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2013 DIGILAW 1139 (MAD)

Rangappa Naidu v. P. Kistama Naidu

2013-02-27

G.RAJASURIA

body2013
Judgment :- 1. Earlier one Mr.C.Prabakaran, the learned counsel filed vakalat for the caveator. Subsequently, he withdrew his appearance. Hence, by the order dated 20.02.2013, this court directed the office to print the name of the respondent in the cause list. Despite printing the name of the respondent, no one appeared today. Hence, the matter has been taken up for hearing at the request of the learned counsel for the appellants. 2. This second appeal is focussed by the defendants' inveighing the judgement and decree dated 30.07.2011 passed by the learned Subordinate Judge, Tirutanni in A.S.No.15 of 2011 in reversing the judgment and decree dated 11.08.2006 passed by the learned District Munsif, Pallipet in O.S.No.510 of 2001. 3. The parties, for thesake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 4. Heard the learned counsel for the appellant. 5. A summation and summarisation of the germane facts absolutely necessary for the disposal of this second appeal would run thus: a. The respondent/plaintiff filed the suit seeking the following reliefs: - to declare the plaintiff's right, title and interest to the suit properties. - to grant permanent injunction restraining the defendants their men and agents from interfering with the plaintiff's peaceful possession and enjoyment of the suit properties and – for costs. (extracted as such) in respect of the following schedule of property In Tiruvellore District, in Pallipet Taluk, in Konasamudram village accounts:- 6. together with 5 H.P. Electric Motor pumpset; shed; bore well; together with C.S.No.54. (extracted as such) mainly contending that the defendants are unnecessarily trying to meddle with the schedule of properties. Accordingly, he sought for an injunction. b. Per contra, D1 and D2 filed the written statement and it was adopted by the other defendants, the pith and marrow of the defence would run thus: As per the partition deed Ex.B1 dated 30.09.1982, D1 and D2 are entitled to use the pattai, which is situated in the suit property and also they are entitled to take water from the well situated in S.No.157/11. Accordingly, they prayed for the dismissal of the suit. c. Whereupon issues were framed by the trial court. d. Up went the trial, during which, on the plaintiffs' side P.Ws.1 to 3 were examined and Exs.A1 to A10 were marked. Accordingly, they prayed for the dismissal of the suit. c. Whereupon issues were framed by the trial court. d. Up went the trial, during which, on the plaintiffs' side P.Ws.1 to 3 were examined and Exs.A1 to A10 were marked. On the defendants' side, D.Ws 1 to 3 were examined and Exs.B1 and D2 were marked. e. Ultimately, the trial court decreed the suit partly by passing the following decree, the operative portion of it is extracted here under for ready reference: 1. That the suit be and the same is hereby decreed; that the right, title and interest of the plaintiff to the suit property is declared. 2. That the defendants be and the same are hereby restrained by means of permanent injunction from interfering with the peaceful possession and enjoyment of the plaintiff to the suit properties, except the right of way granted to the defendants 1 and 2 in the registered partition deed under Ex.B1 and 3. That both parties do bear their own costs. (extracted as such) f. Challenging and impugning the judgment and decree of the trial court, the plaintiff preferred appeal; whereupon, the first appellate court set aside the judgment and decree of the trial court and virtually granted full injunction and the decree of the first appellate court is extracted here under : 1. That the appeal be and the same is hereby allowed. 2. That the observation of the trial court's judgment and decree dated 11.08.2006 passed in O.S.No.510 of 2011 with regard to the findings in respect of the right of passage in item No.2 of the suit property alone is hereby set aside. 3. That the right, title and interest of the plaintiff to the suit property is hereby declared. 4. That the defendants be and are hereby restrained by means of permanent injunction from interfering with peaceful possession and enjoyment of the suit properties, by the plaintiffs. 5. That the parties do bear their own costs incurred by them in this appeal. (extracted as such) g. Being aggrieved by and dissatisfied with the same, the defendants have preferred this second appeal by setting out various grounds and also suggesting various substantial questions of law. 7. On hearing the learned counsel for the appellants/defendants, I thought fit to formulate the following substantial questions of law: 1. (extracted as such) g. Being aggrieved by and dissatisfied with the same, the defendants have preferred this second appeal by setting out various grounds and also suggesting various substantial questions of law. 7. On hearing the learned counsel for the appellants/defendants, I thought fit to formulate the following substantial questions of law: 1. Whether the first appellate court was justified in placing reliance on Ex.A7 [rhFgo ml';fy;], which stands in the name of the plaintiff in respect of the suit property and modifying the judgment and decree of the trial court and virtually granting absolute injunction in favour of the plaintiff as against the defendants? 2. Whether there is any perversity or illegality in the judgment and decree of the first appellate court? 8. Both these points are taken together for discussion as they are inter-linked and interwoven, inter-connected and entwined with each other. 