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2019 DIGILAW 1925 (MAD)

V. Murugesan v. Ramasamy Gounder

2019-07-25

T.RAVINDRAN

body2019
JUDGMENT : Prayer: Second Appeals filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 29.01.2013 made in A.S.Nos.69 & 75 of 2012 on the file of the Principal Sub Court, Erode confirming the judgment and decree dated 18.06.2012 made in O.S. Nos.105 of 2009 and 1 of 2010 on the file of the District Munsif-cum-Judicial Magistrate, Kodumudi. 1. Second appeal Nos.577 & 584 of 2019 are directed against the judgment and decree dated 29.01.2013, passed in A.S.Nos.69 & 75 of 2012, on the file of the Principal Sub Court, Erode, confirming the judgment and decree dated 18.06.2012, passed in O.S. Nos.105 of 2009 and 1 of 2010, on the file of the District Munsif-cum-Judicial Magistrate Court, Kodumudi. 2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court. 3. Suffice to state that the suit in O.S.No.105 of 2009 has been laid by the plaintiff seeking for the relief of permanent injunction against the defendants restraining them, their men and agents from trespassing into the suit property and forming any cart track in the suit property or in any manner disturbing the plaintiff's peaceful possession and enjoyment of the same by way of permanent injunction. 4. O.S. No. 1 of 2010 has been laid by the defendants 1 and 3 of O.S.No.105 of 2009 against the plaintiff and one Chandrasekaran seeking for the reliefs of declaration that they are entitled to use the suit A schedule cart track to reach their lands in RS.Nos.257/1, 256/3,4 and 5 by taking men, carts, tractors etc., and the consequential relief of permanent injunction restraining the defendants, their men and agents from obliterating or from interfering the defendants right to use the suit cart track in any manner and for the relief of mandatory injunction directing the plaintiff/first defendant in O.S.No.1 of 2010 to restore the suit B schedule obliterated cart track to its original position by closing the trench within the time fixed by the Court and for other appropriate reliefs. 5. Both the abovesaid suits were tried jointly as common issues were involved in both the suits between the same parties. 6. In support of the plaintiff's case PWs 1 to 3 were examined, Exs.A1 to A8 were marked. On the side of the defendants DWs 1 and 2 were examined, Exs.B1 to B12 were marked. 7. 5. Both the abovesaid suits were tried jointly as common issues were involved in both the suits between the same parties. 6. In support of the plaintiff's case PWs 1 to 3 were examined, Exs.A1 to A8 were marked. On the side of the defendants DWs 1 and 2 were examined, Exs.B1 to B12 were marked. 7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Courts below were pleased to dismiss the plaintiff's suit in O.S.No.105 of 2009 and granted the reliefs in favour of the defendants as prayed for by them in their suit in O.S.No.1 of 2010. Impugning the same, the present second appeals have been preferred by the plaintiff. 8. As could be seen from the pleas put forth by the respective parties and the materials placed on record, the case projected by the plaintiff is that the defendants are attempting to form a new cart track in RS.No.256/2, by unlawfully encroaching into the same to which they are not entitled to and hence, according to the plaintiff, he has been necessitated to institute the abovesaid suit against the defendants for the relief of permanent injunction. 9. As rightly found and determined by the Courts below, if really the defendants had unlawfully attempted to encroach into RS.No.256/2 and lay a cart track, as put forth by the plaintiff, the plaintiff would have naturally lodged a criminal case or other legal action immediately against the defendants for their unlawful action and would have endeavoured to produce the materials pointing to the same. On the other hand, the plaintiff, examined as PW1 has admitted that he has not lodged any complaint against the defendants for their alleged attempt of trespass into his property and laying the cart track in RS.No.256/2. Therefore, as rightly found and determined by the Courts below, prima facie, as regards the cause of action put forth by the plaintiff for the institution of OS.No.105 of 2009, there is no material placed on the part of the plaintiff and therefore, on that score alone, it is seen that the abovesaid case of the plaintiff had been not accepted by the Courts below rightly. 10. 