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2014 DIGILAW 1574 (MAD)

Annathai v. Paathu

2014-06-19

PUSHPA SATHYANARAYANA

body2014
Judgment : 1. The defendants who had lost in both the Courts in a suit for permanent injunction are the appellants in the Second Appeal. 2. The suit is filed by the plaintiff seeking a relief of permanent injunction restraining the defendants from disturbing the usage of the portion marked as 'J J1' in the plaint plan. 3. The case of the plaintiff is that she had purchased the property on 28/11/1990 under Ex.A.3 from one Chellaperumal his wife and children. Pursuant to the sale deed, the plaintiff has been in possession of the property. The title of the plaintiff is not in dispute. The property purchased under Ex.A.3 is described as Door No.3, Karthigai Madam Street. The defendants had purchased the property in the year 1988. The plaintiff's main entrance is on the northern side which opens out of a common mutram. The plaintiff and the defendants together erected a wall and put up a gate in the year 2003. Though according to the plaintiff, 50% of the expenses were agreed to be borne by the defendants, as the defendants delayed the payment, the plaintiff was demanding for the same. Aggrieved, the defendants locked the gate denying the access of the plaintiff to Karthigai Madam Street. The gate was erected only to avoid the cattle coming inside the common mutram belonging to the parties. If the gate is closed and if the plaintiff is denied the access, the plaintiff cannot use his entrance as the main entrance of the plaintiff's house facing north east opening into Karthigai Madam Street. In fact, there is a staircase east west of the plaintiff's house which descends into mutram. Admittedly, the mutram belonged only to the plaintiff and the defendants. If the defendants are allowed to lock the gate, the plaintiff and her family cannot enter through the main entrance. Hence the suit has been filed for injunction restraining the defendants from interfering with the usage either by closing or by locking the same. 4. The defendants denied all the allegations in the plaint. They also denied that the plaintiff's main entrance is facing the north and that to go to the plaintiff's house from the east west road, turn to north enter into Karthigai Madam Street and again turn to the east to reach the northern entrance of the plaintiff's residence east denied by the defendants. They also denied that the plaintiff's main entrance is facing the north and that to go to the plaintiff's house from the east west road, turn to north enter into Karthigai Madam Street and again turn to the east to reach the northern entrance of the plaintiff's residence east denied by the defendants. According to the defendants, the plaintiff's house is having the main entrance on the sixth public road which is facing the south. On the other side of the gate, there are two shops in which the plaintiff is carrying on business. 5. The defendants further contended that after they purchased the house at Door No.5 in consideration of the safety and security of the houses, a wall was constructed and the alleged iron grill gate was fixed by the defendants only. This is evident from the initials of the first defendant's husband 'CM' in the gate. The common mutram claimed by the defendants as the exclusive property of the defendants. Though the defendants have got the entrance on the southern side of their house, they had deliberately blocked it and insisting on using the northern side entrance with the mala fide intention to disturb the defendants possession. 6. Before the trial Court, on the side of the plaintiff, P.W.1 has been examined and Exs.P.1 to P.6 had been marked and on the side of the defendants, D.W.1 has been examined and Exs.D.1 to D.9 had been marked on Exs.X.1 and X.2 had been marked as Court documents. 7. Both the Courts have concurrently held that the plaintiff is entitled to the relief sought for and granted injunction restraining the defendants from locking the gate leading to the plaintiff's house. 8. Heard Mr.V.K.Vijayaraghavan for Mr.S.Sethuraman for the appellants and Mr.H.Arumugam for the respondent. 9. In the grounds of appeal, the following substantial questions of law had arisen for consideration. (i). Whether the Courts below are correct in coming to a conclusion that second schedule is a common mutram in the absence of a pleading by the plaintiff? (ii). Whether declaration that it is a common mutram can be granted in the absence of a relief in the prayer and having no Court fee paid in that regard and even there is no whisper by the plaintiff in the plaint? (iii). (ii). Whether declaration that it is a common mutram can be granted in the absence of a relief in the prayer and having no Court fee paid in that regard and even there is no whisper by the plaintiff in the plaint? (iii). Whether the suit can be decreed in the absence of the plaintiff having not proved his case on the basis of the documents and evidence adduced by the plaintiff and on the ground that defendants have not proved their case on the basis of the documents filed by them? 10. The following additional substantial question of law has also been formulated:- “Whether the interpretation of boundary recitals of Exs.A.1 to A.3 for granting suit relief to the plaintiff's tenable?” 