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2014 DIGILAW 4064 (MAD)

K. S. Sivashanmugam v. Rangasamy Gounder

2014-10-30

R.MAHADEVAN

body2014
Judgment : 1. Plaintiff, who failed before both the courts below is the appellant in this second appeal. 2. plaintiff/appellant herein filed the above said suit for the relief of permanent injunction restraining defendants 1 to 3 from destroying or demolishing or interfering with the plaintiff's peaceful possession and enjoyment over the suit properties and mandatory injunction directing defendants 1 to 3 to restore the suit cart track cum pathway at points PQRS in the plaint plan to its original position within a day fixed by this court failing compliance, any officer of this court may be appointed to restore the same at the cost of defendants 1 to 3. The case of the plaintiff is as follows:- The suit cart track cum pathway and the well were originally purchased by the grandfather of the plaintiff and defendants 4 and 5 under a sale deed dated 17.1.1910 from the maternal grandfather of the first defendant by name Kolnda Gounder. The suit cart track is shown as ABCD and DECF in red colour in the plaint plan. The well is shown in blue colour. The plaintiff and defendants 4 and 5 have their lands near and surrounding the suit cart track and the well. They have been using the suit cart track to access their lands and the well for irrigating their lands. The suit cart track is also mentioned in the FMP. Whileso, On 30.7.1997 defendants 1 to 3, alongwith rowdy elements destroyed a portion of DECF cart track which is shown as PQRS in the plaint plan and again on 31.7.1997, they attempted to destroy the entire cart track. Hence, the suit had been filed. 3. First defendant filed written statement, which was adopted by defendants 2 and 3, contending as under:- The suit cart track absolutely belongs to defendants 1 to 3. On the south of the east west portion of the suit pathway one Muthsamy Gounder and his sons Subannan have lands and house. They have encroached the western portion of DEFC portion with their lands and put up a wall on the northern side annexing the suit pathway with their lands about 40 years ago. Having allowed such encroachment, the plaintiff is now claiming right over the cart track which exclusively belongs to defendants 1 to 3. They have encroached the western portion of DEFC portion with their lands and put up a wall on the northern side annexing the suit pathway with their lands about 40 years ago. Having allowed such encroachment, the plaintiff is now claiming right over the cart track which exclusively belongs to defendants 1 to 3. Due to the misunderstanding between the plaintiff and defendants 1 to 3, the plaintiff made illegal encroachments of a major portion of the north south common pathway and when defendants 1 to 3 questioned the same, the suit has been filed making false claim. In any event, the suit filed for permanent injunction without seeking the relief of declaration is not maintainable and it is liable to be dismissed. 4. The Trial Judge framed three issues which are as follows:- i) Whether the plaintiff is entitled to the relief of permanent injunction? ii) Whether the plaintiff is entitled to the relief of mandatory injunction? iii) To what other relief the plaintiff is entitled? 5. The plaintiff examined himself as PW1 apart from examining two more witnesses and marked 3 documents as Exs.A1 to A3. On the side of the defendants, the third defendant was examined as DW1 and one Viayakumar was examined as DW2 and 5 documents were marked as Exs.B1 to B5. The Field Map was marked as Ex.X1 and 5 documents were marked at the instance of the court as Exs.C1 to C5. On analysis of the oral and documentary evidence, the Trial Court dismissed the suit. On appeal, the appellate court concurred with the finding of the Trial Court. As against the concurrent finding of the courts below, the present second appeal has been filed. 6. The second appeal has been admitted identifying the following questions to be the substantial questions of law involved in the second appeal: A) Whether the findings of the courts below are justified in not taking into consideration of: i) the clear recitals about the existence of the suit cart track in Ex.A1, A3 and B5. ii) the admissions made in the written statement as well as in the evidence of DW1 and DW2. iii) the clear findings given in the report and plan marked as Ex.C1 to Ex.C4 and the objections made therein by the plaintiff. iv) The evidence of 5th defendant who was examined as PW2. ii) the admissions made in the written statement as well as in the evidence of DW1 and DW2. iii) the clear findings given in the report and plan marked as Ex.C1 to Ex.C4 and the objections made therein by the plaintiff. iv) The evidence of 5th defendant who was examined as PW2. v) The recitals given in the additional documents filed in I.A.No.139 of 2006. vi) failure on the part of the defendants 1 to 3 to discharge the burden of proof of encroachment of the cart track by the southern side owners would result in miscarriage of justice, if so, whether it needs interference under Section 100 CPC as held in 2002(2) SCC 440 , 2002(6) SCC 404 and 2004 (9) SCC 468? B) Whether the courts below had failed to consider the vital piece of oral and documentary evidence and whether the courts below relied upon inadmissible evidence while rejecting the relief claimed by the plaintiff. 