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2020 DIGILAW 1937 (MAD)

Chakrapani Naidu v. G. Babu

2020-10-14

G.JAYACHANDRAN

body2020
JUDGMENT : G. JAYACHANDRAN, J. 1. The appellant herein is the first defendant in the suit filed for declaration and permanent injunction in respect of easementary right over a narasam (sanitary lane) marked as 'ABCDEF' in the sketch attached to the plaint. 2. The parties are described as per their status and ranking in the suit. 3. The case the plaintiff: On 06.11.2000 the plaintiff purchased 5 x 54 feet vacant land from one Selvam in T.S. No. 182/2D/2 in Tiruppukudal Street, Kanchipuram Town under a registered Sale Deed along with the right of way through the 3 feet narasam joining Tiruppukudal Street. The said property and a tiled house measuring 11 x 37 facing Tiruppukudal street was purchased by Selvam from one Lakshmi Am-mal on 01.09.2000. The said Selvam retaining the house portion and sold the back yard vacant portion measuring 5 feet (east - west) by 54 feet (north - south) to the plaintiff. The sale deed is annexed with the sketch showing the portion sold to plaintiff and portion retained by the vendor Selvam. For more than 20 years the suit narasam has been used by the plaintiff and his predecessors-in-title. To the suit property, the narasam is the only access. While so, the defendants, who are the owner of the house and house site located on the Eastern side of the plaintiff's property tied rope in portion marked as 'BE' in the rough sketch annexed to the plaint and preventing the plaintiff from having access to the property. Hence, suit to declare the plaintiff's right of access to the suit property through 'ABCDEF' narasam and consequential permanent injunction restraining the defendants and their men from putting up any obstruction or construction in the 'BCDE' narasam portion. 4. The case of the defendants: Defendants 1 and 2 are brothers. The 'BCDE' portion claimed by the plaintiff as narasam is the absolute property of the first defendant. The suit is filed with intention to grab the defendant's portion of the property measuring east to west 11 feet and northern side 6 feet in the S. No. 182/2D/2, which absolutely belongs to the first defendant. Earlier, the entire land in the survey number 182 was compositely owned one Kothandarama Naidu. He sold part of the property in favour of one Thayarammal under a sale deed dated 17.12.1958. Earlier, the entire land in the survey number 182 was compositely owned one Kothandarama Naidu. He sold part of the property in favour of one Thayarammal under a sale deed dated 17.12.1958. In that sale deed, there is no reference of narasam in portion marked as 'BCDE'. Thayarammal later sold the property to one Lakshmi in the year 1984. Selvam purchased the property from Lakshmi and sold a portion of it to the plaintiff. The access to the vacant land portion measuring 5 x 54 feet was never through 'BCDE' marked portion. The adjacent land in S. No. 182/2-C lying north of S. No. 182/2-D/1 is owned by the plaintiff and his father. The plaintiff father had encroached upon 3 feet north to south and 11 feet east to west on the northern side of S. No. 182/2-D/2 and put up construction. The access through the alleged 'BCDE' portion is extinguished on encroachment by the plaintiff's father. The north-south measurement of the plaintiff property and the defendant property had now reduced to 51 feet due to the encroachment by the plaintiff's father. After encroaching the portion of the land taking advantage of the absentee landlord, attempt is made to grab the land of the defendants, which is vacant. 5. The Trial Court framed the following Issues: (1) Whether the plaintiff is entitled for the declaration of easementary right of way in 'ABCDEF' marked portion and consequential permanent injunction? (2) Whether the plaintiff had annexed 3 feet north-south in S. No. 182/2-D/2 marked 'ABCDF' with S. No. 182/2? (3) Whether the plaintiff's predecessors in title Tayarammal, Lakshmi and Selvam enjoyed 'BCDE' portion property? 6. Pending trial, the defendants have taken out an application in I.A. No. 272 of 2006 for appointment of Advocate Commissioner and the same was allowed. The Advocate Commissioner, on inspection of the suit property, had submitted his report with sketch. The plaintiff deposed before the Court as PW-1 and exhibited 8 documents marked as Exs. A1 to A8. The first defendant deposed before the Court as DW-1 and exhibited one document marked as Ex. B-1. The Advocate Commissioner Report and Sketch were marked as Court Exhibits Exs. C-1 and C-2. 7. The trial Court decreed the suit. The first Appellate Court confirmed the trial Court decree and dismissed the appeal preferred by the first defendant. Against the concurrent findings, the second appeal has been filed. 8. B-1. The Advocate Commissioner Report and Sketch were marked as Court Exhibits Exs. C-1 and C-2. 7. The trial Court decreed the suit. The first Appellate Court confirmed the trial Court decree and dismissed the appeal preferred by the first defendant. Against the concurrent findings, the second appeal has been filed. 