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2002 DIGILAW 1061 (MAD)

S. J. Devadas and Others v. Subramani and Others

2002-09-17

A.RAMAMURTHI

body2002
Judgment :- The plaintiffs in the suit are the appellants. 2. The case in brief is as follows:- The plaintiffs filed a suit to declare the title to the B schedule property and consequently for delivery of possession or in the alternative, a declaration of their prescriptive right of way and free passage for the drainage water and for mandatory injunction directing the defendants to remove the obstruction from the B schedule property. The plaintiffs are the absolute owners of A schedule property having obtained the same under a Settlement Deed dated 07.07.1980. 'A' schedule property was measuring 25 feet north-south and 75 feet east-west. They have put up a house construction measuring 22 feet north-south and 16 feet east-west. There are also two huts situated in the backside. On the southern end, there exists a 3 feet pathway morefully described in the B schedule. The pathway has been in existence for the last 67 years. The plaintiffs' predecessors-in-title had been using the pathway as well as the drain and they have also prescribed the right. A drainage is also existing on the 3 feet, which connects the Municipal drainage situated in Lazer Street. The defendants have encroached the B schedule property, which is only part of A schedule property. The defendants have put up a thatched shed, thereby obstructing the plaintiffs from using the pathway for having ingress and egress. They have also blocked the drainage resulting in stagnation of drainage. The defendants have no right whatsoever in respect of B schedule property and hence, the suit. The defendants filed a written statement and denied the various averments in the plaint. They denied the allegation that B schedule property is part of A schedule property and the plaintiffs put up the house construction leaving 3 feet pathway on one side. B schedule property absolutely belongs to the defendants. The plaintiffs are not entitled to claim any right, much less alternative relief. The 1st defendant has perfected title to the property and the suit is liable to be dismissed. The trial court framed 5 issues and on behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A-1 and A-2 were marked and on the side of the defendants, D.Ws.1 to 4 were examined and Exs.B-1 to B-3 were marked. The reports and plans filed by the Commissioner were marked as Exs.C-1 to C-4. The trial court framed 5 issues and on behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A-1 and A-2 were marked and on the side of the defendants, D.Ws.1 to 4 were examined and Exs.B-1 to B-3 were marked. The reports and plans filed by the Commissioner were marked as Exs.C-1 to C-4. The trial court decreed the suit and aggrieved against this, the defendants preferred A.S.No.164 of 1989 on the file of Additional District Court, Vellore and the learned Judge after hearing the parties, allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit. Aggrieved against this, the plaintiffs have come forward with the present second appeal. 3. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration: (1) Is the lower appellate court correct and justified in reversing the decision of the trial court and holding that the plaintiff have no title, even without considering Exs.A-1 and A-2 documents of plaintiff's title ? (2) is the lower appellate court correct and justified in rejecting the case of the plaintiff's prescriptive title, merely on the ground that there is no such plea and is not prescriptive title inherent in a suit based on title and that it is necessary to plead adverse possession ? (3) Is the lower appellate court correct and justified in rejecting the case of the plaintiff by misreading and misunderstanding the Commissioner's report ? 4. Heard the learned counsel for the parties. 5. The plaintiffs filed the suit for declaring their title to B schedule property and consequently for delivery of possession or in the alternative, for declaration of their prescriptive right of way and free passage for the drainage water and for mandatory injunction directing the defendants to remove the obstruction from the B schedule property. By virtue of the settlement deed, the plaintiffs have got A schedule property measuring 25 feet north-south and 75 feet east-west leaving about 3 feet pathway for the purpose of ingress and egress and also for free flow of drainage water, so that it will connect with the drainage on the eastern side in Lazar Street. By virtue of the settlement deed, the plaintiffs have got A schedule property measuring 25 feet north-south and 75 feet east-west leaving about 3 feet pathway for the purpose of ingress and egress and also for free flow of drainage water, so that it will connect with the drainage on the eastern side in Lazar Street. According to the plaintiffs, the pathway is in existence of more than 67 years even prior to their possession and the drainage water was also flowing in the B schedule property and recently, the defendants obstructed the same. 6. Per contra, the defendants mainly contended that B schedule property is their separate property and it is not part of A schedule property. They also stated that the ingress and egress to the plaintiffs' property is not through B schedule property, but from a different way. They further stated that the drainage water from the plaintiffs' house is also not proceeding through the B schedule property and connects the Municipal drainage in eastern side. 7. The learned counsel for the appellants/plaintiffs