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2012 DIGILAW 1396 (MAD)

Chandran v. Vadivel

2012-03-19

V.PERIYA KARUPPIAH

body2012
Judgment :- This appeal is directed against the judgment and decree passed by the First Appellate Court made in A.S.No.48 of 2002 dated 14.08.2003 in confirming the judgment and decree passed by the trial court made in O.S.No.6 of 1999 dated 28.06.2002 in decreeing the suit. 2. The appellants were the defendants and the respondents were the plaintiffs before the trial court. 3. The case of the plaintiffs as stated in the plaint before the trial court would be as follows:- The first and second items of the schedule of property were purchased by plaintiff's father by a registered sale deed by plaintiff's father by a registered sale deed dated 26.04.1957. The 3rd item of the suit property was purchased by the plaintiff's father and one perumal gounder's son, A.Kandasami gounder by a registered sale deed dated 4.6.1961. Then they orally divided this item in 1970 and the plaintiff's father got 0.40 cents in S.No.487/2B as his share and now it subdivided as 487/2B/1 0.16.0. The plaintiff's father died in 1974 leaving the plaintiff's as his legal heirs. After his life time the plaintiff's are enjoying the schedule of properties without any interruption. The defendants have no manner of right, title, iterest or possession in the suit properties. While so the defendants are trying to lay a road across the suit properties to fetch their sugar cane by means of lorries to the main road from the last week of November, 1998, which was successfully thwarted by the plaintiffs. If they succeeded in their attempt, the plaintiff will be put to heavy loss and hardship. Therefore, the plaintiffs prays this Court to grant a permanent injunction restraining the defendants, their men, agents, servant from interfering with the possession and enjoyment of the suit properties by the plaintiffs and to award cost of the suit to the plaintiffs. 4. The case of the defendantsas stated in the written statement would be as follows:- The plaintiffs have come forward with a false case, suppressing the material particulars. The defendants do not admit that item Nos. 1 and 2 of the suit properties were purchased by his father as alleged in the plaint. It is specifically denied that the 3rd item was purchased by his father and another Kandasamy gounder son of perumal gounder. The defendants do not admit that item Nos. 1 and 2 of the suit properties were purchased by his father as alleged in the plaint. It is specifically denied that the 3rd item was purchased by his father and another Kandasamy gounder son of perumal gounder. It is specifically denied that in the oral partition in the year 1970 the petitioners father got 0.40 cents in S.No.487/2B as his share and now it is sub divided as 487/2B/1 0.16.0. It is specifically denied that the plaintiffs are the only legal heirs of their father Kandasamy gounder. The petitioners have a sister by name Indirani who is also one of the legal heirs along with the plaintiffs. It is specifically denied that from the alleged date of purchase plaintiff's father was in possession and enjoyment. It is denied that the plaintiffs are in possession and enjoyment by changing patta in their name. The plaintiffs suit and the petition for injunction are motivated by malice, illwill and with a give trouble to the defendants and also the public at large who use the read for the past more than 35 years passing along dry S.No.551 Esayanur Village. The said road is in existence without any objection or obstruction for all these years either the plaintiffs or by any other person. The said road was formed when Manickka Naicker was the President of Esayanur Panchayat. The said road is from Esayanur Village towards west passing alone Dideerpattanam Village touching dry S.No.488, 490, 551, 549, 547 and 507 and 551. In fact the plaintiffs are in possession of Dry S.No.550 for which they have absolutely no right, illegal. The plaintiffs have deliberately come forward with a false case as if the defendant are trying to lay the road in the properties. There is nothing illegal and unlawful on the part of the defendants. The defendants are also entitled to use the road in existence in Dry.S.No.551 along with the public at large. It is the only road that helps farmers to transport sugarcane and other agricultural products. The plaintiffs are not law abiding citizens. They are bent upon to give trouble not on to the defendants but also the people at large by making a false claims as if there is no road at all. It is the only road that helps farmers to transport sugarcane and other agricultural products. The plaintiffs are not law abiding citizens. They are bent upon to give trouble not on to the defendants but also the people at large by making a false claims as if there is no road at all. On 28.12.1997, there was a muchilika in which the existence of the road is mentioned in S.Nos.481, 448, 550 etc., It was agreed that those persons who are having lands by the side of the road will not attempt to reduce the extent of road and they will not claim any right over the trees and Dharnee bushes. It was also agreed that no one prevent the transport facility on the road by cart, vehicles, etc. The said muchilika is signed by respectable persons of the village and also the plaintiff herein and the defendant herein. Therefore, the plaintiffs are estopped from questioning the existence of the road. The plaintiffs have no right muchless any legal right or legal possession over the road passing through S.No.551. The plaintiffs are bent upon to give trouble in the use and enjoyment of the road which the plaintiffs illegally want to prevent by indulging in vexatious legal proceedings. The plaintiffs are abusing the process of law by unnecessarily dragging the defendant on frivolous court proceedings. There are no merits not bonafide. It is specifically denied the defendants are trying to lay the road in the properties. There is an road in the property the said road was laid before 35 years back. The Commissioner report itself clearly show that there is a road in the suit property. Therefore, the suit for permanent injunction is not maintaining in this ground alone and the suit may be dismissed. 