Madras High Court

Krishnan vs Joint Family By Its on 30 January, 2025

Author: V.Sivagnanam

Bench: V.Sivagnanam

                                                                              S.A.No.1613 of 2004



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT


                                      Reserved on               23.01.2025
                                    Pronounced on               30.01.2025


                                                     CORAM

                                  THE HON'BLE MR.JUSTICE V.SIVAGNANAM

                                              S.A.No.1613 of 2004

                     1.Krishnan
                     2.Thangavel
                     3.Chandran                                                ... Appellants

                                              -vs-

                     Joint Family by its
                     Manager Pandian (died)

                     2.Poopathi
                     3.Sundaram
                     4.Vasanthi
                     5.Rasu
                     6.Sathyanarayanan
                     7.Saranya
                     8.Jamunasri
                     (RR2 to 8 are brought on record as LRs of the deceased
                     sole respondent vide Court order dated 21.11.2024 made
                     in CMP(MD)Nos.15343, 15346 & 15349 of 2024)

                                                                                ..Respondents




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                     1/14
                                                                                   S.A.No.1613 of 2004




                     PRAYER: Second Appeal filed under Section 100 Code of Civil
                     Procedure to set aside the Judgment and decree dated 12.01.2004 in
                     A.S.No.44 of 2003 on the file of the District Court, Karur confirming the
                     judgment and decree dated 20.04.2001 made in O.S.No.199 of 1998 on
                     the file of the Principal District Munsif Court, Karur.


                                    For Appellants          ... Mr.P.T.S.Narendravasan

                                    For Respondents         ... Mr.P.Thiyagarajan
                                                                  for R2 to R7
                                                                No appearance for R8



                                                         JUDGMENT

The Second Appeal has been filed against the Judgment and

Decree passed in A.S.No.44 of 2003 dated 12.01.2004 on the file of the

District Court, Karur confirming the Judgment and Decree passed in

O.S.No.199 of 1998 dated 20.04.2001 on the file of the Principal District

Munsif, Karur.

2. For the sake of convenience, the parties are referred to as per

their ranking in the Trial Court.

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3.The defendants in O.S.No.199 of 1998 on the file of the

Principal District Munsif, Karur are the appellants herein.

4. The case of the plaintiffs is that the properties more fully

described hereunder in A and B schedule, which are situated at

Senaopadi, Nerur North Village, Karur Taluk. The suit A schedule

property originally belonged to one Naaliya Kandar, son of Marudha

Kandar of Ganappadi and he had been in possession and enjoyment of

the same till 07.10.1966. On 07.10.1966, one Ramasamy Kandar who is

the father of the plaintiffs purchased the suit A schedule property from

the above said Naaliya Kandar. In pursuance of the above said sale deed,

the plaintiff's father Ramasamy Kandar was put in possession of the suit

A schedule property and since then he had been in possession and

enjoyment of the same till his death. The defendants are having their

lands on the west of the suit A and B schedule properties. During the

absence of the plaintiff, about three months back, the defendants high

handed and illegally encroached the suit B schedule property and are

obstructing the plaintiff's family from entering into the suit A schedule

property through the suit B schedule property. The red washed portion

shown in the plaint is the suit B schedule property and it is a road margin

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which was encroached by the defendants. The defendants have got no

manner of right to encroach upon the suit B schedule property so as to

obstruct the plaintiff from entering into the east west Highways on the

north to reach the suit A schedule property. Hence, the suit has been filed

to declare that the plaintiff's family is entitled to enter into the suit A

schedule property from each and every inch of the road margin viz., the

suit B schedule property and consequentially to pass an order of

mandatory injunction directing the defendants to remove the

encroachment in the suit B schedule property within the time granted by

this Court and to pass an order of permanent injunction restraining the

defendants, their men, servants, agents or any one on their behalf from in

any manner interfering with the plaintiff's peaceful possession and

enjoyment of the suit A schedule property.

