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1988 DIGILAW 2 (MAD)

Bagyalakshmiammal v. Dhanalakshmiammal

1988-01-05

RATNAM

body1988
JUDGMENT Ratnam, J. 1. The unsuccessful plaintiff in O.S. No. 710 of 1975, Additional District Munsif's Court, Salem, is the appellant in this second appeal. The suit was instituted by the appellant in a representative capacity representing the residents of Kurumbar Street, Salem. Her case is that the property delineated as 'GFEMKH' in the plaintiff plan Ex.A.1 and described in the schedule A to the plaintiff, belongs to her by virtue of a settlement deed dated 10.4.1957 executed by Marappa Naicker in her favour and marked as Ex.A.5. According to the appellant, the east west measurement of the property is 24-1/2 feet, while, the north south measurement is 44 feet, and the property consists of a house and site as well. The further case of the appellant is that the portion marked ABCDMEFG in ExA.1 is known as Kurumbar Street Lane and belongs to the 4th respondent in the second appeal. The appellant put forth the case that the 1st respondent encroached upon a portion of the Municipal lane immediately to the north of the house of the appellant measuring about 5 feet north to south and 24 feet east to west, as indicated in ExA.1. In or about July, 1972, according to the appellant, when she was away in Bangalore, the 1st respondent, her daughter -- the 2nd respondent and her son-in-law- the 3rd respondent, encroached upon the site marked as L E M K belonging to the appellant on the eastern side of the property, constructed a storied building and also put up a drainage from the first floor to drain water over the eastern wall of the house of the appellant. The respondents, according to the appellant, also constructed an almyrah and imbedded a doorframe on the eastern wall of her house. The appellant filed the suit for a declaration that the portion marked as E F O N measuring 5' x 24' in Ex.A.1 north of her house, is a municipal lane. Yet another declaration was also prayed for by the appellant with reference to the portion marked as L E M K measuring 12' x 3' situate on the north eastern portion of her property. Yet another declaration was also prayed for by the appellant with reference to the portion marked as L E M K measuring 12' x 3' situate on the north eastern portion of her property. Since, according to the appellant, respondents 1 to 3 put up a compound wall along O N and put up a latrine on the north-eastern portion and had also further constructed a building encroaching upon her property, marked a L E M K and put up a construction after fixing a door-frame on the eastern wall and also allowed the drainage water to drain above her eastern wall, the appellant also prayed for a mandatory direction directing respondents 1 to 3 to remove the unauthorised constructions in the portions EFON and LEM K indicated in the plan, Ex.A.1. The 4th respondent was impleaded, as according to the appellant, the portion EFON formed part of the municipal lane and the 4th respondent had omitted to take steps to remove the encroachment and restore the municipal lane to its original condition. 2. Respondents 1 to 3 resisted the suit on the ground that the property marked as E F O N in Ex.A.1 belongs absolutely to the 1st respondent by virtue of a settlement deed executed in her favour by one Rajagopal Naicker and marked as Ex.B.1. According to the respondent, the lane to the north of the house of the appellant is not a municipal lane and that the portion north of O N was set apart as private pathway for use by the predecessors-in-title of the 1st respondent. With reference to the portion marked L E M K, they took the stand that it belonged exclusively to the 1st respondent by virtue of a settlement deed, Ex.B.1, dated 21.7.1960 and that the appellant had no manner of right whatever over the property. Respondents 1 to 3 further claimed that the compound wall along O N in the portion marked as E F O N had been put up on the property belonging to them and the construction of a latrine did not in any manner affect either the hygiene or cause any inconvenience. Respondents 1 to 3 further claimed that the compound wall along O N in the portion marked as E F O N had been put up on the property belonging to them and the construction of a latrine did not in any manner affect either the hygiene or cause any inconvenience. The construction put up in the portion LEMK did not rest on the eastern E L wall of the appellant; but two pillars had been erected with an almyrah in between and the drain does not rest on the eastern wall of the appellant's house. The further case of respondent 1 to 3 is that even the lane is a blind lane ending with the house of one Anandhayee Ammal and serves the houses of the appellant, respondents, Vishnukanthan Chetty and A.K.B. Chetty. The 4th respondent contended that the encroachment by the 1st respondent in the portion E F O N by construction of a compound wall and latrine was booked in the name of the 3rd respondent and action had been taken against him. Further, 4th respondent stated that he had no objection for the grant of the reliefs sought for by the appellant. 