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2012 DIGILAW 1202 (MAD)

P. v. Sellamuthu VS Rajasekaran

2012-03-06

M.VENUGOPAL

body2012
Judgment COMMON JUDGMENT S.A.No.1343 of 2001: 1. The Appellants/Plaintiffs have preferred this Second Appeal as against the Judgment and Decree dated 26.02.2001 in A.S.No.6 of 2000 passed by the Learned Sub Judge, Bhavani, in confirming the Judgment and Decree dated 02.12.1999 in O.S.No.595 of 1996 on the file of the (Learned Additional District Munsif Court, Bhavani) passed by the Learned Principal District Munsif (Incharge), Bhavani. S.A.No.1344 of 2001: The Appellants/Defendants 1 and 2 have projected this Second Appeal as against the Judgment and Decree dated 26.02.2001 in A.S.No.5 of 2000 passed by the Learned Sub Judge, Bhavani, Erode District in confirming the Judgment and Decree dated 02.12.1999 in O.S.No.615 of 1996 on the file of the (Learned Additional District Munsif Court, Bhavani) passed by the Learned Principal District Munsif (Incharge), Bhavani. 2. The First Appellate Court, viz., the Learned Sub Judge, Bhavani, Erode District, while passing the common Judgment and Decree dated 26.02.2001 in A.S.No.5 of 2000 and A.S.No.6 of 2000, respectively, arising out of the common Judgment and Decree dated 02.12.1999 in O.S.No.615 of 1996 and O.S.No.595 of 1996, respectively, has among other things observed that ?although in Exs.A1 and A2-Sale Deeds, dated 08.03.1967 and 22.06.1944, there is a mention of track, but, in all revenue records, the aforesaid R.S.No.234/4 has been shown as 'detailed channel' and it is classified as such in revenue records and further, that as per Exs.B17 to B20, R.S.No.234/4 has been established as a 'detailed channel' and therefore, as claimed by the Appellants/Plaintiffs, the aforesaid R.S.No.234/4 cannot be used as cart-track by them and that the Plaintiffs in O.S.No.615 of 1996 are entitled to get the relief of declaration in respect of ABC portion shown as 'detailed channel' and through this channel, cart, cattle and vehicles cannot pass through to proceed to R.S.No.236/1 and accordingly, granted the relief of permanent injunction, but, negatived the relief of damages/compensation, since no documents have been filed to prove that loss has been sustained by the Defendants because of the Plaintiffs and accordingly, dismissed the Appeals without costs, thereby confirming the common Judgment and Decree of the trial court dated 02.12.1999 passed in O.S.No.595 of 1996 and O.S.No.615 of 1996. 3. 3. Before the trial Court, both the Suits in O.S.No.595 of 1996 and O.S.No.615 of 1996 have been tried in common and in O.S.No.595 of 1996, 2 issues have been framed for determination and in O.S.No.615 of 1996, 1 to 4 issues have been framed for consideration. On behalf of the Plaintiffs, witnesses P.Ws.1 to 3 have been examined and Exs.A1 to A10 have been marked. On the side of the Defendants, witnesses D.Ws.1 and 2 have been examined and Exs.B1 to B22 have been marked. On behalf of Court, Exs.C1 to C6 have been marked. 4. The trial court, on appreciation of the oral and documentary evidence available on record, has come to a resultant conclusion that the Plaintiff in O.S.No.595 of 1996 is not entitled to get the relief of permanent injunction because of the fact that they have not filed any documents to show that R.S.No.234/4 is a cart-track and also that as per FMB, Adangal and Chitta extract, it is only a 'detailed channel' and further held that the Plaintiffs in O.S.No.615 of 1996 are entitled to get the relief of declaration to the effect that it is a detailed channel and therefore, through that detailed channel, the Plaintiffs cannot take cart or cattle or any other vehicles to R.S.No.236/1, but negatived the relief in respect of damages, since the same has not been established and accordingly, dismissed the Suit in O.S.No.595 of 1996 and decreed the Suit in respect of O.S.No.615 of 1996 in regard to the declaration of 'ABC' portion as 'detailed channel' on land. 5. At the time of admission of the Second Appeal No.1343/2001, the following Substantial Questions of Law has been formulated for determination: (i) Whether the Courts below erred in law and misdirected themselves in granting the Declaration relief merely on the basis of revenue documents in the absence of any other oral or documentary evidence of title? (ii) Whether the findings of the Courts below based on field maps is valid in law and whether a declaratory decree can be passed based on the field maps? (ii) Whether the findings of the Courts below based on field maps is valid in