This civil miscellaneous appeal is directed against the Judgment and decree passed by the learned Principal Sub-Judge, Vridhachalam, in A.S.No.13 of 1997, dated 08.02.2002 in reversing the well considered judgment and decree passed by the learned Principal District Munsif, Vridhachalam, in O.S.No.134 of 1987, dated 29.11.1996.
2. Heard the learned counsel appearing for the appellants and the learned counsels appearing for the respondents 1 to 6.
3. Learned counsel appearing for the appellants would mainly contend that the learned Principal District Munsif/Trial Court, Vridhachalam, after considering the entire evidence and documents adduced by both parties, decreed the suit as prayed for. Even during the time of trial, the plaintiffs have filed an application for appointment of an Advocate Commissioner and though the said application was vehemently objected by the defendants, the trial Court dismissed the same. Subsequently, the plaintiffs have preferred a revision in C.R.P.No.876 of 1996 before this Court and this Court confirming the order passed by the trial Court dismissed the said revision. Hence, there is no necessity to appoint an Advocate Commissioner and therefore, the direction given by the First Appellate Court/Principal Sub-Judge, Vridhachalam, to the trial Court to appoint an Advocate Commissioner for inspecting and measuring the suit property is not at all maintainable. It is further submitted by the learned counsel for the appellants that the First Appellate Court, wrongly came to a conclusion that the trial Court did not give any finding in respect of existing of contract relating to the suit property. Further, the First Appellate Court, without any material or evidence, came to a wrong conclusion that there is a contract and the First Appellate Court also failed to consider or look into the documents viz., Exs.A.1 to 35. In view of the above, the learned counsel for the appellants prayed that the judgment passed by the First Appellate Court has to be set aside and the judgment passed by the trial Court has to be confirmed by allowing the present appeal.
4. Learned counsel appearing for the respondents would vehemently contend that the First Appellate Court, after considering the entire documents and also the applications filed by the appellants in the appeal stage to receive the additional documents, remitted the matter back to the trial Court for fresh disposal according to law, after appointing an Advocate Commissioner to inspect the suit property and after giving permission to both sides to adduce oral and documentary evidence. In view of this, the present appeal preferred by the appellants has to be dismissed with costs.
5. In this case, admittedly, the plaintiffs have filed a suit for declaration and injunction in O.S.No.134 of 1987 and the said suit was decreed on 29.11.1996 as prayed for. The trial Court framed the following issues:-
"1) thjpfspd; tHf;F rl;lg;go epiy epw;fj;jf;fjh?
2) thjpfs; bghJ FLk;gji vd;gJ cz;ikah?
jr; nrh;e;jth;fs;
3) thjpfs; gpu!;jhgpf;Fk; fpua';fs cz;ikahditfsh rhpahd gpujpg;gpunah$dj;Jld; Toaitfsh?
4) jhth 5 tJ mapl;l brhjjpy; Rkhh; 0/5 brz;L m";riy Rg;gpukzpak; Mfpath;fSf;F ghj;jpag;gl;lJ vd;gJ czi kah?
5) gpujpthjpfs; tiuglk; rhpahdjh?
6) jhth 1 Kjy; 7 mapl;l brhjJ; tHpahf tz;og;ghij Rkhh; 12 mo mfyjj f;fs; pw;F brd;Wf; bfhz;oUg;gjhf brhy;Yk; gpujpthjpfs; Tw;W cz;ikahdjh?
7) gpujpthjpfs; tiuglj;jpy; fzLssgo bry;Yk; tz;og;ghij (jhth 1 Kjy; 7 mapl;l epy';fspd; tHpahftk;) iag; bghUj;J gpujpthjpfSf;Fk; khK:y; ghij trjp chpik ghj;jpaKk;. njitahd trjp chpik ghj;jpaKk; (<!;bkz;l; Mg; iul; kw;Wk; <!;bkz;l; Mg;
berrpl;o) rpj;jpj;jpUf;fpwJ vd;gJ czi kah?
8) thjpfSf;F jhth brhj;Jf;fs; Vfnjr ghj;jpakhditfs; vd;gJ cz;ikah?
