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2012 DIGILAW 3137 (MAD)

Girija v. Arumugam

2012-07-19

T.RAJA

body2012
Judgment :- 1. The present second appeal has been filed by the plaintiff as against the judgment and decree passed by the learned Principal Subordinate Court, Mayiladuthurai, in A.S. No.175 of 2004, dated 28.06.2005, reversing the judgment and decree passed by the by the learned Additional District Munsif, Mayiladuthurai, in O.S.No.278 of 2000, dated 15.04.2004. 2. Brief facts leading to the filing of the second appeal are given as under:- The plaintiff is the absolute owner of the property bearing Door No.10, Pattavarthy Vattam, Puthagaram Village, Mayiladuthurai Taluk, which was received from her husband under a settlement deed dated 15.10.1986. From the date of the settlement, the plaintiff has been in possession and enjoyment of the suit property. Later on, the plaintiff, by a sale deed dated 24.11.1999, conveyed the 'B' schedule property in favour of the defendant. In the said sale deed, the plaintiff has mentioned clearly that she is entitled to have the right of ingress and egress to the backyard of the 'A' schedule property through ABCD portion. As the plaintiff is also having cultivable punja land with the pump set on the northern side of the suit property and as she was using the lane portion as pathway to go to the paddy fields, she has retained the right of ingress and egress through ABCD portion. After the execution of the sale deed dated 24.11.1999, due to misunderstanding between the plaintiff and the defendant, when the defendant made an attempt to block the ingress and egress of the suit property, the plaintiff was constrained to file the suit for permanent injunction restraining the defendant, his men and agent from in any way interfering with the plaintiff's peaceful posesssion and enjoyment of the 'A' schedule property. 3. The defendant, by filing a written statement, has taken a specific stand that the plaintiff is not entitled to enjoy the right of ingress and egress into the ABCD portion, as it was already sold to the defendant by way of registered sale deed dated 24.11.1999. 4. On the side of the plaintiff, one Chokkalingam was examined as P.W.1 and 3 exhibits were marked as Exs.A1 to A3. On the side of the defendant, the defendant himself was examined as D.W.1 and 2 exhibits were marked as Exs.B1 and 2. Again, Exs.C1 and C2-Advocate Commissioner's report and plan were marked. 4. On the side of the plaintiff, one Chokkalingam was examined as P.W.1 and 3 exhibits were marked as Exs.A1 to A3. On the side of the defendant, the defendant himself was examined as D.W.1 and 2 exhibits were marked as Exs.B1 and 2. Again, Exs.C1 and C2-Advocate Commissioner's report and plan were marked. On the pleadings and the materials placed, the learned trial Judge framed the following issues:- i. Whether the plaintiff is entitled for permanent injunction as sought for? ii. To what relief is the plaintiff entitled to? 5. The learned trail Judge, on appreciation of evidence produced by both sides, decreed the suit in favour of the plaintiff, by holding that the plaintiff is entitled to have the right of ingress and egress through ABCD portion to reach her punja land. Aggrieved by the same, when an appeal was filed by the defendant, learned first appellate Court reversed the findings of the learned trial Court holding that the plaintiff is neither entitled to get permanent injunction nor any other relief. Aggrieved by the same, the present second appeal has been filed by the plaintiff. 6. This Court, at the time of entertaining the second appeal, framed the following substantial questions of law for consideration:- i. Whether the Sub Court, on finding that the plaintiff had established her right in respect of the pathway, was right in dismissing her suit in toto, solely because she had claimed a larger extent in the plaint shcedule? ii. Whether the sub Court was right in dismissing the suit on the ground of misdescription in the schedule, when the parties and counsel themselves were fully aware and conscious of the matter in controversy? 7. Learned counsel appearing for the appellant, by relying on the recital made in the sale deed dated 24.11.1999, contended that when the plaintiff and the defendant have accepted that the plaintiff is entitled to enjoy the right of ingress and egress through ABCD portion to reach her punja land, it is not open to the defendant to restrain the plaintiff to reach her punja land through ABCD portion. It was further contended that had the defendant refused to accept the right of ingress and egress, the plaintiff would not have agreed to sell the land. It was further contended that had the defendant refused to accept the right of ingress and egress, the plaintiff would not have agreed to sell the land. Therefore, when the defendant had already agreed the plaintiff's right of ingress and egress through ABCD portion, it is not legally permissible to stop or prevent the plaintiff from using the ABCD portion, because without which the plaintiff will not be in a position to use the agricultural land. On this basis, it was contended that the learned first appellate Court has committed serious mistake by not even taking into account the relevant portion of the sale deed dated 24.11.1999, as the learned trial Court has given a categorical finding only on the basis of agreed recital employed in the sale deed, therefore, he sought for interference of the impugned judgment passed by the learned first appellate Court. 8. Learned counsel appearing for the respondent, at the outset, made it clear that the respondent, at no point of time, opposed the plaintiff's limited right of ingress and egress, as that was already accepted by the defendant at the time of purchasing the suit property for using ABCD portion. Further, it was submitted that, due to the judgment and decree passed by the learned trial Court decreeing the suit in favour of the plaintiff, the defendant would not be in a position to use the pathway through ABCD portion, which was purchased by the defendant by a registered sale deed dated 24.11.1999. Therefore, he sought for clarification to the effect that when the plaintiff is having the right of ingress and egress through ABCD portion to reach her punja land, the cattle shed maintained by the defendant in ABCD portion should not be disturbed. 9. The above said submission of the learned counsel for the respondent appears to be a reasonable one, inasmuch as in the sale deed dated 24.11.1999, it was made it clear that the plaintiff is entitled to have the right of ingress and egress through ABCD portion. 9. The above said submission of the learned counsel for the respondent appears to be a reasonable one, inasmuch as in the sale deed dated 24.11.1999, it was made it clear that the plaintiff is entitled to have the right of ingress and egress through ABCD portion. Therefore, this Court, finding no substantial questions of law involved, while confirming the judgment and decree passed by the learned first appellate Court, makes it clear that the plaintiff is entitled to enjoy the right of ingress and egress through ABCD portion, so as to reach her punja land, but that does not mean that the plaintiff can have absolute right to enjoy the said ABCD portion. It is needless to mention that the plaintiff can go inside the ABCD portion and return in the same way, but she cannot cause nuisance or problem to the cattle shed of the defendant. Further, the recital found in the sale deed dated 24.11.1999 states that 9 feet ABCD portion should be used by the plaintiff for her ingress and egress and that should not be prevented or disturbed by the defendant. Therefore, for better understanding, the Registry is directed to annex the plaint's plan along with this judgment. 10. In fine, the second appeal is disposed of in the above terms. Consequently, the judgment and decree passed by the learned trial Court is set aside. No Costs.