law and whether a declaratory decree can be passed based on the field maps? At the time of admission of the Second Appeal No.1344/2001, the following Substantial Questions of Law has been formulated for determination: (i) Whether the Courts below erred in law and misdirected themselves in granting the Declaration relief merely on the basis of revenue documents in the absence of any other oral or documentary evidence of title? (ii) Whether the findings of the Courts below based on field maps is valid in law and whether a declaratory decree can be passed based on the field maps? The Contentions, Discussions and Findings on Substantial Question of Law (i) and (ii) in both Second Appeals : 6. According to the Learned Counsel for the Appellants, the Courts below have failed to appreciate Exs.A1 and A2, Sale Deeds, dated 08.03.1967 and 22.06.1944, respectively, in which the Suit cart-track and the right of user of the same have been clearly mentioned. 7. The Learned Counsel for the Appellants urges before this Court that the revenue documents created in the year 1996 cannot affect the rights of the Appellants by any means and also that the Commissioner's Report has not been taken into account by both the Courts below, which has failed to consider that the East-West portion in R.S.No.234/4 is only a cart-track, as the North-South portion in R.S.No.234/4 and R.S.No.236/3 are smaller in breadth. 8. The Learned Counsel for the Appellants contends that the Commissioner's Plan and Report would show that on the date of his inspection, the said cart-track has been in existence and moreover, the Appellants and their predecessors in title have been using the cart-track for more than 100 years openly, continuously and uninterruptedly and they have perfected their title by easement also. Lastly, it is the submission of the Learned Counsel for the Appellants that there is no other cart-track to reach R.S.No.236 and the Appellants are entitled to use the cart-track on account of necessity. 9. Lastly, it is the submission of the Learned Counsel for the Appellants that there is no other cart-track to reach R.S.No.236 and the Appellants are entitled to use the cart-track on account of necessity. 9. In response, the Learned Counsel for the Respondents 4 to 6 (in S.A.No.1343 of 2001) and Respondents 1 and 2 (in S.A.No.1344 of 2001) contends that both the Courts below have concurrently held that R.S.No.234/4 is a detailed channel as seen from FMB, Adangal and Chitta and accordingly held that the Appellants/Plaintiffs in O.S.No.595 of 1996 are not entitled to use R.S.No.234/4 as cart-track and accordingly rejected the relief of permanent injunction rightly and also granted the relief of declaration in O.S.No.615 of 1996 in respect of R.S.No.234/4 to the effect that 'ABC' portion on ground is only a detailed channel, but while granting the relief of injunction, has correctly negatived the relief of damages/compensation, since to prove the same, no documents have been filed and in short, the common Judgment and Decree of the trial Court dated 02.12.1999 in O.S.No.615 of 1996 and O.S.No.595 of 1996 and that of the First Appellate Court in A.S.No.6 of 2000 and A.S.No.5 of 2000 do not suffer from any factual or material error warranting interference by this Court in Second Appeal. 10. P.W.1 (second Plaintiff), in his evidence, has deposed that the first Plaintiff is his son and Defendants 1 to 3 are sons of his paternal Uncle and Defendants 4 and 5 are his Uncle and Brother-in-law, respectively and Defendants 6, 7, 8 and 10 have purchased land from him and that the Suit property was originally purchased from the earnings of his grandfather Karunmanda Gounder, who possessed the land to an extent of 7 acres 34 cents in S.No.480 and an extent of 5 acres 60 cents in S.No.474. 11. It is the further evidence of P.W.1 that his grandfather had four sons and Chellappa Gounder is the elder son; the second son is Goundiappa Gounder; the third son is Chinna Chellappa Gounder and the fourth son is Thirumalai Gounder and that Chellappa Gounder has three daughters; Goundiappa Gounder has no heirs; Chinna Chellppa Gounder has two sons and the fourth son Thirumalai Gounder has no heirs. 12. 