Chinna Goundar v. Ettayammal2. Kaliannan3. Palanisamy

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 30.7.2007Coram:The Honourable Mr.Justice M.JAICHANDRENS.A.No.1562 of 1996Chinna Goundar .. Appellant[1st defendant]vs.1. Ettayammal2. Kaliannan3. Palanisamy .. Respondents[Plaintiffs and 2bd Defendant]. The Second Appeal has been filed against the judgment anddecree, dated 7.9.1995, made in A.S.No.11 of 1995, on the file ofthe Sub Court, Sankari, allowing the appeal and setting aside thejudgment and decree, dated 31.10.1994, made in O.S.No.62 of 1989, onthe file of the District Munsif Court, Thiruchengode. For Appellant : Mr.V.N.Mohanraj For Respondents : Mr.S.Jayaraman for R1 and R2 J U D G E M E N TThe Second Appeal has been filed against the judgment anddecree, dated 7.9.1995, made in A.S.No.11 of 1995, on the file ofthe Sub Court, Sankari, allowing the appeal by setting aside thejudgment and decree, dated 31.10.1994, made in O.S.No.62 of 1989, onthe file of the District Munsif Court, Thiruchengode. 2. The plaintiffs had filed the suit in O.S.No.62 of 1989, praying for the relief of permanentinjunction restraining the defendants from in any way interfering with the peaceful possession andenjoyment of the suit property. 3. The first defendant in the said suit is the appellant in the present second appeal.4. The brief facts of the case, as stated by the plaintiffs, are as follows: https://hcservices.ecourts.gov.in/hcservices/ The suit property belongs to the first plaintiff as she had purchased the same under a Deed, dated12.7.1962, registered as document No.1615/62, marked as Exhibit A.1. The vendor, under thesaid document, had got the title by a Deed, dated 21.6.1961,registered as document No.1614/61, from Rangaiya Gounder and others,marked as Exhibit A.2. Under the said documents, specific share withboundaries have been purchased. The first plaintiff was in enjoymentof the property without let or hindrance, openly and in derogationof the interest of the others. The second plaintiff is the husbandof the first plaintiff and he has been assisting his wife incultivating crops in the suit property. The suit property is inpossession and enjoyment of both the plaintiffs.5. The plaintiffs have been enjoying their share confined to theboundaries specified in the Deeds. Even before the first plaintiffhad purchased the suit property, a stone revetment had beenconstructed to mark its boundaries. The plaintiffs have been payingthe kists for the suit property. The chitta, adangal and patta arein the name of the first plaintiff. The defendants are the owners ofthe adjacent land on the eastern and southern sides of the suitproperty. In the sale deed, dated 12.7.1962, the southern boundaryis shown to be the property of Poosari Rangaiya Gounder. PoosariRangaiya Gounder is the father of the first defendant. The firstdefendant had also purchased some properties which is the easternboundary of the suit property. In the sale deed, dated 12.7.1962,the new survey number in which the suit property lies is shown to be148/2. 6. In the recent survey of the suit land, it was found that theland purchased by the first plaintiff, under the document, dated12.7.1962, is 1 Hectare. During the sub- division of the suitproperty, based on the surveys, the survey Number of the suitproperty has been shown as 148/2A. Since the plaintiffs areenjoying the property within the boundaries marked by stonerevetment, the defendants cannot have any right or interest in thesuit property. The defendants are not affected, since no landsbelonging to the defendants have been brought under the possessionand enjoyment of the plaintiffs, based on the re-survey done by theauthority concerned. Since the defendants had been attempting todisturb the peaceful possession and enjoyment of the suit propertyby the plaintiffs, the suit had been filed by the plaintiffs inO.S.No.62 of 1989. 7. In the written statement filed by the first defendant, theclaims made by the plaintiffs had been denied. It has been statedthat the first plaintiff had purchased only 1.58½ acres in SurveyNo.148/2. The defendants are having a pathway right over the suitproperty. The plaintiffs have manipulated to get the suit propertysub divided as Survey No.148/2A, during the updating survey. https://hcservices.ecourts.gov.in/hcservices/

