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2022 DIGILAW 2452 (MAD)

V. Venkatesan v. R. Perumal

2022-08-01

C.V.KARTHIKEYAN

body2022
JUDGMENT (Prayers: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree in A.S.No. 73 of 1994, and dated 30.06.1994, on the file of the VI Additional Judge, City Civil Court, Madras, confirming the Judgment and Decree in O.S.No. 11628 of 1989 and dated 22.10.1991, on the file of the VII Assistant Judge, City Civil Court, Madras. This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree in A.S.No. 66 of 1994, on the file of the VI Additional Judge, City Civil Court, Madras, confirming the Judgment and Decree in O.S.No. 9947 of 1988 and dated 22.10.1991, on the file of the VII Assistant Judge, City Civil Court, Madras.) Common Judgment: The defendants in O.S.No. 9947 of 1988 on the file of the VII Assistant City Civil Court, Chennai, are the appellants in S.A.No. 1441 of 2000. 2. The defendants in O.S.No. 11628 of 1989 on the file of the VII Assistant City Civil Court, Chennai, are the appellants in S.A.No. 1440 of 2000. 3. Joint trial was conducted in O.S.No. 9947 of 1988 and O.S.No. 11628 of 1989 and by Judgment dated 22.10.1991, both the suits were decreed, expect for the relief of mandatory injunction sought by the plaintiffs therein. 4. Aggrieved by the decree granted in both the suits, the defendants therein filed A.S.No. 66 of 1994 and A.S.No. 73 of 1994. Aggrieved by the denial of mandatory injunction, the plaintiffs in O.S.No. 11628 of 1989 filed A.S.No. 74 of 1994. 5. All the three appeal suits came up for consideration before the VIth Additional City Civil Court, Chennai and by Judgment dated 30.06.1994, all the three appeal suits were dismissed. 6. Questioning the Judgment in A.S.No. 66 of 1994, the defendants in O.S.No. 9947 of 1988 had filed S.A.No. 1441 of 2000. Questioning the Judgment in A.S.No. 73 of 1994, the defendants in O.S.No. 11628 of 1989 had filed S.A.No. 1440 of 2000. No appeal had been filed questioning the dismissal of A.S.No. 74 of 1994. 7. S.A.Nos. 1440 and 1441 of 2000 had been admitted on the following substantial questions of law:- “1. Whether on a construction of Ex.A-7 the relief prayed for can be granted?; 2. Whether the Court below are justified in granting Decree when the plaintiffs have failed to discharge their burden with necessary evidence and materials?; 3. 7. S.A.Nos. 1440 and 1441 of 2000 had been admitted on the following substantial questions of law:- “1. Whether on a construction of Ex.A-7 the relief prayed for can be granted?; 2. Whether the Court below are justified in granting Decree when the plaintiffs have failed to discharge their burden with necessary evidence and materials?; 3. Whether the Courts below are justified when the finding of the facts are on the basis of misreading of evidence as well as mis-application of law?; 4. Whether the Courts below are justified when the findings are based on misconception and perverse not supported by evidence?; 5. Whether the Courts below are right in not considering the recitals and description of property in Ex.A.7 which is material irregularity as well as illegality. 6. Whether the subsequent suit filed is maintainable which is hit by Order 2 Rule 2 of the CPC?” 7. Whether the Courts below are right in granting declaration for “C” Schedule property which was not the property conveyed under sale deed dated 20.04.1988 and whether the plaintiffs are entitled to any extent more than what was conveyed under Ex.A-7?” 8. Pending the Appeal, the first appellant in both the Appeals, the first appellant in both the Appeals, V.Venkatesan had been reported dead but independently no memo had been filed. However, the other appellants are his legal heirs. 9. Pending the Second appeal by order in C.M.P.Nos. 2036 & 2037 of 2003 dated 28.08.2003, a third party had been impleaded as the 3rd respondent in both the Appeals. O.S.No. 9947 of 1988 (VII Assistant City Civil Court, Chennai): 10. The plaintiffs Dr.R.Perumal and Mrs. P.Suryakani filed the suit against V.Venkatesan, his wife and two daughters, seeking a Judgment and Decree for permanent injunction restraining the defendants from interfering with usage of a passage for taking water from the Well using the common lavatory as described in the schedule and for costs of the suit. 11. In the schedule, it had been stated that the disputed property was situated at Old No. 105, Bazaar Road, Mambalam, Chennai. 12. The plaintiffs claimed that they had purchased the suit schedule property from the first defendant and his son Ramamurthy by sale deed dated 21.04.1988. It had been stated that they had been put in possession of the suit property. 12. The plaintiffs claimed that they had purchased the suit schedule property from the first defendant and his son Ramamurthy by sale deed dated 21.04.1988. It had been stated that they had been put in possession of the suit property. It had also been covenented that they can use the passage available in the property for taking water from the Well and also for using the lavatory. Claiming that such privilege was being denied, the suit had been filed for permanent injunction. 13. In the written statement filed by the first defendant it was claimed that the sale deed did not grant any such right or privilege to the plaintiffs. It was also stated that the sale deed who had been obtained by coercion and it was therefore stated that the plaintiffs can use only the portion mentioned in the schedule in the sale deed and nothing more. 14. The second to fourth defendants filed a separate written statement claiming that they were unnecessary parties to the suit and that they had not executed the sale deed in favour of the plaintiffs. O.S.No. 11628 of 1989 (VII Assistant City Civil Court, Chennai): 15. This suit had been filed by the same plaintiffs as in O.S.No. 9947 of 1988, Dr. R.Perumal and Mrs. P.Suryakani against the defendants V.Venkatesan and his son V.Ramamurthy, seeking a declaration that the plaintiffs are entitled to use the passage from Bazaar Road to the conservancy lane in the rear side of the property. It had been stated that the defendants were preventing the plaintiffs from using such passage. Therefore, the suit had been filed seeking the relief to use the passage and to prevent the defendants from interfering with possession. 