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2012 DIGILAW 4481 (MAD)

Minor Vimal Kumar v. Venktesan

2012-10-30

T.RAJA

body2012
Judgment The second appeal has been filed by the appellant/plaintiff aggrieved by the reversing judgment and decree passed by the first appellate Court. 2. The brief facts, which led to the filing of this second appeal, are as follows: (i) The plaintiff is the appellant herein and the defendants are the respondents herein. (ii) The suit properties originally belonged to one Narayanasamy , son of Rangasamy at Melakuppam village Hamlet of Ammeri village, which was sold under Ex.A.1, the registered sale deed dated 19.8.1991 in favour of the plaintiff by appointing his grandfather Krishnasamy as guardian for proper and valuable consideration of Rs.11,800/- and from the date of such sale, the said Krishnasamy has been in possession and enjoyment of the suit properties by putting a little shed, string hay rick and manure, on behalf of the plaintiff. As such, the plaintiff is having right, title and interest over the suit properties. (iii) It was further submitted that the defendants, who are having house and vacant site on the Southern side of the suit properties, having failed in their attempt to purchase the suit properties from the vendor of the plaintiff developed strong enmity towards the plaintiff and attempted to trespass into the suit properties from 29.10.1993. Since the defendants are highly influential persons in that locality, apprehending their highly illegal and unlawful acts, the plaintiff filed the suit for declaration of title of the suit properties and for permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit properties. The plaintiff also made an alternative prayer to put him into the possession of the suit properties through proper order, if the Court comes to the conclusion that during the pendency of the suit, the defendants have trespassed into the suit properties. (iv) Opposing the said prayer, the first defendant/first respondent herein filed a detailed written statement and the same was adopted by the second defendant/second respondent herein. (v) The defendants have denied all the allegations stated in the plaint. They further stated that neither the plaintiff nor his predecessors have any right or title over the suit properties. Neither the plaintiff nor his vendor has right over the first item of the suit properties, which is the street. (vi) The second item of the suit properties originally belonged to the vendor of the plaintiff Narayanasamy and his father Rengasamy. They further stated that neither the plaintiff nor his predecessors have any right or title over the suit properties. Neither the plaintiff nor his vendor has right over the first item of the suit properties, which is the street. (vi) The second item of the suit properties originally belonged to the vendor of the plaintiff Narayanasamy and his father Rengasamy. They sold the second item of the suit properties on 12.10.1996 under Ex.B.2 dated 12.10.1996 in favour of one Muthusamy Padayachi. Again, when the said Narayansamy obtained the same suit properties under sale deed Ex.A.2 dated 20.9.1967, there was no mention about the first item of the suit properties in the said sale deed. It makes it clear that the said Narayanasamy is not entitled to have any right over the first item of the suit properties. Moreover, it is mentioned that the first item of the suit properties is described as a street in the F.M.B. Plan Ex.B.7. The defendants, since there is no way to reach their house and garden, are using the first item of the suit properties, the street for more than 50 years and hence, they are entitled to use the said property by easementary right. Therefore, the plaintiff is not entitled to ask for declaration, hence, it is pleaded, the suit filed by the plaintiff may be dismissed. (vii) On hearing both sides, the trial Court partly allowed the suit. As against the same, when an appeal was preferred before the first appellate Court, the first appellate Court allowed the appeal by reversing the judgment and decree passed by the trial Court in the suit. Aggrieved by the same, the present second appeal has been filed. 3. Heard Mr.S.Nandivarman, learned counsel for Mr.V.Raghavachari, learned counsel appearing for the appellant/plaintiff and Mrs.S.T.P.Kuilmozhi, learned counsel appearing for the respondents. 4. At the time of admission of the above second appeal, this Court formulated the following substantial questions of law: "1. When an alternative way for the respondents is proved, whether the Appellate Court is right in holding easement of necessity for the respondents? 2. When there is no dispute regarding the title of the plaintiff in respect of item No.1 of the suit properties, whether the Appellate Court is right in holding otherwise? 5. When an alternative way for the respondents is proved, whether the Appellate Court is right in holding easement of necessity for the respondents? 2. When there is no dispute regarding the title of the plaintiff in respect of item No.1 of the suit properties, whether the Appellate Court is right in holding otherwise? 5. While addressing on the above substantial questions of law, the learned counsel for the appellant/plaintiff has submitted that the first appellate Court has completely misunderstood that the first item of the suit properties covered under Survey No.489/5 is 'Pathai', as it was mentioned in the F.M.B. Plan, which was marked as Ex.B.7. The said F.M.B. plan clearly shows that the first item of the suit properties describes as vacant space (kali idam and at worst 'pathai') and not street ('theru') as envisaged under Section 2 (28) of the Tamil Nadu Panchayats Act, 1994. 