11. Mr.V.K.Vijayaraghavan for Mr.S.Sethuraman, the learned counsel for the appellants had strenuously contended that the plaintiff is not entitled to the usage of the common mutram as she has not pleaded for the same. Merely because in the boundary description in Ex.A.3, the northern boundary is shown as Karthigai Madam Street. The plaintiff will not automatically be entitled to the usage of the common mutram. The learned counsel also contended that the plaintiff has not pleaded express or implied grant or even easementary right by prescription. 12. Mr.H.Arumugam, learned counsel for the respondent contended that Ex.A.1 is the partition deed under which the plaintiff's vendor got the suit property allotted to his share. Ex.A.2 is the document which is the settlement deed under which Chellaperumal Pillai had settled the property in favour of his wife and son. Thereafter, in the year 1990, the plaintiff has purchased the property under Ex.A.3. In Exs.A.1 and A.2, it has been specifically described that the property is situate on Karthigai Madam Street and north of the suit property is the common mutram. The plaintiff as well as the defendants had purchased the property in 1990 and 1988 respectively. Whereas the documents Exs.A.1 and A.2 are of the year 1955 in which the suit property has been described as a house facing north and the northern boundary is described as a common mutram. In view of the above, the contention of the counsel for the appellants that the plaintiff's house is only facing the south on the 6th public road is unacceptable. 13. In view of the above, the contention of the counsel for the appellants that the plaintiff's house is only facing the south on the 6th public road is unacceptable. 13. The learned counsel for the appellants further contended that the plaintiff had not pleaded a common way or easementary right is not pleaded. When on the southern side admittedly, there is a public road according to the defendants, the plaintiff has got no necessity to use the northern side through the common mutram which exclusively belongs to the defendants. It was contended further that the plaintiff has not established that her vendors had exercised the right over the common mutram on the Karthigai Madam Street. Though it was contended that the documents under Exs.A.1 and A.2 were not proved, the Courts below also have rightly concluded that the documents are more than 30 years old and that there is no necessity to prove the same by examining the vendors of the documents. 14. A Commissioner was appointed before the trial Court to note down the physical features of the disputed area. The Commissioner in paragraph 2 has stated as follows:- “TAMIL” 15. From the above observation of the Commissioner, it can be seen that the main entrance of the plaintiff's house is on the northern side. The further reading of the report of the Commissioner, it can be understood that the back entrance of the plaintiff's house opens at 6th public road wherein he has constructed two shops on either side of the grill gate. According to the plaintiff, the said shops were constructed after obtaining permission from Kallidaikurichi Municipality under proceeding dated 28/2/1996 under Ex.B.6. In Ex.B.6, Door No.3 is shown to be situate at Karthigai Madam Street and there is a construction behind the house. 16. The second defendant, who has been examined as P.W.1 in his cross-examination has specifically admitted that even at the time of purchase of their house in 1988 as per Exs.B.4 and B.5, the plaintiff's house was there, facing the north. D.W.1 himself has specifically admitted that even prior to the purchase of the house of the plaintiff in the year 1990 under Ex.A.3, the said house was there, facing the north. D.W.1 himself has specifically admitted that even prior to the purchase of the house of the plaintiff in the year 1990 under Ex.A.3, the said house was there, facing the north. Therefore, the theory of the defendants that no common ownership was pleaded or non-examination of the vendor are all not acceptable and the house of the plaintiff is facing only the north. 