16. A written statement had been field by the defendants stating that the plaintiffs had filed an earlier suit in O.S.No. 9947 of 1998 and therefore, the second suit was barred under Order 2 Rule 2 CPC. It was also stated that the defendants had never agreed that the suit passage can be used by the plaintiffs. In fact, they also stated that the sale deed was not valid and unenforceable. It had been stated that there are other tenants, who also have a right to use the passage. It was therefore stated that the suit should be dismissed. The Trial: 17. In fact, they also stated that the sale deed was not valid and unenforceable. It had been stated that there are other tenants, who also have a right to use the passage. It was therefore stated that the suit should be dismissed. The Trial: 17. The learned VII Assistant Judge, City Civil Court, Chennai, conducted joint trial in both the suits. Necessary issues were framed in both the suits. 18. During the course of trial, the first plaintiff was examined as PW-1 and another witness was examined as PW-2. The first defendant was examined as DW-1. 19. The plaintiffs marked Ex. A-1 to A-11. Ex.A-1 was a copy of the agreement of sale dated 14.12.1987, Ex.A-2 was a copy of the Advocate's notice dated 09.09.1991, Ex.A-7 was a copy of the sale deed dated 20.04.1988, Ex.A-9 was a copy of an other notice dated 11.11.1989. 20. On the side of the defendants, Exs. B-1 to B-9 were marked. Ex.B-4 was the rectification deed dated 27.10.1988, Ex.B-7 was the notice issued by the Advocate dated 10.09.1991, Ex.B-8 was the notice issued dated 18.09.1991. 21. The notes given by the first defendant to the Court were marked as Exs. C-1. 22. On the basis of the evidence produced, the learned VII Assistant Judge, City Civil Court, found that the sale deed was binding on both the parties and that the sale deed indicated the portions to which the parties can enjoy the property and also found that the plaintiffs have a right to use the common passage to access the common Well and lavatory and that such access cannot be prevented by the defendants. 23. It was also found that the plaintiffs have a right to use the passage from Bazaar Road to the conservancy portion in the rear side of the building and that the defendants cannot prevent the plaintiffs from using the conservancy lane. However, the relief sought in O.S.No. 11628 of 1989 for mandatory injunction was dismissed. It was specifically found that such usage had been given in the sale deed and in the agreement only till alternate arrangements are made and therefore, mandatory injunction was refused to be granted. A.S.No. 66, 73 & 74 of 1994 [ VIth Additional City Civil Court, Chennai]: 24. As stated, the defendants filed A.S.Nos. 66 & 73 of 1994. The plaintiffs filed A.S.No. 74 of 1994. A.S.No. 66, 73 & 74 of 1994 [ VIth Additional City Civil Court, Chennai]: 24. As stated, the defendants filed A.S.Nos. 66 & 73 of 1994. The plaintiffs filed A.S.No. 74 of 1994. All the three appeal suits were taken up together by the VI Additional City Civil Court on 30.06.1994. The learned Additional District Judge again reappraised the evidence and examined the documents produced. It was found that the plaintiffs had title to the property owing to the sale deed executed in their name. It was also found that when there is an alternate passages provided, whenever the building is modified, the existing passage can be used only till that particular date. This was the arrangement agreed between the parties. It was therefore found that the trial Court had correctly granted the reliefs of right to use the passages and to access the Well and the common lavatory but had denied grant of mandatory injunction. All the three appeal suits were therefore dismissed. S.A.Nos. 1440 & 1441 of 2000:- 25. The defendants aggrieved by the dismissal of the two Appeal Suits in A.S.Nos. 66 & 73 of 1994 had filed the present two Second Appeals. 26. The Second Appeals had been admitted on the following substantial questions of law:- “1. Whether on a construction of Ex.A-7 the relief prayed for can be granted?; 2. Whether the Court below are justified in granting Decree when the plaintiffs have failed to discharge their burden with necessary evidence and materials?; 3. Whether the Courts below are justified when the finding of the facts are on the basis of misreading of evidence as well as mis-application of law?; 4. Whether the Courts below are justified when the findings are based on misconception and perverse not supported by evidence?; 5. Whether the Courts below are right in not considering the recitals and description of property in Ex.A.7 which is material irregularity as well as illegality. 6. Whether the subsequent suit filed is maintainable which is hit by Order 2 Rule 2 of the CPC? 7. Whether the Courts below are right in granting declaration for “C” Schedule property which was not the property conveyed under sale deed dated 20.04.1988 and whether the plaintiffs are entitled to any extent more than what was conveyed under Ex.A-7?” 27. Whether the subsequent suit filed is maintainable which is hit by Order 2 Rule 2 of the CPC? 7. Whether the Courts below are right in granting declaration for “C” Schedule property which was not the property conveyed under sale deed dated 20.04.1988 and whether the plaintiffs are entitled to any extent more than what was conveyed under Ex.A-7?” 