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2008 DIGILAW 696 (MAD)

Kalayani & Others v. M. Ramasami Padayachi

2008-02-27

M.JAICHANDREN

body2008
Judgment :- This second appeal has been filed against the judgment and decree, dated 31. 2007, made in A.S.No.68 of 2004, on the file of the District Judge, Perambalur, confirming the judgment and decree, dated 2. 2004, made in O.S.No.80 of 1994, on the file of the Subordinate Judge, Ariyalur. 2. The plaintiffs in the suit O.S.No.80 of 1994, on the file of the Subordinate Judge, Ariyalur, are the appellants in the present second appeal. 3. For the sake of convenience, the parties are referred to as they have been arrayed in the original suit O.S.No.80 of 1994. 4. The plaintiff had filed the suit praying for the reliefs of declaration and for permanent injunction in respect of the 1st item of the suit schedule property and also claiming exclusive pathway right in the 2nd item of the suit schedule property and for a consequential relief of mandatory injunction to remove the compound wall in the 2nd item of the suit schedule property and further claiming cart track right in the 3rd item of the suit schedule property. 5. The plaintiff had stated that in the suit plan M N R Q denotes the place of the house site and ABCD denotes the place of the lane. EFGR shown as the cart-track is situated on the western side of the ABCD lane. The house situated on the western side of the line BC is the terraced house constructed, by Adhimoola Padayatchi, father of the first plaintiff and the first plaintiff. It has been mentioned as BCIK in the rough sketch. The house BCIK had been constructed, on 24. 1887. The first plaintiffs father Adhimoola Padayatchi had purchased a vacant site, on 9. 1936, measuring 10 feet east to west and 90 feet south to north for an amount of Rs.25/- from Viruthambal Achi. After having registered the same, the first plaintiffs father, along with the first plaintiff had constructed a terraced building in the year 1987 in the total extent of the land consisting of the suit site and the site purchased. .6. The plaintiff had stated that he had constructed the aforesaid terraced house by leaving 2 feet as stated above and also 8 feet at the eastern side for the lane. After the demise of Adhimoola Padayatchi, the plaintiffs, along with their families, are residing in the said house. .6. The plaintiff had stated that he had constructed the aforesaid terraced house by leaving 2 feet as stated above and also 8 feet at the eastern side for the lane. After the demise of Adhimoola Padayatchi, the plaintiffs, along with their families, are residing in the said house. Since the plaintiffs have been in possession of the property for a long time, they have acquired title by adverse possession. In the aforesaid place, the plaintiffs have put up a hay stack and they have also a pit for garbage and they are using the area as a garden at the backside of his terraced house. The place shown as a pit for garbage had been used as a structure for storing grains at the time of constructing of the house. At the northern side of the pit used for garbage, there exists a cart-track, with a breadth of 15 feet, which is used to take the manure to the street through a cart. The cart-track has been shown as EFGR. The lane ABCD with a breadth of 8 feet, at the eastern side of the terraced house of the plaintiffs belongs to the plaintiffs. 7. The plaintiff had further stated that there was a lane with a breadth of 8 feet, when the house had been built. When the defendants had built AQRT wall, they had encroached into the 8 feet lane belonging to the plaintiffs by 4 feet 11 inches. The defendants had not only blocked the cart track but had also obliterated the EFGR cart-track. Further, the defendants had attempted to raise the wall AQRT. Since the first plaintiff had died during the pendency of the suit, on 12. 2002, the legal heirs of the first plaintiff have been brought on record as the plaintiffs 2 to 6. In such circumstances, the plaintiffs had filed the suit in O.S.No.80 of 1994, praying for the reliefs as stated above. 8. In the written statement filed on behalf of the respondent, it has been stated that the plaintiffs suit is fraudulent and it is unsustainable in law and on facts and that it is liable to be dismissed in limine. The details of the plaint schedule property and the plan annexed therewith are not clear. The measurements of the length and breadth of the suit property in item Nos.1 to 3 are not given. The details of the plaint schedule property and the plan annexed therewith are not clear. The measurements of the length and breadth of the suit property in item Nos.1 to 3 are not given. The plaintiffs have mentioned the area only as approximate. 9. It has been stated that the plaintiff, who has filed petition in the Ariyalur Court for appointment of a Commissioner, has not proceeded further with the case. He has not taken any further action to determine the measurements regarding the length and breadth of the suit property. Therefore, for the aforesaid reason, the case is liable to be dismissed as unsustainable. .10. It has been stated that it is incorrect to state that the father of the plaintiff, together with the plaintiff, has constructed a terraced house in the plot concerned with the document, dated 24. 