7. The arguments advanced by Mr.N.Manokaran, learned counsel for the appellant and by Mr.A.K.Kumaraswamy, learned counsel for respondents 1 to 3 are heard in detail. The materials available on record are also perused. 8. The suit is one for the relief of permanent injunction and mandatory injunction. The case of the plaintiff is that the suit cart track which is the only access to his lands is encroached by defendants 1 to 3. The right over the cart track was purchased by the grandfather of the plaintiff and the grandfather of defendants 4 and 5, it is contended by the plaintiff. The Trial Court has also found that there was no serious dispute by defendants 1 to 3 to such a factum of purchase of cart track. The contest made by them was that the suit cart track was encroached by some third parties and not by defendants 1 to 3 and hence, such third parties ought to have been impleaded as parties to the suit. From the evidence of DW1, it is clear that the cart track running north-south has also been enjoyed by the plaintiff and defendants 1 to 3 jointly. Therefore, the dispute surrounds only the east-west cart track which gets narrowed after some distance as evidenced by the commissioner's report and plan. 9. From the evidence of DW1, it is clear that the cart track running north-south has also been enjoyed by the plaintiff and defendants 1 to 3 jointly. Therefore, the dispute surrounds only the east-west cart track which gets narrowed after some distance as evidenced by the commissioner's report and plan. 9. Learned counsel for the appellant would submit that there are two different cart tracks even as admitted by defendants 1 to 3 in their written statement and the same was not properly considered. Ultimately, he submitted that atleast user right of the pathway may be permitted to the plaintiff. He referred to a decision in SREE SWAYAM PRAKASH ASHRAMAM v. G.ANANDAVALLY AMMA ( (2010) 2 SCC 689 ) wherein it has been held as under:- "... the right of the plaintiff to have `B' schedule property as a pathway could not have been taken away by the very same deed. In fact, there was implied grant of `B' schedule 1 property as pathway as can be inferred from the circumstances, namely, i) no other pathway was provided for access to `A' schedule property in the settlement deed and ii) there was no objection to the use of `B' schedule as pathway." 10. Learned counsel for defendants 1 to 3/respondents 1 to 3 would submit that if at all there are two different cart tracks, the onus is on the plaintiff to prove the same, but, that was not done and the concurrent finding of the courts below based on analysis of entire materials available on record need not be interfered. 11. On perusal of the judgment of the Trial Court, it is seen that initially, a commissioner was appointed to inspect the suit property, who filed his report and the plaintiff had filed his objections to such report. Thereafter, the Trial Court had issued commission for the second time for inspecting the site with the help of a surveyor. The commissioner had also filed his report and plan. Though the plaintiff had filed his objections to the first report, he had not chosen to file the report filed by the commissioner for his second visit. Hence, the above decision cited by the counsel for the appellant cannot come to the rescue of the plaintiff. 12. The commissioner had also filed his report and plan. Though the plaintiff had filed his objections to the first report, he had not chosen to file the report filed by the commissioner for his second visit. Hence, the above decision cited by the counsel for the appellant cannot come to the rescue of the plaintiff. 12. Further, it is seen that the plaintiff had not taken any step to seek for appointment of a commissioner to prove his case, whereas, at the instance of defendants 1 to 3, commissioner was appointed to inspect the property and the commissioner's report and plan revealed that there was only one cart track on the east-west which ran for some distance at about 15 feet breadth and later, it had been narrowed to 4 feet and thus, the courts below have concluded that the plaintiff has not proved his case and failed in identifying the suit track and thus, dismissed the suit. 13. The courts below have rightly considered the oral and documentary evidence and rendered the finding. Both the substantial questions of law are answered accordingly. The finding of the courts below is a well considered one which does not warrant any interference. Accordingly, the said finding is confirmed. In the result, the second appeal fails and the same is dismissed. No order as to costs.