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2022 DIGILAW 472 (MAD)

Issac Ponnuthurai (died) v. Natarajan Nadar

2022-02-23

R.VIJAYAKUMAR

body2022
JUDGMENT : (Common Prayer: Second Appeals are filed under Section 100 of Civil Procedure Code, against the judgment and decree in A.S.Nos.21 & 22 of 1999 on the file of the Sub Court, Ambasamudram dated 09.08.2002 reversing the judgment and decree in O.S.Nos.32 of 1994 and 29 of 1993 on the file of the Additional District Munsif Court, Ambasamudram dated 22.01.1999.) 1. S.A.No.1876 of 2002 arises out of O.S.No.32 of 1994 on the file of the Additional District Munsif Court, Ambasamudram for the relief of declaration of title and permanent injunction over the suit lane. The said suit was dismissed by the trial Court. The plaintiffs filed A.S.No.21 of 1999 before the Sub Court, Ambasamudram. The learned Subordinate Judge confirmed the decree with regard to declaration of title, but granted a decree to the effect that the plaintiffs would be entitled to use the second schedule pathway without effecting any alteration. As against the same, the defendant has filed the above second appeal. 2. S.A.No.1877 of 2002 arises out of O.S.No.29 of 1993 on the file of the Additional District Munsif Court, Ambasamudram. The plaintiffs claimed that the second schedule pathway is forming part of first schedule property and claimed declaration of title over the first schedule property and permanent injunction restraining the defendant therein from interfering with the plaintiffs' possession and enjoyment over the second schedule property. The suit was decreed as prayed for by the trial Court. The defendant filed A.S.No.22 of 1999 before the Sub Court, Ambasamudram. The learned Subordinate Judge confirmed the title in favour of the plaintiffs. The First Appellate Court confirmed the decree for declaration of title and permanent injunction, but granted a right for the defendant to use the second schedule pathway without making any alteration. As against the same, the plaintiffs have filed the above second appeal. 3. The plaintiff in O.S.No.29 of 1993 contended that the suit second schedule property is forming part of the first schedule property. The first schedule property was originally owned by one Madakkanu Nadar @ Manonmani Nadar. The said Madakannu Nadar and his son have partitioned the same under Exhibit A1 dated 11.01.1916. In the said partition, the first schedule property and properties to the east of the first schedule property were allotted to the share of one Issac Gnanakannu Nadar. The first schedule property was originally owned by one Madakkanu Nadar @ Manonmani Nadar. The said Madakannu Nadar and his son have partitioned the same under Exhibit A1 dated 11.01.1916. In the said partition, the first schedule property and properties to the east of the first schedule property were allotted to the share of one Issac Gnanakannu Nadar. The said Issac Gnanakannu Nadar had executed Exhibit A2 sale deed on 02.04.1930 in favour of his wife Annamuthammal. The said Annamuthammal had gifted her undivided half share in favour of the plaintiff under Exhibit A3 on 31.07.1974. In a family arrangement with his uncle under Exhibit A4 dated 11.02.1980, the suit first schedule property was allotted to the share of the plaintiffs. 4. The plaintiffs further contended that they are in possession and enjoyment of the suit schedule property for more than 100 years and they have acquired title by adverse possession. The plaintiffs further contended that on the western portion of the first schedule property, the second schedule property is located. It is an exclusive lane belonging to the plaintiffs. According to the plaintiffs, there are four windows and sun-shade in the western wall of the plaintiffs. The plaintiffs further contended that the defendant who have properties to the further west of the second schedule property have no right title or possession over the second schedule property. They are attempting to open a doorway into the second schedule property and disturb the possession of the plaintiffs over the second schedule property. Hence, the present suit for declaration that the second schedule property forming part of the first schedule property is the absolute property of the plaintiffs and for consequential permanent injunction that the defendant should not disturb the possession of the plaintiffs over the second schedule property. 5. The defendant filed a written statement contending that he is admitting title of the plaintiffs over the first schedule property excluding the second schedule property. The defendant further contended that the second schedule property absolutely belongs to the defendant. The second schedule property is the only pathway for the defendant to reach the road on the northern side from their houses and there is no other pathway. The defendant further contended that they have been using the pathway from time immemorial and hence, they have acquired title by adverse possession. The second schedule property is the only pathway for the defendant to reach the road on the northern side from their houses and there is no other pathway. The defendant further contended that they have been using the pathway from time immemorial and hence, they have acquired title by adverse possession. The defendant also disputed the fact that there are windows in the western wall of the plaintiffs. 