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2024 DIGILAW 2361 (MAD)

Pandi v. Chandra

2024-10-09

S.SRIMATHY

body2024
JUDGMENT : S. SRIMATHY, J. 1. The present second appeal has been preferred by the legal heirs of the first defendant against the judgment and decree dated 20.10.2022 passed in AS.No.143 of 2019 on the file of the Sub Court, Melur, confirming the judgment and decree dated 26.11.2018 passed in OS.No.369 of 2011 on the file of the District Munsif Court, Melur. 2. The first defendant in the suit is the appellant herein and the plaintiff in the suit is the respondent herein. For the sake of convenience, the parties are referred to as the plaintiff and the first defendant as per the ranking in the suit. 3. The plaintiff has preferred the suit in O.S.No.369 of 2011 for declaration to declare that the first item of the suit property i.e., the portion marked as ABCD belongs to the plaintiff and the second item of the suit property marked as EFGH is a common pathway with the consequential permanent injunction. 4. The brief facts stated by the plaintiff is that the suit property situated in Dharkakudi Village, Melur Taluk, Madurai District, is a dry land having two items. The first item of the suit property is in S.No.3/6D admeasuring 0.03.0 Ares and having patta No.84. The second item of the suit property in S.No.3/6A admeasuring 0.03.5 Ares and it is a common pathway having patta No.60. The plaintiff's predecessor in title, T.Murugesan, had purchased the suit property in S.No.3/6 measuring to an extent of 46 cents. In which on the western side, 37 cents were purchased from the first defendant and his father Panchavarnam Ambalam through sale deed dated 14.08.1980. The remaining 9 cents of dry land was purchased from the sons of Palanichamy (Palanichamy is the brother of Panchavarnam Ambalam) namely Muthusamy and Kattasamy through sale deed dated 12.10.1981. Thereby, the said Murugesan was in enjoyment of the suit property in S.No.3/6 measuring to an extent of 46 cents. The plaintiff K.Chandra had purchased the southern side in the aforesaid 46 cents which is the first item of the suit property from the said Murugesan on 28.08.1986. In the sale deed, it is mentioned that the plaintiff is permitted to use the second item of the property as pathway. After the said sale, the revenue records were also mutated in the plaintiff's name and patta No.84 was issued. In the sale deed, it is mentioned that the plaintiff is permitted to use the second item of the property as pathway. After the said sale, the revenue records were also mutated in the plaintiff's name and patta No.84 was issued. Since the first item of the suit property is a dry land, no kist was levied. The second item of the suit property was used by the plaintiff and his neighbours as common pathway and the name of the plaintiff is also entered in patta No.60 as joint pattadhar. By utilizing the wrong mentioning of the name of the first defendant's father, Panchavarnam Ambalam in the patta, the defendants are claiming right over the property. Since the land in S.No.3/6 has been totally sold by the first defendant and his father and the legal heirs of Palanichamy, to the plaintiff's predecessor in title, the defendants have no right over the suit property. The second item of the suit property is situated on the western side of the first item of the suit property and it is a common pathway, for which FMB sketch was also produced. When the plaintiff attempted to fence the first item of the suit property on 30.11.2011, the defendants restrained the plaintiff from erecting the barbed wire fencing. The defendants claimed that they have got 9 cents in S.No.3/6. Hence, the plaintiff lodged a police complaint on 01.12.2011. But the same was refused, since it is a civil case. On 13.12.2011, when the plaintiff went to clear the bushes in the first item of the suit property, the defendants threatened the plaintiff and on 17.12.2011, the defendants attempted to trespass into the plaintiff's property and closed the second item of the suit property with heaps of bushes and hence, the suit. 5. The 1 st defendant denied the contents of the plaint and submitted that remaining 9 cents in S.No.3/6, is in enjoyment of the first defendant, without any disturbance. Except the first defendant, no other persons have got any right over the property. The purchase of the property from Muthusamy and Kattasamy vagaiyara is denied and the sale deed is not binding on the defendants. The second item of the property was exclusively fenced with stone fencing and the same was enjoyed by the defendants. Except the first defendant, no other persons have got any right over the property. The purchase of the property from Muthusamy