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2000 DIGILAW 813 (MAD)

Ramasamy & Others v. K. C. Doraisamy

2000-08-14

K.SAMPATH

body2000
Judgment : 1. The defendants in O.S.No.584 of 1987 on the file of the District Munsif, Satyamangalam, are the appellants in the second appeal. The respondent herein filed the suit for declaring his easementary right of cart-track to take carts, cattle and men over ABC pathway as shown in the plaint plan to reach his land from the main road on the west and for restraining the defendants/appellants and their men by means of a permanent injunction from interfering with his peaceful enjoyment of such easement. 2. The case as set out in the plaint was as follows: The cart-track ABCDE marked in red colour in the plaint plan runs along the southern border of the appellants’ land western and northern sides of his land and proceeds further eastwards. The said cart-track has a width of 10 feet and has been in existence for more than 50 years prior to the filing of the suit. The villagers of Kondi Bommanur lying east to the suit property had been using the cart-track to walk, take carts, cattle and men to and from the main road on the west. The cart-track had been created long long ago and had been used as a public road. A canal was dug across the cart-track east to his land about 15 years prior to the suit and thereafter, the villagers in general could not take carts from the village to the main road, but are using it to walk and take cattle. But, the land owners west of the canal including himself had been continuing the user of the cart-track west of the canal to reach their land from the road on the west as before. This right to use the ABCDE cart-track has been acquired as a prescriptive right. He is also entitled to right of easement by lost grant also. Only appellants 1 to 3 are denying the rights and threatening to demolish the pathways portion BC and annexure the portion to their cultivable land. It is under these circumstances the suit had to be filed. 3. The first appellant filed a written statement and the same was adopted by the other appellants. The respondent is a close relative of one Chinnamara Naicker, who was the plaintiff in an earlier suit O.S.No.997 of 1981. It is under these circumstances the suit had to be filed. 3. The first appellant filed a written statement and the same was adopted by the other appellants. The respondent is a close relative of one Chinnamara Naicker, who was the plaintiff in an earlier suit O.S.No.997 of 1981. He was a witness in the said suit, which was for an identical relief and was refused by the court. The present suit is barred by res judicata. The cart-track shown in the plaint plan has been put up by the first appellant for his use to reach his land. The respondent has no right whatsoever in the cart-track. He has not been taking his carts as alleged in the plaint. Formerly there was a pathway in existence to reach the respondents land on the northern side of the appellants land. It was also demarcated in the revenue records passing through S.F.Nos.114, 115, 116 and 117 and proceeding to Kanjanaickenpalayam, now Kondi Bommanur. At the request of the villagers a pathway was formed all along S.F.Nos.124/1, 124/2 and 122/7 to reach the same village. The first appellant had formed the cart-track in his patta land all along S.F.No.224/2 for his convenient use and enjoyment and permitted the villagers to walk along the cart-track and use it as a pathway to reach kanjanaickenpalayam. Subsequently S.M.I.F. Canal was formed in the land belonging to the respondent and bunds were put up with the result the villagers could not go and use the pathway except S.F.No.322/7. After the formation of the canal and the Panchayat Board road on the southern road, the villagers including the respondent started using the Panchayat Board road to reach their land and the village. Except the period between 1970 and 1972 the suit cart-track was not used as a pathway by the villagers including the respondent. Even now the first appellant has no objection to permit the respondent to use the cart-track as pathway to walk, to take cattle and men to reach his lands, but he cannot take his carts. No such right was ever used or exercised by him at any time. The easementary right alleged by him is an invention. He has no right of easement by prescription nor does he have right of easement by lost grant. No such right was ever used or exercised by him at any time. The easementary right alleged by him is an invention. He has no right of easement by prescription nor does he have right of easement by lost grant. The respondent is bound to obey the decree in O.S.No.997 of 1981 where it has been clearly held that there was no cart-track at all for the use of the respondent and Chinnamara Naicker and the decree has to be respected. 