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2022 DIGILAW 1430 (MAD)

Arasu Konar (Died) v. Sankaralinga Konar (Died)

2022-06-15

R.VIJAYAKUMAR

body2022
JUDGMENT (Prayer: Second Appeal is filed under Section 100 of C.P.C, against the judgment and decree dated 16.07.1999 made in A.S.No.121 of 1996 on the file of the Principal Subordinate Court, Tankasi reversing the judgement and decree dated 28.10.1996 made in O.S.No.144 of 1992 on the file of the District Munsif Court, Tenkasi.) 1. The defendant is the appellant. 2. The plaintiffs had filed O.S.No.144 of 1992 on the file of the District Munsif Court, Tenkasi for the relief of declaration that the second item of the suit schedule property belongs to the first plaintiff and for permanent injunction. The plaintiffs had further prayed for declaration that the third suit schedule property is a common lane belonging to the plaintiffs and the defendant and for consequential injunction restraining the defendant from putting up any construction in the suit lane. The suit was dismissed in entirety by the trial Court. The plaintiffs had filed A.S.No.121 of 1996 before the Principal Subordinate Court, Tenkasi. The learned Subordinate Judge was pleased to confirm the dismissal of the suit with regard to the second schedule. However, the learned First Appellate Judge reversed the judgment and decree of the trial Court with regard to the third schedule of property and granted a decree in favour of the plaintiff. As against the same, the present second appeal has been filed by the defendant. 3. Since the plaintiffs have not challenged the dismissal of the suit with regard to the second schedule of property by the First Appellate Court, the pleadings that are relevant for deciding the second appeal with regard to the third schedule of property are extracted as follows. 4. The plaintiffs had contended that there was a partition within the family members of the plaintiffs under Exhibit A2 partition deed dated 16.08.1951. Under the said partition deed, the present suit third item has been shown as 9th schedule of property. The said 9th schedule has been shown as a common lane for the plaintiffs and the defendant ancestrally. The said third schedule property is shown as 'G.H.I.J' in the plaint plan. 5. The defendant filed a written statement contending that it is the exclusive property of the defendant. The said 9th schedule has been shown as a common lane for the plaintiffs and the defendant ancestrally. The said third schedule property is shown as 'G.H.I.J' in the plaint plan. 5. The defendant filed a written statement contending that it is the exclusive property of the defendant. Though there is a reference about the common lane in Exhibit A2 partition deed, that would not be binding upon the defendant, in view of the fact that the defendant is not a party to the said document. The defendant had further contended that there was a previous partition in the plaintiffs' family under Exhibit B1 partition deed dated 07.08.1918. In the said document, a different lane has been mentioned as a common lane. The present third schedule property has not been shown as a common lane in Exhibit B1. When Exhibit B1 does not disclose the present third schedule property as a common lane, the recital in Exhibit A2 will not confer any right upon the plaintiffs. The defendant had further contended that the said third schedule property was never used by the plaintiffs to reach the road on the northern side. In fact, the plaintiffs are only entitled to use a common lane on the southern side to reach the southern road. Hence, the defendant prayed for dismissal of the suit. 6. The trial court after considering the rival documents filed on either side and the oral evidence, arrived at a finding that the plaintiffs have not established their title or possession over the second schedule property. The trial Court further found that since the third schedule property was not referred to in Exhibit B1 partition deed of the year 1918, any reference in Exhibit A2 dated 16.08.1951 will not confer any right upon the defendant. On the said findings, the trial Court dismissed the suit with regard to the second and third schedule of properties. 7. The First Appellate Court concurred with the findings of the trial Court with regard to the second schedule of property and confirmed the dismissal of the prayer with regard to the second schedule of property. However, the First Appellate Court arrived at a finding that there is a reference about the third schedule common pathway in Exhibit B1 partition deed also. However, the First Appellate Court arrived at a finding that there is a reference about the third schedule common pathway in Exhibit B1 partition deed also. The First Appellate Court also relied upon Exhibit A6 Town Survey Field register to arrive at a point that the said document discloses it as a common pathway belonging to the plaintiff's and the defendant's ancestors. The First Appellate Court also relied upon Exhibit A4 series of photographs to come to a conclusion that these photographs will indicate the nature of third schedule is a lane. On the said findings, the First Appellate Court reversed the judgment and decree of the trial Court with regard to the third schedule and granted a decree in favour of the plaintiffs with regard to the third schedule of property. As against the said decree, the defendant has the above second appeal. 