and Kattasamy vagaiyara is denied and the sale deed is not binding on the defendants. The second item of the property was exclusively fenced with stone fencing and the same was enjoyed by the defendants. The documents filed by the plaintiff are fabricated and the rough sketch is denied and the second item of the suit property is not a common pathway and there is no pathway in it. It is a separate property of the defendants. Only on the basis of the wrong entry of the plaintiff's name in the patta, the plaintiff is litigating the suit. Otherwise, the plaintiff has no locus standi to institute the suit. The entire 46 cents were not sold to the plaintiff. The sellers of the 9 cents have no right to sell the second item of the property to the plaintiff. Hence, the sale deed is invalid. Further, the alleged attempts to secure the suit property by the plaintiff are totally false and the plaintiff never enjoyed the second item of the suit property at any point of time. Hence the defendant prayed to dismiss the suit. 6. After perusing the rival pleadings, arguments and evidence the trial Court has allowed the suit. Aggrieved over the same, the first appeal in A.S. No. 143 of 2019 has been preferred by the defendant. In the first appeal, the first defendant has preferred an application in I.A.No.1 of 2022 under Order 41 Rule 27 and Section 151 of CPC to accept the additional documents. The said Interlocutory Application was heard along with the first appeal. The Appellate Court had held that the additional documents are after thought and there is no explanation for non-production of documents at the earlier stage. Further, the said documents have already been produced by the plaintiff which are marked as Ex.A4, A5 and A6. The FMB sketch has been produced only to show that there is no existence of pathway in the revenue records and there is no need to enter the pathway in the revenue records always. The plaintiff has been given right to use the pathway as easement right. And for these reasons the First Appellate Court has dismissed the Appeal Suit. Aggrieved over the same, the present second appeal has been preferred. 7. The plaintiff has been given right to use the pathway as easement right. And for these reasons the First Appellate Court has dismissed the Appeal Suit. Aggrieved over the same, the present second appeal has been preferred. 7. In the second appeal, the following substantial questions of law are raised: “A. Whether the court below are right in decreeing the suit item No.2 in favour of the plaintiff is sustainable in law, particularly the 1 st defendant and his father sold only 37 cents out of 46 cents to the plaintiff's vendor and retained the 9 cents and further the 1 st defendant never objected for granting relief in respect of 1 st item? B. Whether the courts below are right in granting relief to the plaintiff in respect of 2 nd item, particularly when the plaintiff purchased the same from the persons who have no title to the 2 nd item and more particularly when the plaintiff failed to trace title of his vendor for 2 nd item? C. According to plaintiff the suit 2 nd item is a common passage and to that effect there is a recital in Ex A2 the sale deed executed in favour of the plaintiff by Muthusamy and Kattasamy Vakaiyara, when the 2 nd item is a common passage absolutely there is no need or necessity for the plaintiff to purchase common passage from others?” 8. On perusing Ex.A1, sale deed dated 14.08.1980, it is seen that the same is sold to one T.Murugesan (plaintiff’s vendor) by Panchavarnam Ambalam in S.No.3/6 for an extent of 37 cents, which is portion of first item in the suit schedule of property. The defendant had admitted the said 1 st item of suit property belongs to the plaintiff and conceded for granting declaration and injunction as far as the 1 st item of suit property is concerned. 9. The remaining 9 cents of dry land was purchased by the said T.Murugesan (plaintiff’s vendor) from the sons of Late. Palanichamy Ambalam (Palanichamy Ambalam is the brother of Panchavarnam Ambalam) namely Muthusamy Kattasamy through sale deed dated 12.10.1981 marked as Ex.A2. the said Muthusamy had executed the document for himself and for his minor brothers namely Ramachandaran, Podhuraj, Murugesan. The said Kattasmay had executed the document for himself and minors P.Muthusamy and Kattasamy. Palanichamy Ambalam (Palanichamy Ambalam is the brother of Panchavarnam Ambalam) namely Muthusamy Kattasamy through sale deed dated 12.10.1981 marked as Ex.A2. the said Muthusamy had executed the document for himself and for his minor brothers namely Ramachandaran, Podhuraj, Murugesan. The said Kattasmay had executed the document for himself and minors P.Muthusamy and Kattasamy. Thereby, the said Murugesan (plaintiff’s vendor) was in enjoyment of the suit property in S.No.3/6 measuring to an extent of 46 cents. 