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2016 DIGILAW 2991 (MAD)

K. Perumal v. S. Nagalingam

2016-08-24

R.MALA

body2016
JUDGMENT : The first defendant, who lost the legal battle in both the Courts below, has come forwarded with this second appeal, to set aside the judgment and decree dated 31.07.2012 passed in A.S.No.21 of 2011 on the file of the Subordinate Court, Periyakulam, by confirming the judgment and decree dated 04.07.2011 passed in O.S.No.88 of 2008 on the file of the District Munsif Court, Periyakulam. 2. The respondents 1 and 2, as plaintiffs, filed a suit for declaration, declaring the 'A' schedule property belongs to the plaintiffs or an alternative relief of declaring that the plaintiffs are having right of easement of necessity over 'A' schedule property and consequently, restraining the first defendant, his men, agents and assigns from in anyway encroaching the constructing any new superstructures in the suit 'A' schedule property by means of permanent injunction and for mandatory injunction directing the second defendant to grant patta to the suit A and B schedule properties to the plaintiffs. 3. In the plaint, the plaintiffs have stated that suit 'A' schedule property is a lane (cart track) to the extent of 1 cent and the same is belonging to the plaintiffs. The undivided one half portion of 'A' schedule property was purchased by the plaintiffs' father viz., Subbiah under a registered sale deed dated 24.01.1977 and another half share also has been purchased by him under unregistered sale deed dated 16.10.1985. So, he is the exclusive owner of entire 'A' schedule property. The said property was used to go to his punja thottam, which is situated on southern side of 'A' schedule property from the puthu street, which is situated on the northern side of the 'A' schedule property. Except the 'A' schedule property, the plaintiffs are having no other way to go to their punja thottam. The plaintiffs are enjoying the suit property for more than 30 years. During the life time of the plaintiffs' father, the plaintiffs and their brothers partitioned the joint family properties. The punja thottam comprised in S.Nos.387/1, 387/2, 387/3, 391/1 and 391/3 allotted to the shares of the plaintiffs i.e. 'C' and 'E' schedule properties, as per registered partition deed dated 24.11.1993 and they are enjoying 'A' schedule property to reach the punja thottam. The punja thottam comprised in S.Nos.387/1, 387/2, 387/3, 391/1 and 391/3 allotted to the shares of the plaintiffs i.e. 'C' and 'E' schedule properties, as per registered partition deed dated 24.11.1993 and they are enjoying 'A' schedule property to reach the punja thottam. The brothers of the plaintiffs have executed a registered release deed dated 02.06.2008 in favour of the plaintiffs in respect of 'A' schedule property and hence, the plaintiffs are the absolute owners. 4. The first defendant, who is a stranger, is having houses on the western side abutting the 'A' schedule property and he encroached upon the southern portion of 'A' schedule property and built a building, which is shown as 'B' schedule property in the plaint. 'B' schedule property belongs to the plaintiffs and hence, the portion of the building has to be demolished. Except the building portion, the remaining portion is still vacant. 5. The second defendant, through V.A.O of Silvarpatti and Tahsildar, Periyakulam, without following any legal procedure, granted patta to the first defendant with respect of 'A' schedule property, which is illegal. Now, on the basis of the said patta, the second defendant is trying to encroach upon the suit property. 6. The plaintiffs, by way of licence only allowed the first defendant to enter into the pathway and allowed him to use the said property as pathway and hence, he will not confer any right over the 'A' schedule property. Sine the first defendant encroached upon the property and made constructions, the plaintiffs have constrained to file the suit. 7. Resisting the same, the first defendant filed a detailed written statement stating that on the western side of the pathway, the senior paternal uncle of the first defendant viz., P.Veerakumar Pillai, his father viz., P.Kariyammal Pillai and his junior paternal uncle viz., P.Arumugam Pillai have owned and possessed the site and the houses built thereon, from South to North respectively, for over many decades. They left a space of about 5 feet on the east of their houses and were enjoying and using the pathway. Veerakumar Pillai has also left 5 feet space on the south of his property as the owner of other houses in the street left similar space continuously for doing maintenance work. The first defendant purchased the property of P.Veerakumar Pillai from his sons under the registered sale deed dated 03.07.2002. Veerakumar Pillai has also left 5 feet space on the south of his property as the owner of other houses in the street left similar space continuously for doing maintenance work. The first defendant purchased the property of P.Veerakumar Pillai from his sons under the registered sale deed dated 03.07.2002. He has also purchased the other share of his father from his brothers under registered sale deed dated 15.09.2000 and 21.09.2000, where, the survey numbers have been wrongly mentioned and that has been rectified by way of rectification deed dated 05.07.2004. 