8. The defendants have also denied the existence of stonerevetment to determine the boundaries of the suit property. Theclaim of the plaintiffs that they are cultivating the various cropslike, paddy, ground-nut and cholam in the suit property is false.The plaintiffs are claiming a larger extent than what has beenmentioned in the sale deed by which the suit property had beenpurchased. Further, the plaintiffs are denying the pathway right ofthe defendants over the suit property. Since the defendants had nonotice about the updating survey, they have appealed to the RevenueDivisional Officer, Sankari, to cancel the sub-division, made underthe said survey and the same is pending enquiry. The plaintiffs arehaving shares in Survey No.148/2, along with the defendants, as theco-owners. Therefore, there cannot be a decree of permanentinjunction in favour of the plaintiffs against the other co-ownersof the suit property. In such circumstances, the prayer by theplaintiffs for the relief of permanent injunction against thedefendants is to be dismissed. 9. Based on the averments made in the plaint as well as in thewritten statement, the trial Court had framed the following issuesfor consideration:1. Whether the plaintiffs are entitled tothe relief of permanent injunction as prayed forin the suit?2. Whether the defendants have the right ofpathway in the suit property?3. Whether the defendants are the co-ownersof the suit property?4. What reliefs the plaintiffs are entitledto?"10. The trial Court had found that there is no dispute withregard to the fact that the suit property had been purchased by thefirst plaintiff. The trial Court had also found that there was nomention about the stone revetment in the sale deed, dated 12.7.1962,marked as Exhibit A.1. Further, the plaintiffs had stated in theplaint, filed in O.S.No.62 of 1989, that they have purchased 1.58½acres by the documents marked as Exhibits A.1 and A.2. Therefore,the trial Court had found that the issue to be decided is withregard to the extent of lands purchased by the plaintiffs. Theplaintiffs had claimed that the boundaries of the suit property havebeen properly given in the sale deeds and therefore, the extent ofthe lands comprised within the said boundaries have to be taken tobe belonging to the plaintiffs, even though it is more than theextent mentioned in the said sale deeds. The trial Court had heldthat it is the actual extent purchased by the plaintiffs that would https://hcservices.ecourts.gov.in/hcservices/ count and that the plaintiffs would be entitled only to the saidextent. Therefore, the plaintiffs cannot claim to be in possessionand enjoyment of a larger extent as claimed by them in the suitO.S.No.62 of 1989. Hence, the trial Court had rejected the claim ofthe plaintiffs that it is only the boundaries that should be takeninto account for determining the extent of land owned by them. 11. The trial Court had also held that the principle that theboundaries should prevail over the extent cannot be in favour of theplaintiffs in the particular facts and circumstances of the presentcase. It was held that only in the absence of definite materials toshow the actual extent intended to be sold, the boundaries shouldprevail over the extent and if there is clear evidence as to theintention of the parties, with reference to the extent conveyed,then it is the extent that should prevail over the boundaries. 12. Further, the trial Court had also held that there wasnothing shown on behalf of the plaintiffs to contradict the claim ofthe defendants that they are the co-owners in the suit property inS.No.148/2. The trial Court had held that the reliefs sought for bythe plaintiffs in the suit O.S.No.62 of 1989 cannot be granted.Based on such findings, the trial Court had dismissed the suit filedby the plaintiffs. However, the trial Court had left open, withoutdeciding the claim of the defendants to their right of pathway inthe suit property. 13. Aggrieved by the judgment and decree of the trial Court,made in O.S.No.62 of 1989, the plaintiffs had filed an appeal inA.S.No.11 of 1995, on the file of the Sub-Court, Sankari. Based onthe contentions raised on behalf of the parties concerned and on theevidence available on record, the lower appellate Court had framedthe following points for consideration:-"1. Whether the appellants are entitled tothe relief of permanent injunction as sought forin the suit?2. Whether the respondents are entitled tothe right of pathway in the suit property?3. What other reliefs the appellants areentitled to?"14. The lower appellate Court had found that even though thedefendants in the suit had claimed that they had the right ofpathway in the suit property, they could not prove the same eitherby oral or documentary evidence. In Exhibit B.1, filed on behalf ofthe defendants, it is seen that they had the right of pathway inSurvey Nos.149 and 150. The defendants had not been in a position toshow that they had the said right, either in survey No.148/2 or in https://hcservices.ecourts.gov.in/hcservices/ 148/2A. 15. The lower appellate Court had also found that thedefendants were parties to the suit in O.S.No.220 of 1984, on thefile of the District Munsif Court, Tiruchengode, praying for therelief of permanent injunction against the defendants therein withregard to the use of the pathway to reach the Survey No.148/2B. Inthe sketch annexed to the decree passed in the said suit, thealleged pathway in Survey Nos.148/2 and 148/2A had not been shown.Since no other document has been filed on behalf of the defendantsin support of their claim relating to the existence of a pathway inSurvey No.148/2, the claim made by the defendants cannot beaccepted. Since the defendants have accepted the boundaries, theextent contained