27. As stated, during the pendency of the Second Appeals, the third respondent had been impleaded as a party because the respondents/plaintiffs in the two suits had sold the property to the third respondent. 28. As stated the first appellant had also died but the other appellants are said to be his legal representatives. 29. The first and fifth substantial questions of law revolve around Ex.A-7. Ex.A-7 marked during the course of trial, was the sale deed dated 20.04.1988 executed by the appellants in favour of the first and second respondents. Both the Courts below have held that the right to use the passage was limited till the building is demolished and an alternate passage constructed. The right to use such passage till such time has to be exercised and granted to the respondents. 30. The questions surrounds interpretation of facts and both the Courts below have concurrently found that Ex.A-7 grants such right to use the passage and also to use the passage from the Bazaar Road to access the conservancy portion in the rear of the property. In view of the concurrent findings by both the Courts below, it would only be appropriate that this Court also upholds such a finding on fact. The Courts below have correctly examined the schedule and have stated that usage of the passage is in built in the sale deed and unless the defendants were to seek the relief to set aside the sale deed in manner known to law, the schedule therein would bind them. I would therefore answer the said substantial questions of law that both the Courts below had correctly interpreted Ex.A-7 and more particularly, the recitals and the schedule in Ex.A-7. 31. The second substantial question of law revolves around the burden of proof.32. Section 101 of the Indian Evidence Act as is as follows:- “101. Burden of proof.— Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. 31. The second substantial question of law revolves around the burden of proof.32. Section 101 of the Indian Evidence Act as is as follows:- “101. Burden of proof.— Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Illustrations (a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. (b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts. 33. In the instant case, the first and second respondents/plaintiffs had filed the suit on the basis of Ex.A-7, sale deed. The recitals in the sale deed are binding on both the parties. It is to perform their undertaking in the sale deed that consideration is also passed under the sale deed. The first and second respondents/plaintiffs in the suit, have to discharge their burden of proof by producing necessary evidence to substantiate use of the passage, to substantiate necessity to use the passage and to substantiate that other tenants were also using the passage and that they have a right to use the passage as purchasers of the property. The sale deed is such proof. I therefore hold that both the Courts below were justified in granting a decree in favour of the plaintiffs. 34. With respect to the third and fourth substantial questions of law, I hold that both the Courts below have analyzed the evidence and the findings therein are not perverse. They had come to a consistent conclusion that the first and second respondents have a right to use the passage but such right is limited till the time an alternate passage is constructed on demolition of the building. 35. The reasoning of both the Courts below does not suffer from perversity. The Courts have only read the evidence as adduced by the parties. It is not the case of the appellants that adequate opportunity was not given to adduce evidence. 35. The reasoning of both the Courts below does not suffer from perversity. The Courts have only read the evidence as adduced by the parties. It is not the case of the appellants that adequate opportunity was not given to adduce evidence. They had adduced oral and documentary evidence. Such evidence had been analyzed by both the Courts below. The substantial questions of law actually surrounds a mixed question of facts and law, I would therefore answer that since concurrent findings had been rendered by both the Courts below on the basis of the oral and documentary evidence, the Courts below have come to a just conclusion. 36. The seventh substantial question of law is with respect to the grant of declaration for 'C' schedule property. What was granted was a limited right to access the passage from Bazaar Road to the conservancy portion at the back of the building till an alternate passage is built on the building being demolished. Therefore, declaration of title was not granted. Only a declaration to use the passage was granted. I find no fault in both the Courts below granting such declaration. 37. With respect to the sixth substantial question of law, I would hold that the cause of action for instituting the second suit was different from the cause of action for instituting the first suit. The necessity to institute the first suit arose owing to interference with usage of the passage to access the Well and the common lavatory inside the building. The necessity to institute the second suit arose from accessing the passage from Bazaar road and therefore, both the causes of action are separate and had arisen on two separate dates, I would hold that the second suit is not barred under Order 2 Rule 2 CPC. The said substantial question of law is answered accordingly. 38. In view of the above reasons, I would dismiss both the Second Appeals, with costs. 39. In the result, i) The Second Appeals are dismissed with costs. ii) The Judgments and Decrees in A.S.Nos. 73 & 66 of 1994, and dated 30.06.1994, on the file of the VI Additional City Civil Court, Madras, are confirmed; iii) the Judgment and Decree in O.S.Nos. 9947 of 1998 and 11628 of 1989 dated 22.10.1991 on the file of the VII Assistant City Civil Court, Chennai, are confirmed; and iv) Consequently, connected Miscellaneous Petitions are closed.