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2024 DIGILAW 1570 (MAD)

Durairaj v. Mariappan

2024-07-11

S.SOUNTHAR

body2024
JUDGMENT : (S. Sounthar, J.) : (Prayer: Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree made in A.S.No.44 of 2006, dated 8.2.2007, on the file of Sub-Court, Ambasamudram reversing the judgment and decree made in O.S.No.57 of 2003, dated 29.11.2005, on the file of Additional District Munsif Court, Ambasamudram.) The Second Appeal is directed against the judgment and decree made in A.S.No.44 of 2006, dated 8.2.2007, on the file of Sub-Court, Ambasamudram reversing the judgment and decree made in O.S.No.57 of 2003, dated 29.11.2005, on the file of Additional District Munsif Court, Ambasamudram. 2. The Plaintiff in the suit is the appellant. The suit was for bare injunction. The suit was decreed by the trial Court. The First Appellate Court reversed the findings of the trial Court and the suit was dismissed. Aggrieved by the same, the plaintiff is before this Court. 3. According to the plaintiff, suit property originally belonged to one Gomathi Ammal and she gifted the suit property to her daughter Lakshmi on 26.6.1963.The said Lakshmi sold the suit property to one Kalyani on 5.3.1987. The plaintiff purchased the said property from Kalyani on 8.5.2002 and has been in possession and enjoyment of the same. According to the plaintiff, he purchased the absolute right in the first schedule of the suit property and 1/6th share in the second schedule of the suit property. It was also asserted by the plaintiff that he had been using the second schedule of the suit property as a pathway to have the access to the property purchased under the first schedule. 4. The defendant attempted to interfere with his right of user over the second schedule as an access to the first schedule property and hence, the plaintiff was constrained to file a suit for injunction restraining the defendant from interferring with his right and user of the second schedule property as an access to the first schedule property. 5. The defendant filed a written statement denying the right as well as the possession of the plaintiff over the suit property. According to the defendant, the suit property originally belonged to one Adhivaragan Achari and he purchased the property under sale deed, dated 20.03.1969. 5. The defendant filed a written statement denying the right as well as the possession of the plaintiff over the suit property. According to the defendant, the suit property originally belonged to one Adhivaragan Achari and he purchased the property under sale deed, dated 20.03.1969. It was claimed by the defendant that Adhivaragan Achari had two sons and four daughters and the entire suit property was allotted to the share of one Kannan in the oral partition. The said Kannan mortgaged the suit property to one Velu on 23.6.1999.Thereafter he sold the suit property to the defendant on 20.5.2002. The defendant also specifically denied the claim of the plaintiff that he purchased the suit property. Thus the right and title of the plaintiff over the suit property was denied by the defendant and on these pleadings, the defendant sought for the dismissal of the suit. 6. Before the trial Court, the plaintiff was examined as P.W.1 and his vendor was examined as P.W.2. On behalf of the plaintiff, four documents were marked as Ex.A1 to Ex.A4. The defendant was examined as D.W.1 and four documents were marked on hehalf of the defendant as Ex.B1 to Ex.B4. 7. The trial Court, on appreciation of oral and documentary evidence, came to the conclusion that the plaintiff was entitled to the relief as prayed for and decreed the suit. Aggrieved by the same, the defendant preferred an appeal in A.S.No.44 of 2006, on the file of Sub-Court, Ambasamudram. The First Appellate Court, on reappreciation of evidence available on record, came to the conclusion that the gift as pleaded by the plaintiff in favour of predecessor Lakshmi was not at all proved by examining the attestor to the document. The First Appellate Court also rejected Ex.A1 relied on by the plaintiff on the ground that the plaintiff failed to produce the original gift deed and hence presumption available in favour of old documents could not be attached to the certified copies. The First Appellate Court also came to the conclusion that the suit for bare injuntion without the prayer for declaration was not maintainable and allowed the appeal and dismissed the suit. Aggrieved by the same, the defendant is before this Court by filing this Second Appeal. 8. The First Appellate Court also came to the conclusion that the suit for bare injuntion without the prayer for declaration was not maintainable and allowed the appeal and dismissed the suit. Aggrieved by the same, the defendant is before this Court by filing this Second Appeal. 