Minor Vimal Kumar rep.by Guardian Grandfather, Krishnasamy v. Venktesan & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.10.2012Coram:THE HONOURABLE MR.JUSTICE T. RAJA SECOND APPPEAL No.1150 of 2007Minor Vimal Kumar rep.by Guardian Grandfather, Krishnasamy ... Appellant/Plaintiffvs.1.Venktesan2.Rajendran ... Respondents/Defendants Second appeal filed under Section 100 of the Code of CivilProcedure against the Judgment and Decree dated 26.02.2007 passed inA.S.No.52 of 2005 on the file of the Principal Subordinate Judge,Vridhachalam, reversing the Judgment and Decree dated 20.01.2005passed in O.S.No.208 of 1995 on the file of the District Munsif cumJudicial Magistrate, Neyveli. For Appellant : Mr.S.Nandivarman for Mr.V.RaghavachariFor Respondents : Mrs.S.KuyilmozhiJUDGMENTThe second appeal has been filed by the appellant/plaintiffaggrieved by the reversing judgment and decree passed by the firstappellate Court. 2.The brief facts, which led to the filing of this secondappeal, are as follows:(i)The plaintiff is the appellant herein and the defendantsare the respondents herein.(ii)The suit properties originally belonged to oneNarayanasamy , son of Rangasamy at Melakuppam village Hamlet ofAmmeri village, which was sold under Ex.A.1, the registered sale deeddated 19.8.1991 in favour of the plaintiff by appointing hisgrandfather Krishnasamy as guardian for proper and valuableconsideration of Rs.11,800/- and from the date of such sale, the saidKrishnasamy has been in possession and enjoyment of the suitproperties by putting a little shed, string hay rick and manure, on https://hcservices.ecourts.gov.in/hcservices/ behalf of the plaintiff. As such, the plaintiff is having right,title and interest over the suit properties.(iii)It was further submitted that the defendants, who arehaving house and vacant site on the Southern side of the suitproperties, having failed in their attempt to purchase the suitproperties from the vendor of the plaintiff developed strong enmitytowards the plaintiff and attempted to trespass into the suitproperties from 29.10.1993. Since the defendants are highlyinfluential persons in that locality, apprehending their highlyillegal and unlawful acts, the plaintiff filed the suit fordeclaration of title of the suit properties and for permanentinjunction restraining the defendants from interfering with theplaintiff's peaceful possession and enjoyment of the suit properties.The plaintiff also made an alternative prayer to put him into thepossession of the suit properties through proper order, if the Courtcomes to the conclusion that during the pendency of the suit, thedefendants have trespassed into the suit properties.(iv)Opposing the said prayer, the first defendant/firstrespondent herein filed a detailed written statement and the samewas adopted by the second defendant/second respondent herein.(v)The defendants have denied all the allegations stated inthe plaint. They further stated that neither the plaintiff nor hispredecessors have any right or title over the suit properties.Neither the plaintiff nor his vendor has right over the first item ofthe suit properties, which is the street.(vi)The second item of the suit properties originally belongedto the vendor of the plaintiff Narayanasamy and his father Rengasamy.They sold the second item of the suit properties on 12.10.1996 underEx.B.2 dated 12.10.1996 in favour of one Muthusamy Padayachi.Again, when the said Narayansamy obtained the same suit propertiesunder sale deed Ex.A.2 dated 20.9.1967, there was no mention aboutthe first item of the suit properties in the said sale deed. Itmakes it clear that the said Narayanasamy is not entitled to have anyright over the first item of the suit properties. Moreover, it ismentioned that the first item of the suit properties is described asa street in the F.M.B. Plan Ex.B.7. The defendants, since there isno way to reach their house and garden, are using the first item ofthe suit properties, the street for more than 50 years and hence,they are entitled to use the said property by easementary right.Therefore, the plaintiff is not entitled to ask for declaration,hence, it is pleaded, the suit filed by the plaintiff may bedismissed.(vii)On hearing both sides, the trial Court partly allowed thesuit. As against the same, when an appeal was preferred before thefirst appellate Court, the first appellate Court allowed the appeal https://hcservices.ecourts.gov.in/hcservices/ by reversing the judgment and decree passed by the trial Court in thesuit. Aggrieved by the same, the present second appeal has beenfiled.3.Heard Mr.S.Nandivarman, learned counsel forMr.V.Raghavachari, learned counsel appearing for theappellant/plaintiff and Mrs.S.T.P.Kuilmozhi, learned counselappearing for the respondents.4.At the time of admission of the above second appeal, thisCourt formulated the following substantial questions of law:"1.When an alternative way for therespondents is proved, whether the Appellate Courtis right in holding easement of necessity for therespondents?2.When there is no dispute regarding