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2012 DIGILAW 308 (MAD)

M. R. Kumara Dev v. Bhavani

2012-01-20

V.PERIYA KARUPPIAH

body2012
Judgment :- 1. This appeal is directed against the judgment and decree passed by the First Appellate Court (Additional District and Sessions Judge, Fast Track – I, Chennai) in A.S.No.162 of 2000 dated 28.08.2003 in reversing the judgment of the trial Court (III Assistant City Civil Court, Chennai) in decreeing the suit in O.S.No.4270 of 1994 dated 30.07.1998. 2. The plaintiff is the appellant and the defendant is the respondent, in this appeal. 3. The brief facts of the case of the plaintiff before the trial Court would be as follows: The plaintiff is the absolute owner of the house bearing Door No.1/4, T.S.V. Koil Street, Mylapore, Chennai. The plaintiff along with his father and other brothers entered into a partition on 17.2.1978 in respect of their family properties. Accordingly, the house property bearing Door No.1, T.S.V. Koil Street, Mylapore, Chennai was allotted in favour of the plaintiff and other three brothers namely M.R.Rajasekaran, M.R.Namasivayam and M.R.Jayaseelan. A sketch has been appended to the plaint showing the partition had in between the four brothers in the house bearing Door No.1, T.S.V.Koil Street. Accordingly, the portion marked in A & B which are facing the street were allotted to M.R.Rajasekaran and his sons and M.R.Namasivayam respectively. The schedules portion in the partition deed was allotted to the plaintiffs younger brother M.R.Jayaseelan which is shown as C in the sketch which bears Door No.1/3. Similarly, D Schedule allotted in the Partition Deed has been shown as D in the sketch which bears Door No.1/4. The partition deed dated 17.2.1978 is very clear and explanatory about the description of the property and the enjoyment of the common passage shown as " U V X Z Y W U" which was left to the enjoyment of the plaintiff and the other brother Jayaseelan for ingress and egress from the respective properties allotted to them. The owners of the properties referred to as C and D are not having any direct entrance from the Street and therefore, they were allotted 3 feet suit passage to them exclusively. Even as per the partition deed, this passage shall be maintained by the plaintiff and Jayaseelan who are the owners of C and D schedule properties shown in the sketch. Even as per the partition deed, this passage shall be maintained by the plaintiff and Jayaseelan who are the owners of C and D schedule properties shown in the sketch. The other sharers cannot claim any ingress and egress over the said passage or be the owners of the common passage, as per the recitals in the partition deed. The defendant who seemed to have purchased B marked property from M.R.Namasivayam is making attempt to have ingress and egress, through their tenants in the 3 feet width passage which is exclusively belonging to the plaintiff as he is the owner of D schedule property and his brother M.R.Jayaseelan, the owner of C Schedule property. The defendant is attempting to trespass over the passage, despite it was objected by the plaintiff. Therefore, the plaintiff issued a legal notice on 11.2.1994 to the defendant calling upon her to restrain herself or her agents or representatives from committing any unlawful act of trespass by using the passage morefully described in the schedule as well as in the sketch marked in red colour described as "U V X Z Y W U". The defendant did not give any reply to the notice despite she has received the same. Therefore, the plaintiff has approached this Court for permanent injunction restraining the defendant, her heirs, legal representatives, agent, servants etc. from committing trespass by making ingress and egress through 3 feet width passage running from the street for more than 60 feet marked as red colour in the plan appended in the plaint as described in "U V X Z Y W U" and for costs. 4. The case of the defendant would be thus:- The plaintiffs claim is false. The partition entered into between the family members along with the defendants vendor on 17.2.1970 is true. The contents of the said partition deed is very much explanatory and it does not require any interpretation. The defendant is the purchaser of B schedule property mentioned in the partition deed through the sale deeds dated 9.7.1992 and 3.9.92 registered with Sub-Registrar, Mylapore from M.R.Namasivayam, Son of M.Raja Badhar Mudaliar for valuable consideration. The defendants vendor was allotted B Schedule property in the partition deed and it does not have the access from the street. The defendant is the purchaser of B schedule property mentioned in the partition deed through the sale deeds dated 9.7.1992 and 3.9.92 registered with Sub-Registrar, Mylapore from M.R.Namasivayam, Son of M.Raja Badhar Mudaliar for valuable consideration. The defendants vendor was allotted B Schedule property in the partition deed and it does not have the access from the street. The said property is having a separate door facing the south on the property allotted to M.R.Namasivayam which has been subsequently sold to the defendant. The plaintiff knowing fully well that 3 feet common passage is meant for all the parties to the Deed of Partition dated 17.2.1978, has field the suit in order to harass the defendant. The other brother namely M.R.Jayaseelan did not question the defendant from using the 3 feet common passage by the defendant. The defendants vendor was allotted