3. Before the trial court, on behalf of the appellant, Exs.A.1 to A.21 were filed and P.Ws. 1 to 5 were examined, while on behalf of the respondent. Ex.B.1 to B.18 were marked and D.Ws.1 to 4 gave evidence. A commissioner was also deputed to make a local inspection of the property in dispute and submit a report as well as a plan and they were marked as Exs.C.1 and C.2. On a consideration of the oral as well as the documentary evidence, the trial court found that the 1st respondent had established that the portion marked E F O N is not part of the municipal lane, but the private property of the 1st respondent and that even the portion marked as L E M K belongs to her absolutely. It was also further found that there was no encroachment by the 1st respondent over L E M K portion, as alleged by the appellant and therefore, respondents 1 to 3 are not liable to remove the door-frame, almyrah or even the construction put up within the portion marked as LEMK. It was also further found that there was no encroachment by the 1st respondent over L E M K portion, as alleged by the appellant and therefore, respondents 1 to 3 are not liable to remove the door-frame, almyrah or even the construction put up within the portion marked as LEMK. On the aforesaid conclusions, the suit was dismissed Aggrieved by this, the appellant preferred an appeal in A.S. No. 171 of 1979, Sub Court, Salem. On a reconsideration of the entire evidence and taking into account the physical features revealed by the report of the Commissioner, the lower appellate court also found that the disputed portion on the north of the property of the appellant shown as ABCD in the Commissioner's sketch Ex.C.2., forms part of the property of the 1st respondent and is not part of the lane, as claimed by the appellant. Likewise, with reference to the portion LEMK also, the lower appellate court found that the appellant had not established that it forms part of her property and that had been encroached upon by respondents 1 to 3. Thus, concurring with the conclusions arrived at by the trial court the lower appellate court dismissed the appeal. It is the correctness of this that is challenged in this second appeal. 4. Learned Counsel for the appellant relying upon Ex.A.10 and A.11 first contended that the portion north of the property of the appellant had been surveyed and shown as a lane belonging to the Municipality and in the absence of any attempt by respondents 1 to 3 to question the correctness of the same by resorting to a suit within three years as provided under Section 14 of the Madras Surveys and Boundaries Act, 1923 (hereinafter referred to as 'Surveys and Boundaries Act' for short), it is no longer open to respondents 1 to 3 to put forth rights in the disputed property north of the wall of the house of the appellant 1 to 3, referring to the documents of title relating to the property of the appellant as well as those to the north and east, contended that the documents clearly established that the disputed property was only the private property of the predecessors-in-title of respondents 1 to 3 and not a municipal lane. He further pointed out that respondents 1 to 3 were not given any notice whatever of the so called survey, and therefore, neither the survey nor the entering of the property north of the house of the appellant as municipal lane, would be binding upon respondents 1 to 3. Reliance in this connection was placed upon V.M.S. Kandaswamy Nadar v. Province of Madras, and Kuppuswamy Odayar v. Narthangudi Panchayat, Learned Counsel further submitted that it was unnecessary for respondents 1 to 3 to have instituted a suit under Section 14 of the Surveys and Boundaries Act within the period prescribed there under. Yet another argument raised by the learned Counsel was that the survey in this case had been done under Section 21(1) of Madras Estates Land (Abolition and Conversion into Ryotwari) Act (Act XXVI of 1948) and the Survey Officer had no jurisdiction to determine the question of title and in all such cases, the aggrieved party would continue to be the owner of the land, the boundary for which, had been wrongly fixed, and relied upon the decision State of Madras v. Karuppiah Ambalam (1959)1 M.L.J, 185. It was also submitted relying upon the observations of the Full Bench in Sivaprasad Sowcar v. Narasimhamurthi, (1940)1 M.L.J. 79 at 95 (F.B.) that even an adverse finding regarding title given by the survey officer would not bar the unsuccessful claimant from contending in subsequent proceedings that his unlawful possession continues and was openly hostile to the real owner and that, in such a case, the unsuccessful claimant could go behind what the survey officer actually decided, and as, in this case, there was no decision on the question of title, respondents 1 to 3 would not be precluded from supporting their title to the property in dispute. 