1887 and in the plot concerned with the document, dated 9. 1936. It is incorrect to state that he has left 2 feet in the western side and 8 feet in the eastern side for the lane in the land owned by him. The plaintiff is restrained by the principle of res judicata as he is claiming possession and enjoyment of the lane measuring 1 cent, as shown in the plan marked as ABCD, to the eastern side of the abovesaid wall as admitted in particular in the previous documents pertaining to the plaintiff. The grandfather of the plaintiff is Arumuga Padayatchi and his son Athimoola Padayatchi is the father of the plaintiff. Arumuga Padayatchi had mortgaged the aforesaid land, house etc., with one Shanmugha Padayatchi son of Nallamuthu Padayatchi, on 4. 1930. 11. It has been stated that in order to settle the aforesaid mortgage amount including the interest thereon and also to clear off the debt amount got later through a promissory note, the aforesaid Arumugha Padayatchi had sold the property to Shanmugha Padayatchi, on 8. 1982 for a sum of Rs.50/-. The land measuring 14 feet east to west and 139 feet south to north and also the place where the colony was constructed on its northern side were given on sale to Nataraja Padayatchi, son of Arumugha Padayatchi, on 3. 1940, by Shanmugha Padayatchi. The plaintiffs father does not have any right over any place found on the eastern side of the eastern wall of the house of Athimoola Padayatchi. 1940, by Shanmugha Padayatchi. The plaintiffs father does not have any right over any place found on the eastern side of the eastern wall of the house of Athimoola Padayatchi. Nataraja Padayatchi gave on sale the land measuring 45 feet east to west together with the old site, to Jagannatha Padayatchi son of Arumugha Padayatchi, on 20.5.1940, for an amount of Rs.100/-. Jagannatha Padayatchi had given the aforesaid lands on sale to the defendant, on 14. 1952, for an amount of Rs.700/-. Since the defendant had been enjoying the place measuring 59 feet east to west, 139 feet south to north, as per the Sale, dated 14. 1952 continuously, for the past 45 years, he has attained title by adverse possession in the aforesaid land. Thus, the plaintiff has no right or title as claimed by him. 12. Based on the averments made in the plaint as well as the written statement, the trial Court had framed the following issues for consideration:- "(i) Whether the relief of declaration could be granted as prayed for by the plaintiff with regard to the first item of the suit property? (ii) Whether the relief of permanent injunction could be granted to the plaintiff with regard to the suit property? (iii) Whether the plaintiff is entitled to the relief of declaration with regard to the second item of the suit property? .(iv) Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for by him with regard to the second item of the suit property? .(v) Whether the plaintiff is entitled to the relief of declaration as prayed for by him with regard to the third item of the suit property? .(vi) Whether the relief of permanent injunction could be granted to the plaintiff with regard to the third item of the suit property? (vii) What other reliefs the plaintiff is entitled to?" 13. On analyising the evidence available on record, the trial Court had come to the conclusion that the documents filed on behalf of the plaintiffs as Exhibits A.1 to A.9 do not show that the first and second items of the suit property belong to the plaintiffs or that they are in possession of the same. On analyising the evidence available on record, the trial Court had come to the conclusion that the documents filed on behalf of the plaintiffs as Exhibits A.1 to A.9 do not show that the first and second items of the suit property belong to the plaintiffs or that they are in possession of the same. From the Exhibits marked on behalf of the plaintiffs, it has been found that the survey number of the property shown in the documents, differs from the survey number of the property regarding which the plaintiffs have made their claims. Further, the Exhibits marked in favour of the plaintiffs do not support his contentions with regard to the third item of the suit property to substantiate his claim that he has easmentary right with regard to the said property. Even from the report of the Commissioner appointed by the Court, it cannot be found that there is pathway in the third item of the suit property. 14. Further, the report does not show sufficient particulars about the first and second items of the property. Therefore, the plaintiffs had not been in a position to prove that the plaintiffs have title to the suit property. Further, the plaintiff during his cross-examination had admitted that there are no documents to show that the third item of the suit property belongs to the plaintiffs and there is no document to show that there is a pathway in the said property. Even though the plaintiffs have claimed title over the suit property in survey No.54, the documents marked on behalf of the plaintiffs are relating to survey No.55. Since the burden of proof is on the plaintiff to prove his claims with regard to the rights in the suit properties, the trial Court had held that the plaintiff had not discharged his obligation. Therefore, the trial Court had dismissed the suit stating that the plaintiffs had failed to prove their case. 15. Aggrieved by the judgment and decree, dated 2. 