6. The defendant also traced his title to the second schedule property by relying upon Exhibits B6, B7 and B8. Hence, he contended that there is no lane on the western side of the plaintiffs' property. The defendant further contended that the plaintiffs have created a doorway on his western wall and they are attempting to encroach upon the second schedule property which belongs to the defendant. 7. The defendant in O.S.No.29 of 1993 filed O.S.No.32 of 1994. The suit property in O.S.No.32 of 1994 is the second schedule property in O.S.No.29 of 1993. The plaintiff in O.S.No.32 of 1994 claimed that the schedule mentioned property belongs to them absolutely and the defendant therein do not have any right title or possession over the schedule mentioned property. The averments in the written statement of O.S.No.29 of 1993 were repeated as averments in the plaint in O.S.No.32 of 1994. Hence, they prayed for declaration of title and permanent injunction. 8. Both the suits were tried together. The trial Court came to the conclusion relying upon Exhibits A1 to A4 that the suit second schedule property in O.S.No.29 of 1993 absolutely belongs to the plaintiffs therein. The trial Court also relied upon east-west measurement in Exhibits A1 to A4 and compared the said measurement with the commissioner's report. The trial court arrived at a finding that the plaintiffs in O.S.No.29 of 1993 have constructed only to an east-west measurement of 38.04 feet, but as per document, the plaintiffs are entitled to east-west measurement of 42.7 feet. The trial Court also compared east-west measurement of the defendant by relying upon Exhibits B6 and B7 along with the commissioner's report. As per Exhibits B6 and B7, the east-west measurement of the defendant is 27.06 feet. As per commissioner's report, the east-west measurement of the constructed portion of the defendant is 27.09 feet. Hence, the trial court arrived at a finding that the defendant has utilised his entire east-west measurement and has put up construction. As per Exhibits B6 and B7, the east-west measurement of the defendant is 27.06 feet. As per commissioner's report, the east-west measurement of the constructed portion of the defendant is 27.09 feet. Hence, the trial court arrived at a finding that the defendant has utilised his entire east-west measurement and has put up construction. Hence, the defendant do not have any further vacant site on his eastern side. On the other hand, the plaintiffs have constructed only to an extent of 38.04 feet, but as per document, they are having an extent of 42.07 feet. Based upon these measurements, the trial Court arrived at a finding that the second schedule property in O.S.No.29 of 1993 belongs to the plaintiffs therein and the defendant do not have any right title or possession over it. Consequently, the plaintiffs in O.S.No.32 of 1994 do no have any title or possession over the suit schedule property. 9. Once the trial Court arrived at a finding that the lane in between the plaintiffs and defendant's house belong to the plaintiffs in O.S.No.29 of 1993, the defendant in O.S.No.29 of 1993 has to establish either title by adverse possession or right of easement over the second schedule property in O.S.No. 29 of 1993, in order to make a claim for the usage of the second schedule property. 10. The trial Court found that the plaintiffs in O.S.No.29 of 1993 have continuously using the second schedule property. In fact, there is no doorway opening into the second schedule property on the western wall of the plaintiffs. The plaintiffs are also having four windows, sun shade on their western wall facing the second schedule property. Hence, the plea of defendant acquiring title by adverse possession does not arise. The trial Court also found that the defendant has not claimed any easmentary right of pathway over the second schedule property. Based upon the said finding, the trial Court decreed O.S.No.29 of 1993 as prayed for and dismissed O.S.No. 32 of 1994. 11. The First Appellate Court independently analysed the oral and documentary evidence on either side and concurred with the findings of the trial Court that the suit lane absolutely belongs to the plaintiffs in O.S.No.29 of 1993 and the plaintiffs in O.S.No.32 of 1994 have not established their title or exclusive possession over the suit lane. 11. The First Appellate Court independently analysed the oral and documentary evidence on either side and concurred with the findings of the trial Court that the suit lane absolutely belongs to the plaintiffs in O.S.No.29 of 1993 and the plaintiffs in O.S.No.32 of 1994 have not established their title or exclusive possession over the suit lane. The First Appellate Court also confirmed the decree for permanent injunction over the second schedule property in O.S.No.29 of 1993 in favour of the plaintiffs therein. However, the First Appellate Court proceeded to grant right of usage of the second schedule property in favour of the defendant in O.S.No.29 of 1993 and the plaintiffs in O.S.No.32 of 1994 with a condition that they should not alter the physical features. As against the said concession granted by the First Appellate Court, the plaintiffs in O.S.No.29 of 1993 and the defendant in O.S.No.32 of 1994 have filed the above second appeals. 12. The second appeals have been admitted on the following substantial questions of law. SA.No.1876 of 2002 “1. Whether the Lower Appellate Court erred in granting easement right to the respondents to use the second schedule property in O.S.No.29 of 1993 as a pathway especially when the respondents have not produced any document to substantiate the alleged right? 