4. Onthe above pleadings the learned District Munsif framed the following issues: .(1) Whether the plaintiff is entitled to injunction as prayed for and .(2) to what reliefeand on the oral and documentary evidence held that the respondent had made out a case and decreed the suit by judgment and decree dated 18. 1987. The appeal by the appellants in A.S.No.56 of 1987 before the Subordinate Judge, Gobichettipalayam, was dismissed on 111. 1988. As against that the present second appeal has been filed. 5. At the time of admission the following substantial question of law was framed for decision in the second appeal: 6. Mr.Nethaji, learned counsel for the appellants, submitted that the respondent had been set up by the plaintiff in the previous suit referred to, the two being close relatives and the plaintiff in the previous suit having lost the battle. The learned counsel also submitted that on the materials placed, the courts below were in error in holding that there was a cart-track available for use by the plaintiff/respondent in the manner alleged by him and that such a right had been exercised for several years post. 7. Though the respondent was served, he had not engaged any counsel and Mr.N.Manokaran, was appointed as amicus curiae by the court. Mr.Manokaran submitted that there is no question of any res judicata in the instant case as the respondent was not a party in the earlier proceedings. He had only given evidence as P.W.2 and the decision in the earlier suit would not materially affect the case of the respondent in the present suit. Mr.Manokaran submitted that there is no question of any res judicata in the instant case as the respondent was not a party in the earlier proceedings. He had only given evidence as P.W.2 and the decision in the earlier suit would not materially affect the case of the respondent in the present suit. He also relied on the following judgments: “Whether the present suit will be barred by the principles of res judicata in view of the judgment in O.S.No.997 of 1981 on the file of the District Munsif, Gobichettipalayam.” (1) S.Govindarasu Udayar v. Pattu and others S.Govindarasu Udayar v. Pattu and others S.Govindarasu Udayar v. Pattu and others , (1999)2 MLJ. 216 and (2) Kondiba Dagadu Kadam v. Savitribai Sopan Gujar , (1999)2 MLJ. (S.C.) 105: (1999)2 C.T.C. 468. 8. If as a fact it is to be held that the relief asked for in the present suit was the one asked for in the earlier suit and negatived, the the question will be as to the effect or impact of the earlier judgment on the present proceedings, particularly when the respondent was not a party, but had deposed in favour of the plaintiff in the previous proceedings. From the judgment of the trial court in the previous proceedings marked as Ex.B-1 and the plaint marked as Ex.B-8 it is seen that the relief asked for in the previous suit is identical with the relief asked for in the present suit. The respondent herein was examined as P.W.2. He had spoken to the existence of a cart-track as claimed by him in the present proceedings, in the previous suit also and his evidence was rejected and it was found that there was no such cart-track in existence. The evidence given by the respondents as P.W.2 in the previous proceedings which is referred to in the judgment of the trial court is well worth extracting. The learned District Munsif who decided the earlier suit found that after the formation of LBP canal, the suit track west of the land of the plaintiff in that suit was not used by anybody and that the plaintiff in that suit had come to the property five years after the formation of the LBP canal and he had not established that he had any right to use the track as a cart-track. 9. 9. The averments in Ex.B-8 plaint in the previous suit are almost identical with the averments in the present plaint and it has already been noticed that the respondent was examined as P.W.2 in support of the case of the plaintiff in that suit, his evidence was rejected and the suit was dismissed. The plan attached to the plaint in the earlier suit is also identical to the plan attached to the present suit. The plaintiff in the earlier suit was the owner of the property adjacent to the present plaintiffs property. The claim in the earlier suit was for identical relief based on identical facts and it is not very difficult to see through the whole thing that the plaintiff in the earlier suit having not been successful in getting a decree, with regard to the present suit cart-track her set up, the present plaintiff to come up with the suit for the same relief. May be the decision in the earlier suit cannot be strictly construed