12. P.W.1 has further deposed that the property in S.Nos.480 and 474 has been divided between his Paternal Uncle and his father and that out of three daughters of Chellappa Gounder, Marayee, Rasayee and Chellayee, S.No.480, property has been allotted and Chellammal's portion has been enjoyed by Palanivelu and Arumugam. In S.No.480, he and his Paternal Uncle had share and his Paternal Uncle's share is to the southern side and his portion has come adjacent to the main road and on the western side of the said land, there is a land for Defendants 4 and 5 and that Defendants 4 and 5 can proceed to the land through the main road. Further, in S.No.474, partition has taken place between him and his Paternal Uncle and that he has purchased the portion of Chellappa Gounder. 13. P.W.1 has also deposed in his evidence that in the Suit Plan 'ABCD' portion is the Suit track (red colour) and except this way, which is ancestral, they have no other way and he does not know that in Government documents, the said way has been shown as 'detailed channel' and that no notice has come from the Commissioner in this regard. 14. P.W.2, in his evidence has deposed that in between his land and that of Palanivelu and other's land, there exists a drainage channel measuring at a breadth of 4' 5" and for this Channel, water is flowing from southern side to northern side and except this way, there is no other way to proceed to the forest of Periyavairangan and to proceed to the Periyavairangan forest/land, this way is being enjoyed and presently, the Plaintiffs are also in enjoyment of this way and from his remembrance, they are enjoying the same like that and in the cart-track, there is no possibility of letting out water. 15. P.W.3, in his evidence has deposed that he does not know about the survey number of the Suit property and he has not seen the documents of Palanivelu and others and he has not seen the revenue records and he does not know the Survey number of Periyavairangan forest and that he has driven the cart and it is not correct to state that the Suit property has remained as drainage channel at all times. 16. 16. D.W.1 (4th Defendant), in his evidence, has deposed that R.S.No.234/4 is not a cart-track and it is only a detailed channel. 17. D.W.2 (Deputy Inspector, working in District Collector's Office, Erode), in his evidence has stated that Ex.A9 is the Field Map in respect of S.No.234, which has been given by him, in which the signature of the Tahsildar is seen and R.S.No.234 has been drawn as a sub-divided one and it has been shown by marking a line and described as detailed channel and the arrow marked portion is shown as, from which side the water is passing through and all these portions is LBB way through which water will be flowing and in R.S.No.234, there is a cart-track shown and in R.S.No.234/6, there is no indication of cart-track and S.No.234/5, there is no cart-track seen. 18. In the instant case on hand, Ex.A8-Field Map in S.No.236, Ex.A9-Field Map in respect of S.No.234, Ex.B17-Notice dated 20.07.1996 sent by Surveyor, Ex.B18-Copy of F.M.B. Field No.234, dated 21.06.1996, Ex.B19-Certified copy of R.S.R. Extract, dated 06.08.1996 and Ex.B20-Certified copy of Adangal Extract, dated 06.08.1996 and Exs.C1 to C6-Commissioner's Report and Plan do play a significant role for resolving the controversy/dispute in regard to the subject matter in issue. 19. A perusal of Ex.C3-Commissioner's Report dated 16.10.1996 and Ex.C4-Plan, clinchingly point out that on the west of CC! till EE1 portion, in the cart-track portion, new sand has been put up and if the water passes/flows in the channel near the portion shown in 'E', then the said water will have to pass through this way and after a distance of 25 feet, the southern portion of the cart-track has been eroded. In Ex.C5-Commissioner's Report dated 08.04.1999 and in Ex.C6-Commissioner's Plan, there is a Channel which is shown in blue colour. Therefore, it is quite clear that there is no cart-track in R.S.No.234/4. 20. In Ex.C5-Commissioner's Report dated 08.04.1999 and in Ex.C6-Commissioner's Plan, there is a Channel which is shown in blue colour. Therefore, it is quite clear that there is no cart-track in R.S.No.234/4. 20. At this stage, the Learned Counsel for the Appellants places strong reliance on Exs.A1 and A2 - Sale Deeds, dated 08.03.1967 and 22.06.1944, respectively and contends that the itteri cart-track is the only mode of access for the outside world for all the Survey Fields, which are lying south of R.S.No.234 and that to the north of R.S.No.234/3, 4, 5 and 6 (Old S.F.No.480), the Bhavani-Kavundapady main road is running east-west and from the said road, a poramboke Itteri cart-track is branching of towards south, to the east of R.S.No.234/5,6. Also, a cart-track to a breadth of 10' is branching off from the said Itteri cart-track towards west upto R.S.No.236 (Old S.F.No.474) and the said cart-track is running east-west in the southern side of R.S.No.234/6 and in R.S.No.234/4. Moreover, the said cart-track has been in existence for more than 100 years to reach R.S.No.236 (Old S.F.No.474) and also that the Appellants/Plaintiffs, their predecessors in title and Kavundiappa Gounder was using the Suit cart-track described in the Schedule and marked as 'ABC' in red colour in the Plaint plan for reaching their lands in R.S.No.236. 