10. It is pertinent to state that the said Murugesan had also purchased lands in Ayan R.S.No.3/5, S.No.3/8 along with S.No.3/6 through Ex.A2 and totally 43 cents of land. In other words, through the Ex.A1 the said Murugesan had purchased 37 cents in S.No.3/6. Then through Ex.A2 the said Murugesan had purchased 9 cents in S.No.3/6 and in the same Ex.A2 had purchased 11 cents in S.No.3/5 and 26 cents in S.No.3/8. Thereby the said Murugesan had purchased in S.No.3/5, 3/6, 3/8 totally 43+46=89 cents. 11. The plaintiff K.Chandra had purchased from the said Murugesan on 28.08.1986 the southern portion in the aforesaid 46 cents in S.No.3/6, which is the first item of the suit property which is marked as Ex.A3. In the Ex.A3 sale deed it has been stated that the said Murugesan (plaintiff's vendor) has been granted easement right of pathway. The appellate Court has considered the same and has held that in the recital in Ex.A3, it has been clearly stated the pathway right is given as easement right. Hence the second item is the pathway right to the plaintiff and the same is not purchased by the plaintiff. 12. Even though the defendant contended that the said Muthusamy and Kattasamy had no right to sell the 9 cents of the property in S.No.3/6, the defendant had not substantiated the said plea. Hence the plea that the said Muthusamy and Kattasamy did not sell the remaining 9 cents in S.No.3/6 is incorrect and the recital in the sale deed is not supporting the case of the defendants. The defendants cannot adduce any evidence against the documentary evidence. Further the said Muthusamy or Kattasamy or the minors in the said sale deed had not disputed the said sale and the sale deed was not set aside as per law. The defendants cannot adduce any evidence against the documentary evidence. Further the said Muthusamy or Kattasamy or the minors in the said sale deed had not disputed the said sale and the sale deed was not set aside as per law. If the defendant takes a plea of minor’s interest in the property, the minors have lost their right to challenge the same since the sale is in the year of 1981. Therefore, the first substantial question of law raised by the first defendant / appellant that he had retained 9 cents is not proved by the first defendant and the first substantial question of law is held against the first defendant / appellant. 13. The first defendant / appellant claims that if the second item of the suit property is a common passage, there is no necessity for the plaintiff to purchase the common passage from others. It is seen that in a larger extent of land of 89 cents, a portion has been marked as common passage and the said passage is given as easement rights. Further from the larger extent of 89 cents of land the plaintiff had purchased a smaller portion of the land on the southern side in S.No. 3/6 and the pathway in the larger extent of 89 cents. This Court is of the considered opinion that the plaintiff has not purchased the common pathway and the second item of the suit property is a common pathway granted under easement. The first defendant / appellant has misconstrued the recital of Ex.A2 and Ex.A3. Therefore, the third substantial question of law is held against the first defendant / appellant. 14. As far as the second substantial question of law is concerned, the contention of the first defendant / appellant is that the plaintiff has purchased the property where the vendor himself has no right over the property. The plaintiff is claiming only easementary rights. It is the first defendant, who is claiming right over the second item of the suit property. But the first defendant has not filed any documents to prove the same. The plaintiff is claiming only easementary rights. It is the first defendant, who is claiming right over the second item of the suit property. But the first defendant has not filed any documents to prove the same. Infact, it is recorded by the trial Court as When no document was produced to substantiate” the claim of the first defendant that 9 cents belong to him, coupled with the fact that the plaintiff claims that it is a common pathway, that too under easementary rights, then the claim of the defendant is not legally sustainable. Therefore, the second substantial question of law raised by the defendant ought to be held against the first defendant / appellant and accordingly it is held against him. 15. Finally, all the three substantial questions of law raised by the first defendant / appellant are answered and are held against the appellant. The second appeal is dismissed. No costs.