2. Whether the Lower Appellate Court failed to note that the easement right in favour of the respondents in respect of the said second schedule property cannot be granted especially when the respondents have a pathway on the western side of the property of respondents? 3. Whether the Lower Appellate Court failed to note that the respondents claimed title over the said second schedule property and when the respondents have not proved title, they cannot claim easment right since claim of the right are contradictory to each other? 4. Whether the lower Appellate Court failed to note that the respondents were using the suit property only on the permission granted by the Appellant and the respondents began to claim right in the suit property only after such permission was cancelled by the Appellant? 5. Whether the Lower Appellate Court failed to note that the property covered in Ex.B6 is a different property from the disputed property? 6. 5. Whether the Lower Appellate Court failed to note that the property covered in Ex.B6 is a different property from the disputed property? 6. Whether the Lower Appellate Court failed to note that the respondents did not explained how the breadth of their lane became 11 ½ CC while the earlier documents of the respondents show the breadth of the land as 10 C.C.? 7. Whether the Lower Appellate Court failed to note that Exs.B6 to B.9 are not binding on the appellant?” SA.No.1877 of 2002 “1. Whether the Lower Appellate Court erred in granting easement right to the respondents to use the second schedule property as a pathway especially when the respondents have not produced any document to substantiate the alleged right? 2. Whether the Lower Appellate Court failed to note that the easement right in favour of the respondents in respect of the suit second schedule property cannot be granted especially when the respondents have a pathway on the western side of the property of respondents? 3. Whether the Lower Appellate Court failed to note that the respondents claimed title over the suit second schedule property and when the respondents have not proved title, they cannot claim easment right since claim of the right are contradictory to each other? 4. Whether the lower Appellate Court failed to note that the respondents were using the suit property only on the permission granted by the Appellant and the respondents began to claim right in the suit property only after such permission was cancelled by the Appellant? 5. Whether the Lower Appellate Court failed to note that the property covered in Ex.B6 is a different property from the suit property? 6. Whether the Lower Appellate Court failed to note that the respondents did not explain how the breadth of their lane became 11 ½ CC while the earlier documents of the respondents show the breadth of the land as 10 C.C.? 7. Whether the Lower Appellate Court failed to note that Exs.B6 to B9 are not binding on the appellant?” 13. The learned Senior Counsel appearing for the appellants contended that the plaintiffs in O.S.No.29 of 1993/appellants herein have established their title and possession over the second schedule property by producing Exhibits A1 to A4. The trial Court as well as the Appellate Court have found that east-west measurement mentioned in Exhibits A1 to A4 include the second schedule property. The learned Senior Counsel appearing for the appellants contended that the plaintiffs in O.S.No.29 of 1993/appellants herein have established their title and possession over the second schedule property by producing Exhibits A1 to A4. The trial Court as well as the Appellate Court have found that east-west measurement mentioned in Exhibits A1 to A4 include the second schedule property. On the other hand, the east-west measurement mentioned in Exhibits B6 and B7 do not include the second schedule property. Both the Courts below have arrived at a concurrent finding that the plaintiffs in O.S.No.29 of 1993 are the absolute owners of the second schedule property. He further contended that both the Courts blow have also granted a decree for permanent injunction in favour of the plaintiffs in O.S.No.29 of 1993. 14. The learned Senior Counsel appearing for appellants further contended that after granting a decree for permanent injunction in favour of the plaintiffs in O.S.No.29 of 1993, the First Appellate Court ought not to have granted permission to the defendant in O.S.No.29 of 1993/plaintiffs in O.S.No. 32 of 1994 to use the second schedule property pathway without altering any physical feature. He further contended that once the plaintiffs have established their possession and the defendant has not proved his plea of adverse possession, the First Appellate Court ought not to have granted the said concession in favour of the defendant. 15. The learned Senior counsel appearing for the appellants further contended that the defendant in O.S.No.29 of 1993/plaintiffs in O.S.No.32 of 1994 have never admitted title of the plaintiffs in O.S.No.29 of 1993. The defendant in O.S.No.29 of 1993 has also not pleaded right of easement over the second schedule property. When there is no pleading with regard to the easementry right, the First Appellate Court ought not to have granted the right of usage for the defendant in O.S.No.29 of 1993. Hence, he contended that the respondent in second appeal will not be entitled to use the second schedule property without any legal right. Hence, he prayed for allowing the second appeals. 