5. The defendants filed a written statement and contested suit. In

the written statement, they have stated that the B schedule property is the

property of the Government in S.F.No.93 of Nerur North Village and

also the property is the road Poramboke. The first defendant encroached

the suit B schedule property in the year 1970 and the same has been in

possession and enjoyment of the defendant's family till date. In fact, in

the B schedule property, the first defendant has planted several coconut

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saplings and also he has planted coconut saplings on the western side of

the suit B schedule property. The western poramboke land is also in

possession and enjoyment of the defendant's family. The defendants are

having their patta land in S.F.No.83 on the south of the western side

poramboke land. The B schedule property and the western side of the B

schedule property has been jointly enjoying by the defendant's family

from the year 1970 till date. The possession and enjoyment of the

defendant's family is in open, peaceful, continuous, without any

interruption to the knowledge of others including the plaintiff. So with a

view to grap the suit B schedule poramboke land from the defendant, the

plaintiff has come forward with this frivolous suit. There is cattle shed in

the B schedule property and there is one Chandra Valaya well in the B

schedule property. The B schedule property is in peaceful possession

and enjoyment of the defendant's family as vacant site for tieing cattle

and the above said well has been dug by the defendants for their

convenient enjoyment. In the suit B schedule property and the western

side of the suit B schedule property, there is an old age 25 coconut trees

are standing. All the coconut trees are planted by the first defendant.

The plaintiff is neither in possession nor in enjoyment of the suit B

schedule property. Hence, they prayed for dismissal of the suit.

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6.On the basis of the above said pleas set out by the respective

parties, the following issues were framed by the Trial Court for

consideration:

1. tof;fpy; thjp Nfhhpagb tpsk;Gif ghpfhuk; ngw chpatuh?

2.tof;fpy; thjp Nfhhpagb nraYWj;Jf;fl;lis ghpfhuk; ngw chpatuh?

3.tof;fpy; thjp Nfhhpagb epue;ju cWj;Jf;fl;lis ghpfhuk; ngw chpatuh?

4. NtWghpfhuk; vd;d?

7. Before the Trial Court, on the side of the plaintiffs, two

witnesses have been examined as P.W.1 and P.W.2 and 5 documents

have been marked as Ex.A1 to Ex.A5. On the side of the defendants, two

witnesses have been examined as DW1 and DW2 and 5 documents have

been marked Ex.B1 to Ex.B5.

8. The Trial Court, after considering the oral and documentary

evidence, decreed the suit as prayed for by granting three months time to

remove the obstructions. Aggrieved by this, the defendants preferred an

appeal in A.S.No.44 of 2003 before the Principal District Judge, Karur.

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The First Appellate Court, by its Judgment dated 12.01.2004 dismissed

appeal by confirming the Judgment and Decree of the trial Court.

Aggrieved by this, the defendants filed the present second appeal.

9. While admitting the second appeal, this Court has formulated

the following substantial questions of law:-

“i) Whether the Courts below were right in rejecting the Exhibit B series which are the adangal extract issued by the Tahsidar to prove that the defendants are in possession and enjoyment beyond the statutory period?

ii) Whether the Courts below were right in shifting the burden of proof to the defendants to establish their right about their enjoyment and possession of the B schedule property?

iii) Whether the Courts below were right in holding that the plaintiffs have right over the B schedule property as pathway to their A schedule property in the absence of any concrete proof by the plaintiffs?”

10. The learned counsel for the appellants/defendants submitted

that the plaint A schedule property was purchased by the plaintiff's father

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under Ex.A1 sale deed dated 07.10.1966. There is no dispute with regard

to the plaintiff's title to A schedule property. B schedule property is in

S.F.No.93 which is road poramboke encroached by the first defendant in

the year 1970 and he in possession and enjoyment of the property for

long period. The plaintiff' never used the east west road on the northern

side to reach his A schedule property. The plaintiff is having access on

eastern side of B schedule property to reach A schedule property from

the road. Further, the plaintiff used the A schedule property as cattle

shed. The Advocate Commissioner report Ex.C1 clearly stated about the

enjoyment of the defendants. The plaintiff had no right to file the suit for

mandatory injunction to remove the encroachment as against the

defendants. When the plaintiff is not the owner of B schedule property,

he can approach the Government authorities to remove the

encroachments made by the defendants. Since B schedule property is the

road poramboke in S.F.No.93, the plaintiff has not right to get the relief

of mandatory injunction. Since he is having access to reach A schedule

property apart from B schedule property, he has no right to claim right to

have access through the above schedule property and he is not entitled to

permanent injunction. The relief sought for in the suit is not

maintainable. The Trial Court and the First Appellate Court have not

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considered the evidence on record properly and the findings of the