21. In Ex.A1-Sale Deed, dated 08.03.1967, executed in favour of Venkatachala Gounder by Chellappa Gounder and others, in page 6, there is reference to the right of his easement and also about the mamool right of way and also the right of Sheep and Cattle passing through S.No.480 has been mentioned of. 22. In Ex.A2-Sale Deed, dated 22.06.1944, executed by Ayyammal and others in favour of Pongiya Gounder and others, it is mentioned that one should not block for proceeding towards Vairangadu. 23. Though, in Exs.A1 and A2, there is a mention of the track, in revenue records, in respect of S.No.234/4, at the time of re-survey, it is classified as detailed channel. Moreover, the Field Map, Adangal and Chitta also speak of detailed channel in R.S.No.234/4. In short, the re-classification of S.No.234/4 as 'detailed channel' made by the revenue authorities unerringly point out that S.No.234/4 is only classified as detailed channel and not as cart-track. Moreover, the Field Map, Adangal and Chitta also speak of detailed channel in R.S.No.234/4. In short, the re-classification of S.No.234/4 as 'detailed channel' made by the revenue authorities unerringly point out that S.No.234/4 is only classified as detailed channel and not as cart-track. In between Exs.A1 and A2-Sale Deeds, dated 08.03.1967 and 22.06.1944 and that of the Field Map, Adangal and Chitta records, the revenue re-classification of S.F.No.234/4 as detailed channel heightens the case of the Respondents. R.S.No.234/4 is only a detailed channel and not a cart-track. In short, the Appellants/ Plaintiffs have not established that their right of using S.No.234/4 as cart-track and as such, this Court, unhesitatingly holds that the Appellants/ Plaintiffs are not entitled to get the relief of permanent injunction as prayed for by them in the Plaint in O.S.No.595 of 1996. 24. Per contra, the Suit in O.S.No.615 of 1996 filed by the Plaintiffs therein claiming the relief of declaration in respect of ABC portion viz, the Suit property to be declared as 'detailed channel' as shown in the Plaint is granted by this Court. However, in regard to the relief of injunction that the Defendants or their concerned people should not take Cattle or vehicles through AB portion of the Suit to different lands or to R.S.No.236/1 is also granted in favour of the Plaintiffs in O.S.No.615 of 1996. However, since the relief of damages/compensation is sought for by the Plaintiff in O.S.No.615 of 1996 has not been established through proper documents, both the Courts below have rightly negatived the relief, in the considered opinion of this Court. 25. Viewed from that perspective, it cannot be said that both the Courts below have committed an error in law and misdirected others in granting the relief of declaration merely on the basis of revenue documents in the absence of any other oral and documentary evidence for title and the findings of the Court below that S.No.234/4 is only a detailed channel cannot be found fault with and the same is valid in law. There is no fetter for the Courts below to pass a Declaratory Decree on the basis of revenue Field Maps establishing that D.W.2, Survey Inspector has been examined before the trial Court and accordingly, the Substantial Questions of Law 1 and 2 in both the Second Appeals are answered against the Appellants. 26. There is no fetter for the Courts below to pass a Declaratory Decree on the basis of revenue Field Maps establishing that D.W.2, Survey Inspector has been examined before the trial Court and accordingly, the Substantial Questions of Law 1 and 2 in both the Second Appeals are answered against the Appellants. 26. In the result, the Second Appeals are dismissed leaving the parties to bear their own costs. Consequently, the common Judgment and Decree of the First Appellate Court 26.02.2001 in A.S.Nos.6 and 5 of 2000 on the file of the Learned Sub Judge, Bhavani, Erode District and that of the trial Court dated 02.12.1999 in O.S.Nos.595 and 615 of 1996 on the file of the (Learned Additional District Munsif Court, Bhavani) passed by the Learned Principal District Munsif (Incharge), Bhavani are affirmed by this Court for the reasons assigned in this Appeal.