thetitle of the plaintiff in respect of item No.1 ofthe suit properties, whether the Appellate Court isright in holding otherwise?5.While addressing on the above substantial questions of law,the learned counsel for the appellant/plaintiff has submitted thatthe first appellate Court has completely misunderstood that the firstitem of the suit properties covered under Survey No.489/5 is'Pathai', as it was mentioned in the F.M.B. Plan, which was marked asEx.B.7. The said F.M.B. plan clearly shows that the first item ofthe suit properties describes as vacant space (kali idam and at worst'pathai') and not street ('theru') as envisaged under Section 2 (28)of the Tamil Nadu Panchayats Act, 1994.6.The learned counsel for the appellant/plaintiff has furthersubmitted that while purchasing the suit properties by the father ofthe first defendant Venkatesan, the Survey Number has been wronglymentioned as 489/5 instead of 489/6, which is unbelievable and thesame is unacceptable. Again pleaded that the judgment passed by thefirst appellate Court is patently erroneous and illegal. Ex.B.5,sale deed dated 11.1.1950 clearly shows that there is a pathway onthe Eastern side of the property leading to East West Road. Whenthere is an alternative pathway available for the respondents, thequestion of grant of easementary right does not arise. Hence, thefirst appellate Court wrongly reversed the judgment and decree passedby the trial Court allowing the appeal filed by therespondents/defendants. Hence, he has prayed to allow the secondappeal. 7.The learned counsel for the respondents/defendants hassubmitted that the appellant himself was examined as P.W.1 and heonly deposed that the scheduled mentioned properties have beenpurchased from one Narayanasamy through E.x.A.1 under the sale deed https://hcservices.ecourts.gov.in/hcservices/ dated 19.08.1991 in favour of the appellant. When one Muthusamy, washaving title over the property under Ex.B.2, the sale deed dated12.10.1966 North South measuring an extent of 72.5 feet and East West33 feet, the vendor of the plaintiff, Narayanasamy, under Ex.A.2, thesale deed dated 20.9.1967, has purchased the same from Muthusamy. 8.It was further submitted that under two sale deeds Exs.B.3and B.4, the said Muthusamy is having title only for 36 feet on theNorth South and 18 feet on the East West and he did not sell NorthSouth 41 feet and East West 18 feet, as the vendor of the appellant,Narayanasamy himself was having title only for 36 feet. Moreover,the Commissioner's report, Ex.C.4, Surveyor report and Village F.M.B.Plan, Ex.B.7 clearly show that the first item of the suit propertiesis a public street bearing Survey No.489/5 and he also identifiedthat encroachment has been made in the very same Survey Number.When the appellant tried to encroach the public street, which issituated in Survey No.489/5, the first item of the suit properties byway of putting up illegal construction, to safeguard his right ofegress and ingress, the first respondent, Venkatesan filed a suit inO.S.No.393 of 1995 for bare injunction and the same was decreed bythe trial Court. As against the same, when an appeal was filed bythe appellant, Minor Vimalkumar herein represented by his grandfatheras guardian along with one another in A.S.No.94 of 2005, the firstappellate Court rightly dismissed the same. Hence, she prayed thisCourt to dismiss the second appeal.9.Originally, one Muthusamy was having bona-fide title overthe property on the North South measuring an extent of 72.5 feet andEast West 33 feet under Ex.B.2, the sale deed 12.10.1996 executed byone Thangavelu @ Narayanasamy. Again, the vendor of the plaintiff,Narayanasamy had purchased the same from Muthusamy under Ex.A.2, theregistered sale deed 20.9.1967. Thereafter, the plaintiff purchasedthe said property from one Narayanasamy under Ex.A.1, the registeredsale deed 19.8.1991. 10.Muthusamy purchased the property from his vendorThangavelu @ Narayanasamy the original extent of land measuring anextent of North South 72.5 feet and East West 33 feet. After thesaid purchase, Narayanasamy, the vendor of the plaintiff sold NorthSouth 18 feet and East West 18 feet to one Arumugam under Ex.B.3 saledeed dated 27.08.1971. Again, he sold another portion of landmeasuring an extent of East West 33 feet and North South 18 feet toone Arumuga Padayachi, who is the father of the first respondentunder Ex.B.4 sale deed dated 9.8.1977. Muthusamy, who was theoriginal owner had title only for 36 feet on the North South and 18feet on the East West, however, it appears that he sold North West 41feet and East West 18 feet, which shows clearly that the vendor ofthe plaintiff, Narayanasamy himself had no right to sell an extent of41 feet on the North South as he was having title only for 36 feet.Therefore, the claim of the plaintiff beyond 36 feet on North East in https://hcservices.ecourts.gov.in/hcservices/ Survey No.489/6 clearly shows that the plaintiff cannot have anyright or title when his vendor, Narayanasamy also was not havingbetter title.11. Even when in the two sale deeds