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2015 DIGILAW 2917 (MAD)

Kadirvel v. Chellammal

2015-08-31

P.R.SHIVAKUMAR

body2015
JUDGMENT : The first defendant in the original suit is the appellant in the second appeal. Plaintiffs 1 and 2 in the original suit are the respondents 1 and 2 in the second appeal. One Gnanasambandam, who figured as the second defendant in the original suit, was not made a party in the appeal before the lower appellate court and he is also not a party in the second appeal. Ravi, who figured as the third defendant in the original suit and second respondent in the first appeal before the lower appellate court, is the third respondent in the second appeal. 2. For the sake of convenience, the parties are referred to in accordance with their ranks in the suit and their ranks in the second appeal shall also be indicated wherever the court deems it necessary. 3. The respondents 1 and 2 (plaintiffs) filed the original suit against the appellant, third respondent and one Gnanasambandam (defendants 1 to 3) for a perpetual injunction restraining them from disturbing plaintiffs' enjoyment of the suit property either by putting up a construction over the suit property or in any other manner. The said prayer was made on the basis of the following contentions: The entire property shown in the plaint plan as 'DCBG' originally belonged to one Arumugam. Out of the said property, the northern portion measuring 5 Kuzhis was purchased by the first plaintiff Chellammal under a sale deed dated 18.01.1986. Subsequently, the southern part measuring 4 Kuzhis came to be purchased by the first plaintiff under a sale deed dated 15.12.1986. Thus she became entitled to 9 Kuzhis shown as 'AEFG' in the plaint plan and she along with her husband, namely the second plaintiff was in possession and enjoyment of the same. The properties thus purchased by the first plaintiff includes the passage shown in the plaint plan. Subsequently the remaining portion on the south-western part measuring about 2 Kuzhis was purchased by the first defendant Kathirvel. Thereafter, he along with the second defendant started claiming title to the portion shown as passage in the plaint plan and they attempted to interfere with the plaintiffs' enjoyment of the same. Subsequently the remaining portion on the south-western part measuring about 2 Kuzhis was purchased by the first defendant Kathirvel. Thereafter, he along with the second defendant started claiming title to the portion shown as passage in the plaint plan and they attempted to interfere with the plaintiffs' enjoyment of the same. In a panchayat convened by the mediators on 17.09.1995, the second plaintiff and the first defendant agreed that the portion shown as passage in the plaint plan belonged to the plaintiffs and the Muchalika was signed by the second plaintiff and the first defendant. Subsequently, on 04.04.1998 the first defendant, with the help of the defendants 2 and 3 attempted to put up a construction in the passage and in such an attempt, the first defendant destroyed the fence on the western border of the passage, which is shown as 'AF' in the plaint plan. In addition, he was proclaiming that he wanted to annexe that portion and put up a construction blocking the passage leading to the plaintiffs' property in the rear portion and hence the plaintiffs were constrained to approach the trial court with the suit for a permanent injunction. 4. The suit was resisted by the first and third defendants on the basis of the written statement filed by the first defendant, which was adopted by the third defendant. In the said written statement they denied the plaint averments and contended that the plaintiffs were not entitled to the passage shown in the plaint plan. It was their further contention that the first defendant purchased a house site measuring 7 Kuzhis and he was in possession and enjoyment of the same; that such purchase was made 20 years prior to the suit and that the alleged destroyal of the fence and annexure of the portion shown as passage in the plaint plan were imaginary. It was also contended that the alleged panchayat muchalika was not true and the same was created by forgery. The further contention made in the written statement was that the plaintiffs could not prevent the first defendant from putting up a construction in his own land and that in any event, since the construction was already over, the suit should be dismissed. 5. The further contention made in the written statement was that the plaintiffs could not prevent the first defendant from putting up a construction in his own land and that in any event, since the construction was already over, the suit should be dismissed. 5. The learned trial judge framed three issues and conduced a trial in which two witnesses were examined as PWs.1 and 2 and one document was marked as Ex.A1 on the side of the plaintiffs. Two witnesses were examined as DWs.1 and 2 and one document was marked as Ex.B1 on the side of the defendants. 6. At the conclusion of trial, the learned trial judge negatived the claim of title by the plaintiffs in respect of the portion shown as passage and held that the plaintiffs were not in enjoyment of the disputed portion shown as passage in the plaint plan. Adding further that the plaintiffs ought to have prayed for a declaration and the failure to pray for declaration would dis-entitle the plaintiff to seek the relief of injunction, the learned trial judge non-suited the plaintiff for the relief sought for in the plaint. Accordingly, the trial court dismissed the suit by judgment and decree dated 19.02.2001. 