9) thjpfs; jhth 1 Kjy; 7 mapl;l brhj;Jf;fs; tHahf brd;Wf; bfhz;oUf;Fk;
tz;og;ghija[k; nrhjJ of;snuc&d; kw;Wk;
,";rd;c&d; ghpfhuKk; khw;Wg; gjpfhukhd brhj;J RthjPd ghpfhuKk; bgw mUfkdhth;fsh?
10) thjpfSf;F ,ej tHf;if bra;a tHf;F K:yk; cz;lh?
11) thjp vdd mUfkhdth;?"
epthuzk; bgw
6. Further, the trial Court, at paragraph No.8 of the order, it is held as follows:-
"8. ,e;j tHf;fpy; Muk;gjj py; ,ilf;fhy jil cj;jput[ bfhLf;fg;gl;L mJ Vwj;jhH xU Mz;Lfhyk; ePoj;jpUej J vdtk ;. mjw;F gpwF ejpgjp gjtp fhypahf ,Ue;j nghJ me;j cj;jput[ ePof;fg;glhj epiyapy;. ,e;j gpujpthjpfs mlhtoahf g[Fe;J tHpia gad;gLjjpdhh;fs;
vdt[k; thjpfs; jug;gpy; thjplg;gl;lJ/ ,e;j tHf;fpy; tHf;F jhf;fy; bra;ag;gl;l cld Vwj;jhH xU MzL fhyk; jil cjj put[ ,e;j gpujpthjpfspd; nghpy; ,Ue;Jss epiyapy;. ,e;j ghij j';fSf;F mj;jpahtrpakhd xd;W vd;W ghij ghj;jpak; nfl;fpd;w ,e;j gpujpthjpfs;
me;j jil cjj puit ,ujJ bra;a ve;j kDita[k; jhf;fy; bra;atpyiy vd;gija[k;
jw;nghJ ftdj;jpy; vLjJ f; bfhss ntzL k;/ me;j jil cj;jpuit ,ujJ; vija[k; nghltpy;iy vdtk bra;a jh';fs; kD ; mjw;F mtrpak;
,y;iy vdt[k; ,ej Kjy; vjph;thjpna mtuJ FWf;F tprhuizapy; xg;g[f; bfhzLs;shh;
vd;gija[k; jw;nghJ ftdjj py; vLjJ f; bfhss ntz;Lk;/ ,tw;iwbay;yhk; bfhzL tHf;bfG tpdh vz;/8 I thjpfSf;F Mjuthft[k;. tHf;bfGtpdh vz;fs;/6 kw;Wk; 7 it gpujpthjpfSf;F vjpuhftk ; jPhk hdpf;fg;gl;Lss J/"
7. It is an admitted case of the plaintiffs/appellants that there was a pathway mentioned in the Government records and without giving notice to the plaintiffs, the Government authorities marked the pathway in the village plan. To remove the said markings of pathway in the Government records, the present appellants have filed W.P.No.18284 of 1994 before this Court.
8. In view of this, even the appellants themselves have admitted that to set aside or delete the pathway marked in the Government records, they have filed a writ petition before this Court including the Government as a party and the writ petition is pending. Hence, it is presumed that a plan marked pathway is mentioned in the Government records. Hence, the appellants have filed a writ petition before this Court to remove or delete the said markings and the same is pending. Therefore, the conclusion of the trial Court that since the defendants have not filed any application to vacate or cancel the order of interim injunction granted by this Court, it presumed that there was no pathway on the schedule of property is not at all acceptable one. Admittedly, on the side of the defendants, they have produced documents to show that there was a plan marked pathway in the suit schedule property. Further, it is admitted on the side of the appellants/plaintiffs that they have filed a writ petition before this Court seeking to delete the above said markings in the plan. According to the revenue records, there was a pathway marked in the plan. The question as to whether it is valid or not has to be decided in the writ petition filed by the appellants/plaintiffs before this Court. It is to be noted that even when the said writ petition is pending before this Court, the trial Court, without considering the fact that whether the pathway marked in the plan is correct or not and without considering the pendency of the writ petition filed by the appellants/plaintiffs, wrongly came to a conclusion that there is no pathway. In this case, admittedly, the learned counsel for the appellants would mainly contend that during the time of trial, the appellants/plaintiffs have filed an application for appointment of an Advocate Commissioner and the said application was objected by the defendants and it was also dismissed by the trial Court. As against the order of dismissal of the Advocate Commissioner application, the appellants/plaintiffs have preferred a revision in C.R.P.No.876 of 1996 before this Court and this Court disposed of the said revision on 07.08.1996 with the following remarks.
