1st Respondent/ Plaintiff
2.Otraiveedu Gopalsamy Naicker ... 2nd Respondent/ 2nd Respondent/ 1st Defendant S.A.No.382 of 2000 #Bala Subramania Asari ... Appellant/2nd Respondent/ 2nd Defendant Vs $1.Otraiveedu Gopalsamy Naicker ... 1st Respondent/ Appellant/ 1st Defendant
2.Veerasamy Naicker ... 2nd Respondent/ 1st Respondent/ Plaintiff Prayer Second Appeals filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 29.07.1999, passed in A.S.Nos.91 of 1997 and 95 of 1997 on the file of the Additional Sub Court, Tenkasi, confirming the judgment and decree dated 16.07.1997, passed in O.S.No.449 of 1991 on the file of the learned Additional District Munsif, Sankarankoil.
!For Appellants ... Mr.A.Sankarasubramanian (S.A.Nos.381 and 382/2000) ^For Respondents ... Mr.S.Meenakshi Sundaram for R1 in S.A.No.381/2000 and for R2 in S.A.No.382/2000 Mr.P.Subbaraj for R2 in S.A.No.382/2000 and for R1 in S.A.No.381/2000 :COMMON JUDGMENT S.A.Nos.381 of 2000 and 382 of 2000 are focussed as against the judgment and decree dated 29.07.1999, passed in A.S.Nos.91 of 1997 and 95 of 1997 on the file of the Additional Sub Court, Tenkasi, confirming the judgment and decree dated 16.07.1997, passed in O.S.No.449 of 1991 on the file of the learned Additional District Munsif, Sankarankoil.
2. The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.
3. Pithily and precisely, the case of the plaintiff could be set out thus: The plaintiff is owning the property including his house described in the first schedule of the plaint for which he has been using the street which was running from west to east in between the properties of the defendants 1 and 2. In fact, the said west to east street branches from the north to south road and proceeds towards east. The defendants without any manner of right is trying to cause obstruction to such right of the plaintiff over the said west to east public street. The second defendant illegally had put up a structure encroaching upon the said street abetting his property. Hence, the suit was filed seeking the reliefs of prohibitory injunction as well as mandatory injunction.
4. The gist and kernel of the case of the first defendant would run thus: The plaintiff is having no right to use the area described in the second schedule of the plaint. The said west to east road is not a public street. There is only a small pathway abetting on the north of the first defendant's property which only the first defendant could use it. Accordingly, the first defendant prayed for the dismissal of the suit.
5. The quintessence of the case of the second defendant could be narrated as under:
The plaintiff is having no right over the property described in the second schedule of the plaint and it is not a public street much less a street available for the plaintiff to use it. It is the exclusive property of the second defendant. The plaintiff is having a different passage for having ingress and egress to his property. Accordingly, the second defendant prayed for the dismissal of the suit.
6. The trial Court framed various issues. During trial, the plaintiff examined himself as P.W.1 along with P.W.2 and P.W.3 and Exs.A.1 to A.7 were marked. On the side of the defendants, D.W.1 to D.W.3 were examined and Exs.B.1 to B.6 were marked.
7. Ultimately, the trial Court decreed the suit.
8. Challenging the judgment and decree of the trial Court, the second defendant filed appeal in A.S.No.91 of 1997 and the first defendant filed appeal in A.S.No.95 of 1997, on the file of the Sub Court, Tenkasi.
9. The first appellate Court confirming the judgment and decree of the trial Court, dismissed both the appeals.
10. Being aggrieved by and dissatisfied with, such judgment and decree of the first appellate Court, the second defendant alone preferred both the second appeals in S.A.Nos.381 and 382 of 2000 as against the judgment and decree in both the appeal suits, on the following main grounds among others:
Both the Courts below failed to appreciate the oral and documentary evidence in a proper perspective. At the most, the plaintiff could claim right of way. The Courts below failed to note that if the plaint second scheduled property is a street, there would have been no necessity to specify it in Ex.A.5, as though there was only a right of way over that area. Ex.A.7 should not have been relied on by the Courts below. Ex.A.5 was not interpreted properly by both the Courts below. The Courts below ought to have rejected Exs.A.2, A.3, A.5 and A.7. The Courts below should have attached importance to Exs.B.4 to B.6 which emerged long prior to Exs.A.2 and A.5. There is no reference to any pathway in Exs.B.4 to B.6. The Courts below attached undue importance to the existence of electric lamp and water tap in the plaint second scheduled property. The plaint second scheduled property is only a private property. The Courts below in the absence of a prayer for declaration, should have been given any finding that the plaint second scheduled property is a street. The mandatory injunction for demolition of the construction put up by the second defendant should not have been granted. The plaintiff had no right to demand that the entire plaint second scheduled property should be kept vacant for exercising the plaintiff's right of way. Without invoking Section 91 of the Code of Civil Procedure, the suit was filed treating the plaint second scheduled property as a street. Accordingly, he prayed for setting aside the judgments and decrees of both the Courts below and for dismissing the original suit.
11. While admitting these second appeals, this Court framed the following substantial questions of law:
(i) Whether the suit filed by the plaintiff is competent without complying with the provisions of Sec.91 C.P.C?
(ii) Whether the suit is competent without pleading and proving special damage to himself?
(iii) Whether the plaintiff is entitled to ask for keeping the entire II Schedule open for exercising his right of way?
(iv) Whether the plaintiff is entitled to maintain the suit when his right of way is not obstructed?
