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2020 DIGILAW 858 (MAD)

S. M. SEKAR v. P. ARUNACHALAM

2020-06-02

G.K.ILANTHIRAIYAN

body2020
JUDGMENT/ORDER G K Ilanthiraiyan, J. - S.A.No.1735 of 2002:- 1. This second appeal is directed as against the judgment and decree dated 02.04.2001 made in A.S.No.1 of 2001 on the file of the Principal District Court, Erode, confirming the judgment and decree dated 31.10.2000 made in O.S.No.277 of 1998 on the file of the Principal District Munsif Court, Erode. 2. For the sake of convenience, the parties are referred to as per their ranking in the trial Court. 3. The case of the plaintiff in O.S.No.277 of 1998 in brief is as follows:- 3.1.The suit is filed for permanent injunction. The plaintiffs' father and the defendants' father are brothers, who were born to one Ponnuswami Gounder. Among themselves, they partitioned joint family property by partition deed dated 29.03.1988. Accordingly, they are in possession and enjoyment of their respective shares. While being so, the plaintiff's father viz., Muthuswami died on 23.02.1995 and after his demise the plaintiffs are in possession and enjoyment of the property which was allotted to their father. They also mutated all the revenue recorded in their name and they also regularly paid kist to the property. 3.2.In the partition deed dated 29.03.1988, B schedule property was allotted to the father of the plaintiffs and C schedule property was allotted to the defendants' father. The allotment of shares which is categorically annexed in the plaint and accordingly, there is a common pathway to reach their respective shares. All the brothers are cultivating the same to the crops such as paddy, turmeric and ground nut. The entire lands are irrigated from the common well as well as the Lower Bhavani Project canal water. While being so, the defendants are attempted to encroach the common pathway and common canal and as such there was a misunderstanding between them. Therefore, the plaintiffs filed suit for permanent injunction, restraining the defendants from trespass into the suit property and also from creating any new path way across the land. 4. Resisting the same, the defendants filed written statement stating that the plaintiffs' father and the defendants' father are brothers and by registered partition deed dated 29.03.1988, their joint family properties were divided. All the parties were given right to use the existing ridges situated in other party's land. It is also categorically mentioned in the partition deed dated 29.03.1988. 4. Resisting the same, the defendants filed written statement stating that the plaintiffs' father and the defendants' father are brothers and by registered partition deed dated 29.03.1988, their joint family properties were divided. All the parties were given right to use the existing ridges situated in other party's land. It is also categorically mentioned in the partition deed dated 29.03.1988. The plaintiffs' father was allotted the B schedule property and the defendants' father was allotted C schedule property. Accordingly, the defendants are using the ridges in the plaintiffs' land so as to reach their property. Therefore, the plaintiffs cannot object the defendants from using the ridges as pathway to reach their property. The defendants are exercising the said right by way of grant also as such, the suit is liable to be dismissed. Further they stated that they also filed suit for declaration, mandatory injunction and permanent injunction as against the plaintiffs in respect of the very same dispute in O.S.No.311 of 1998 and prayed for dismissal of the suit. S.A.No.1736 of 2002 :- 5. This second appeal is directed as against the judgment and decree dated 02.04.2001 made in A.S.No.2 of 2001 on the file of the Principal District Court, Erode, confirming the judgment and decree dated 31.10.2000 made in O.S.No.311 of 1998 on the file of the Principal District Munsif Court, Erode. 6. The case of the plaintiff in O.S.No.311 of 1998 in brief is as follows :- 6.1.The suit is filed for declaration, mandatory injunction and permanent injunction. The defendants in O.S.No. 277 of 1998 are the plaintiffs in O.S.No.311 of 1998. The plaintiffs' father and the defendants' father are brothers and by registered partition deed dated 29.03.1988, their joint family properties were divided. All the parties were given right to use the existing ridges situated in other party's land. It is also categorically mentioned in the partition deed dated 29.03.1988. The plaintiffs' father was allotted the C schedule property and the defendants' father was allotted B schedule property. Accordingly, the plaintiffs are using the ridges in the defendants' land so as to reach their property. Therefore, the defendants cannot object the plaintiffs from using the ridges as pathway to reach their property. The plaintiffs' father was allotted the C schedule property and the defendants' father was allotted B schedule property. Accordingly, the plaintiffs are using the ridges in the defendants' land so as to reach their property. Therefore, the defendants cannot object the plaintiffs from using the ridges as pathway to reach their property. The plaintiffs are exercising the said right by way of grant also as such, they filed this suit for declaration, mandatory injunction and permanent injunction as against the defendants viz., the plaintiffs in O.S.No. 277 of 1998. 