8. The learned senior counsel for the appellant by taking this Court to the Gift Deed executed by Gomathi Ammal in favour of Lakshmi Ammal marked as Ex.A1, submitted that the plaintiff purchased the property along with a share in the well and water draining system. Therefore the right of the plaintiff over the second schedule of the suit property cannot be interferred with. The learned counsel further submitted that the defendant is a stranger. Therefore, he is not entitled to dispute the validity of the gift executed by Gomathi Ammal in favour of Lakshmi Ammal. It is his submission that only the parties who are capable of succeeding to the estate can dispute the sale deed and in this regard, the learned Senior Counsel for the appellant produced a decision in the case of R.Jayapaul .vs. Pappayee Ammal reported in (2003) 2 MLJ 47 . 9. The Plaintiff/appellant filed a suit for bare injunction by claiming right over the suit property under Ex.A1 to Ex.A3. Ex.A1 is the sale deed executed by plaintiff’s vendor Kalyani Ammal in favour of the Plaintiff. A perusal of the description of the property in the title document of the plaintiff would suggest that he purchased the first schedule of the suit property with 1/6th share in the well situated therein along with the mechanisam for irrigation of water. There is no reference about the second schedule pathway in the title document of the plaintiff. Therefore the plaintiff failed to prove his right of access over the second schedule property. In the plaint averments, it was claimed by the plaintiff that he purchased the first item of the suit property along with 1/6th share in the second item. However, a perusal of his title document would suggest that he purchased only 1/6th share in the well and irrigation system situated in the second item of the suit property. Absolutely there is no reference about the second item of the suit property. In such circumstances, the plaintiff failed to prove his right over the suit second schedule of property. 10. Absolutely there is no reference about the second item of the suit property. In such circumstances, the plaintiff failed to prove his right over the suit second schedule of property. 10. When this Court comes to the conclusion that the suit second schedule property was not the subject-matter of the sale in favour of the plaintiff, we need not go into the question about the validity of the parent document namely, the gift deed executed by Gomathi Ammal in favour of Lakshmi Ammal. Even in Ex.A1 gift deed, there was no reference about the suit second schedule property. Reference was only about the share in the well and irrigation system therein. The Courts below, on proper appreciation of evidence available on record, namely, the documents filed by the plaintiff, came to the conclusion that the plaintiff failed to prove his right over the second schedule property. The learned Senior Counsel for the appellant submitted that even if the second schedule property was not included in the title documents of the plaintiff, in the absence of any other access to the first schedule property, the plaintiff is entitled to claim easementary right through the second schedule property and the said position has not been considered by the Courts below. The present suit is only for declaration of rights over the suit property including the second schedule pathway. It is not the case of the plaintiff that the suit property belonged to defendant and he has easementary right over the second schedule of suit property. In a suit for bare injunction, the plaintiff cannot seek any right regarding pathway in the second schedule property and he has to file a suit seeking declaration of easmentary right over the second schedule of the suit property. The plaintiff has not shosen to include the prayer for declaration of either title or easementary right. In such circumstances, the arguments advanced by the learned senior counsel for the appellant cannot be adjudicated in the present suit for bare injunction. Therefore this Court has no other go except to confirm the findings of the Courts below as the Plaintiff failed to prove his right and possession over the suit second schedule property. 11. For the above reasoning, the Second Appeal is dismissed, as devoid of merits. Therefore this Court has no other go except to confirm the findings of the Courts below as the Plaintiff failed to prove his right and possession over the suit second schedule property. 11. For the above reasoning, the Second Appeal is dismissed, as devoid of merits. It is open to the plaintiff to work out his remedy regarding his alleged pathway right in the suit second schedule property in the manner known to law, if so advised. If any suit is filed by the plaintiff claiming easementary right in the suit second schedule property, it is open to the defendant to resist such claim by raising all defense available to him under law including the question of limitation. No costs.