8. The learned counsel for the appellants/defendants would pyramid his argument, which could succinctly and precisely be set out thus: i) Ex.B1 the partition deed dated 30.09.1982 would reveal that D1 and D2 were allotted the B and D schedules of the properties described therein and as per which, they are entitled to the right of ingress and egress over the suit properties and also to take water from the well in Survey No.157/11; but the first appellate court simply and erroneously relied on Ex.A7 [rhFgo ml';fy;], the revenue record and ignored the admission on the part of the plaintiff as PW1 and PW2 during their cross-examination. ii) If the first appellate court's judgment is upheld, it would amount to preventing the defendants 1 and 2 from having ingress and egress to their shares under the partition deed and they will also be prevented from taking water from the said well. Accordingly, he would pray for setting aside the judgment and decree of the first appellate court and for restoring the judgment and decree of the trial court. 9. A mere running of the eye over the records available would exemplify and demonstrate that indubitably and indisputably there emerged a partition deed Ex.B1 dated 30.09.1982 among the following persons,viz., 1. Sanjeevi Naidu 2. Muniammal 3. Govindammal 4. Lakshmi(minor) 5. Rangappa Naidu (Minor) The B schedule of the property was allotted to D2 and the D schedule was allotted to D1 as per the partition. 10. Sanjeevi Naidu 2. Muniammal 3. Govindammal 4. Lakshmi(minor) 5. Rangappa Naidu (Minor) The B schedule of the property was allotted to D2 and the D schedule was allotted to D1 as per the partition. 10. A perusal of the aforesaid partition deed as well as the depositions of P.Ws.1 and 2 would clearly connote and denote that the partition deed was a genuine deed and that D1 and D2 were conferred with their right of passing and re-passing over the suit properties so as to have ingress and egress to their schedules of properties and they were also given the right of taking water from the well situated in Survey No.157/11, which is a part of the suit property described in the schedule of the plaint. While so, the onus of proof was on the plaintiff as to how quite against the Ex.B1 the partition deed, he could put forth a case as though the defendants should not exercise or assert their right under Ex.B1. 11. The learned counsel for the appellants/defendants would correctly by placing reliance on Ex.A1, the sale deed executed by Sanjeeva Naidu and Govindammal in favour of the plaintiff would submit that the plaintiff has got only derivative title, as the partition deed is the antecedent title deed to the sale deed Ex.A1. 12. Wherefore, the plaintiff cannot blow hot and cold. The contention on the side of the plaintiff that the defendants can have access to their shares through some other way is something, which cannot be countenanced because here, what the defendants' are claiming is not easement of necessity. Only in the case of easement of necessity, the question of looking for any alternative way available for the parties concerned would arise. But, in this case, as per the partition deed, they got such right and squarely that will come under easement based on partition deed, so to say, easement by express grant. Hence, the plaintiff was not justified in contending as though alternate ways are available for the defendants' to have ingress and egress to their shares. 13. The first appellate court without really appreciating the law as well as the facts, simply modified the judgment and decree of the trial court, which clearly recognised the right of the defendants' under the partition deed Ex.B1. 13. The first appellate court without really appreciating the law as well as the facts, simply modified the judgment and decree of the trial court, which clearly recognised the right of the defendants' under the partition deed Ex.B1. The first appellate court was not justified in placing reliance on Ex.A7[rhFgo ml';fy;], the revenue record and simply poo-pooh and belittle, slight and discard the right of the defendants 1 and 2 as found embedded in Ex.B1, the partition deed. 14. Not to put too fine a point on it, the first appellate court misdirected itself and modified the judgment and decree of the first appellate court; wherefore, the judgment and decree of the first appellate court has to be set aside and the judgment and decree of the trial court should be upheld. 15. However, I would like to disambiguate the ambiguity, if any, in the trial court's judgment and decree. The defendants' also in their evidence did not clarify as to what was the actual width of the pattai, etc. But one thing I could see is that as per Ex.B1, the partition deed, no specific pattai is contemplated but only the right of passing and repassing over the suit property for having ingress and egress to the shares of the defendants 1 and 2 are contemplated. Over and above that the said partition deed Ex.B1 also confers right on D1 and D2 to take water from the well situated in Survey No.157/11. As such, the judgment and decree of the trial court should be interpreted subject to the clarification given by this court in this second appeal. 16. On balance, the substantial question of law No.1 is decided to the effect that the first appellate court was not justified in placing reliance on Ex.A7 [rhFgo ml';fy;], which stands in the name of the plaintiff in respect of the suit property and modifying the judgment and decree of the trial court and virtually granting absolute injunction in favour of the plaintiff as against the defendants. 17. In the result, this second appeal is allowed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.