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2022 DIGILAW 2060 (MAD)

V. L. Venkatachalam v. V. L. Muthuswamy

2022-07-13

C.V.KARTHIKEYAN

body2022
JUDGMENT : (Prayer : The Second Appeal filed under Section 100 of CPC, against the judgment and decree made in A.S.No.91 of 2009 dated 22.07.2009 on the file of the I Additional Sub Court, Gobichettipalayam, reversing the judgment and decree made in O.S.No.296 of 2006 dated 01.11.2007 on the file of the District Munsif Court, Gopichettipalayam.) 1. The plaintiff in O.S.No.296 of 2006 on the file of the District Munsif Court, Gopichettipalayam, is the appellant herein. 2. O.S.No.296 of 2006 had been filed by the plaintiff, V.L.Venkatachalam against the 1st defendant, V.L.Muthusamy his own brother and another brother V.L.Chenniappan, seeking a judgment and decree of permanent injunction restraining the defendants from going northwards along the eastern border of the plaintiff's land and also for a permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession of usage of water available in the channel which runs through the 1st defendant's land and also for costs of the suit. 3. By judgment dated 01.11.2007, the suit was decreed by the learned District Munsif Gobichettipalayam. This indicated that the defendants were restrained from moving upwards towards north across the eastern boundary of the land of the plaintiff and the defendants were also restrained from preventing the plaintiff from using or taking water through the channel. 4. Questioning that judgment and decree, the defendants filed A.S.No.91 of 2008. The Appeal Suit came up for consideration before the Additional Sub Court at Gobichettipalayam and by judgment dated 22.07.2009, the decree with respect to taking water through the channel that the defendants should not prevent the plaintiff from taking water through the channel was confirmed. But however, the injunction restraining the defendants from going northwards along with the eastern border of the plaintiff's land was interfered with and that injunction was denied to the plaintiff. Even with respect to usage of the water channel a slight modification was made by the First Appellate Court stating that the cows and cattle should not be unnecessarily made to go across the water channel. 5. Questioning, the findings with respect to granting access to the defendants to move across the land of the plaintiff on the eastern side namely, the first relief in the plaint, the plaintiff had filed the present Second Appeal. 6. The Second Appeal had been admitted on the following substantial questions of law:- “1). 5. Questioning, the findings with respect to granting access to the defendants to move across the land of the plaintiff on the eastern side namely, the first relief in the plaint, the plaintiff had filed the present Second Appeal. 6. The Second Appeal had been admitted on the following substantial questions of law:- “1). Whether the Lower Appellate Court is correct in Law in eschewing the report of the Advocate Commissioner? 2). Whether the Lower Appellate Court is correct in law in partly reversing the order of the Trial Court when this appellant / plaintiff has specifically proven the non-existence of the common pathway in the suit 'B' schedule which is suitably supported by the Advocate Commissioner's report? 3). Whether the Lower Appellate Court is correct in law in declaring that the respondent/defendant has right in the suit 'B' schedule especially when the respondent/defendant has never filed a suit for declaration? 4). Whether the judgment of the Lower Appellate Court is vitiated by its failure to apply correct principles of law and consider the entire evidence on record?” 7. Heard arguments advanced by Mr.A.Veerasamy, learned counsel for the appellant and Mr.J.Titus Enock, learned counsel for the respondents. 8. For the sake of convenience the parties would be referred as plaintiff and defendants. To reiterate the appellant in the Second Appeal was the plaintiff in the Trial Court and the respondents were the defendants. 9. A perusal of the background facts would reveal that the plaintiff and the defendants / brothers had entered into a partition deed on 21.07.1993 dividing the land which had come to their hands. Such partition deed was made before the panchayat and I must state with due appreciation to the learned counsels, both Mr.A.Veerasamy and Mr.J.Titus Enock had stated that their respective clients would abide by the partition deed and would not raise any issue regarding the partition deed. 10. For better appreciation of the issues involved and to answer the substantial questions of law, it would also be appropriate to give a pictorial representation of the sketch forwarded by the Advocate Commissioner in I.A.No.546 of 2006 in the original suit. The sketch of the Advocate Commissioner which had been marked as Ex.C2 is as follows: 11. 10. For better appreciation of the issues involved and to answer the substantial questions of law, it would also be appropriate to give a pictorial representation of the sketch forwarded by the Advocate Commissioner in I.A.No.546 of 2006 in the original suit. The sketch of the Advocate Commissioner which had been marked as Ex.C2 is as follows: 11. A perusal of the above sketch would show that the water channel with respect to which in the judgments of the Courts below, there is no dispute as on date, runs in between the points A and B. 12. The issue is only with respect to the eastern portion particularly, the portion marked in green and the portion marked in yellow to which the defendants had been restrained originally by the Trial Court from moving towards north through that pathway and who have now been granted access by the First Appellate Court. It is claimed that the report of the Advocate Commissioner, had mentioned that the portion shown in green contains groundnut crop and in the portion shown in yellow on the eastern border, the plaintiff had sown maize crop. But however, the report of the Advocate Commissioner also states that the said crops could have been sown only about 15 days prior to his visit. 