with the common share to use the well which is situated in the rear side of the property. The said well could be used only by using the 3 feet common passage by all the sharers. All the sharers could use the well for taking water from the said well only by using 3 feet common passage. It is not correct to say that the plaintiff and his younger brother Jayaseelan, who are the owners of C and D schedules alone can have right of ingress and egress over the 3 feet passage. Nothing was stated in the partition deed regarding the ownership of the common passage in favour of the plaintiff and his younger brother Jayaseelan. In the sale deed executed by M.R.Namasivayam, the defendant was granted with all the rights and privilege available in the partition deed dated 17.2.1978. The said common passage was in existence for over 88 years as stated in the partition deed dated 17.2.1978. Clause 8-(a) of the Partition deed would empower the 2nd, 3rd, 5th and 7th parties to the document to have title in the well situated in the A marked portion,bearing Door No.2, T.S.V.Koil Street, Mylapore as common well from which water can be drawn by motor pump or otherwise through the common passage marked in red colour in the said plan. While such being the case, the claim of the plaintiff that he has got exclusive right from the 3 feet common passage, cannot be true. While such being the case, the claim of the plaintiff that he has got exclusive right from the 3 feet common passage, cannot be true. The notice issued by the plaintiff on 11.2.1994 was replied through the reply notice dated 10.4.1994. The plaintiff is liable to prove his case. The plaintiff did not explain the physical features of the said property and even the plaintiff has not opted for appointment of Advocate Commissioner to prove the physical features of the suit property, the well having a diameter of 3 feet which is common to four parties had been referred to in the annexure to the partition deed and the right of the defendant purchased through the sale deeds dated 9.7.1992 and 3.9.1992 would patently show the right to the defendant in the 3 feet common passage also for their ingress and egress. Therefore, the suit has to be dismissed with exemplary cost. 5. The trial Court had framed necessary issues and had come to the conclusion of granting a decree for permanent injunction against the defendant subject to use the suit passage for taking water and to take electricity to the house of the defendant and also to have the facility of passing the drainage in the suit common passage. Aggrieved against the judgment and decree passed by the learned trial Judge, the defendant preferred the appeal in A.S.No.162 of 2000. The learned First Appellate Court after hearing both sides had set aside the judgment and decree passed by the learned Trial Judge by allowing the appeal and consequently, the suit filed by the plaintiff was dismissed. 6. Aggrieved by the reversal judgment and decree passed by the First Appellate Court, the plaintiff has preferred the Second Appeal before this Court. 7. On admission of the appeal, this Court has framed the following substantial questions of law for the disposal of the second appeal. "1. Whether the lower appellate court has correctly determined the question of fact following the oral and documentary evidence on record? 2. Whether the lower appellate Judge is correct in vesting the right with the respondent contradicting the recitals in the partition deed?" 8. Heard Mr.R.Shanmugham,learned senior counsel appearing for Mr.A.V.Muthuswamy, learned counsel for the appellant and Mr.T.D.Vasu, learned counsel appearing for the respondent. 9. 2. Whether the lower appellate Judge is correct in vesting the right with the respondent contradicting the recitals in the partition deed?" 8. Heard Mr.R.Shanmugham,learned senior counsel appearing for Mr.A.V.Muthuswamy, learned counsel for the appellant and Mr.T.D.Vasu, learned counsel appearing for the respondent. 9. Learned senior counsel would submit in his argument that the lower Appellate Court without any proper perspective to the evidence on record had erroneously come to a different conclusion from that of the trial Court. He would further submit that the recitals in the partition deed Ex.A1 would hold the field but it was not properly understood by the First Appellate Court while reversing the judgment of the trial Court. He would also submit that the suit property namely 3 feet passage described as "U V X Z Y W U" was granted only to the plaintiff and his younger brother Jayaseelan for ingress and egress from their houses allotted and shown as C and D in the sketch since the other sharers allotted in the A and B schedule in the sketch were having access to the main Street viz., T.S.V. Koil Street from their property itself and the plaintiff and his younger brother Jayaseelan were having the right of maintaining the said 3 feet passage recognising their ownership on the passage. He would also submit that the trial Court has come to the conclusion that the defendant who purchased the property from B schedule property holder Namasivayam would only get the right to use the passage for taking water from the common well and to use the passage as drainage and also to take electricity connection. He would further submit that when the defendants vendor Namasivayam was not entitled to use the passage thoroughly for ingress and egress to the property allotted to him in B schedule, the defendant being a