10. According to the defendants, the cart track pleaded by them and described in the plaint A schedule and B schedule in O.S.No.1 of 2010 is already in existence and that they had been using the same for several years for having access to their lands. In this connection, reliance is placed upon the partition deed Ex.B3 and the sale deeds Exs.B4 to B6. As rightly found and determined by the Courts below, on a perusal of Ex.B3 partition deed, it is found that there is clear description of the pathway through the lands of Velappa gounder and Samiyappa gounder of a width of 12 feet and length of 340 feet and similarly in the sale deed, marked as Ex.B4, purchased by the second defendant in O.S. No.1 of 2010 from Arukkaniammal and others, the description of the cart track has been clearly depicted and the usage of the same by taking tractors, cart tracks, etc., had also been pointed out. Furthermore, as rightly found by the Courts below, the abovesaid Ex.B4 had been attested by the plaintiff, which fact had not been controverted by the plaintiff. Similarly, in the sale deed marked as Ex.B5 also the boundary recitals go to show that the property comprised therein is located to the north of the common cart track running east to west. Furthermore, as could be seen from the sale deed marked as Ex.B6, again the existence of the pathway of a width of 12 feet and length of 340 feet has been clearly mentioned and accordingly, when the above said documents clearly point out the existence of the cart track running on the northern side of RS.Nos.256/1, 256/2 east west and when the above said documents are found to be effected between the third parties and furthermore, as above noted, when the plaintiff is found to have attested the Ex.B4 sale deed, in such view of the matter, the Courts below are found to be justified in placing reliance upon the above said documents that the cart track as put forth by the defendants in the suit is in existence and the same cannot be repudiated by the plaintiff. 11. 11. Considering the above said materials projected on the part of the defendants and the plaintiff thereupon unable to resist the existence of the suit cart track and the usage of the same by the defendants and others, it is found that the plaintiff has projected that the defendants have alternative pathway on the southern side of their lands and accordingly contended that the defendants are not entitled to seek any right of easement over the cart track running in his land. However, as could be seen from the Commissioner's report and plan, the panchayat road running on the southern side to the plaintiff's land is found to be higher in level about 4 to 5 feet and in such view of the matter, it is evident and as determined by the Courts below, the above said road portion cannot form the alternative pathway for the defendants as contended by the plaintiff. Accordingly, the Courts below are found to be correct in determining that the defendants have access to reach their lands only through the pathway running in the lands of the plaintiff and Chandrasekaran, the second defendant in O.S.No.1 of 2010 and accordingly, the Courts below have found that the abovesaid cart track/pathway is required by defendants for having access to their lands by way of necessity and I do not find any valid reason to interfere with the same. 12. As far as the question of the relief of mandatory injunction sought for by the defendants, it is found from the Commissioner's report and plan that the cart track had been obliterated and the same has been clearly pointed out by the Commissioner in his report and plan. In such view of the matter, the Courts below are right in holding that the defendants are entitled to seek the relief of mandatory injunction as prayed for in their suit. 13. In such view of the matter, the Courts below are right in holding that the defendants are entitled to seek the relief of mandatory injunction as prayed for in their suit. 13. In the light of the above said discussions, the Courts below having considered the issues involved between the parties as regards the existence of the suit cart track and the entitlement of the parties, particularly, the defendants to use the same and the non entitlement of the plaintiff to prevent the defendants from using the same and therefore, determined that it is only the plaintiff who had obliterated the cart track as described in the B schedule, in such view of the matter, the abovesaid reasonings and conclusions of the Courts below for dismissing the plaintiff's suit and upholding the defendants case based on the proper appreciation of the materials on record in the right perspective as well as the principles of law governing the same and the same not warranting any interference in any manner, in such view of the matter, I do not find any merits in these second appeals. 14. For the reasons aforestated, no substantial question of law is found to be involved in the second appeals. Resultantly, both second appeals are dismissed. Consequently, connected miscellaneous petition, if any, is closed.