"If the contention with regard to the existence of the cart track or pathway is pleaded by the defendants, then the onus, according to law, lies upon the holder of the persons who set up the plea for which the plaintiffs need not bother about it and keeping in view the said matter, I do not find any merits or legal points to be probed in this revision, if admitted. Accordingly, I find no merits at all in this revision.
2. In the result, for the reasonings given above, the revision is dismissed at this admission stage."
9. In the above C.R.P.No.876 of 1996, this Court directed the defendants to prove the existence of the cart track or pathway in the suit property and dismissed the application filed by the plaintiffs.
10. In this case, on the side of the defendants, they have produced so many Government records and sketch relating to M.Parur village Survey Nos.355, 357 and 358. But the trial Court, without considering the above said documents, answered the issues only on the ground that the defendants have not filed any application to vacate or cancel the injunction granted in the interlocutory application. Hence, this Court is of the considered view that the trial Court, without analysing the evidence adduced and documents produced on either side and also without considering the pendency of the writ petition filed by the appellants/plaintiffs, came to a wrong conclusion answering the issues. Hence, the order passed by the trial Court has to be set aside and the matter has to be remitted to the trial Court for fresh disposal according to law.
11. In this case, during the first appeal stage, on the side of the defendants, they have filed two applications in I.A.Nos.91/1997 and 24/2000. I.A.No.91 of 1997 was filed to receive additional documents produced in the said application and I.A.No.24/2000 was filed for examining R.W.1 and to mark the additional documents produced in I.A.No.91 of 1997 according to law. Both the above said applications were allowed by the First Appellate Court by a common judgment dated 08.02.2002. As against the order of allowing the above said applications, the present appellants have not preferred any appeal or revision. Hence, in both the applications in I.A.Nos.91/1997 and 24/2000, the order passed by the First Appellate Court is become final. In this case, the only objection raised by the defendants is that they are entitled to easmentary right of pathway in the suit schedule property and they have also produced valid map etc. Further, during the First Appeal stage also, they have produced certified copy of the above said documents. Hence, this Court is of the considered view that the questions as to whether the alleged pathway is in existence in the suit schedule property and also whether the defendants have easmentary right in the suit schedule property regarding pathway are not clearly answered by the trial Court.
12. Hence, this Court is of the considered view that the judgment passed by the First Appellate Court remanding the matter to the trial Court for fresh disposal according to law after appointing an Advocate Commissioner to measure the suit property and also giving an opportunity to both sides to adduce oral and documentary evidence is perfectly valid and maintainable. There is no illegality or infirmity in the judgment passed by the First Appellate Court. This Court finds no reason to interfere with the judgment passed by the First Appellate Court which does not warrant any interference by this Court and hence, the civil miscellaneous appeal is liable to be dismissed.
13. In the result, this Civil Miscellaneous Appeal is dismissed and the judgment passed by the First Appellate Court is confirmed and the matter is remitted back to the trial Court for fresh disposal according to law. The trial Court is directed to dispose the suit within a period of eight weeks from the date of receipt of a copy of this judgment and report the same to this Registry. There shall be no order as to costs. The connected miscellaneous petition is also dismissed.
23.02.2017 Internet : Yes Jrl To
1. The Principal Sub-Judge, Vridhachalam.
2. The Principal District Munsif, Vridhachalam.
G.CHOCKALINGAM, J.
Jrl Judgment in C.M.A.No.2784 of 2002 23.02.2017 http://www.judis.nic.in