Ex.B.3 and B.4, the namesof the father of the first defendant and Kuppammal, the sister of theplaintiff have been mentioned as Western boundaries, it is easy tounderstood that the first item of the suit properties is a street,while co-relating the boundaries mentioned in the plaint schedulewith the Advocate Commissioner's report along with the Surveyorreport and the village FMB plan. It was further stated that thetrial Court appointed Advocate Commissioner to inspect the suitproperties. Accordingly, the Advocate Commissioner also inspectedthe suit properties along with a qualified Surveyor and rightlyidentified that the first item of the suit properties bearing SurveyNo.489/5 is a public street and also identified that encroachment hasbeen made in the same Survey Number. Therefore, it is clearlyunderstood that the plaintiff had tried to encroach the publicstreet in Survey No.489/5 by way of putting up illegal construction.Under such circumstances, the defendants were constrained to file asuit in O.S.No.393 of 1995 for mandatory injunction restraining theplaintiff from preventing the defendants from using item No.1 as aright of way to reach the second item of the suit properties. Whenthe defendants filed a suit seeking injunction against the plaintiffto safeguard his right to ingress and egress to reach his houseclaiming easementary right to use the first item of the suitproperties, the plaintiff also filed the suit in O.S.No.208 of 1995for declaration of title in respect of the first item of the suitproperties. Hence, the plaintiff/appellant herein prayed that thesuit in O.S.No.393 of 1995 filed by Venkatesan, the firstrespondent/first defendant for easementary right over the first itemof suit properties is liable to be dismissed. 12.Both the suits namely the suit in O.S.No.393 of 1995 filedby Venkatesan, the first defendant and another suit in O.S.No.208 of1995 filed by the plaintiff, Minor Vimalkumar, represented by theguardian, grandfather Krishnasamy were taken up for trial jointly.The trial Court by referring the parties in the suit by their name,examined the plaintiff Vimalkumar as P.W.1 and also observed thatthere was no independent evidence to prove the facts deposed byP.W.1, however, the trial Court has reached its conclusion that thefirst item of the suit properties is not a street holding that thefirst item is described as a vacant space. On that basis, the trialCourt held that no easementary right can be claimed by thedefendants. Further, it held that even the village FMB plan alsodoes not refer the first item as street. Therefore, the first itemof the suit properties was held to be the property of Vimal Kumar.On the above said basis, the trial Court partly decreed the suit inO.S.No.208 of 1995 holding that Venkatesan, son of Rajendran, thesecond defendant is entitled for declaration in respect of item Nos.1 https://hcservices.ecourts.gov.in/hcservices/ and 2 and also permanent injunction subject to the easementary rightof Venkatesan to use item No.1 marked as 'ABCD' portion in theCommissioner plan and decreed the suit in O.S.No.393 of 2005 filedby Venkatesan, first defendant as prayed for holding that theplaintiff is entitled for declaration in respect of item No.2 withright to use item No.1 as an easement from each and every point ofitem No.2 and he will be entitled to permanent injunction restrainingthe defendants from preventing the plaintiff from using item No.1 asa right of way to reach the road and he is entitled to permanentinjunction restraining the defendants from interfering with the rightof enjoyment of item No.1. Aggrieved by the judgment and decreepassed by the trial Court, an appeal was filed by the defendantattacking the correctness of the judgment of the trial Court allegingvarious infirmities found in the judgment passed by the trial Courtthat when Ex.A.1, the original sale deed dated 19.8.1991 purchased byNarayanasamy from his vendor one Muthusamy clearly shows that evenMuthusamy, the vendor of Narayanasamy is having title over the suitproperties North South measuring an extent of 72.5 feet and East West33 feet and the said Narayanasamy sold North South 18 feet and EastWest 18 feet to one Arumugam under Ex.B.3 dated 27.8.1971, again,the said Narayanasamy sold another portion measuring an extent ofEast West 33 feet and North South 18 feet to Aumuga Padayachi underEx.B.4, who is the father of the first respondent, after the saledeeds under Exs.B.3 and B.4, the said Muthusamy was having title onlyfor 36 feet on the North South and 18 feet on the East West,therefore, the question of selling 41 feet North South and 18 feetEast West will not arise for a simple reason that he had already soldthe land measuring an extent of 41 feet on the North South, as he washaving right of ownership only to an extent of 36 feet on the NorthSouth has to be accepted.13.It was also further case of the defendant before the firstappellate Court that even in Ex.A.2, sale deed dated 20.9.1967, nomention or no recital was found about the first item of the suitproperties as it is only