2004, made in O.S.No.80 of 1994, on the file of the Subordinate Judge, Ariyalur, the plaintiffs had filed an appeal in A.S.No.68 of 2004, on the file of the District Judge, Perambalur. 16. Therefore, the trial Court had dismissed the suit stating that the plaintiffs had failed to prove their case. 15. Aggrieved by the judgment and decree, dated 2. 2004, made in O.S.No.80 of 1994, on the file of the Subordinate Judge, Ariyalur, the plaintiffs had filed an appeal in A.S.No.68 of 2004, on the file of the District Judge, Perambalur. 16. Considering the rival contentions and the evidence available on record, the first appellate Court had framed the following points for consideration: "(1) Whether the plaintiff is entitled to the relief of declaration and permanent injunction as prayed for in the suit with regard to the first item of the suit property? .(2) Whether the plaintiff is entitled to the relief of declaration and for permanent injunction with regard to the second item of the suit property? .(3) Whether the plaintiff is entitled to easmentary right and permanent injunction with regard to the third item of the suit property? .(4) Whether the judgment and decree of the trial Court is sustainable in law?" 17. With regard to the points 1 to 4 framed for consideration, the first appellate Court had confirmed the judgment and decree of the trial Court. The first appellate Court had held that the plaintiffs had not proved their claims either by documentary or by oral evidence. On a perusal of Exhibits A.3, A.4 and A.7, it is found that they did not contain the survey numbers relating to the properties. They are based only on the extent. Exhibit A.6 is relating to survey number 54/5C and it does not relate to survey No.54, which relates to the suit property. 18. From the evidence of P.W.1 and P.W.2, the court Exhibits and the documents marked as Exhibits on behalf of the parties concerned, it is found that there are no particulars found with regard to the suit pathway as claimed by the plaintiffs. 19. Exhibit A.3 is a sale deed executed by Rangammal to Chellamuthu Poochi. The boundaries shown in the said document differ from the boundaries described in the suit. Further, the extent of the lands shown in Exhibit A.3 differs from the extent shown in the plaint, with regard to the suit property. Further, the survey number found in Exhibit A.3 differs from the survey number shown in the plaint with regard to the suit property. Further, the extent of the lands shown in Exhibit A.3 differs from the extent shown in the plaint, with regard to the suit property. Further, the survey number found in Exhibit A.3 differs from the survey number shown in the plaint with regard to the suit property. Therefore, the claim of the plaintiffs that the Items 1, 2 and 3 of the suit properties had belonged to one Chellamuthu Poochi, who is the father of the paternal grandmother of the plaintiff, could not be sufficiently proved. In such circumstances, the first appellate Court had confirmed the judgment and decree of the trial Court, by its judgment and decree, dated 31. 2007, made in A.S.No.68 of 2004. 20. The substantial questions of law raised in these second appeals are as follows: "a) Whether the lower appellate Court was right in dismissing the suit without analysing the evidence on record? b) Whether the lower appellate Court was right in ignoring the recitals in Exhibit A.6 which would go a long way to show that the defendant has no right over the suit property? c) Whether the lower appellate Court was right in dismissing the suit after narrating the evidence, without discussing the same? d) Whether the lower appellate Court was right rejecting Exhibit A.3 on the ground that the boundaries do not tally with the suit properties which was relates to a larger extent of property? e) Whether the lower appellate Court was right in negativing the claim of the appellant relating to easementary right over the pathway and cart track on the ground that the appellant has not established his title?" 21. In view of the averments made on behalf of the plaintiffs as well as the defendants and on analysing the evidence available, this Court is of the considered view that the plaintiffs had not shown sufficient cause or reason to interfere with the findings of the Courts below. 22. It has been found, both by the trial Court as well as the first appellate Court, that there was no oral or documentary evidence to show that the suit property belongs to the plaintiff and that they had easementary right over certain portions of the property. 22. It has been found, both by the trial Court as well as the first appellate Court, that there was no oral or documentary evidence to show that the suit property belongs to the plaintiff and that they had easementary right over certain portions of the property. Since the onus of proof is on the plaintiff to substantiate his claims, it is clear from the findings of the Courts below that he had miserably failed in his attempt to discharge the same. In such circumstances, the second appeal stands dismissed, confirming the judgment and decree of the Courts below. Consequently, connected M.P.No.1 of 2007 is dismissed. No costs.