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2022 DIGILAW 853 (MAD)

Bala Usha v. Durairaj

2022-04-06

R.VIJAYAKUMAR

body2022
JUDGMENT (Prayer: Second Appeal is filed under Section 100 of C.P.C, to set aside the decree and judgment of the Principal District Court, Thanjavur passed in A.S.No. 142 of 2001 dated 25.02.2002 reversing the decree and judgment of the District Munsif Court, Thiruvaiyaru passed in O.S.No.3 of 2000 dated 12.04.2001.) 1. The plaintiffs in O.S.No.8 of 2000 have filed the present suit as against one Duraraj who was purchased around 90 sq.ft of property on the southern side of the suit lane. O.S.No.8 of 2000 was filed by the plaintiffs as against the owner of the northern side of the suit lane and O.S.No.3 of 2000 has been filed against the owner of the shop of the southern side of the suit lane. 2. The contention of the plaintiffs in both the suits are one and the same. To summarise, the plaintiffs have claimed that the suit schedule property is a private lane and the defendants shall not be entitled to use the suit pathway. 3. In the written statement, the defendant has taken a plea that the town Panchayat is a necessary party. However, the trial Court has proceeded to grant a decree in favour of the plaintiffs on the ground that they have established that the suit schedule property is a private lane. The defendants have filed A.S.No.142 of 2001. The First Appellate Court has reversed the judgment and decree on the ground that the plaintiffs have not established that the suit lane is their private lane, but it has been established that it is a common lane. The First Appellate Court further found that the plea has been raised in the written statement that the suit is bad for non-joinder of necessary party, the plaintiffs have not chosen to take any steps to implead the Town Panchayat as a necessary party to the suit. The defendant has not examined any one of the Panchayats to show that it is a private lane. The First Appellate Court reversed the judgment and decree of the trial Court. 4. The suit lane in S.A.(MD).No.1558 of 2002 is one and the same. The plaintiffs in both the suits are also one and the same. The defendants in S.A(MD).No. 1558 of 2002 are the northern side owners of the suit lane and the defendant in S.A(MD).No.1218 of 2003 is the southern side owner of the suit lane. 4. The suit lane in S.A.(MD).No.1558 of 2002 is one and the same. The plaintiffs in both the suits are also one and the same. The defendants in S.A(MD).No. 1558 of 2002 are the northern side owners of the suit lane and the defendant in S.A(MD).No.1218 of 2003 is the southern side owner of the suit lane. The findings arrived at with regard to the suit lane in S.A(MD).No. 1558 of 2002 holds good for the present second appeal also. The suit lane is not a private lane for the plaintiffs, but a common lane belonging to the plaintiffs and the defendants. 5. The First Appellate Court had dismissed the first appeal on the ground that the plaintiffs have not impleaded Thiruvaiyaru Town Panchayat and hence, the suit is bad for non-joinder of necessary party. There is no finding that the suit lane belongs to the Thiruvaiyaru Town Panchayat. The First Appellate Court only arrived at a finding that the suit lane is a common lane of the plaintiffs and the defendants. The plaintiffs do not claim any prayer as against the town Panchayat. The prayer of the plaintiffs is only as against the defendant for removal of the staircase put up by them in the suit lane. Hence, the findings of the First Appellate Court that the suit is bad for non-joinder of Thiruvaiyaru Panchayat is not legally sustainable. 6. The above second appeal is admitted on the following substantial questions of law. “(i).On the facts and circumstances when the plaintiffs -appellants established their exclusive title to the suit lane, would Ex.B3 extinguish appellants title to the suit property? (ii)Whether was it legal for the Lower Appellate Court to hold that the suit lane belongs to the town Panchayat on the basis of Ex.B3 alone? (iii) Would Ex.B3 preclude appellants exclusive right to suit lane when it was made under a mistake of fact or right?” 7. This Court has already arrived at a finding that the suit lane is a common lane. Just because a representation was sent to the Town Panchayat seeking their intervention for removal of the encroachment, the suit lane cannot be considered to be belonging to the Town Panchayat. Hence, the findings of the First Appellate Court is liable to be set aside. The substantial questions of law are answered in the favour of the appellants. 8. Just because a representation was sent to the Town Panchayat seeking their intervention for removal of the encroachment, the suit lane cannot be considered to be belonging to the Town Panchayat. Hence, the findings of the First Appellate Court is liable to be set aside. The substantial questions of law are answered in the favour of the appellants. 8. In view of the above said discussion in S.A(MD).No.1558 of 2002 and the discussions in the present SA(MD).No.1218 of 2003, the second is partly allowed granting a lesser relief in favour of the plaintiffs that the suit lane is a common lane and the defendants are not entitled to put up a staircase even assuming that there is no inconvenience to the defendants. 9. In view of the above said facts, the following decree is passed in the second appeal. (1).The judgement and decree of the First Appellate Court is set aside. (2).The suit lane is declared to be a common lane between the plaintiffs and the defendants. (3)The plaintiffs are entitled to a decree for mandatory injunction as prayed for. No costs.