Natham Pathway, the plaintiffs are entitled to use the Suit Property, which
is comprised in Survey No.697/6, as a pathway but not as a front yard or
anything else. Neither the plaintiffs nor the defendants have any right to
obstruct the pathway by planting trees, putting wooden articles or stones,
or by doing anything of that sort. A Pathway must remain a Pathway. The
defendants have no right to restrict the plaintiffs from using the Suit
Property as pathway for ingress and egress to his house properties.
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15. The plaintiffs claimed injunction based on possessory title
as if they are in possession and enjoyment of the Suit Property before the
Trial Court and hence, the Trial Court dismissed the Suit. At appeal before
the First Appellate Court, the plaintiffs prayed to mould the relief and
grant permanent injunction restraining the defendants from obstructing the
plaintiffs from using the Suit Property as a Pathway to their house
properties. The First Appellate Court did not accept the same and
dismissed the appeal. This Court is of the view that the Plaint Prayer can
be moulded and there is no impediment to grant limited injunction against
the defendants not to obstruct the plaintiffs’ usage of the Suit Property as a
Pathway for the purpose of accessing their house properties situated in
Survey No.696/6, until and unless the defendants establish their title or
right, if any, over the Suit Property before the Court of law.
Conclusion:
16. As narrated above, as per the available records, the Suit
Property is a Natham Pathway, however subject to the defendants proving
their title or right, if any. The First Appellate Court exercised its discretion
to conclude that the Plaint Prayer cannot be moulded in the absence of
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sufficient pleadings and evidence. Though it is incorrect, it cannot be
termed as perverse or vitiated. Substantial Questions of Law are answered
accordingly.
17. Resultantly, the Second Appeal stands partly-allowed
in the following terms:
(a) The plaintiffs are hereby granted the relief of
limited injunction restraining the defendants,
their agents and men from obstructing the
plaintiffs from using the Suit Property as a
pathway, till the defendants prove their title or
right, if any, over the Suit Property before the
competent Court of law;
(b) Needless to mention, a Pathway has to be
maintained as a Pathway. Neither the plaintiffs
nor the defendants can obstruct the Pathway
by planting trees, putting wooden articles,
debris, stones or by doing any act of that
nature;
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(c) The defendants are at liberty to file a Suit for
declaration in respect of the Suit Property;
(d) If any such Civil Suit is filed by the
defendants, the same shall be decided on its
own merits in accordance with law,
untrammelled and uninfluenced by the
observations and findings of this Court;
(e) Considering the facts and circumstances, there
shall be no order as to costs;
05 / 11 / 2024
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
TK
To
1.The Additional Subordinate Court
Tiruppur.
2.The District Munsif Court
Tiruppur.
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