5. The trial court had framed necessary issues and entered trial. After appraising the evidence adduced before it, the trial court has come to the conclusion of decreeing the suit as prayed for without costs. 6. Aggrieved by the said judgment and decree passed by the trial court, the defendants have preferred the appeal before the First Appellate Court in A.S.No.48 of 2002. The First Appellate Court heard the arguments on both sides and had come to the conclusion of dismissing the appeal by confirming the judgment and decree passed by the trial court. 7. 6. Aggrieved by the said judgment and decree passed by the trial court, the defendants have preferred the appeal before the First Appellate Court in A.S.No.48 of 2002. The First Appellate Court heard the arguments on both sides and had come to the conclusion of dismissing the appeal by confirming the judgment and decree passed by the trial court. 7. Having aggrieved by the concurrent finding reached by the First Appellate Court, the defendants have preferred the second appeal before this Court. 8. On admission, this Court had formulated the following substantial questions of law:- 1. Whether both the Courts are correct in granting an order of injunction against the appellants when their case is that they are not passing through the suit property? 2. Whether the respondents are entitled to have an order of injunction against the appellants preventing them to pass through the Panchayat Board road not through suit property ? 3. Whether the villagers have projected title over the suit property ? 9. Heard Mr.R.Margabandhu, learned counsel for the appellant and no appearance for the respondents. 10. The learned counsel for the appellant would submit in his argument that the suit properties in which the plaintiffs have sought for injunction are in three survey numbers of an extent of 0.27.0 hectare as detailed in the plaint but, however, a panchayat road has been formed in the said properties and was in existence and the relief sought for by the plaintiffs was indirectly to prevent the defendant as well as the other villagers to use the said Panchayat Road. He would further submit in his argument that the plaintiff themselves have undertaken not to interfere with the use of the said road through their land including the suit properties in a muchilika but the Court below did not perceive the evidence produced by the defendants and came toa conclusion of decreeing the suit which is in correct. He would further submit that the said Panchayat Road was not running in any portion of the suit properties but it runs north of item Nos.1 and 2 of the suit properties and on the eastern side of item No.3 of the suit property. He would further submit that the Commissioner's report would go to show that the said panchayat road is running in chakara nallur Village land and not in the suit properties. He would further submit that the Commissioner's report would go to show that the said panchayat road is running in chakara nallur Village land and not in the suit properties. He would also submit that the plaintiffs have falsely claimed that the panchayat road was running on the other side of the suit properties and on the pretext they are preventing the defendants from using the road. He would also submit in his argument that the plaintiffs have stated that there is no likelihood of laying a panchayat road in the suit properties and therefore, there cannot be any laying of road in the suit properties. He would further submit that the villagers have used the panchayat road running on the northern side of item Nos.1 and 2 and on the eastern side of item No.3 and through which they perfected title. He would further submit that the panchayat road was formed in poromboke land of Panchayat Board in the year 1976 and the said road was leading in between Esayanallur Village and Chitlapakkam through Dideer patnam village. He would further submit that only through the passage of the road, the villagers and agriculturists are having access for their lands to an extent of 300 acres. He would also submit that the sugar cane carrying lorries also pass through the said road and the said road was laid down with the help of the funds of sugar mills by the panchayat. He would further submit that the plaintiffs having agreed by signing in the muchalika-Ex.B1, cannot choose to deny the defendants' right. He would also submit that the judgment and decree passed by the Court below are not in consonance with the evidence and therefore, the judgment and decree passed by the First Appellate Court, even though concurrent may be interfered and set aside and the suit filed by the plaintiff may be dismissed and accordingly the second appeal may be allowed. 11. I have given anxious thoughts to the arguments advanced on the side of the appellants. I have also perused the records. There was no appearance on the side of the respondents. 12. The suit was filed by the plaintiffs seeking permanent injunction against the defendants or any other person in any way interfering with the peaceful possession and enjoyment of the suit properties i.e., item Nos.1 to 3 belonged to the plaintiffs. I have also perused the records. There was no appearance on the side of the respondents. 