6. The learned counsel for the appellant/plaintiff has further submitted that while purchasing the suit properties by the father of the first defendant Venkatesan, the Survey Number has been wrongly mentioned as 489/5 instead of 489/6, which is unbelievable and the same is unacceptable. Again pleaded that the judgment passed by the first appellate Court is patently erroneous and illegal Ex.B.5, sale deed dated 11.1.1950 clearly shows that there is a pathway on the Eastern side of the property leading to East West Road. When there is an alternative pathway available for the respondents, the question of grant of easementary right does not arise. Hence, the first appellate Court wrongly reversed the judgment and decree passed by the trial Court allowing the appeal filed by the respondents/defendants. Hence, he has prayed to allow the second appeal. 7. The learned counsel for the respondents/defendants has submitted that the appellant himself was examined as P.W.1 and he only deposed that the scheduled mentioned properties have been purchased from one Narayanasamy through E.x.A.1 under the sale deed dated 19.08.1991 in favour of the appellant. When one Muthusamy, was having title over the property under Ex.B.2, the sale deed dated 12.10.1966 North South measuring an extent of 72.5 feet and East West 33 feet, the vendor of the plaintiff, Narayanasamy, under Ex.A.2, the sale deed dated 20.9.1967, has purchased the same from Muthusamy. 8. When one Muthusamy, was having title over the property under Ex.B.2, the sale deed dated 12.10.1966 North South measuring an extent of 72.5 feet and East West 33 feet, the vendor of the plaintiff, Narayanasamy, under Ex.A.2, the sale deed dated 20.9.1967, has purchased the same from Muthusamy. 8. It was further submitted that under two sale deeds Exs.B.3 and B.4, the said Muthusamy is having title only for 36 feet on the North South and 18 feet on the East West and he did not sell North South 41 feet and East West 18 feet, as the vendor of the appellant, Narayanasamy himself was having title only for 36 feet. Moreover, the Commissioner's report, Ex.C.4, Surveyor report and Village F.M.B. Plan, Ex.B.7 clearly show that the first item of the suit properties is a public street bearing Survey No.489/5 and he also identified that encroachment has been made in the very same Survey Number. When the appellant tried to encroach the public street, which is situated in Survey No.489/5, the first item of the suit properties by way of putting up illegal construction, to safeguard his right of egress and ingress, the first respondent, Venkatesan filed a suit in O.S.No.393 of 1995 for bare injunction and the same was decreed by the trial Court. As against the same, when an appeal was filed by the appellant, Minor Vimalkumar herein represented by his grandfather as guardian along with one another in A.S.No.94 of 2005, the first appellate Court rightly dismissed the same. Hence, she prayed this Court to dismiss the second appeal. 9. Originally, one Muthusamy was having bona-fide title over the property on the North South measuring an extent of 72.5 feet and East West 33 feet under Ex.B.2, the sale deed 12.10.1996 executed by one Thangavelu @ Narayanasamy. Again, the vendor of the plaintiff, Narayanasamy had purchased the same from Muthusamy under Ex.A.2, the registered sale deed 20.9.1967. Thereafter, the plaintiff purchased the said property from one Narayanasamy under Ex.A.1, the registered sale deed 19.8.1991. 10. Muthusamy purchased the property from his vendor Thangavelu @ Narayanasamy the original extent of land measuring an extent of North South 72.5 feet and East West 33 feet. After the said purchase, Narayanasamy, the vendor of the plaintiff sold North South 18 feet and East West 18 feet to one Arumugam under Ex.B.3 sale deed dated 27.08.1971. 10. Muthusamy purchased the property from his vendor Thangavelu @ Narayanasamy the original extent of land measuring an extent of North South 72.5 feet and East West 33 feet. After the said purchase, Narayanasamy, the vendor of the plaintiff sold North South 18 feet and East West 18 feet to one Arumugam under Ex.B.3 sale deed dated 27.08.1971. Again, he sold another portion of land measuring an extent of East West 33 feet and North South 18 feet to one Arumuga Padayachi, who is the father of the first respondent under Ex.B.4 sale deed dated 9.8.1977. Muthusamy, who was the original owner had title only for 36 feet on the North South and 18 feet on the East West, however, it appears that he sold North West 41 feet and East West 18 feet, which shows clearly that the vendor of the plaintiff, Narayanasamy himself had no right to sell an extent of 41 feet on the North South as he was having title only for 36 feet. Therefore, the claim of the plaintiff beyond 36 feet on North East in Survey No.489/6 clearly shows that the plaintiff cannot have any right or title when his vendor, Narayanasamy also was not having better title. 