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2008 DIGILAW 3473 (MAD)

Parvatharam & Another v. Thirumalai Prakasam

2008-09-19

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment : 1. This Second appeal filed against the judgment and decree dated 110. 1994 made in A.S.No.5 of 1994 on the file of the Court of Subordinate Judge, Udumalpet confirming the Judgment and decree dated 10. 1993 passed in O.S.No.303 of 1992 on the file of the Court of District Munsif, Pollachi. This appeal has been directed against the Judgment in A.S.No.5 of 1994 on the file of the Court of Subordinate Judge, Udumalpet dated 110. 1994 which had arisen out of a decree and Judgment in O.S.No.303 of 1992 on the file of the Court of District Munsif, Pollachi. The plaintiffs, who lost their case before the Courts below have preferred this second appeal. 2. The averments in the plaint in O.S.No.303 of 1992 in brief relevant for the purpose of deciding this appeal sans irrelevant particulars are as follows: The plaintiffs property is an agricultural land to an extent of 10. Acres comprised in S.F.No.261/1 and 261/2 of Puravipalayam Village. The property originally belonged to one Ponkiya Gounder of Puravipalayam Village, who had executed a registered Will dated 25. 1940 bequeathing in favour of one Sri Parvathammal, who had derived her title to the suit property after the death of the testator. The said Parvathammal had executed a registered Will bequeathing the properties in favour of her sons, daughters and grandsons on 22. 1984. As per the said Will, the specific extent of the property bequeathed in favour of the respective parties are clearly referred to in the schedule of the property to the Will. The said Parvathammal died in the year 1986 and accordingly as per the terms of the Will, the plaintiffs became entitled to the suit property. The father of the plaintiffs also died and the guardian mother is looking after the plaintiffs property on their behalf ever since the date of death of the testator Parvathammal. The plaint schedule property is a cart track situate in the middle portion of S.F.No.261 whereas the other sharers were allotted with the western and eastern portion of the suit property. The defendant is the owner of the property comprised in S.F.No.264 which is situate immediately on the north of S.F.No.261/1. As per the Will, all the three parties, who are entitled to S.F.No.261/1 and 261/2 are provided with a common east west cart track to have access to their respective lands. The defendant is the owner of the property comprised in S.F.No.264 which is situate immediately on the north of S.F.No.261/1. As per the Will, all the three parties, who are entitled to S.F.No.261/1 and 261/2 are provided with a common east west cart track to have access to their respective lands. The existing east west cart track runs in the middle of the lands. As per the Will, it was directed to lay an east west cart track on the northern end of S.F.No.261/1 instead of the existing cart track. Due to some inconvenience, the plaintiffs and the other sharers have not yet formed the new cart track and they are enjoying the existing cart track. From the said East west cart track, there is a north south cart track that runs from the eastern portion belonging to one Kannammal lands towards north in the defendants land so as to reach the main east west road, that runs on the northern side of S.F.No.264. The plaintiffs have shown the disputed cart track as "ABC" in their rough plan. The plaintiffs and the other sharers who own land on the eastern and western side are also entitled to the said"ABC" cart track. The "ABC" Cart track is in existence for several decades and the plaintiffs and others are in enjoyment of the same without any interference or objection. As a matter of fact, there is no other way to reach the plaintiffs land except the "ABC" cart track. As such the suit disputed "ABC" cart track is the required by the plaintiffs out of necessity. Though no specific mention is made in the documents regarding the disputed cart track, the same is in existence for decades and the plaintiffs are entitled to the cart track out of necessity. Recently, the defendant has leased out his property to the third parties and a fire accident took place in the plaintiffs sugarcane field and the tenants of the defendant were responsible for the same and on a compromise the plaintiffs were paid with compensation. From that onwards, the defendant has developed a hostile attitude towards the plaintiffs and started creating trouble at the instigation of the defendant, his tenants and his men are attempting to obliterate the cart track and to prevent the plaintiffs from using the same. From that onwards, the defendant has developed a hostile attitude towards the plaintiffs and started creating trouble at the instigation of the defendant, his tenants and his men are attempting to obliterate the cart track and to prevent the plaintiffs from using the same. Unless the defendant is restrained by means of a decree the plaintiff is put to much loss and hardship. Hence the suit for declaration that the plaintiffs are entitled to the suit "ABC" cart track as shown in the plaint plan and for consequential injunction and for costs. 