contended that the lower appellate court failed to note that when once the plaintiffs' title is established, the burden shifts on the defendants to establish their title or right by prescription, which they failed to establish. As per Exs.A-1 and A-2, the plaintiffs are entitled to 25 feet north-south, whereas even in the Commissioner's report and plan, the plaintiffs construction was only 22 feet and consequently they are entitled to the remaining extent of 3 feet, which is the B schedule property. The lower appellate court also failed to note that nowhere in the report, the Commissioner stated that the B schedule property is in the defendants' area and as such, the dismissal of the suit is not proper and correct. The appellate court also erred in holding that the plaintiffs should have sought the relief of easement of necessity and not declaration of their title. 8. The trial court decreed the suit in favour of the plaintiffs, whereas the lower appellate court reversed the finding. It is seen from the documents filed on behalf of the appellants that they are entitled to 25 feet north-south. The evidence as well as the Commissioner's report clearly indicated that the construction of the plaintiffs' house was only 22 feet north-south, thereby establishing that the appellants could leave 3 feet. It is seen from the documents filed on behalf of the appellants that they are entitled to 25 feet north-south. The evidence as well as the Commissioner's report clearly indicated that the construction of the plaintiffs' house was only 22 feet north-south, thereby establishing that the appellants could leave 3 feet. Now, the B schedule property is measuring 3 feet x 75 feet and it was claimed by the appellants for their ingress and egress to their house property and also allowing the drainage water joining with Laser Street. The reports and plans filed by the Commissioner clearly support the case of the appellants. It is seen from the first report filed by the Commissioner that in between the suit property and Lasar Street, there is a Municipal drainage channel and the same is shown in red colour in the plan. The drainage channel which is constructed with cement arises from bath rooms and runs towards north. Free flow of drainage water from the said channel is obstructed by the presence of C D and also by the fact that on the other side of C D ground level is higher, wherein the soil is black in colour and thereby drainage water gets stagnated at the junction of 7 feet away from the house construction to an extent of 1 feet 6 inches in breadth on the life of C D. The Commissioner had also noticed that in the defendants site, on the north of it, there is a drainage channel which joins with Municipal channel. As such, there is no way to ingress or egress from the house construction and huts to the Lazar Street except by passing through the defendants' site. Even in the second report, the Commissioner categorically stated that he had found a survey stone in between the house construction and Municipal drainage channel. The said survey stone is situated at the western end of the house construction i.e. at the beginning A B, the Thatti. 9. The learned counsel for the appellants strenuously contended that the lower appellate court had misinterpreted the evidence as well as the reports given by the Commissioner and the finding is a perverse one. The burden of proof has been wrongly placed on the other side. 9. The learned counsel for the appellants strenuously contended that the lower appellate court had misinterpreted the evidence as well as the reports given by the Commissioner and the finding is a perverse one. The burden of proof has been wrongly placed on the other side. There is a clear finding that the appellants put up a house construction measures only 22 feet north-south, whereas they have got 25 feet north-south as per their own document. There is prima facie evidence to come to a conclusion that the appellants are entitled to 3 feet more. Now, the respondents/defendants claimed that B schedule property exclusively belongs to them and it has not been substantiated. The lower appellate court extracted para 8 of the Commissioner's report and wrongly came to the conclusion that B schedule property is the property of the respondents. In fact, the Commissioner was appointed to inspect and measure the property and he was not authorised to give any finding as to whom the property belongs. Simply because the Commissioner had stated in his report as the defendants' site, it is not a correct one. The lower appellate court also adverted that the appellants ought to have claimed an easementary right. The case of the appellants is that they have left 3 feet and put up the construction and only in the B schedule property, the drainage channel is also running. The observation of the lower appellate court that the appellants have not filed any record to sow their enjoyment of B schedule is not proper and correct. Admittedly, the drainage channel of the plaintiffs is running only in the B schedule property and it is well connected with the bath room as well as the toilet rooms. The plaintiffs as well as their predecessors have been enjoying for well over 25 years. Now, the obstruction had been put up by the defendants recently. Unfortunately, the lower appellate court misdirected itself and the finding is not based on legal evidence and reliance is placed upon improper materials and hence, interference is called for. 10. For the reasons stated above, the Second Appeal is allowed and the judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court are restored. No costs.