Courts below is erroneous and liable to be set aside and thus, pleaded to

allow the second appeal.

11. The learned counsel for the respondents/plaintiff supported the

Judgment of the Courts below and further contended that the plaintiff is

owning property adjacent to the Highways. The sale deed Ex.A clearly

mentioned in the northern boundaries as a road and he is entitled to have

access from all points to reach the highways and his access cannot be

prevented by putting any construction in any portion. The right of

owners of land adjoining a highway to go upon the highway from any

points on their land is private right. If the right to access is obstructed by

anyone, he is entitled to file the suit for declaration and mandatory

injunction, permanent injunction and the suit is well maintainable. There

is no ground for interference and there is no merit in the second appeal

and thus, pleaded to dismiss the second appeal.

12.In support of his contention, the learned Counsel has produced

the following judgments:-

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(i) 1972(2) MLJ 4 (Damodara Naidu vs. Thirupurasundary Ammal)

(ii) 1995(1) LW 451 (KVK.Janarthanan vs. State of Tamil Nadu and others)

(iii) 2011(0) Supreme (Mad) 356 (Subbammal vs. Venkatachalam and another)

13. I have considered the matter in the light of the submissions

made by the learned counsel appearing on either side and perused the

materials available on records carefully.

14. On perusal of the records, the facts reveals that the plaintiff's

father Ramasamy Kandar had purchased the plaint A schedule property

on 07.10.1966 which is evidenced by Ex.A.1 sale deed dated 07.10.1966.

This fact is admitted by the defendants and not disputed that the plaintiff

is owner of A schedule property. Admittedly, the plaint B schedule

property is in S.F.No.93 as a road poramboke.

15. The Commissioner's report Exs.C1 reflects the suit A and B

schedule property. Ex.C3 Surveyor Map clearly shows the encroachment

made by the defendants. The Advocate Commissioner's report and

Surveyor Field Map reflects the fact that the defendants encroached the

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road poramboke south to main road north to the plaint A schedule

property. The defendants have also admitted in his written statement in

para 8 that the property is a road poramboke. Admittedly, the plaint A

schedule property is on the southern side of the road.

16. A perusal of Ex.A1 sale deed 07.10.1966, it is seen that the

description of property is mentioned as follows:-

“ne&h; fpuhkj;jpy; m.G.r.87 ne.Vf;.1.70y; jq;fs; G +kpf;F fpof;F> fpoNky; Nuhl;Lf;F njw;F jq;fs; FbapUg;G tPl;Lf;F Nkw;F> jq;fs; eQ;ir G+kpf;F tlf;F ,jd; kj;jpapy; Vf;.0.04 ,JTk;> kh%y; jlKk;> Nkw;gb nrhj;J fpoNky; Kok; 30 njd;tly; Kok; 30 cs;sJ. Nkw;gb nrhj;J fhyp epyk;.”

17.From the above, it is seen that the plaintiff's father purchased

the property on the southern side of the east west road.

18. Admittedly, the suit B schedule property lies in S.F.No.93 is a

Government road poramboke. The Advocate Commissioner in his report

stated about the fact clearly. From physical features noticed by the

Advocate Commissioner, the fact reveals the encroachments made by

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the parties and it also reveals the fact that the plaintiff is having property

on the southern side of the main road. Under these circumstances, the

defendants have no right to obstruct the adjoining land owner from using

the main road for access by putting up any obstruction.

19.The law is well settled that the right of owners of land