as res judicata, but then we cannot close our eyes to what had happened in the context of the role played by the present plaintiff in the earlier suit. 10. In Govindarasu Udayar v. Pattu and others Govindarasu Udayar v. Pattu and others Govindarasu Udayar v. Pattu and others , (1999)2 MLJ. 218 , S.S.Subramani, J. after referring to a number of decisions and in particular to the decision of the Supreme Court in Tirumala Tirupati Devasthanams v. K.M.Krishnan Tirumala Tirupati Devasthanams v. K.M.Krishnan Tirumala Tirupati Devasthanams v. K.M.Krishnan , (1998)3 MLJ. 49 : A.I.R. 1998 S.C.W. 945, has held that: “a previous judgment not inter partes is admissible in evidence under Sec.13 of the Evidence Act as evidence of an assertion of a right to property in dispute.” It should also be noticed that the present plaintiff is claiming right against the same parties. In the case before S.S.Subramani, J. the defendant claimed under the same temple against whom the decision was arrived at. 11. I had occasion to consider a similar question in S.Subramaniyan & Co. v. The State of Tamil Nadu, represented by the Secretary to the Government, Department of Commercial Taxes and Religious Endowments, Fort St.George, Madras-9 S.Subramaniyan & Co. v. The State of Tamil Nadu, represented by the Secretary to the Government, Department of Commercial Taxes and Religious Endowments, Fort St.George, Madras-9 S.Subramaniyan & Co. v. The State of Tamil Nadu, represented by the Secretary to the Government, Department of Commercial Taxes and Religious Endowments, Fort St.George, Madras-9 S.Subramaniyan & Co. v. The State of Tamil Nadu, represented by the Secretary to the Government, Department of Commercial Taxes and Religious Endowments, Fort St.George, Madras-9 S.Subramaniyan & Co. v. The State of Tamil Nadu, represented by the Secretary to the Government, Department of Commercial Taxes and Religious Endowments, Fort St.George, Madras-9, (1998)3 MLJ. 526 : (1998)3 L.W. 1 and I have also held that a decision not inter partes would be admissible in evidence under Sec.13 of the Evidence Act. 12. The courts below have clearly erred in completely ignoring the decision given in the earlier suit. The word “thadam” cannot by itself mean cart-track. So far as the appellants are concerned they have absolutely no objection to the respondent/plaintiff using the property as pathway to walk and to take his cattle, but not to use it as a cart-track. It is also to be noticed that the cart-track is marked and shown in the official plan only in S.No.124/3 and the respondent/plaintiff having come forward with a specific case of right to use on account of use for over 50 years, has not filed any document to substantiate his stand. Unless the claim made by the respondent/plaintiff is established by adequate and acceptable evidence, no relief could be granted to the respondent. The courts below omitted to note that there could be a valid grant only if it is alleged and proved. 13. The courts below have ignored vital principles of law and vital documents and recorded concurrent findings on the basis of absolutely no evidence. In such circumstances, this Court is entitled to interfere under Sec.100 of the Code of Civil Procedure -vide: Sundara Naicka Vadiyar v. Ramaswami Ayyar vide: Sundara Naicka Vadiyar v. Ramaswami Ayyar vide: Sundara Naicka Vadiyar v. Ramaswami Ayyar, A.I.R. 1994 S.C. 532: (1995)4 S.C.C. (Supp.) 534. There is also no material whatsoever on the side of the respondent/plaintiff for his case of lost grant. If not on the ground of res judicata, on the ground of estoppel the respondent/plaintiff cannot claim any right of cart-track. There is also abuse of process of court. The courts below have totally misappreciated the pleadings and the oral and documentary evidence. They have misapplied the criteria relating to easement by lost grant. 14. If not on the ground of res judicata, on the ground of estoppel the respondent/plaintiff cannot claim any right of cart-track. There is also abuse of process of court. The courts below have totally misappreciated the pleadings and the oral and documentary evidence. They have misapplied the criteria relating to easement by lost grant. 14. Inthese circumstances, there is no alternative other than to interfere in second appeal. The substantial questions of law raised are answered in favour of the appellants. The judgments and the decrees of the courts below will stand set aside. The second appeal will stand allowed. The suit O.S.No.584 of 1987 on the file of the District Munsif, Satyamangalam will stand dismissed. The parties are directed to bear their respective costs throughout. 15. I wish to place on record the valuable assistance rendered by Mr.Manokaran as Amicus Curiae.