purchaser cannot get more title than given under the partition deed Ex.A1. He would also submit that the right given under the Sale deed executed by Namasivayam in favour of the defendant in Ex.B3 and Ex.B4, even though referred to any right in the suit passage, that will not be valid since the vendor has no such right to grant any right to ingress and egress through the suit passage. He would also submit that the right given under the Sale deed executed by Namasivayam in favour of the defendant in Ex.B3 and Ex.B4, even though referred to any right in the suit passage, that will not be valid since the vendor has no such right to grant any right to ingress and egress through the suit passage. He would also submit that the plaintiff has proved the case as pleaded by him in support of the recitals in the partition deed which was understood by the trial Court but the First Appellate Court had perversely come to the conclusion that taking water through the passage would amount to the right to ingress and egress for the property given under B Schedule to the vendor of the defendant. He would also submit that the finding of the First Appellate Court without understanding and perusing the evidence adduced on ether side cannot be sustained and therefore, it is liable to be interfered and set aside. He would also submit that the finding reached by the First Appellate Court would amount to vesting of right in favour of the respondent even though he was not granted and entitled to such right in the suit passage. He would therefore, request the Court to set aside the judgment and decree passed by the trial Court thereby to allow the Second Appeal. 10. Learned counsel for the respondent would submit in his argument that the First Appellate Court had understood the evidence promptly and had come to the conclusion that the defendant who was entitled to take water from the common well, to take electricity through the passage and to drain effluents from the house are totally amounting to ingress and egress to the property of the defendant purchased from the vendor. He would further submit that the partition deed in Ex.A1 executed in between the brothers while giving such rights in the suit passage, had also declared that all the brothers are entitled to the said suit passage. He would further submit in his argument that the reference as to the common passage itself would mean that it is common to all the parties to the partition deed and therefore, the defendant who purchased the property from one of the brothers namely Namasivayam through Ex.B3 and Ex.B4 is entitled to ingress and egress in the suit passage as rightly given by her vendor. He would also submit that the finding reached by the First Appellate Court regarding the fact is final and therefore, it need not be interfered. He would also submit that the partition deed which granted a common right to the vendor of the defendant would enure the defendant also with the common right in the suit passage and therefore, no injunction can be granted in favour of the plaintiff against the defendant who is also a co-owner. He would therefore request the Court that the finding of the First Appellate Court is perfectly on the basis of the evidence adduced before the said Court and it was perceived by the lower appellate Court in its true sense and therefore, the judgment and decree passed by the lower Appellate Court may be confirmed and the appeal may be dismissed. 11. I have given anxious considerations to the arguments advanced on either side. 12. The lie of the suit property, namely, the suit passage as described in the plaint with the sketch appended to it is not disputed. As mentioned in the plaint sketch, portion A, B, C, D were allotted to the respective persons in the partition deed dated 17.2.1978 which is marked as Ex.A1. The said partition deed was entered into between one Raja Badhar and his six sons and two grandsons. The said partition deed is an admitted document. As stated in the plaint sketch A,B,C, D portions were allotted to the sons of Raja Badhar namely Rajasekaran, Namasivayam, Jayaseelan and the plaintiff Kumaradev respectively. The other brothers namely Palanisamy and Annamalai were not allotted with A,B,C,D properties. The common passage in between B,C, D properties were referred to in the partition deed. The right of the parties granted in the partition deed in respect of suit passage would certainly entitle such persons to transfer any right to third parties. Such A, B, C, D portions were being kept by the brothers who got the shares in the said partition deed and one of the brothers namely Namasivayam who was allotted with B marked portion had sold his property to the defendant through Ex.B3 and Ex.B4. Therefore, the defendant is deemed to have stepped into the shoes of the said brother Namasivayam in respect of the right given under the partition deed. Therefore, the defendant is deemed to have stepped into the shoes of the said brother Namasivayam in respect of the right given under the partition deed. Whatever the right given under Ex.B3 and Ex.B4 sale deeds executed by Namasivayam in favour of the defendant would be subjected to the right given under the partition deed Ex.A1. Therefore, the rights given to the parties in Ex.A1 especially the right given to Namasivayam has to be looked into for the purpose of appreciating the contentions of both the parties. 