8. It is further stated in the written statement that 'A' schedule property is classified as common pathway. The wall on the southern side fell down during March 2008, due to the unusual, unforeseen continuous heavy rain. No separate patta was granted to the first defendant in respect of the suit pathway He is having right to enjoy the pathway. The predecessors were also using the pathway, continuously, for over the statutory period. There is no necessity to get either licence or permission from the plaintiffs to use the pathway. The first defendant made the arrangement to measure the property and at the request of the plaintiffs, the same was postponed and now, he filed the present suit and prayed for the dismissal of the suit. 9. In the additional written statement, it was stated that no encroachment was done at any point of time by the defendant and the plaintiffs have not entitled any relief and he prayed for dismissal of the suit. 10. The trial Court, after considering the averments in both the plaint and written statement, framed necessary issues and considering the oral and documentary evidence and considering the arguments made on either side, decreed the suit, against which, the first defendant has preferred an appeal, which was also dismissed by confirming the judgment and decree of the trial Court, against which, the present appeal has been preferred. 11. At the time of admission, the following substantial question of law has been framed for consideration of the second appeal: “Whether the judgment and decree of the Courts below is justifiable in giving a finding against the revenue records, which clearly establish the fact that it is a common pathway, can it be sold under a sale deed?” M.P.(MD) No.1 of 2015 12. During the pendency of the appeal, the appellant has come forward with M.P.(MD) No.1 of 2015 for reception of additional documents under Order 41 Rule 27 of C.P.C. stating that he has lost the case before both the Courts below. Even though 'A' schedule property is a common pathway, the trial Court has held that it is exclusive pathway of the plaintiffs. For better appreciation, he wanted to produce 'A' register of Silvarpatti, F.M.B. Sketch, Natham Land Revenue Adangal, Encumbrance certificate and certificate of Village Administrative Officer bearing S.No.820/17. He would further submit that those documents are necessary for the disposal of the appeal and hence, he prayed for allowing of the application. 13. Resisting the same, the respondents filed a detailed counter and submitted that the ingredients of Order 41 Rule 27 of C.P.C. has not been complied with and those documents are not necessary for the disposal of the appeal. 'A' schedule property has been purchased under Ex.A2, registered document on 24.01.1977 and unregistered document Ex.A11 dated 16.10.1985. The suit has been filed only in the year 2008 and no reason has been explained as to why these documents were not filed at the time of trial and these documents are not admissible evidence and the documents were obtained only from the Village Administrative Officer and the same are not public documents and hence, he prayed for dismissal of the application. 14. Heard both sides and perused the materials available on records. 15. The learned counsel appearing for the appellant/petitioner would submit that to prove that the pathway is a common pathway, the documents filed along with the application is relevant. It is appropriate to incorporate the ingredients of Order 41 Rule 27 of C.P.C. and the same is extracted herein: “27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. It is appropriate to incorporate the ingredients of Order 41 Rule 27 of C.P.C. and the same is extracted herein: “27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But, if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have admitted, or ((aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge of could not, after the exercise of due diligence, be produce by him at the time when the decree appealed against was passed, or) (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” Here, in the present case, it is not the case that the documents were filed before the trial Court and due diligence, they are unable to obtain the documents, The appellant herein has filed revenue records to show that he is the owner of the property. 16. Now, this Court has to decide as to whether the documents filed by the appellant are necessary for the disposal of the second appeal or not? 17. Admittedly, the respondents 1 and 2 filed title document under Ex.A2 and unregistered document Ex.A11 and after purchasing the property, they have right to use the property as pathway and even in the year 1985, the property situated on southern side of the pathway has been purchased under Ex.A11 by the father of the respondents 1 and 2. Except the said pathway, no other pathway is available to reach their punja thottam, which was allotted to them through the partition between their family. So, their brothers and sisters executed the release deed, which shows that the pathway is absolutely belonging to their family. 18. It is well settled dictum of Apex Court that revenue records are not title and it will not confer any title to the parties. Furthermore, in the documents viz. So, their brothers and sisters executed the release deed, which shows that the pathway is absolutely belonging to their family. 