12. The suit was filed by the plaintiffs seeking permanent injunction against the defendants or any other person in any way interfering with the peaceful possession and enjoyment of the suit properties i.e., item Nos.1 to 3 belonged to the plaintiffs. The case of the plaintiffs are that the suit properties are comprised in S.No.551/1 for an extent of 0.07.5 hectare in item No.2 in S.No.551/2 of an extent of 0.03.5 hectare and in item No.3 in S.No.487/2-B1 of an extent of 0.16.0 hectare in all, for an extent of 0.27.0 hectares. The said properties were stated to have been purchased by the father of the plaintiffs in respect of item Nos.1 and 2 on 26.04.1957. Item No.3 of the suit property was said to have been purchased on 04.06.1961 by the plaintiff's father and one Kandasamy Gounder jointly. Both certified copies of the sale deeds were produced as Exs.A1 and A2. It is the further case of the plaintiffs that the 40 cents of land on the northern portion of the land was divided in between the father and the plaintiff and the plaintiff was allotted 0.16.0 hectares and the same was sub-divided as S.No.487/2B/1. The further case of the plaintiff would be that the defendants attempted to lay road across the suit properties for the purpose of taking harvested sugar cane through lorries and the same was thwarted during November, 1998 and still they are attempting to interfere and therefore they would request the Court to issue permanent injunction. 13. However, the defendants would contend that the road was already laid in S.Nos.551/1, 551/2 running from Esayanur Village from Dideer Pattanam and it was in existence for 35 years and the public and the agriculturists are using it for transporting the harvested sugar cane and for other purposes either through bullock carts or through lorries. Further, the said road was constructed by one Manickam Naicker when he was serving as Panchayat Board President and there was a Muchalika dated 28.12.1997, in which, the plaintiffs also signed and thereby they are estopped from questioning the formation of the road. The Courts below have categorically found that the plaintiffs have proved their title in the suit properties by producing Exs.A1 and A2 and their possession through Exs.A3 and A4. The Courts below have categorically found that the plaintiffs have proved their title in the suit properties by producing Exs.A1 and A2 and their possession through Exs.A3 and A4. However, the case of the defendants that the road was laid by the Panchayat which run on the northern part of item Nos.1 and 2 and eastern part of item No.3, have not been shown to Court. The Commissioner report would disclose to the effect that there was a road on the north of S.Nos.551/1 and 551/2 and on the eastern side of S.No.487/2/B1 and he did not say that the said road was running inside the S.Nos.551/1, 551/2 and 487/2B-1. 14. However, I could see from the case of the defendants that the road was found running through the suit items also for which a Muchilika has been written in Ex.B1 in which the plaintiffs have signed. On a careful perusal of Ex.B1, I could see that there was a proposal to form a road in S.Nos.481, 448 and 551 and the said proposed road should not be claimed by the persons signed in the said muchalika. The plaintiffs are stated to have executed the said muchalika by signing on the back side in Sl.Nos.5 and 9. However, the signatures found in Ex.B1 were denied by the plaintiffs in their evidence. The courts below have found that the resolution passed by the Isayalur Panchayat produced in Ex.B13 and the estimate measurements produced in Exs.B14 and B15 were not shown to have related to the suit mentioned panchayat road. In the said circumstances, the courts below have come to a conclusion that the Ex.B1 muchalika was not in connection with the said panchayat road proposed to have laid for the benefit of the public. Moreover, for laying panchayat roads, there are certain procedures to be followed. Whenever they require the private patta lands for laying road for the panchayat they ought to have got the title through gift or sale as the case may be. Mere consent given by the parties, cannot give any title to the Panchayat Board for laying panchayat roads. It is not the case of the defendants that the plaintiffs have executed any gift deed for laying panchayat road in the suit properties and the title was already passed to the panchayat and thereafter, panchayat had laid the road. Mere consent given by the parties, cannot give any title to the Panchayat Board for laying panchayat roads. It is not the case of the defendants that the plaintiffs have executed any gift deed for laying panchayat road in the suit properties and the title was already passed to the panchayat and thereafter, panchayat had laid the road. The laying of panchayat road on the foot of Ex.B1 muchilika were not shown to Court so as to disprove the case of the plaintiff as to their title to the suit properties. The evidence produced by the defendants are not sufficient to disprove the title as established by the plaintiffs through oral and documentary evidence. 15. It is a dictum of the Hon'ble Apex Court reported in AIR 2003 SC 1905 (Bondar Singh and others v. Nihal Singh and others), wherein it is held that when the concurrent judgment and the conclusions reached by the Courts below are in accordance with the evidence adduced before the trial court, there would be no necessity for interfering with the judgment of the Courts below when they are not perverse or biased. The judgment of both the Courts below have been arrived at after appraising the evidence and they came to the conclusion in a correct perception of evidence and law. Therefore, I could see that there is no perversity nor any bias in the judgment passed by the lower appellate Court. Therefore, I am of the considered view that the questions of law framed are to be decided against the appellants and therefore, there is no reason to interfere with the concurrent finding of the First Appellate Court and accordingly, interference is not necessary and the second appeal is liable to be dismissed. 16. In fine, the second appeal is dismissed and the judgment and decree passed by the First Appellate Court, in concurrent with the trial court, are confirmed. No order as to costs.