5. Before proceeding to consider the aforesaid submissions, it would be necessary to refer to the documents of title relied on by the parties in support of their respective cases. In so far as the appellant is concerned, apart from Exs. A.6 and A.5 relating to her property in Door No. 10-A in T.S. No. 60, there is no other document throwing light on the nature of the property to the north of the property of the appellant dealt with under Exs.A.6 and A.5, except Exs.A.10 and All, which shall be referred to and dealt with later. A.6 and A.5 relating to her property in Door No. 10-A in T.S. No. 60, there is no other document throwing light on the nature of the property to the north of the property of the appellant dealt with under Exs.A.6 and A.5, except Exs.A.10 and All, which shall be referred to and dealt with later. Door No. 10-A, now belonging to the appellant, originally belonged to one Pappayee Ammal who settled it in favour of her brother Marappa who is none other than the father-in-law of the appellant. That settlement deed is Ex.A.6 dated 10.9.1953. Marappa, father-in-law of the appellant, in turn settled the property in favour of the appellant under Ex.A.5 dated 19.4.1957. If the case of the appellant that on the north of the northern wall of the property, there was a municipal lane, one would have expected a reference to that lane as the northern boundary of the property dealt with both under Ex.A.6 and A.5. On the other hand the northern boundary for the property of the appellant is given as. Thus, the absence of any reference to the municipal lane or the public lane even in the documents as recent as in 1953 and 1957 clearly establishes that there was no public or municipal lane to the north of the northern wall of the property of the appellant. This is not all. The documents with reference to door No. 14 and door No. 11-A have also been made available. The definite case of respondents 1 to 3 is that door No. 14 (T.S. No. 48/ 1) the property in dispute the portion to the north of it viz., the property of the 1st respondent and the property lying to its north, all formed one single unit and belonged to two brothers Kunju alias Mara Naicker and Ramayyan alias Rangasamy Naicker, and in the partition between them in or about 1863, western portion was allotted to Kunju alias Mara Naicker, while the eastern portion was likewise allotted to Ramayyan Rangasamy Naicker. The partition deed, Ex.B.2 clearly makes this out. A further reference to Ex.B.2 also establishes that a lane with a breadth of 3 cubits was kept in common. The partition deed, Ex.B.2 clearly makes this out. A further reference to Ex.B.2 also establishes that a lane with a breadth of 3 cubits was kept in common. Thus, taking into account the recitals in Ex.A.5 and A.6 with the contents of Ex.2, it is seen that to the north of the appellant's property, was the property, which was allotted to Kunju alias Mara Naicker and the lane portion was left only in the north to width of 3 cubits. One Anandhayee Ammal, who is the predecessor-in-title of the 1st respondent purchased the property shown in T.S. No. 48/1 which now belongs to Vishnukantham Chettiar (T.W.5) the disputed portion marked as E F O N as well as and the property situate west of the appellant's property under Ex.B.3, dated 9.2.1907 from one Gopal Naicker. In describing the southern boundary of the property in Door No. 14 T.S.No. 48/1, it is mentioned as. After referring to the property in T.S. No. 48/1 (door No. 14) it is stated thus. Please write to Ammal mortgaged door No. 14 now T.S. No. 48/1 and also the disputed portion under Ex.A.21 and taking into a account the description of the property in the north, as north of obviously referring to the vacant land, it is clear that the vacant lane part of which is now in dispute, is appurtenant to the house bearing door No. 14, T.S.No. 48/1, though specifically the boundaries for the vacant portion had not been given, similarly Anandhayee mortgaged the properties purchased by her under Ex.B.3 under Ex.A.18 and therein also, identical description is given as found in Ex.B.3 Ex.A.19 executed in 1917 in respect of the entire properties also given the same description as in Ex.B.3. Under Ex.A.20, a sub-mortgage was created by the mortgages under Ex.A.21, and the same description as found in Ex.A.21 is found. Under Ex.A.20, a sub-mortgage was created by the mortgages under Ex.A.21, and the same description as found in Ex.A.21 is found. Then, under Ex.B.16, two of the sons of Anandhayee viz., Rajagopal Naicker and Shanmugha Naicker conveyed the property now comprised in Door No. 14 T.S No. 48/1 to one Venkatachalam Pillai and in that document also, the description is found as on the same