8. On perusing the records and grounds of appeal, this Court in exercise of its power under Section 100 CPC formulated the following Substantial Questions of Law:- (i) Whether the Courts below have not erred in granting a decree of declaration in favour of 1st respondent/plaintiff in the absence of identification of suit property by measurement and survey number in the plaint? (ii) Whether the non-consideration of oral evidence of PW-1 and Commissioner Report Ex. C1 and Ex. C2, which clearly proves the case of the appellant/1st defendant that the plaintiff and his father had already encroached 3 feet of North-South and 11 feet East-West on the northern side of S. No. 182/2D2 and extinguished any right of access through suit 'BCDE' portion, had rendered the judgment of the Courts below as perverse? 9. Heard the oral submissions made by the learned counsels for the appellant and the 1st respondent. 10. The plaintiff had purchased 5 x 54 feet vacant land with right of way through a 3 feet width common narasam as access to reach the Thirupukkudal Street. The sale deed Ex. A-2 is dated 06/11/2000. According to the plaintiff, the said common narasam runs from north to south on the eastern side of T.S. No. 182 and it takes a turn towards west and runs north of defendant property and reaches the plaintiff land measuring 5 x 54 feet. The said common narasam is mentioned as 'ABCDEF' marked in red in Ex. A1, plaint sketch. The vendor (Selvam) of the plaintiff trace the title to the property and right of way through the common narasam from his vendor Lakshmi Am-mal sale deed dated 01/09/2000 marked as Ex A-3. The common narasam mentioned in the recital is shown in the sketch annexed to the sale deed Ex. A-2. Selvam who purchased from Lakshmi Ammal a house and vacant back yard lying south of the house had retained the house in 11 x 37 feet facing the Thirupukkudal street and sold the back yard measuring 5 x 54 feet to the plaintiff. A-2. Selvam who purchased from Lakshmi Ammal a house and vacant back yard lying south of the house had retained the house in 11 x 37 feet facing the Thirupukkudal street and sold the back yard measuring 5 x 54 feet to the plaintiff. The property conveyed is a vacant site but it is identified and described by door number 21-A, (Municipal bill No. 21 A/2 as per bill) T.S. No. 182. This indicate that the portion retained by the plaintiff vendor and the vacant backyard are contiguous piece, or else it is not probable for vacant land carry door number and assessed to tax. Further, when the property in S. No. 182 had been subdivided and held by different person, this sale deed Ex. A-2 strangely mentions the undivided survey number. The sketch annexed to the sale deed Ex. A-2 shows in between the land retained by the plaintiff's vendor and the land purchased by the plaintiff, the land of plaintiff's father Govindasami lay. When the land purchased by the plaintiff is supposed to be the backyard of the house having access to narasam (sanitary lane) running between the house and the backyard, the sketch annexed to sale deed Ex. A-2 shows contrary to the content of the sale deed. 11. The plaintiff had claimed easementary right of way in 'BCDE' marked portion based on the plaint sketch and recitals in title deeds. The Courts below without noticing the manipulation in the sale deed Ex. A-2, had decreed the suit going by the recitals in Ex. A-2, Ex. A-3 and Ex. A-4 and the municipal sketch Ex. A-7 and Ex, A-8 without ascertaining where the narasam running east west actually lay. Further, the sketch of the Advocate Commissioner and the measurements given by him clearly indicate that, the vacant land 5 x 54 feet purchased by the plaintiff from Selvam is in S. No. 182/2-D12. The defendant property is in S. No. 182/2D/1. The narasam in S. No. 182/2B. The property of the plaintiff's father is in T.S. No. 182/2C. 12. A proper scrutiny of the recitals in Ex. A-2 to Ex. A-4, through which the plaintiff stake right of way in 'BCDE' marked portion and the survey sketch EX.A7 and town survey register extract Ex. A8 make obviously clear that, though the vacant land 5 x 54 feet purchased by the plaintiff under Ex. 12. A proper scrutiny of the recitals in Ex. A-2 to Ex. A-4, through which the plaintiff stake right of way in 'BCDE' marked portion and the survey sketch EX.A7 and town survey register extract Ex. A8 make obviously clear that, though the vacant land 5 x 54 feet purchased by the plaintiff under Ex. A-2 had a specific survey number, the sale deed does not carry the correct survey number with sub division of the property transferred. In the suit schedule, the disputed portion of the property is not described with linear measurement. 