within the boundaries cannot be disputed,especially, when there is no allegation against the plaintiffs thatthey had encroached on the properties of the defendants or of anyone else. 16. Further, the lower appellate Court had found that thedefendants have not been able to prove their claim that they are theco-owners in the suit property to deny the claim of the plaintiffsfor the relief of permanent injunction against them. On the otherhand, the plaintiffs have filed sufficient documents to show thatthey have purchased the suit property by way of sale deeds marked asExhibits before the trial Court and that the plaintiffs have alsoshown that they have been in possession and enjoyment of the suitproperties, boundaries of which had been clearly shown. Further, thedefendants have not been able to show that they had the right ofpathway in the suit property or that they had better title in thesaid property. In such circumstances, the lower appellate Court hadallowed the appeal, by setting aside the judgment and decree passedby the trial Court.17. Aggrieved by the judgment and decree of the lower appellateCourt, dated 7.9.1995, made in A.S.No.11 of 1995, the present secondappeal has been filed by the first defendant in the suit O.S.No.62of 1989. 18. The second appeal had been admitted on the followingsubstantial questions of law:"1) Whether the lower appellate Court haserred in granting injunction particularly whenthe description of suit property given in plaintdoes not disclose the boundaries?2. Whether the learned Sub-Judge, has erred in not seeing thatwhen the recital in the title deeds and circumstances of the case showed https://hcservices.ecourts.gov.in/hcservices/ only 1.58½ acres and was substantiated by oral and documentary evidenceas to the intention of the parties with reference to the extent, then the extentshould prevail over the boundaries?"19. The learned counsel appearing on behalf of the appellant hadcontended that the suit praying for the relief of permanentinjunction cannot be maintainable without the relief for adeclaration. 20. It has been contended that the plaintiffs have not given thecorrect boundaries of the suit properties. It was also contendedthat the patta granted under the updating register resurvey cannotgrant title on the plaintiffs which they did not possess. Since thefirst plaintiff had purchased only 1.58½ acres by way of a saledeed, dated 12.7.1962, marked as Exhibit A.1, the plaintiffs cannotbe said to have title to a larger extent based on the updatingregister patta. 21. The learned counsel appearing on behalf of the first andsecond respondents had submitted that the plaintiffs have been inenjoyment of the entire extent of the suit property within theboundaries clearly marked by stone revetment. The boundaries havebeen clearly given by the plaintiffs and the entire propertycontained within the said boundaries have been in their possessionand enjoyment for a long period of time. The defendants have notbeen in a position to show that they are having the right of passagethrough the plaintiffs' suit property, either by oral or bydocumentary evidence. Once the plaintiffs have shown that they havebeen in possession of the suit property, they are entitled to therelief of permanent injunction, as prayed for in the suit O.S.No.62of 1989. 22. On analysing the rival contentions and based on the evidenceavailable on record, this Court is of the considered view that thefindings of the lower appellate Court are correct. Once it is seenthat the plaintiffs have been in possession and enjoyment of thesuit property and when the boundaries have been clearly shown, theplaintiffs are entitled to the relief of permanent injunction soughtfor by them. On the other hand, the appellant in the present SecondAppeal, who was the first defendant in the suit, had not shown anyproof or evidence to show that the defendants in the suit had theright of pathway in the suit property. Even though the sale deeds,through which the first plaintiff has purchased the property showthat only an extent of 1.58½ acres had been sold, it is clear fromthe evidence on record that the plaintiffs have been in possessionand enjoyment of a larger extent of property, as shown in theupdating register patta. https://hcservices.ecourts.gov.in/hcservices/

23. In such circumstances, it is clear that the lower appellateCourt has appreciated the facts and circumstances of the case intheir proper perspective and had arrived at the right conclusions.24. For the reasons stated above, this Court finds that there isno ground for interference with the judgment and decree rendered bythe lower appellate Court, dated 7.9.1995, made in A.S.No.11 of1995. Therefore, the second appeal is dismissed. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.lanTo:1. The Subordinate Judge, Sankari,2. The District Munsif, Thiruchengode3. The Record Keeper, VR Section, High Court, Madras.+ 1 CC To Mr. V.N.Mohanraj, Advocate SR NO.47118+ 1 CC To Mr. S.Jayaraman, Advocate SR NO.47489S.A.No.1562 of 1996jrg[co]gp/4.9.