11. Even when in the two sale deeds Ex.B.3 and B.4, the names of the father of the first defendant and Kuppammal, the sister of the plaintiff have been mentioned as Western boundaries, it is easy to understood that the first item of the suit properties is a street, while co-relating the boundaries mentioned in the plaint schedule with the Advocate Commissioner's report along with the Surveyor report and the village FMB plan. It was further stated that the trial Court appointed Advocate Commissioner to inspect the suit properties. Accordingly, the Advocate Commissioner also inspected the suit properties along with a qualified Surveyor and rightly identified that the first item of the suit properties bearing Survey No.489/5 is a public street and also identified that encroachment has been made in the same Survey Number. Therefore, it is clearly understood that the plaintiff had tried to encroach the public street in Survey No.489/5 by way of putting up illegal construction. Therefore, it is clearly understood that the plaintiff had tried to encroach the public street in Survey No.489/5 by way of putting up illegal construction. Under such circumstances, the defendants were constrained to file a suit in O.S.No.393 of 1995 for mandatory injunction restraining the plaintiff from preventing the defendants from using item No.1 as a right of way to reach the second item of the suit properties. When the defendants filed a suit seeking injunction against the plaintiff to safeguard his right to ingress and egress to reach his house claiming easementary right to use the first item of the suit properties, the plaintiff also filed the suit in O.S.No.208 of 1995 for declaration of title in respect of the first item of the suit properties. Hence, the plaintiff/appellant herein prayed that the suit in O.S.No.393 of 1995 filed by Venkatesan, the first respondent/first defendant for easementary right over the first item of suit properties is liable to be dismissed. 12. Both the suits namely the suit in O.S.No.393 of 1995 filed by Venkatesan, the first defendant and another suit in O.S.No.208 of 1995 filed by the plaintiff, Minor Vimalkumar, represented by the guardian, grandfather Krishnasamy were taken up for trial jointly. The trial Court by referring the parties in the suit by their name, examined the plaintiff Vimalkumar as P.W.1 and also observed that there was no independent evidence to prove the facts deposed by P.W.1, however, the trial Court has reached its conclusion that the first item of the suit properties is not a street holding that the first item is described as a vacant space. On that basis, the trial Court held that no easementary right can be claimed by the defendants. Further, it held that even the village FMB plan also does not refer the first item as street. Therefore, the first item of the suit properties was held to be the property of Vimal Kumar. On that basis, the trial Court held that no easementary right can be claimed by the defendants. Further, it held that even the village FMB plan also does not refer the first item as street. Therefore, the first item of the suit properties was held to be the property of Vimal Kumar. On the above said basis, the trial Court partly decreed the suit in O.S.No.208 of 1995 holding that Venkatesan, son of Rajendran, the second defendant is entitled for declaration in respect of item Nos.1 and 2 and also permanent injunction subject to the easementary right of Venkatesan to use item No.1 marked as 'ABCD' portion in the Commissioner plan and decreed the suit in O.S.No.393 of 2005 filed by Venkatesan, first defendant as prayed for holding that the plaintiff is entitled for declaration in respect of item No.2 with right to use item No.1 as an easement from each and every point of item No.2 and he will be entitled to permanent injunction restraining the defendants from preventing the plaintiff from using item No.1 as a right of way to reach the road and he is entitled to permanent injunction restraining the defendants from interfering with the right of enjoyment of item No.1. Aggrieved by the judgment and decree passed by the trial Court, an appeal was filed by the defendant attacking the correctness of the judgment of the trial Court alleging various infirmities found in the judgment passed by the trial Court that when Ex.A.1, the original sale deed dated 19.8.1991 purchased by Narayanasamy from his vendor one Muthusamy clearly shows that even Muthusamy, the vendor of Narayanasamy is having title over the suit properties North South measuring an extent of 72.5 feet and East West 33 feet and the said Narayanasamy sold North South 18 feet and East West 18 feet to one Arumugam under Ex.B.3 dated 27.8.1971, again, the said Narayanasamy sold another portion measuring an extent of East West 33 feet and North South 18 feet to Aumuga Padayachi under Ex.B.4, who is the father of the first respondent, after the sale deeds under Exs.B.3 and B.4, the said Muthusamy was having title only for 36 feet on the North South and 18 feet on the East West, therefore, the question of selling 41 feet North South and 18 feet East West will not arise for a simple reason that he had already sold the land measuring an extent of 41 feet on the North South, as he was having right of ownership only to an extent of 36 feet on the North South has to be accepted. 