7. Resisting the same the defendants filed written statement stating that entire allegations and averments made in the plaint are denied as false and frivolous and he reiterated the averments made in the plaint in O.S.No.277 of 1998 and prayed for dismissal of the suit. 8. Both the suits were clubbed together and jointly tried by the trial Court. On the side of the plaintiffs in O.S.No.277 of 1998 and the defendants in O.S.No.311 of 1998, they examined P.W.1 and were marked Ex.A.1 to Ex.A.6. On the side of the defendants in O.S.No.277 of 1998 and the plaintiffs in O.S.No.311 of 1998, they examined D.W.1 & D.W.2 and were marked Ex.B.1 to Ex.B.7. The Advocate Commissioner's report and plan were marked as Ex.C.1 to Ex.C.4. On perusal of the material produced on record and on considering both the oral and documentary evidence adduced by the respective parties and also the submissions made, the trial Court dismissed the suit in O.S.No. 277 of 1998 and allowed the suit in O.S.No.311 of 1998. Aggrieved by the same, the plaintiffs in O.S.No.277 of 1998 and the defendants in O.S.No.311 of 1998 preferred two appeal suits in A.S.Nos.1 & 2 of 2001 before the Principal District Judge, Erode. The first appellate Court dismissed both the appeals and confirmed the judgment and decree passed by the trial Court. Aggrieved by the same the plaintiffs in O.S.No.277 of 1998 and the defendants in O.S.No.311 of 1998 filed these two second appeals. 9. At the time of admission of both the second appeals on 23.01.2004, the following substantial questions of law were formulated for consideration:- "1. Aggrieved by the same the plaintiffs in O.S.No.277 of 1998 and the defendants in O.S.No.311 of 1998 filed these two second appeals. 9. At the time of admission of both the second appeals on 23.01.2004, the following substantial questions of law were formulated for consideration:- "1. Whether the Courts below are right in accepting the case of the plaintiffs/respondents 1 to 4 herein wherein the 1st plaintiff who is the father of the plaintiffs 1 to 4 and also party to Ex.A.-1, viz., partition deed was not examined, the Court should have drawn adverse inference against the plaintiffs as per Section 114-G of the Evidence Act? 2. Whether the Courts below are right in decreeing the suit when absolutely no evidence, either oral or documentary, to hold that there were permanent east-west ridges in the defendants land, at particular locations? 3. Whether the Courts below are right in holding that the plaintiffs are entitled to relief prayed for, when the partition deed Ex.A.1 is an absolute document and binding as all the partition to it?" 10. The learned counsel appearing for the appellants/plaintiffs and the respondents/defendants are present and they are reiterated the averments set out in the plaint as well as the written statement. 11. Heard Mr.V.P.Sengottuvel, learned counsel appearing for the appellants/plaintiffs in both appeals, and Mr.A.Sundaravadhanam, learned counsel appearing for the respondents/defendants in both appeals. 12. Admittedly, the father of the plaintiffs and the defendants are brothers. They divided their ancestral properties along with their father Ponnuswami by the registered partition deed dated 29.03.1988. Thereafter, they are in possession and enjoyment of their respective shares. The partition deed was marked as Ex.A.1. The recital in the partition deed reads as follows :- Accordingly, the plaintiffs as well as the defendants can have their access to reach their respective portion of the land through the ridges situated in the land belonged to other party. 13. The learned counsel appearing for the plaintiffs submitted that there is a common pathway along with the water cannel was allotted to reach their respective shares. While being so, now the defendants are trying to form a new pathway through the land in the share of the plaintiff by forming new pathway. 13. The learned counsel appearing for the plaintiffs submitted that there is a common pathway along with the water cannel was allotted to reach their respective shares. While being so, now the defendants are trying to form a new pathway through the land in the share of the plaintiff by forming new pathway. This Court can visualize the case of the plaintiffs as well as the defendants that the suit properties were allotted to the plaintiffs and the defendants and their portion are not continuous one and it was one after another were allotted to the plaintiffs as well as the defendants. Therefore to reach their respective portion of the land, if they used the common pathway, it will take long time to reach their respective portion. Instead of that, if they allowed to reach their respective shares through the ridges formed in the respective shares by both the plaintiffs as well as the defendants, it would be easy to reach their respective shares. As extracted above in the partition deed, both the parties can use the ridges situated in another sharer to reach their respective shares. Therefore, both the Courts below rightly dismissed the suit filed by the plaintiffs in O.S.No.277 of 1998 and allowed the suit in O.S.No.311 of 1998 filed by the defendants. 14. In view of the above discussion, this Court does not find any valid reason to interfere with the reasoning and findings rendered by the Courts below for upholding the case of the plaintiffs. As such, this Court is of the considered opinion that no substantial question of law involved in these appeals. Be that as it may, all the substantial questions of law formulated by this Court are answered in favour of the defendants and as against the plaintiffs. 15. In fine, both the second appeals stand dismissed by confirming the judgment and decree passed by Courts below. There is no order as to costs.