16. Per contra, the learned counsel for the respondent contended that the defendant in O.S.No.29 of 1993 has established that he has also using the suit second schedule property pathway. Hence, he prayed for allowing the second appeals. 16. Per contra, the learned counsel for the respondent contended that the defendant in O.S.No.29 of 1993 has established that he has also using the suit second schedule property pathway. According to the learned counsel for the respondent, the Commissioner's report clearly reveals that the water pipelines in the defendant's property are embedded in the second schedule property. That apart, the sewage channel running from the house of the defendant is also passing through the second schedule property. The learned counsel for the respondent further pointed out that both the Courts below have given a finding that the second schedule property has been used by both the parties to the suit. In the said circumstances, the decree granted by the First Appellate court permitting the defendant in O.S.No.29 of 1993 to use the second schedule pathway cannot be found fault with. Hence, he prayed for dismissal of the second appeal. 17. I have carefully considered the submissions on either side. 18. The trial Court as well as the Appellate Court have granted a decree for declaration of title over the second schedule property in O.S.No.29 of 1993 in favour of the plaintiffs therein. The defendant in O.S.No.29 of 1993 has not filed any second appeal challenging the granting of the said prayer for declaration of title. That part, both the Courts below have granted a decree for permanent injunction in favour of the plaintiffs in O.S.No.29 of 1993. This has also not been challenged by the defendant in O.S.No.29 of 1993 by filing any second appeal. Hence, the decree for declaration of title and permanent over the second schedule property in O.S.No.29 of 1993 has become final. The second schedule property in O.S.No.29 of 1993 is the suit schedule property in O.S.No.32 of 1994. The said suit has also been concurrently dismissed by the Courts below. The plaintiffs in O.s.No.32 of 1994 have also not challenged those decrees by way of filing the second appeal. 19. From the above said discussion, it is clear that the suit lane lying between the properties of the plaintiffs and the defendant, is the absolute property of the plaintiffs in O.S.No.29 of 1993 and the defendant has no right whatsoever over the suit second schedule property. 20. 19. From the above said discussion, it is clear that the suit lane lying between the properties of the plaintiffs and the defendant, is the absolute property of the plaintiffs in O.S.No.29 of 1993 and the defendant has no right whatsoever over the suit second schedule property. 20. The learned counsel for the respondent had contended that the commissioner's report would reveal that the water pipelines and sewage of the defendant's house are running through the second schedule property. From the pleadings and evidence, it can be seen that the plaintiffs in O.S.No.29 of 1993 have not objected to the laying of the water pipelines or sewage line in the second schedule property. There is no prayer for mandatory injunction for removal of the same in O.S.No.29 of 1993. That part, when the second schedule property has been declared to be the absolute property of the plaintiffs, the defendant should have a right to maintain his western wall. The said maintenance can be carried out only by entering into the second schedule property. Considering these aspects, this Court can safely come to a conclusion that the defendant in O.S.No.29 of 1993 can be granted a limited right of entering into the second schedule property only for repairing and maintaining of their western wall after giving reasonable notice to the plaintiffs. The plaintiffs in O.S.No.29 of 1993 shall not be entitled to remove the water pipeline or sewage line of the defendant which are running through the second schedule property. The First Appellate Court after confirming the declaration and injunction decree of the trial Court ought not to have granted permission to the defendant in O.S.No.29 of 1993 for continuos usage of the second schedule property. 21. In view of the above said discussions, the substantial questions of law in both the second appeals are answered in favour of the appellants. The judgment and decree of the First Appellate Court are set aside and the judgment and decree of the trial Court are restored in both the suits. However, the defendant in O.S.No.29 of 1993 shall be entitled to use the second schedule property only for the purpose of repairing and maintaining his western wall once in a year after giving reasonable notice to the plaintiffs in O.S.No.29 of 1993. However, the defendant in O.S.No.29 of 1993 shall be entitled to use the second schedule property only for the purpose of repairing and maintaining his western wall once in a year after giving reasonable notice to the plaintiffs in O.S.No.29 of 1993. The water pipelines and sewage channels emanating from the defendant's property in O.S.No.29 of 1993 and running through the second schedule property shall not be disturbed by the plaintiffs. 22. With the above observations, both the second appeals are partly allowed. No costs.