18. It is well settled dictum of Apex Court that revenue records are not title and it will not confer any title to the parties. Furthermore, in the documents viz. Exs.B4 to B6, it is stated that west of thoottathu pathai would clearly show that it is not a common pathway. In such circumstances, I am of the view that the documents filed along with the petition are not necessary for the disposal of the second appeal. Furthermore, all the documents are not certified copies of documents and they were issued only by the Village Administrative Officer. The suit is filed in the year 2008 and with a view to drag on the proceedings, this application has been filed and hence, I am of the view that this application under Order 41 Rule 21 of C.P.C. is liable to dismissed and accordingly, the same is hereby dismissed. Substantial Question of Law No.1: 19. The learned counsel appearing for the appellant would submit that the trial Court has committed an error in granting decree that the respondents 1 and 2 are exclusively owner of the pathway, which is against revenue records and it is only a common pathway and hence, the appellant is also entitled to use the pathway and hence, he prayed for setting aside the judgment of both the Courts below. 20. Resisting the same, the learned counsel for the respondents 1 and 2 would submit that on 24.01.1977, under Ex.A2, the father of the respondents 1 and 2 has purchased half in the pathway and under Ex.A11, on 16.10.1985, he has purchased another half share under unregistered document and hence, he is the exclusive owner. The predecessor in title has not been disputed by the appellant and hence, both the Courts below have correctly held that 'A' schedule property is belonging to the plaintiffs. The commissioner report would show that the first defendant has encroached upon 'A' schedule property and hence, both the Courts below has considered all the aspects in proper perspective and came to the correct conclusion and hence, he prayed for the dismissal of the appeal. 21. I have considered the submissions made on either side and also perused the materials available on record. 22. 21. I have considered the submissions made on either side and also perused the materials available on record. 22. Considering the submissions made on either side and also perusal of the materials would show that 'A' schedule property is a pathway and that has been purchased under Exs.A2 and A11 by the father of the plaintiffs/respondents 1 and 2 and that has been proved by way of examining witnesses. Therefore, the trial Court has considered all the aspects in para 10 of its judgment and that factum has been confirmed by the first appellate Court in paras 7 to 9 of the judgment, wherein, it was specifically held that P.Ws.2 and 3 have been examined to prove Ex.A11 and P.W.4 has been examined to prove Ex.A2 and hence, the first appellate Court has rightly come to the correct conclusion that 'A' schedule property is the exclusive property of the respondents 1 and 2/appellants. Furthermore, the documents filed by the appellant in Exs.B4 to B6 are equal to Exs.A 3 to A5 filed by the respondents 1 and 2, in which, one of the western boundary has been shown as thottathu pathai. Even in the year 2004, they have stated that it is thottathu pathai, which situated on the southern side of the pathway of the respondents 1 and 2 and they got the property by way of partition. Since the father of the respondents 1 and 2 has purchased the property under Ex.A2 and A11, they obtained release deed from the other legal heir of his father. Except this pathway, no other pathway is available for the respondents 1 and 2 to reach the punja thottam, which is situated on the southern side of the pathway. 23. In such circumstances, I am of the view that both the Courts below have considered all the aspects in proper perspective and came to the correct conclusion and granted the relief that the respondents 1 and 2 are the exclusive owner of 'A' schedule property. Since, they are exclusive owners, the appellant herein has no right over the property and they have no right to interfere the peaceful possession and enjoyment of the suit property. 24. It is pertinent to note that Commissioner was appointed and he inspected the suit property. Since, they are exclusive owners, the appellant herein has no right over the property and they have no right to interfere the peaceful possession and enjoyment of the suit property. 24. It is pertinent to note that Commissioner was appointed and he inspected the suit property. In the plan and report, it has been specifically stated that the first defendant has encroached upon the portion, which was shown as red mark portion and that has been accepted by P.W.1 in his cross examination, which was culled out by the first appellate Court and the portion is marked as 'B' schedule property and hence, the respondents are entitled for mandatory injunction as prayed for in the plaint. The substantial question of law is answered accordingly. 25. In view of the answer given above, I am of the view that the judgment and decree of both the Courts below are liable to be confirmed and consequently, the second appeal deserves to be dismissed and accordingly, the second appeal is hereby dismissed. The appellant is directed to remove the encroachment and construction made by him, within a period of three months from the date of receipt of a copy of this judgment. No costs. Consequently, connected miscellaneous petitions are also dismissed.