13. This Court is unable to accept that it is an innocent omission. The reason for not describing the disputed portion by proper measurements is obvious. The plaintiff claims that he purchased 5 x 54 feet vacant land and the access to the land is the narasam running east-west on the north of defendants property. Admittedly, north of the plaintiff and defendants properties, the plaintiff's father has constructed a house which runs 86 feet north south. The specific case of the defendants is that, the plaintiff father has encroached the 3 feet narasam and constructed the house. To prove the encroachment, he has taken out Commissioner application and the Commissioner in his report had given the linear measurements of the properties. 14. It is to be noted, the plaintiff, who claims right of way without proper description of the narasam did not take any effort to identify the narasam mentioned in his sale deed. The plaintiff did not care to give proper description and measurement of the land in dispute, even after the defendant specifically pleaded in the written statement that the plaintiff attempts to grab his property by mis-description, after encroaching the common narasam through his father. After the Commissioner inspected the suit site at the instant of the defendant, the plaintiff has filed objection to the Commissioner Report and sketch. The Court records indicate that the objection raised by the plaintiff to the Commissioner Report and sketch was-dismissed by the court in I.A. No. 852/2007, vide order dated 6th September, 2007. The plaintiff has not filed any appeal or revision against the dismissal order. 15. The operative portion of the order passed by the trial Court is relevant to decide the Question of Law. Hence, it is extracted below:- "5. The plaintiff has not filed any appeal or revision against the dismissal order. 15. The operative portion of the order passed by the trial Court is relevant to decide the Question of Law. Hence, it is extracted below:- "5. It is the case of the petitioner that the advocate commissioner, who inspected the property, did not measure the 'EF' length correctly, in that he has mentioned 50' 55" while the actual length is 53' and that there are no walls in between 'BC and 'DG' line and the Advocate-Commissioner has failed to mention the said facts and therefore petition is filed. Opposing the petition strongly, the respondents contended that when the total length of the house property is 137' and the built up portion length is 86' and the length of the remaining portion would be 51' only and that the Advocate-Commissioner has mentioned the measurement correctly. Therefore, the petition is liable to be dismissed. 6. In I.A. No. 272 of 2006, filed by the respondent, an Advocate Commissioner was appointed and he inspected the suit property on 12.08.2006, in the presence of the parties to the petition and his/respective counsels and thereafter, he filed a report along with a plan. The petitioner has questioned the report of the Advocate-Commissioner on the ground that the Advocate-Commissioner has not mentioned the measurement of 'EF' line property. On this aspect, the respondents contended that when the actual measurement of the whole house portion is 137' as per the survey sketch, which has been marked as Ex. A.7 in the case, since the building portion as mentioned by the Advocate-Commissioner is 86", the remaining length alone would be the backyard portion. On a perusal of the report of the Advocate-Commissioner, this Court is satisfied that the Advocate-Commissioner inspected the suit property only in the presence of the parties to the petition and their respective counsels and that he noted down the physical features only in their presence. It is a settled principle of law that if a party to the petition has any objections, he can very well file them and in this case, the petitioner has filed the objection which will be looked into by the Court at the time of final proceedings of the case. It may also be noted that the petitioner cannot say that the Advocate-Commissioner has not measured the property properly. It may also be noted that the petitioner cannot say that the Advocate-Commissioner has not measured the property properly. It is not the case of the petitioner that the Advocate-Commissioner has not at all measured the length of the required portions. If the petitioner wants to clarify any point with regard to the report of the Advocate-Commissioner, it is well upon to him to examine the Advocate-Commissioner and bring out the clarifications regarding his report and plan. In this view of the matter, this Court finds it unnecessary to remit the commission warrant to reinspect the suit property, especially when the fact remains that the Advocate-Commissioner inspected the suit property and noted down the physical features only in the presence of the parties to the petition and their respective counsels." 16. In the light of the above background facts, the Advocate Commissioner Report and Sketch are to be examined to find out whether the 'BCDE' portion as shown in the plaint sketch is the narasam referred in the title deeds of the plaintiff and his predecessor-in-title. 