day, excluding the property conveyed under Ex.B.16, Shanmugha released under Ex.B.4, his interest in other properties and referring to the property now owned by the 1st respondent in door No. 11-A T.S. No. 59, the property in dispute has been described as the property thus sold under Ex.B.16 had been further sold under Ex.B.17 to one Vishnukantham Chettiar and therein also the description as found in Ex.B.16 is given. Under Ex.B.1 dated 21.7.1960, Rajagopal Naicker settled the property in T.S. No. 59 now owned by the 1st respondent as well as the disputed portion. It is thus clearly seen from the aforesaid unimpeachable and unquestionable documents that the case of the appellant that the disputed property, viz., portion on the north of the northern wall of the property formed part of a lane and there has been an encroachment by respondents 1 to 3 has not been established at all. On the basis of the aforesaid clinching documentary evidence, the court below were right in concluding that the disputed portion forms part of the property of the 1st respondent, as claimed by her. 6. This conclusion of the courts below is also further strengthened by the physical features noticed. It is seen from the prior Commissioner's report Ex.A.12 and the plan Ex.A.13 that there is a pucca drainage only on the north of the disputed portion and that drainage had been noticed to be an old one. The Commissioner in the present suit in the course of his report, Ex.C.1 has also found the municipal tap connection for door No. 57, which lies to the north of the 1st respondent's property, has been taken along the north of the disputed property. The existence of the drainage and pipe in the middle of the lane is not generally conceivable and that is a positive indication that the lane portion is situated only to the north of the disputed portion. 7. The existence of the drainage and pipe in the middle of the lane is not generally conceivable and that is a positive indication that the lane portion is situated only to the north of the disputed portion. 7. The next question is whether the proceedings culminating in Exs.A.10 and A.11 would made any difference to the ownership of the disputed property the 1st respondent Ex.A.10 is a copy of the Town Survey plan of the suit property. Ex.A.11 is a copy of the revenue map for block No. 7 of Ward K of Salem Town. None connected with the plan, Ex.A.10, has been examined though it is certified to be a true extract by the Town Surveyor, Salem East. D.W.4 also frankly confessed that he was not present at the time when the survey was made and that he does not know whether notice was issued prior to the survey, the attention of this Court has not been drawn to any evidence to show that notice prior to the town survey under Ex.A.10 was given to any one, out of respondents 1 to 3. In the absence, therefore, of notice having been given to the party affected by the adverse survey, showing the private property of the 1st respondent, as municipal lane, the order passed culminating in Ex.A.10, cannot be said to be correctly passed under Section 13 of the Surveys and Boundaries Act and binding on the 1st respondent, vide Kandaswamy Nadar's case (1952)1 M.L.J. 84. In view of this, there is no question of the 1st respondent being bound by that survey and obliged to institute a suit to set aside the order of the Survey Officer. 8. It may now be considered whether ExA.11 would have any effect on the ownership of the disputed property ExA.11 is a town Resurvey Revenue Map published in 1975. It is seen there from that T.S. No. 1 to 308 formed part of an area, to which the provisions of Tamil Nadu Act 26 of 1948 were applied and a notification under Section 1(4) of the Act was issued in G.O. No. 3212, Revenue, dated 19th December, 1950. It is obvious that the resurvey had been undertaken some time in 1954-55 as spoken to by D.W.4, and completed in 1959. It is obvious that the resurvey had been undertaken some time in 1954-55 as spoken to by D.W.4, and completed in 1959. Any survey undertaken pursuant to Section 21(1) of Tamil Nadu Act 26 of 1948, is only to facilitate ryotwari settlement and granting of patta and the measurement and classification of lands would only be for that purpose. There could therefore be no occasion for determination of boundaries and decision of disputes relating to title, as there could be no outstanding title in any person in any other land to given rise to a dispute. In this view, it would seem that Section 14 of the Surveys and Boundaries Act, would not be attracted in the case of a Survey under Section 21 of Tamil Nadu Act 26 of 1948. This has been recognised in State of Madras, v. Karuppiah Ambalam (1959)1 M.L.J. 185 where Justice Ramachandra Iyer (as he then was) pointed out that the provisions of Surveys and Boundaries Act cannot be deemed to have been incorporated by virtue of Section 21 of Tamil Nadu Act 26 of 1948, as those