3. The defendant in his written statement would contend that the defendant is the owner of the properties in S.F.No.264 and the property is situated on the northern side of the plaintiffs property. This defendant is having properties on the south of the east west main road. The allegation that as per the Will, all the three sharers are entitled to S.F.No.261/1 and 261/2 is to be proved by the plaintiffs. The allegations that from the east west cart track in the plaintiffs property, there is a north south cart track that runs from the eastern portion belonging to one Kannammal runs towards north in the defendants lands so as to reach the main east west road that runs on the northern side of S.F.No.264 is nothing but false and imaginary. The disputed cart track is "ABC" in the plaint plan and the other sharers, who own lands eastern and western sides are also entitled to the said "ABC" cart track which is in existence for several decades. The father of the plaintiffs by name late Chinna Raj was the own brother of one Duraisamy Gounder. The said Duraisamy Gounder got married with the sister of this defendant and as such the plaintiffs father is a brother-in-law of this defendant. The lands of the plaintiffs and the said Duraisamy Gounder and his sister Kannammal are situated on the southern side of this defendants landed property. During the time of fallow, the carts are being taken through the lands of this defendant to the plaintiffs and the above said persons lands from the east west road on the north side and the same was permitted by this defendant due to the close relationship of the plaintiffs. But when crops were irrigated , the said permission was denied by this defendant. But when crops were irrigated , the said permission was denied by this defendant. But the plaintiffs and their co-sharers were taking their cart only through the pucca, well beaten cart track situate on the western side of the lands of the plaintiffs. The plaintiffs are having a pucca cart track on the western side of their lands. But the plaintiffs have suppressed the real facts with false plaint plan as if there is no other cart track for their lands which is totally false. The plaint plan does not reveal the actual location of the properties of the respective parties. The east west main road goes towards west and takes a diversion towards south and then goes to Kaliapuram Village on the southern side of the plaintiffs land. The entire land of the plaintiffs abuts the north south Kaliapuram road throughout. The Commissioners plan reveals the true nature of the position of the lands of the plaintiffs and the allegation that the suit cart track is required for the plaintiffs as of necessity is nothing but false and the suit is liable to be dismissed in limini. Further the allegation that the defendant had leased out his property to a tenant and a fire accident took place etc., are all false. The plaintiffs and the defendant are close relatives. This defendant has attempted to raise crops in his lands during the month of April 1992. Hence he has closed the way which leads to the plaintiffs and his other co-sharers property on the southern side. The plaintiffs and their fathers brother by name Duraisamy Gounder requested the defendant to permit them for another one week for which this defendant refused. Aggrieved at that, the plaintiffs have come forward as if there is a cart track in the lands of this defendant. The Commissioners report would also reveal the actual fact. The plaintiffs have come forward with the false suit with imaginary rights. As such the plaintiffs have never enjoyed any cart track as of right and the said cart track is only a temporary arrangement on permission by the defendant. Hence the suit is liable to be dismissed in limini since there is no cart track in existence . The plaintiffs have no cause of action to file the suit. Hence the suit is liable to be dismissed. 4. Hence the suit is liable to be dismissed in limini since there is no cart track in existence . The plaintiffs have no cause of action to file the suit. Hence the suit is liable to be dismissed. 