7. Aggrieved by and challenging the said decree of the trial court dated 19.02.2001, the plaintiffs preferred an appeal before the lower appellate court, namely the Court of Additional Subordinate Judge, Mayiladuthurai in A.S.No.26/2001. The learned lower appellate judge, on re-appreciation of evidence, reversed the judgment of the trial court, set aside the decree of the trial court and granted the relief of permanent injunction as prayed for in favour of the plaintiffs, by a judgment and decree dated 23.08.2001. It is as against the said decree of the lower appellate court the present second appeal has been filed. 8. The second appeal came to be admitted on 13.12.2001 identifying the following to be the substantial questions of law involved in the second appeal. Substantial Question of Law: " (a) When Ex.A1 is shown to be an involuntary document signed by the first defendant, would it by itself confer any right in favour of the plaintiffs over the suit property in the specific context of the plaintiffs themselves holding back the document of title in their favour which according to them refers to the suit property as theirs? (b) Possession with the plaintiffs on the date of suit being the basic criteria for granting a decree for injunction, has not the lower appellate court committed an error of law in granting the decree for injunction without even rendering a finding that the plaintiffs are in possession of the suit property?" 9. The arguments advanced by Mr.A.Muthukumar, learned counsel for the appellant and by Mr.S.Soundar, learned counsel for the respondents 1 and 2 are heard. The judgments and decrees of the courts below and other materials send for from the courts below are taken into consideration. 10. Admittedly, a larger extent of property consisting of the property purchased by the second plaintiff in the name of his wife (first plaintiff) and the property purchased by the first defendant form a single block and the same was owned by their common vendor Arumugam. The plaintiffs purchased the northern portion whereas the first defendant purchased the southern portion. Since the east-west street lies on the south of the combined property, according to the plaintiffs, they purchased the northern portion along with a 10' passage on the southeastern corner connecting the northern portion with the east-west street and the defendant purchased the portion lying on the west of the passage. Contending that the first defendant claimed that he purchased the disputed portion shown as passage in the plaint plan also and tried to prevent the plaintiffs from using the said passage, the plaintiffs had chosen to file the suit for permanent injunction. 11. As per the pleadings and evidence adduced on the side of the plaintiffs, the northern portion and the portion shown as the passage in the plaint plan together measured 9 Kuzhis and the same was purchased by the plaintiffs in two spells, at the first instance 5 kuzhis forming the northern part and at the second instance 4 kuzhis forming the southern part of the plaintiffs' property and the passage. It is also the contention of the plaintiffs that the defendant purchased only 2 kuzhis and that the portion purchased by him lies on the west of the passage. The said contention of the plaintiffs is sought to be refuted by the defendant contending that the first defendant purchased 7 kuzhis including the portion shown as the passage in the plaint schedule and plan. The said contention of the plaintiffs is sought to be refuted by the defendant contending that the first defendant purchased 7 kuzhis including the portion shown as the passage in the plaint schedule and plan. It is the further contention of the defendants that the plaintiffs did not purchase the portion shown as passage and that they did not even have a right of access through the said portion to reach their site lying on the north of the defendants property. 12. Admittedly, both the properties, namely the property allegedly purchased by the plaintiffs and the property purchased by the first defendant formed a single block and it belonged to one and the same person from whom they purchased different portions. When such is the case, unless the rear portion is shown to have any other access, no prudent person would have ventured to purchase such a land locked portion without any provision for access to such a portion. The first defendant, who claims to have purchased the southern part including the portion shown as passage leading to the plaintiffs property has not chosen to produce the sale deed. Admittedly the sale deed was not a registered one and hence it shall be inadmissible as a piece of evidence for establishing any right derived under the same. 13. Similar is the case of the plaintiffs. The plaintiffs who claimed to have purchased the northern portion with the portion shown as the passage under two sale deeds, have not chosen to produce those sale deeds to show that the property they had purchased included the passage. Though PW1 in his evidence might have stated that it was a registered sale deed, it was admitted across the bar that the same were unregistered sale deeds and they are not admissible as a piece of evidence. In the light of the fact that none of the rival parties is able to produce a document proving his title to the disputed portion, the issue involved in this case has to be decided on preponderance of probabilities on the basis of oral evidence. 14. Besides making a plea that there was a panchayat pursuant to which a panchayat muchalika came to be executed in which the second defendant admitted the right of the plaintiffs over the suit passage (lane), the plaintiffs have produced the said muchalika as Ex.A1. 