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2014 DIGILAW 3846 (MAD)

R. Kaliammal v. Govindan (Died)

2014-10-15

P.DEVADASS

body2014
Judgment : 1. This Second Appeal has been directed against the Judgment and Decree, dated 18.01.2010, passed in A.S.No.8 of 2009, on the file of the learned Subordinate Judge, Sivakasi, reversing the Judgment and Decree, dated 21.02.2008, passed in O.S.No.238 of 2005, on the file of the learned District Munsif, Sivakasi. 2. As the controversy involved in this matter lay in a narrow compass, I propose to dispose of this Second Appeal at the admission stage itself. 3. The plaintiffs instituted the suit, in O.S.No.238 of 2005, on the file of District Munsif, Sivakasi, against the defendants, seeking permanent injunction, restraining defendants from interfering with his usage of pathway, which has been described in the suit schedule. The stand of the plaintiffs is that such a right over the pathway has already been reserved in Ex.A1 Sale Deed and there is mentioning of right of pathway measuring 3 feet in Ex.A1 Sale Deed itself. 4. The defendants filed written statement taking the specific plea that no such right is available over a pathway further, no such pathway is existence as a Thar road was already laid. 5. Upon considering the evidence adduced and the submissions of either side, the Trial Court solely based on Ex.A1 Sale Deed decreed the suit as prayed for. 6. Aggrieved, the defendants took up the matter in appeal in A.S.No.8 of 2009, before the Sub-Court, Sivakasi. 7. The learned Sub Judge, Sivakasi, found fault with the decision of the learned District Munsif, Sivakasi, solely resting upon Ex.A1 Sale Deed and also pointed out that in view of the pleas set up by both sides, the very existence of the suit pathway has to be established by a sketch map and also by having a report from an Advocate/Commissioner. In such view of the matter set aside the Decree and Judgment of the Trial Court. That is how the legal heirs of the said plaintiffs are before us. 8. It has been contended by the learned counsel for the appellants that the right of the plaintiffs have already been assured in Ex.A1 Sale Deed by the vendor, namely, Irulandi Konar. By virtue of the said Ex.A1 Sale Deed, the appellants are entitled to be granted injunction as against the respondents. 9. 8. It has been contended by the learned counsel for the appellants that the right of the plaintiffs have already been assured in Ex.A1 Sale Deed by the vendor, namely, Irulandi Konar. By virtue of the said Ex.A1 Sale Deed, the appellants are entitled to be granted injunction as against the respondents. 9. On the other hand, the learned counsel for the respondents would contend that as per the present state of affairs Ex.A1 Sale Deed alone is quiet insufficient. Further, the plaintiffs have thoroughly failed to establish the existence of pathway by producing relevant evidence. Under the circumstances, the First Appellate Court has rightly vacated the Judgment of the Trial Court. 10. I have anxiously considered the rival submissions. Perused the Judgments and Decrees of the Courts below and the record of the case. 11. Both the plaintiffs and the defendants have purchased the properties under their respective sale deeds from one Irulandi Konar. The said Irulandi Konar originally owned properties, which are now being enjoyed by the legal heirs of plaintiffs and defendant. 12. The sheet anchor of the case of the plaintiffs is Ex.A1 Sale Deed. It has been pointed out by the learned counsel for the appellants that there is a clear cut mentioning of right over 3 feet pathway in Ex.A1. It is pertinent to mention here that according to the defendants no such pathway exists. Therefore, the legal heirs of plaintiff, who have come to the Court with a specific plea that there is a pathway and enjoyment of the pathway accrued to the plaintiffs by way of reservation made in the sale deed, are bound to establish the very existence of the pathway as on today. The primary onus is upon the appellants themselves. Thus, physical feature as to the alleged pathway in the suit property is required to be brought to the notice of the Court. 13. It is not a case of seeking establishment of possession through Advocate/Commissioner. In law, that cannot be done. But, when a plea as to the physical features of the property is taken by the plaintiffs and defendants and it is such that, that could not be resolved by documentary or oral evidence, therefore, the Court has to be furnished with physical features. That could be done by the report of an Advocate/Commissioner. 14. But, when a plea as to the physical features of the property is taken by the plaintiffs and defendants and it is such that, that could not be resolved by documentary or oral evidence, therefore, the Court has to be furnished with physical features. That could be done by the report of an Advocate/Commissioner. 14. In fact, in the facts and circumstances of the case and the plea taken by the respective parties as well as the mentioning of right of pathway in Ex.A1 Sale Deed, such a report of the Advocate/Commissioner as to the physical features of the property more particularly the alleged pathway will help the Court to resolve the controversy involved in this case. This has also been pointed out by the First Appellate Court, but somehow or other, the Trial Court has missed this important aspect in this case. Actually, ascertainment of current physical features of the property through an Advocate/Commissioner will enure benefit to both sides. 15. In the circumstances, this Court is of the view that appointment of an Advocate/Commissioner for the above purpose is eminently necessary in this case. 16. In the circumstances, (i) The Second Appeal is allowed. (ii) The Judgment and Decree, dated 18.01.2010, passed in A.S.No.8 of 2009, by the learned Sub Judge, Sivakasi, and the Judgment and Decree order, dated 21.02.2008, passed in O.S.No.238 of 2005, by the learned District Munsif, Sivakasi, are set aside. (iii) The suit in O.S.No.238 of 2005 is remanded back to the learned District Munsif, Sivakasi. (iv) The learned District Munsif, Sivakasi, will appoint an Advocate/Commissioner, who will inspect the suit property as well as the property of the appellants and the respondents situate along the alleged pathway and submit his report. The learned Advocate/Commissioner will also draw a Sketch Map. If he needs, he can have the assistance of concerned Village Administrative Officer. (v) The learned District Munsif, Sivakasi, will fix a reasonable and decent sum as fee to the Advocate/Commissioner taking into account the nature of work involved in this matter. (vi) On receipt of the report of the Advocate/Commissioner, the learned District Munsif, Sivakasi, will give opportunity to both sides to file their objections, if any. (v) The learned District Munsif, Sivakasi, will fix a reasonable and decent sum as fee to the Advocate/Commissioner taking into account the nature of work involved in this matter. (vi) On receipt of the report of the Advocate/Commissioner, the learned District Munsif, Sivakasi, will give opportunity to both sides to file their objections, if any. (vii) Thereafter, the learned District Munsif, Sivakasi, will took up the suit for trial afresh and dispose of it according to law giving reasonable opportunity to both sides and if they require, permit them to adduce further relevant evidence, if any. (viii) Costs throughout shall abide by the result of the suit.