8. The learned counsel for the appellants had contended that the First Appellate court has erroneously arrived at a conclusion that there is a reference about the third schedule of property in Exhibit B1 partition deed. He had further contended that what is referred to as a common lane in Exhibit B1 is on the southern side of the common courtyard. The First Appellate Court has misunderstood the said common lane as a suit lane described as third schedule of property. He had further contended that the entire burden is upon the plaintiffs to establish that the suit third schedule of property is a common lane of the plaintiffs and the defendant. Since the First Appellate Court has misdirected itself in appreciating Exhibit B1 document, he prayed for admission of the above second appeal. 9. Per contra, the learned counsel for the respondents had contended that there is a reference about the third schedule of property even in Exhibit B1 document. The learned counsel had relied upon Exhibit A6 Town Survey Register to impress upon the Court that the third schedule of property has been described as a common lane belonging to the plaintiffs and the defendant ancestors. He had further contended that apart from a sale deed executed by the ancestors of the defendant, no other document has been filed on the side of the defendants for claiming exclusive right over the third schedule of property. He had further contended that apart from a sale deed executed by the ancestors of the defendant, no other document has been filed on the side of the defendants for claiming exclusive right over the third schedule of property. Hence, he prayed for confirming the judgment and decree of the First Appellate Court with regard to the third schedule of property. 10. I have given anxious consideration to the submissions made on either side. 11. The scope of the present second appeal is restricted to the prayer for declaration of title and permanent injunction over the third schedule of property. The plaintiffs have specifically contended that the third schedule property is shown as a common lane under Exhibit A2 partition deed dated 16.08.1951 which has taken place among the family members of the plaintiffs. The plaintiffs had also relied upon Exhibit A6 Town Survey Register to impress upon the Court that the said third schedule property is shown as a common lane to the plaintiffs and the defendant ancestors in title. However, the defendant has contended that there is no reference about the common lane in Exhibit B1 partition deed which is anterior to Exhibit A1. The defendant had further contended that a common lane meant for the plaintiffs as mentioned in Exhibit B1 is a public lane on the southern side and hence, the present lane namely the third schedule of property for reaching the norther side road is not a subject matter of Exhibit B1 partition deed. 12. A perusal of Exhibit A2 discloses that the present third schedule property is shown as a common lane between the plaintiffs and the defendant's ancestor. Though the defendant contended that this has been inserted only to create trouble to the defendant, no contra, oral or documentary evidence has been let in by the defendant to establish the said fact. Exhibit A2 document is more than 40 years old when the same was presented before the Court. The contention of the defendant that there is no reference about the third schedule property under Exhibit B1 is factually correct. There is every possibility that the lane came into existence after Exhibit B1, in view of some road formation on the northern side of the property of the defendant. The contention of the defendant that there is no reference about the third schedule property under Exhibit B1 is factually correct. There is every possibility that the lane came into existence after Exhibit B1, in view of some road formation on the northern side of the property of the defendant. That apart, Exhibit A6 is a public document namely Town Survey Register which discloses the fact that the third schedule property is a common lane of the plaintiffs as well as the defendant. There is no explanation whatsoever on the side of the defendant for Exhibit A6 which is a public document. Hence, I find that the First Appellate Court was right in arriving at a conclusion that the third schedule of property is a common lane of the plaintiffs as well as the defendant. That apart, except Exhibit B1 Will, no other anterior document has been filed by the defendant to claim title to the said third schedule property. By comparing the competing documents on either side, the First Appellate Court has arrived at a finding that the third schedule property is a common lane belonging to the plaintiffs and the defendant. I do not find any illegality or infirmity in the order of the First Appellate Court. 13. In view of the above said discussions, the judgement and decree of the First Appellate Court is confirmed. The second appeal is dismissed. No costs.