provisions would be necessary for working out the provisions of Tamil Nadu Act 26 of 1948. It has also been clearly laid down that a Survey Officer has no jurisdiction to determine the question of title, though in some cases, such decisions may flow as an indirect result of fixing the boundary, but that in all those cases, the aggrieved party would be the owner of the land, the boundary for which was wrongly fixed and the provisions of Section 14 of Surveys and Boundaries Act cannot apply, as the respondent could not be held to be a person aggrieved, as he would have no title to the property before the grant of ryotwari patta and thus, there is no necessity to incorporate Section 14 of Surveys and Boundaries Act, for the working of the Abolition Act. Finally it was held that Section 14 of the Surveys and Boundaries Act would not be applicable to a survey directed under Section 21 of T.N. Act 26 of 1948. Similar is the situation in the present case, where, as could be seen from ExA.11, the survey itself has been undertaken under the provisions of T.N. Act 26 of 1948, consequent upon the issuance of. Similar is the situation in the present case, where, as could be seen from ExA.11, the survey itself has been undertaken under the provisions of T.N. Act 26 of 1948, consequent upon the issuance of. a notification under Section 1(4) thereof, and therefore, there is no question of any decision being rendered with reference to the ownership of the lands, or, the applicability of the provisions of the Surveyor and Boundaries Act. Applying the principles laid down in the decision referred to above, it follows that ExA.11 also cannot assist the appellant in establishing that the property in dispute is a municipal lane. As pointed out earlier, apart from Exs.A.10 and A.11 there is no other material in support of the claim of the appellant that the disputed property is a municipal lane and in view of this, there is no need to refer to the decision of the Full Bench, in Sivaprasad Sowcar. v. Narasimhamurthi (1940)1 M.L.J. 70 relied on by the learned Counsel for respondents 1 to 3 which dealt with a case of interruption of adverse possession owing to proceedings under Surveys and Boundaries Act. 9. The classification, as lane, would not by itself establish its true character, for as pointed out in Kuppuswamy Odayar v. Narthangudi Panchayat at 192 the mere fact that in the resettlement register, a particular piece of land has been described as poramboke will not by itself establish title of the Government to the land in question. Similarly, merely calling private property, as municipal lane, would not enable the Municipality to claim ownership with reference to that property, as if it is a lane, especially when it has not been clearly established by evidence that any proceedings were taken in that regard, after notice to the parties interested and concerned. There is therefore no substance in the first contention of the learned Counsel for the appellant. 10. Learned Counsel next contended that the appellant would at least be entitled to a right akin to an easementary right to go into the open verandah to the north of the appellant's house to periodically repair her northern wall. There is therefore no substance in the first contention of the learned Counsel for the appellant. 10. Learned Counsel next contended that the appellant would at least be entitled to a right akin to an easementary right to go into the open verandah to the north of the appellant's house to periodically repair her northern wall. Even though in para 3 of the plaint, the appellant had stated that for purpose of repairing the northern and the eastern walls she was using the east west portion of Kurumbar Street lane, and a portion of the vacant land, measuring about 3' x 12' on the northern-east corner of the appellant's house, there is no acceptable or reliable evidence of the appellant having exercised any right as such. Even according to the appellant, she was using the disputed portion of the lane to have access and that has now been found to be the property belonging to the 1st respondent. The Appellant has necessarily to establish a legal right over the property of the 1st respondent, if she is desirous of exercising any right with reference to the repair of the northern and the eastern walls of her property. The plaint is absolutely silent on this aspect. The evidence also does not clearly establish the acquisition of any such right by the appellant. Though the learned Counsel for the appellant made an attempt to contend that such a right could be granted in favour of the appellant, as one similar to an urban easement, as it is sometimes called, on the pleadings and the evidence, no such case at all can be spelt out. Under those circumstances, the appellant cannot be granted that relief. No other point was urged. Consequently, the second appeal fails and is dismissed with costs of respondents 1 to 3.