4. On the above pleadings, the trial Court had framed four issues for trial . On the side of the plaintiffs, the mother and natural guardian of the minor plaintiffs viz., Parvathammal has examined herself as P.W.1 besides examining P.W.2, one Elango on the side of the plaintiffs. The defendant has examined himself as D.W.1 and Ex B1 was marked. The Commissioner was appointed to note down the physical features of the plaint schedule property and also to note down the existing cart track as well as the new cart track which is an alternative cart track for the suit cart track. The learned Advocate Commissioner has filed Exs C1 and C3 reports and Exs C2 and C4 plans. On the basis of the available evidence both oral and documentary,the learned trial Judge has come to the conclusion that the plaint schedule cart track is not the only available cart track for the plaintiffs but even as per the recitals in Ex A2 partition deed another cart track as identified by the learned Commissioner under Ex C4 is also available for the plaintiffs to have access to their lands in S.F.Nos.261/1 and 261/2 has held that a declaration and injunction sought for by the plaintiffs cannot be granted, has ultimately dismissed the suit with costs. Aggrieved by the findings of the learned trial Judge, the plaintiffs have preferred an appeal in A.S.No.5 of 1994 before the learned Subordinate Judge, Udumalpet, who find no material to interfere with the findings of the learned trial Judge has dismissed the appeal thereby delivering a concurrent Judgment which necessitated the plaintiffs to approach this Court by way of this second appeal. 5. 5. The substantial question of law involved in this appeal is "When the existence of the suit cart track was not in dispute and the use of the cart track by the plaintiffs was also not in dispute but the defendant claims that permission was granted to use the cart track during the period when there was no crops, the burden is on the defendant to establish such permission, and having failed to discharge the burden by the defendant, whether the Courts below are correct in declining to grant the relief to the plaintiffs? 6. Substantial question of Law Exs A1 and A2 are Wills dated 25. 1940 executed by one Ponkiya Gounder in favour of Parvathammal (Plaintiffs mother) and Will dated 22. 1984 executed by Parvathammal in favour of her sons, grand sons and daughters respectively. According to the plaintiffs, the defendant is the owner of S.F.No.264 which is situate on the north of the plaintiffs property. A Commissioner was appointed to identify the suit cart track. The Commissioner has filed Ex C1 report and Ex C2 plan identifying the plaint schedule cart track. The Commissioner has observed in Ex C1 report that the suit cart track was leading from the east west Perumpaguthi(Etteri) towards south upto the plaintiffs land and the same was closed with a thorn fence at point "D" to Ex C2. The learned Advocate Commissioner has further noted that in the plaintiffs property the sugarcane crop, maize, plantain and coconut saplings have been planted. 6a) The learned counsel appearing for the respondent would contend that there was no crop in the plaintiffs land, the places were allotted to the house land while it was lying fallow for taking their carts, cattle etc to the said Perumpaguthi which is situate on the north. But when the plaintiffs land was under cultivation, the plaintiffs used to fence their lands with thorn fence and no one was allowed to use the plaint schedule cart track. The learned counsel appearing for the respondent would further contend that even as per ExA2, an alternative cart track has been provided under Ex A2 Will dated 22. 1984 by the plaintiffs mother herself. The learned counsel appearing for the respondent would further contend that even as per ExA2, an alternative cart track has been provided under Ex A2 Will dated 22. 1984 by the plaintiffs mother herself. The said alternative cart track under Ex A2 reads at third schedule to Ex A2, the properties allotted to the minor plaintiffs as follows: The same Commissioner was asked to visit the suit property once again and he has visited the suit property for the second time has filed Ex C3 report and Ex C4 plan. In Ex C3 report, the learned Commissioner has identified the alternative cart track which is situate east of existing cart track in S.F.No.261/1 and 261/2. Only on the basis of Ex C3 and Ex C4, the learned trial Judge as well as the first appellate Judge have come to a concurrent finding that there is an alternative cart track available for the plaintiffs to have access to their lands from Perumpaguthi right(etteri) which runs east west on the north of their S.F.Nos.261/1 and 261/2. As rightly observed by the trial Court as well as the first appellate Court, there is no necessity for the plaintiffs to ask for a declaration in respect of the plaint schedule cart track in the presence of another alternative cart track which has been identified under Ex C4 by the learned Advocate Commissioner. Under such circumstances, I do not find any reason to interfere with the well considered Judgment of the learned first appellate Judge in A.S.No.5 of 1994 on the file of the Court of Subordinate Judge, Udumalpet which is neither illegal nor infirm. The substantial question of law is answered accordingly. 7. In fine, the second appeal fails and the same is hereby dismissed confirming the decree and Judgment of the learned first appellate Judge in A.S.No.5 of 1994 on the file of the Court of Subordinate Judge, Udumalpet. No costs.