17. The learned counsel for the appellants contended that in the prayer in the plaint, the relief sought for is as follows:- “TAMIL” 18. In the schedule of property, the second schedule refers to the iron grill gate. Therefore, it was contended by the counsel for the appellants that when no specific prayer for mutram was asked, the mere description will not give the right. According to the learned counsel, once joint ownership is admitted, having given up easementary right, the plaintiff cannot have any further right. This contention may not be acceptable because the plaintiff has not pleaded easementary right at all. Only when there is pleading regarding easement, the plaintiff has to establish the easement of necessity. In this case, admittedly, the front entrance is facing the north and the gate which was intended to prevent the cattles from entering into the common mutram is being misused by the defendants by refusing access to the plaintiff to reach Karthigai Madam Street. 19. The learned counsel for the appellants has misunderstood that the relief sought for by the plaintiff is not regarding the mutram which is the common property but only locking of the gate which is the problem. In this regard, it is worthwhile to refer to the evidence of D.W.1. “TAMIL” 20. The next contention of the learned counsel for the defendants is that the boundary recitals will not either disclose any right of way or will create a right of way. The boundary description as given in Ex.A.3 is as follows:- “TAMIL” 21. The contention of the learned counsel for the defendants is that the boundary recital of a document will not create a right to use the common mutram. I am afraid that such an argument may not hold good because in any boundary description of a property, if it is bounded by a road, it does not specifically confer a right on the owner of the property by explicitly describing the right to use the road. I am afraid that such an argument may not hold good because in any boundary description of a property, if it is bounded by a road, it does not specifically confer a right on the owner of the property by explicitly describing the right to use the road. If one of the boundary description is a house or a wall, it is understood that the same cannot be used as the right of the owner ends there. Whereas, if the boundary description is a common passage or a road, it is deemed that the owner or the purchaser of the property is entitled to use the road or the passage. There need not be any specific recital that a particular direction is bounded by a road and that the purchaser is entitled to use it. Therefore, in this case, it is admitted by D.W.1 that even on the date of purchase of their house, the suit property was in existence facing the north. In such circumstances, the contention of the learned counsel for the appellants cannot be accepted. In view of the same, the common mutram is for the use of both the plaintiff and the defendants as the plaintiff also has not claimed any exclusive right of the property and the defendant also has not established his exclusive right over the property. In view of the above discussions, it can be easily inferred that the main entrance of the plaintiff's house is facing the north which is on the Karthigai Madam Street and the plaintiff has got no other way to reach Karthigai Madam Street, except the suit gate, the plaintiff has got the right to use the suit gate as the passage to reach Karthigai Madam Street. 22. The counsel for the respondent placed his reliance on 2009 (1) MLJ – 1001 {ANATHULA SUDHAKAR Vs. P. BUCHI REDDY (dead) BY LRs AND OTHERS}. According to him when the suit property is the usage of mutram a vacant site which is not physically possessed but used and enjoyed, he is deemed to have title. 23. The learned counsel for the respondent also relied on VIJAYAN @ AROKKIYASAMY AND ANOTHER Vs. ANGAMMAL AND ANOTHER reported in 2013 (1) MWN (Civil) 334 which has followed the decision of Apex Court cited supra. 24. The learned counsel also placed reliance on V.A.AMIAPPA NAINAR (died) AND OTHERS Vs. 23. The learned counsel for the respondent also relied on VIJAYAN @ AROKKIYASAMY AND ANOTHER Vs. ANGAMMAL AND ANOTHER reported in 2013 (1) MWN (Civil) 334 which has followed the decision of Apex Court cited supra. 24. The learned counsel also placed reliance on V.A.AMIAPPA NAINAR (died) AND OTHERS Vs. V. ANNAMALAI CHETTIAR (died) AND OTHERS { 1972 (1) MLJ 317 and ETHIRAJULU NAIDU (died) & 9 OTHERS Vs. YASODAMMAL AND 3 OTHERS reported in {2010 (3) LW 846}. These cases refer to admissibility of document not inter-parties when the executant is not examined. As stated earlier, the suit is not one for title wherein the boundary assumes importance. Hence they are not relevant. 25. For the above reasons, the substantial question of law raised in this Second Appeal are not found in favour of the appellants. The other questions of law raised regarding easements of necessity does not arise for consideration as the plaintiff himself has not pleaded so. 26. In the result, the Second Appeal is dismissed confirming the judgment and decree passed in A.S.No.55 of 2007 on the file of the Subordinate Court, Ambasamudram and O.S.No.326 of 2003 on the file of the Additional District Munsif Court, Ambasamudram. In view of the facts and circumstances of the case, there shall be no order as to costs. Consequently, the connected Miscellaneous Petition is also dismissed.