13. Be that as it may, the Trial Court, made an observation that in the partition deed, there was no extension of right granted to the defendants to use such a pathway namely, accessing the green portion and similar pathway across the yellow portion, to go northwards. 14. It is contended by Mr.A.Veerasamy, learned counsel for the appellant that there is no necessity for the defendants to go northwards, because the lands in the north of the lands of the plaintiff, belongs to third persons and those lands do not even belong to the defendants or remotely connected with the defendants. Therefore, it is contended by going northwards, the defendants will achieve no purpose, but they would only be disturbing the peaceful possession of the plaintiff. 15. However, Mr.J.Titus Enock, learned counsel for the respondents stated that when the partition deed was entered into among the parties in the presence of elders in the village, a conscious decision was taken to provide for such a passage for movement of cattle to graze at the time when the crops are not grown. 15. However, Mr.J.Titus Enock, learned counsel for the respondents stated that when the partition deed was entered into among the parties in the presence of elders in the village, a conscious decision was taken to provide for such a passage for movement of cattle to graze at the time when the crops are not grown. It was also stated by Mr. J. Titus Enock that the defendants would not claim title over the lands of the plaintiff on the eastern boundary, even though they may be using it as a passage. 16. I am confident that this statement of Mr. J. Titus Enock had been made with due instructions from the defendants and that the defendants would not actually claim any title over the lands allotted to the plaintiff under the partition deed and more particularly to this particular passage on the eastern portion of the lands of the plaintiff. I would also place an embargo on the defendants to claim such title at anytime in the future, merely because they have been granted permission to use the said passage. It must also be kept in mind that usage is only for necessity. The defendants should also not put up any semblance of construction over that passage or even any permanent or semi-permanent or temporary thatched or otherwise construction. 17. Let the lands belong to the plaintiff and let the defendants access the passage only for necessity without committing acts of waste. With this as the background, let me now address the substantial questions of law. 18. The first substantial question of law is whether the Lower Appellate Court is correct in law in eschewing the report of the Advocate Commissioner. It must be pointed out that the word 'eschew' is not found anywhere in the Indian Evidence Act, 1872. A document presented and taken on record as evidence during the course of trial will have to pass through the stage of admissibility, proof and relevancy and must also be genuine. Once it satisfies these conditions, and thereafter, if the witness who produces such document withstands cross-examination, then on the basis of the evidence in chief and on the basis of the cross-examination with respect to such document, the Trial Judge or the First Appellate Court Judge or any other Court in the hierarchy of Courts can analyze such evidence. Once it satisfies these conditions, and thereafter, if the witness who produces such document withstands cross-examination, then on the basis of the evidence in chief and on the basis of the cross-examination with respect to such document, the Trial Judge or the First Appellate Court Judge or any other Court in the hierarchy of Courts can analyze such evidence. But once a document is taken on record, it cannot be eschewed. It can be stated that it is not considered for the purposes of granting any relief or that it is considered for the purpose of granting relief. But it cannot simply be torn away or removed from the records. The document remains in the records. 19. Therefore, the First Appellate Court will have to give necessary credence to the Advocate Commissioner's report. If the First Appellate Court had raised any issue over the report of the Advocate Commissioner, the Advocate Commissioner being an officer of the Court could have been summoned by the Court itself to depose evidence and clarify any aspect on the report. Therefore, I would hold that even though the report of the Advocate Commissioner states that there are groundnut crop sown in the green colour marked portion and maize crop sown by the plaintiff in the yellow marked portion, still the report stands and the First Appellate Court had also correctly fallen back on the partition deed to grant the relief to the defendants in the suit. I would answer the first substantial question of law that no document can be eschewed by any Court of law. 20. The second substantial question of law again revolves around the report of the Advocate Commissioner. The First Appellate Court had given its own reasonings for partly reversing the judgment of the Trial Court. It had fallen back on the agreement between the parties as stated in the partition deed, Ex.A1. The Lower Appellate Court had also given reasons for coming to its conclusion. This Court cannot find any fault on the same. I would therefore answer the second substantial question of law holding that the Appellate Court was not wrong in analyzing the report of the Advocate Commissioner. 