17. The measurement of the property purchased by the plaintiff from Selvam under Ex. A-2 is 5 x 54 feet. The prior documents in respect of this property indicates that it is a continuous property to the house at north-west corner of S. No. 182, measuring 11 x 37 followed by the backyard down south connected by a narasam. Selvam who is the vendor of the plaintiff had retained the Northwest corner of S. No. 182 measuring 11 x 37. The said portion is identified in the sketch attached to Ex. A-2. Strangely in the said sketch, instead of the narasam which link the house and backyard, the property of plaintiff's father is shown. In between the land sold to plaintiff and the portion of the land retained by Selyam, the plaintiff's father land lay. The recital of Ex. A-2 describes the portion retained by the vendor as the house and house site. The portion sold to the plaintiff as its back yard . If so, backyard disjoint to the main house is unheard and uncommon. The plaintiff had failed to explain this discrepancy through his vendor. 18. Bearing this discrepancy in mind, the examination of the Municipal town survey map Ex. The portion sold to the plaintiff as its back yard . If so, backyard disjoint to the main house is unheard and uncommon. The plaintiff had failed to explain this discrepancy through his vendor. 18. Bearing this discrepancy in mind, the examination of the Municipal town survey map Ex. A-7 comparing with the Commissioner Report and Sketch, one could easy find that the linear measurement of plaintiff property as on lay is only 5 x 50.5 feet, though under Ex. A-2 vacant land measuring 5 x 54 feet is conveyed. The shortage of 3 feet is also reflected in the defendants property. Whereas the plaintiff's father property which falls immediate North of the plaintiff and defendants property, the north south linear measurement is 86 feet contrary to the municipal field map linear measurement of 83 feet. 19. A careful examination of the title documents Ex. A-2, A-3 and A-4, the municipal survey register records and sketch Ex. A-7 and Ex. A-8, the Commissioner Report and his Sketch Ex. C-1 and Ex. C-2, undoubtedly establishes that the narasam running from north to south on the eastern end of S. No. 182 turns west and run between the property of the plaintiff's father and the defendant property to reach the property held by Lakshmiammal, who used this Narasam from her house, which in fact on the North-West end of T.S No. 182. This property was later sold to Selvam, who in turn sold to the plaintiff retaining the house portion. The plaintiff's father has encroached the narasam, that is why the north south linear measurement of his property is 86 feet instead of 83 feet (i.e.,) 3 feet excess than found in the municipal survey map. Since, the defendant had kept his portion vacant, the plaintiff who purchased the property in 2000 without proper description and measurement of the property which is subject matter of the suit, had filed the suit in 2002 against the defendant claiming right of way over the defendant land, instead of proceeding against his father who is the actual encroacher. The plaintiff knowing well about the encroachment by his father had manipulated the sale deed Ex. A-2, by annexing a site plan not measured to scale and not with correct description. Thereafter, based on the manipulated sale deed had filed suit as if the 'BCDE' portion in the plaint sketch is the narasam running east west. 20. The plaintiff knowing well about the encroachment by his father had manipulated the sale deed Ex. A-2, by annexing a site plan not measured to scale and not with correct description. Thereafter, based on the manipulated sale deed had filed suit as if the 'BCDE' portion in the plaint sketch is the narasam running east west. 20. The plaintiff's right to narasam from Thirupukkudal Street running north to south in S. No. 182/2B is traceable from Thayaram-mal who purchased the property in the year 1958. She had sold to Lakshmiammal in the year 1984 the tiled house measuring 11 x 37 feet and the back yard 5 x 54 feet connected by a narasam running East West. The narasam is in shape on the eastern end of S. No. 182. It starts from Thirupukkudal street on north, runs down to south, then turns to west. As pointed out, the missing narasam immediate south of the portion retained by Selvam is presently held by the plaintiff's father and not by the defendant. If at all, the plaintiff wants to establish his right of way through the narasam mentioned in his sale deed, it should be against his own father and not against the defendant. 21. The Courts below, miserable failed to examine the documents and revenue records properly. Decree for easementary right of way without proper identification and measurement is perverse. Therefore, the Questions of Law formulated are answered in favour of the appellant. 22. In a result, the Second Appeal is allowed. No order as to costs. The judgment and decree passed by the trial Court in O.S No. 58/2002 dated 24.10.2008 and confirmed by the first Appellate Court in A.S. No. 57/2009 dated 18.08.2010 is set aside. Consequently, connected Miscellaneous Petitions are closed.