14. Besides making a plea that there was a panchayat pursuant to which a panchayat muchalika came to be executed in which the second defendant admitted the right of the plaintiffs over the suit passage (lane), the plaintiffs have produced the said muchalika as Ex.A1. One of the panchayatdars, who also signed the muchalika, was examined as PW2. He corroborated the evidence of PW1 that there was such a panchayat, in which the right of the plaintiffs over the suit lane came to be recognised and acknowledged by the second defendant. The second defendant who figured as DW1 initially denied such a settlement arrived at in the panchayat. He would contend that the panchayat served him a notice to attend the panchayat and for the proof of such service of the notice of the panchayat, he signed a paper. Subsequently he changed his version stating that for the proof of service of the notice by the panchayatdars, his signature was obtained on blank paper and the same was used for creation of panchayat muchalika. This is quite contrary to the plea taken by him in the written statement. The plea taken in the written statement is total denial of such mediation by the panchayatdars and execution of muchalika. He had contended in the written statement that the muchalika was a forged document. However during his examination as DW1, he made candid admissions probablising the case of the plaintiffs, which is supported by PW2, one of the panchayatdars. DW2 is none other than the daughter of Arumugam, from whom the parties purchased their respective properties. Though she would tend to support the case of the first defendant in her chief examination, during cross examination, she pleaded ignorance of the facts regarding the documents executed by her father, extent purchased by the parties and the alleged settlement in the panchayat. A consideration of the evidence adduced on both sides regarding the alleged panchayat and Ex.A1-Panchayat muchalika will make it clear that Ex.A1 has not been shown to be an involuntary document in which either the defendant was forced to sign. It is also not proved to be a document which was created using the signature obtained in blank papers. Hence there is no legal flaw in the reliance made by the lower appellate court on Ex.A1-Panchayat muchalika. 15. It is also not proved to be a document which was created using the signature obtained in blank papers. Hence there is no legal flaw in the reliance made by the lower appellate court on Ex.A1-Panchayat muchalika. 15. So far as the question of proof of title is concerned, when both the parties are on equal footing and both are not in a position to produce the title deeds, we have to consider the rival claims based on the oral evidence adduced on both sides. The plaintiffs, besides making categorical assertion in the plaint, have also adduced evidence through PWs.1 and 2 to the effect that they purchased their property which includes the disputed portion shown as passage in the plaint plan. On the other hand, the evidence adduced by DW1 shows how improbable his case will be. The learned lower appellate judge, on a proper re-appreciation of evidence, rendered a finding of fact, on preponderance of probabilities, that the case of the plaintiffs that they purchased the northern portion together with the passage shown in the plaint plan stood substantiated. The said finding gets strengthened by the fact that there is an admission by the defendant that he had not put up his construction encroaching upon the portion shown as the passage (lane). The defendant was not in a position to point out any alternative access, which could have been used by the plaintiffs to reach their property. There is also a clear admission by DW1 and DW2 that on the north of the property of the plaintiffs, a channel runs and they cannot have access to their property from the north. On the other hand, what the defendants would say is that the plaintiffs reached their portion through the property of one Jagannathan, which lies on the east of the property shown as passage in the plaint plan. It is quite improbable and on the other hand, the case of the plaintiffs that they have purchased 9 kuzhis, which includes the passage shown in the plaint plan, is quite probable. Hence the finding of the lower appellate court that the claim of title by the plaintiffs in respect of the portion shown as passage cannot be termed perverse and the same cannot be even termed erroneous. Hence the finding of the lower appellate court that the claim of title by the plaintiffs in respect of the portion shown as passage cannot be termed perverse and the same cannot be even termed erroneous. It is also obvious from a perusal of the judgment of the lower appellate court that the lower appellate court not only rendered a finding on the question of title in favour of the plaintiffs, but also rendered a finding that the suit property was in the possession and enjoyment of the plaintiffs. The relevant portion of the judgment reads as follows: The above observation will make it clear that the learned lower appellate judge rendered a clear finding that the plaintiffs were in possession of the suit property and that only on that basis, the relief of permanent injunction was granted. The said finding of the lower appellate court cannot be said to be perverse. The same is a well considered finding based on appreciation of evidence and preponderance of probabilities. The second substantial question of law came to be projected on an erroneous assumption that no finding regarding possession was rendered by the lower appellate court. Accordingly, both the substantial questions of law are answered in favour of the respondents 1 and 2 herein/plaintiffs and against the appellant/defendant. In the result, the second appeal is dismissed confirming the judgment and decree of the learned Additional Subordinate Judge, Mayiladuthurai dated 23.08.2001 made in A.S.No.26 of 2001. However, there shall be no order as to cost.