21. The Lower Appellate Court had also given reasons for coming to its conclusion. This Court cannot find any fault on the same. I would therefore answer the second substantial question of law holding that the Appellate Court was not wrong in analyzing the report of the Advocate Commissioner. 21. The third substantial question of law is whether such a right to use the pathway can be granted to the defendants when a specific prayer had not been sought or counter claim had not been made in the written statement with respect to declaration. The plaintiff had filed the suit only for permanent injunction. The suit for permanent injunction had been filed on the basis of Ex.A1 partition deed with title already established. The suit is only for right to access pathway and right to use or take water in the channel. The issue of title had never been put to test. The defendants also have not denied the title of the plaintiff with respect to the lands allotted under Ex.A1 partition deed. 22. However, the defendants had placed reliance on the partition deed wherein a provision had been made for usage of passage on the eastern side of the plaintiff's land. Once the document gives certain right and such document had been relied on by both parties, then a separate relief of declaration need not be sought for by either one of the two parties. Even the plaintiff had not filed the suit for declaration. Therefore, it will not required by the defendants to seek a similar relief of declaration either by way of a counter claim or by way of a separate suit. Both the plaintiff and the defendants know the scope of the issues between them and that scope is only with respect to the usage of the channel and the usage of the eastern portion of the plaintiff's land as a pathway. Their respective titles had not been put to test. Therefore, I would answer the third substantial question of law that the claim of the defendants cannot be rejected, only because they had not sought the relief of declaration. 23. The fourth substantial question of law is whether the First Appellate Court had applied the correct principles of law. The First Appellate Court had analyzed the partition deed, the report of the Advocate Commissioner and also the surrounding circumstances and had passed a judgment. 23. The fourth substantial question of law is whether the First Appellate Court had applied the correct principles of law. The First Appellate Court had analyzed the partition deed, the report of the Advocate Commissioner and also the surrounding circumstances and had passed a judgment. Let me not interfere with that particular judgment. But as observed earlier, this Court places an embargo on the defendants from claiming any title over the land of the plaintiff's, particularly, on the eastern side which has been permitted to be used as a passage and place a further restriction on the defendants that they should not commit any act of waste or should not put up any temporary or permanent structure on the pathway and at the same time should not also prevent the plaintiff from using it. Moreover, let the defendants exercise caution and use the passage for their necessity. 24. It is stated that cattle will be using it to go across for grazing purpose when crops are not grown. In any normal agricultural field, where lands abut one after the other, there is always movement of men and cattle from one field to the other and for that particular purpose there is a boundary given which is normally called as bund and people access it and they cannot be prevented from using it. It is also to be noted that the defendants should not disturb any crop grown by the plaintiff, but at the same time, the plaintiff may also take care that he should not put up crops obstructing the passage. 25. With the above observations, I would dispose of the Second Appeal, holding that the judgment and decree dated 22.07.2009 in A.S.No.91 of 2009 on the file of the I Additional Sub Court, Gobichettipalayam with respect to denying injunction from usage of pathway is confirmed and that the judgment and decree dated 01.11.2007 in O.S.No.296 of 2006 on the file of the District Munsif Court, Gobichettipalayam with respect to granting injunction for usage of water channel is confirmed. No costs. Consequently, connected Civil Miscellaneous Petition is also closed. 26. While drafting the decree, the Registry may incorporate the restrictions of the usage of passage as observed in the judgment. 27. The learned counsel for the appellant stated that Ex.A1 partition deed may be returned on substituting a xerox copy, attested as true copy by the counsel. No costs. Consequently, connected Civil Miscellaneous Petition is also closed. 26. While drafting the decree, the Registry may incorporate the restrictions of the usage of passage as observed in the judgment. 27. The learned counsel for the appellant stated that Ex.A1 partition deed may be returned on substituting a xerox copy, attested as true copy by the counsel. If a memo is filed in that regard, on the basis of the said memo, Ex.A1 may be returned back to the learned counsel for the appellant on obtaining proper acknowledgment and on substituting a true attested xerox copy.