13. It was also further case of the defendant before the first appellate Court that even in Ex.A.2, sale deed dated 20.9.1967, no mention or no recital was found about the first item of the suit properties as it is only a street. The first appellate Court after finding the erroneous judgment passed by the trial Court, held that the first item of the suit properties is not a street since no acceptable evidence was produced by the defendants, which is completely not only against the report of the Advocate Commissioner Ex.C.4, Surveyor report, but also against the village F.M.B. Plan Ex.B.7. The first appellate Court after finding the erroneous judgment passed by the trial Court, held that the first item of the suit properties is not a street since no acceptable evidence was produced by the defendants, which is completely not only against the report of the Advocate Commissioner Ex.C.4, Surveyor report, but also against the village F.M.B. Plan Ex.B.7. Moreover, the village F.M.B. Plan and the reports of the Advocate Commissioner and Surveyor clearly show that the first item of the suit properties is a street and hence, the vendor of the plaintiff cannot convey right or title in respect of the street to the plaintiff, therefore, the first appellate Court allowed the appeal filed by Venkatesan and his father Rajendran reversing the judgment and decree passed by the trial Court. 14. Section 2 (28) of the Tamil Nadu Panchayats Act, 1994 reads as follows: 'Public road' means any street, road, square, Court, alley, passage, cart track, foot-path or riding-path, over which the public have a right of way, whether a thourough fare or not and includes. (a) the roadway over any public bridge or cause way (b) the footway attached to any such road, public bridge or cause way and (c) the drains attached to any such road, public bridge or causeway and the land, whether covered or not by any pavement, veranda or other structure, which lies on either side of the roadway upto the boundaries of the adjacent property, whether that property is private property or property belonging to the State or Central Government". 15. A mere reading of the above said Section clearly shows that public road means any street, road, passage or cart track or footpath, which the public have a right of way, whether a thoroughfare or not and includes the road way over any public or cause way, the foot way attached to any such road, public bridge or cause way and the drains attached to any such road, public bridge and the land which lies on either side of roadway upto the boundaries of the adjacent property, whether that property is private property or property belonging to the State or Central Government. 16. That apart, when so far as the dispute arose between the plaintiff and the defendants in regard to the usage of the first item of the suit properties, an Advocate Commissioner was appointed by the trial Court. 16. That apart, when so far as the dispute arose between the plaintiff and the defendants in regard to the usage of the first item of the suit properties, an Advocate Commissioner was appointed by the trial Court. The Advocate Commissioner along with the help of the Surveyor, inspected the suit property and finally came to the conclusion along with the help of village F.M.B. Plan, which was marked as Ex.B.7 that the first item of the suit properties is a street. When the first appellate Court on reading the evidence of Commissioner report, Surveyor report and the village F.M.B. Plan came to the conclusion that the first item of the suit properties is a public street, this Court cannot disturb the finding of fact reached by the first appellate Court. Accordingly, this Court while answering the so called substantial questions of law against the appellant finding no merits in the second appeal, dismisses the same. 17. Before, parting with the case, it is to be stated that the questions framed by this Court cannot be in strict sense taken to be as substantial questions of law, much less questions of law for the simple reason that a mere reading of the first question namely, when an alternative way for the respondents is proved, whether the Appellate Court is right in holding easement of necessity for the respondents is wrong?, since the trial Court has also given finding otherwise as follows: "But one thing is clear that Venkatesan has to use only item No.1 as ingress and egress from his hut situated in item No.2 to reach the street. Otherwise there is no other way by which he can have access to the public street" 18. The above finding clearly shows that the first respondent/first defendant Venkatesan has to use only the first item of the suit properties as ingress and egress from his hut situated in item No.2 to reach the street. Otherwise there is no other way to have access to the first item of the suit properties. Therefore, the above question of law has to be rejected as wrongly framed by this Court. 19. Secondly, the second question framed as substantial question of law is also liable to be rejected for the reason that there has been a dispute regarding title of the plaintiff in respect of the first item of the suit properties. Therefore, the above question of law has to be rejected as wrongly framed by this Court. 19. Secondly, the second question framed as substantial question of law is also liable to be rejected for the reason that there has been a dispute regarding title of the plaintiff in respect of the first item of the suit properties. This can be seen from the conduct of the appellant/plaintiff in not challenging the concurrent judgment of both the Courts below given in O.S. No.393 of 1995 dated 20.1.995 and A.S. No.94 of 2005 in favour of the first respondent/first defendant Venkatesan. 20. Therefore, for the reasons mentioned above, the second appeal fails and the same is dismissed. There is no order as to costs.