13. Clauses 8 and 9 of the partition deed are relevant in respect of the rights conferred for the usage of suit passage namely "U V X Z Y W U". The same are extracted hereunder . "8. (a) The parties of the Second, Third, Fifth and Seventh parts hereby declare and agree that the well situated in the portion marked A of the Plan of House No.2, T.S.V. Kovil Street, Mylapore, Madras is a common well from which water can be drawn by motor pump or otherwise through the common passage marked RED in the said Plan and the Party of the Third part is entitled to take water for domestic purposes to the 1st floor and 2nd floor through G.I. Pipes and to put up motor pump set near the well adjacent to the building of portion C (ground floor) of the Plan of No.2, T.S.V.Kovil St. hereto attached. The said common well and drainage shall be repaired and maintained by the 4 owners of the portions in House No.2, T.S.V. Kovil Street, Mylapore, Madras. (b) The parties of the Fourth part and the party of the Sixth part shall use the well situated in between the two portions marked E and F shown in the Plan of House and Ground No.10 Subramania Swamy Kovil Street, Saidapet, Madras hereto attached in common and the said well be repaired and maintained by the party of the Fourth partand the party of the Sixth part. 9. 9. The party of the Second, Third, Fifth and Seventh parts hereby agree that the common passage 3 feet wide marked RED in the Plan of House No.2 T.S.V. Kovil Street, hereto attached be used for ingress to and egress from the portions marked C land D in the Plan of No.2, T.S.V. Kovil Street, Mylapore Madras by the owners thereof to the Tenkur Selva Vinayakar Kovil Street, Mylapore, Madras and maintained by them and the said common passage be also used for drawing water and bringing electric current to their respective portions. Accordingly, the well situated on the rear side of A marked plan is a common well in which water can be drawn on motor pump or otherwise through the common passage marked in the said plan. The plaintiff was entitled to take water for domestic purpose to the first floor and second floor through G.I pipes and to put up motor pump set near the well adjacent to the building in C portions, ground floor. Similarly , the said common well and drainage shall be repaired and maintained by 4 owners namely 4 brothers of the portions situated in A portion. Similarly in Clause 9, the owners of C and D in the plan of No.2 T.S.V Koil Street are given the right of ingress and egress and the said passage be maintained by them and the said common passage be also used for drawing water and bringing electric current to their respective portions. On a careful understanding of Clause 9, I could see that the rights given under Clause 9 is exclusively to the owners of C and D portions. Nothing is stated regarding the right to use the suit passage by the sharers allotted with A and B portion. However in Clause 8-(a), the well situated on the rear side of A portion was declared as common well and water could be drawn from the said well through the common passage alone has been given. The common well and its drainage shall be maintained by four owners and no other right has been given to the owners of A and B portionsfor using the suit passage as a thorough fare to ingress and egress to their properties. The common well and its drainage shall be maintained by four owners and no other right has been given to the owners of A and B portionsfor using the suit passage as a thorough fare to ingress and egress to their properties. The idea for not giving any right to ingress and egress should have been due to the availability of front entrances in T.S.V. Koil Street for those sharers allotted with A and B portions. 14. Considering all these aspects only, the trial Court had granted permanent injunction against the defendant with a right given to the defendant to get water from the common well and to use the drainage in the common passage but the First Appellate Court had a pre-decision in its mind to see that the grant of using the common well and its drainage of water through the passage as drainage to an absolute usage of the suit passage and had accepted the right given under Exs.B3 and B4 which are not correct perception but it is a perverse one. What it had been referred to in the partition deed in favour of parties to it could be conveyed by the sharer Namasivayam to his vendor, the defendant herein muchless the right over the suit passage. Nothing more could be awarded even though it has been referred to in the sale deeds to which its vendor was not entitled to convey. In the said circumstances, the judgment and decree passed by the First Appellate Court is perverse and therefore, the finding of the First Appellate Court is liable to be interfered since it had not perceived the evidence properly. Accordingly, the question of law framed are decided in favour of the appellant. Consequently, the judgment passed by the First Appellate Court in reversing the judgment and decree of the trial Court is set aside and the judgment and decree passed by the trial Court which is perfectly in order is entitled to be restored. 15. For the foregoing discussions, I am of the considered view that the judgment and decree passed by the First Appellate Court is liable to be set aside, accordingly, the second appeal is allowed setting aside the judgment and decree passed by the First Appellate Court and the judgment and decree passed by the trial Court is restored. No costs. Consequently, connected C.M.P.No.5651 of 2005 is closed.