a street. The first appellate Court afterfinding the erroneous judgment passed by the trial Court, held thatthe first item of the suit properties is not a street since noacceptable evidence was produced by the defendants, which iscompletely not only against the report of the Advocate CommissionerEx.C.4, Surveyor report, but also against the village F.M.B. PlanEx.B.7. Moreover, the village F.M.B. Plan and the reports of theAdvocate Commissioner and Surveyor clearly show that the first itemof the suit properties is a street and hence, the vendor of theplaintiff cannot convey right or title in respect of the street tothe plaintiff, therefore, the first appellate Court allowed theappeal filed by Venkatesan and his father Rajendran reversing thejudgment and decree passed by the trial Court.14.Section 2 (28) of the Tamil Nadu Panchayats Act, 1994 readsas follows: https://hcservices.ecourts.gov.in/hcservices/ "'Public road' means any street, road, square, Court, alley,passage, carttrack, foot-path or riding-path, over which the publichave a right of way, whether a thouroughfare or not and includes.(a)the roadway over any public bridge or causeway(b)the footway attached to any such road,public bridge or cause way and (c)the drains attached to any such road, publicbridge or causeway and the land, whether covered or notby any pavement, veranda or other structure, whichlies on either side of the roadway upto the boundariesof the adjacent property, whether that property isprivate property or property belonging to the State orCentral Government".15.A mere reading of the above said Section clearly shows thatpublic road means any street, road, passage or carttrack or footpath,which the public have a right of way, whether a thoroughfare or notand includes the road way over any public or cause way, the foot wayattached to any such road, public bridge or cause way and the drainsattached to any such road, public bridge and the land which lies oneither side of roadway upto the boundaries of the adjacent property,whether that property is private property or property belonging tothe State or Central Government.16.That apart, when so far as the dispute arose between theplaintiff and the defendants in regard to the usage of the first itemof the suit properties, an Advocate Commissioner was appointed by thetrial Court. The Advocate Commissioner along with the help of theSurveyor, inspected the suit property and finally came to theconclusion along with the help of village F.M.B. Plan, which wasmarked as Ex.B.7 that the first item of the suit properties is astreet. When the first appellate Court on reading the evidence ofCommissioner report, Surveyor report and the village F.M.B. Plan cameto the conclusion that the first item of the suit properties is apublic street, this Court cannot disturb the finding of fact reachedby the first appellate Court. Accordingly, this Court whileanswering the so called substantial questions of law against theappellant finding no merits in the second appeal, dismisses the same.17.Before, parting with the case, it is to be stated that thequestions framed by this Court cannot be in strict sense taken to beas substantial questions of law, much less questions of law for thesimple reason that a mere reading of the first question namely, whenan alternative way for the respondents is proved, whether theAppellate Court is right in holding easement of necessity for the https://hcservices.ecourts.gov.in/hcservices/ respondents is wrong?, since the trial Court has also given findingotherwise as follows:"But one thing is clear that Venkatesan has touse only item No.1 as ingress and egress from his hutsituated in item No.2 to reach the street. Otherwisethere is no other way by which he can have access tothe public street"18.The above finding clearly shows that the firstrespondent/first defendant Venkatesan has to use only the first itemof the suit properties as ingress and egress from his hut situated initem No.2 to reach the street. Otherwise there is no other way tohave access to the first item of the suit properties. Therefore, theabove question of law has to be rejected as wrongly framed by thisCourt. 19.Secondly, the second question framed as substantialquestion of law is also liable to be rejected for the reason thatthere has been a dispute regarding title of the plaintiff in respectof the first item of the suit properties. This can be seen from theconduct of the appellant/plaintiff in not challenging the concurrentjudgment of both the Courts below given in O.S.No.393 of 1995 dated20.1.995 and A.S.No.94 of 2005 in favour of the firstrespondent/first defendant Venkatesan.20.Therefore, for the reasons mentioned above, the secondappeal fails and the same is dismissed. There is no order as tocosts. Sd/ Asst.Registrar //True Copy// Sub.Asst.RegistrarclaTo1. The Principal Subordinate Judge, Vridhachalam.2. The District Munsif cum Judicial Magistrate, Neyveli.1 cc to Mr.Veera Kathiravan , Advocate, Sr.No.666931 cc to Mr. V.Raghavachari, Advocate, Sr.No.66670S.A.No.1150 of 2007 ng(co)pmk.12.12.2012