(v) Whether Ex.B.4 to Ex.B.6 are entitled to greater credence than Ex.A.2, A.3 and A.5? and
(vi) Whether Ex.A.7 can be relied upon?
12. Point Nos.(i), (ii), (v) and (vi) are taken together for discussion as they are interlinked and interwoven with one another. Point Nos:(i), (ii), (v)_and (vi)
13. The warp and woof of the case of the plaintiff is that the plaint second scheduled property described in the plaint is a west to east street branching from north to south road so as to have ingress and egress to the plaintiff's property. Whereas the defendants 1 and 2 would contend otherwise. Ultimately, the second defendant would plead to the effect that at the most, the plaintiff could claim the right of ingress and egress through the plaint second scheduled property and not to the extent of 4 yards from north to south throughout in between the properties of the defendants 1 and 2. The Advocate Commissioner was appointed in this case and he also submitted his sketch, Ex.C.1 along with his report, Ex.C.2. The same Commissioner also filed Exs.C.3 and C.4, one other sketch and report.
14. The perusal of the Commissioner's report and sketches would demonstrate that he located the suit property, with reference to the location of the properties of the respective parties in this case. According to him, that pathway runs from west to east to the extent about 57 3/4 ft and the width of the street on the western side is about 12 ft and on the eastern side is about 10 ft and 5 inches as per the Commissioner's sketches.
15. According to the learned Counsel for the plaintiff, the entire plaint second scheduled property located by the Commissioner as stated supra, is a public street which according to him is evidenced by the installation of public water tap at the south western portion of that area.
16. The learned Counsel for the second defendant would develop his arguments by placing reliance on Exs.B.4 to B.6 that those documents are referring to the second defendant's property, but there is no reference to the plaint second scheduled property in those documents. In fact, he would submit that the southern boundary of the second defendant's property is one Ponamalai Asari's property and that property is now the property of the first defendant. As such, according to the learned Counsel for the second defendant, between the properties of the first defendant and the second defendant, even though the Commissioner has shown that there is a pathway, yet it is not so as per Exs.B.4 to B.6 which are ancient documents emerged long prior to the emergence of Exs.A.2, A.3, A.5 and A.7 which the plaintiff relied on.
17. No doubt, in those Exs.A.2, A.3, A.5 and A.7, neither the second defendant nor his predecessor in title were parties. Even then, those documents referred to the plaint second scheduled property long prior to the arisal of the dispute herein. Ex.A.2 is the sale deed executed by Seethaiammal in favour of the plaintiff, which would describe the plaint second scheduled property. The relevant portion in Ex.A.2 would run thus:
" jgrpy; jpUbey;Btyp khtl;lk;, rA;fueapdhh; Bfhtpy; cjtpg;gjpthsh; rurk;, fhpry;Fsk; fpuhkk; kruh, Mytehaf;fh;gl;o FoapUg;gpy;- fpH Bky; bjUt[f;Fk; (t) fUg;grhkp Mrhhp kidf;Fk; (bj)_ fpU&;z Mrhhp, ghy; Mrhhp nth;fs; kidf;Fk; (Bk) m.Rg;gpukzpa Mrhhp, tP.Bfhghy; Mrhhp nth;fs; kidf;Fk; (fp) njw;Fs; fpHBky; bf$k; 6 3/4 MwaKf;fhy; bjd;tly; bf$k; 15 1/2 gjpide;jiu cs;s fhypkida[k; rhp."
The perusal of the aforesaid extract would unambiguously show that there is reference to the plaint second scheduled property as pathway.
18. Ex.A.3 is the mortgage deed dated 26.10.1972 executed by the plaintiff in favour of Subba Naicker which would contain the following description: "jgrpy; jpUbey;Btyp khtl;lk;, rA;fueapdhh; Bfhtpy; cjtpg;gjpthsh; rufk;, fhpry;Fsk; fpuhkk; kruh, Mytehaf;fh;gl;o FoapUg;gpy;- Cuhl;rp kd;wk; 3tJ thh;L fpH Bky; bjU ......"
The aforesaid excerpt would refer to the plaint second scheduled property as a pathway.
19. Ex.A.5, is the sale deed dated 15.07.1967 executed by one Chinnammal in favour of the plaintiff incorporating the following description:
"njw;Fs; fpHBky; ePsk; bf$k; 36 bjd;tly; mfyk; Bky;gf;fk; 4 bf$k; fPH;gf;fk; Kd;W (3) bf$k; cs;s kidapy; bjUtpypUe;J fpHf;F Kfkhfg; Bgha; tlf;Bf jpUk;gp fpHf;Bf BghFk; eilghij tHpele;J bfhs;s Btz;oa ghj;jpaKk;...."
The perusal of the aforesaid extract would demonstrate that the plaint second scheduled property is referred to as running from west to east as a pathway measuring from east to west 36 yards with a width of 4 yards on the western end and 3 yards on the eastern end.
20. The learned Counsel for the plaintiff would rely on those three documents as anti litum motum documents without any malafide intention to grab any other person's property, those documents emerged when there was no dispute at all.
21. At this juncture, it is worthwhile to refer to the contention of the first defendant which would go against the interest of the second defendant. It is not the contention of the first defendant that to the north of the first defendant's property, the second defendant's property commences. He would assert that there is a pathway for the first defendant to enjoy between the land of the defendants 1 and 2. In such a case, the mere contention of the first defendant gives support to the plea of the plaintiff. Furthermore, the physical features as noted by the Commissioner would further enlighten that the case of the second defendant cannot be upheld as correct for the reason that had really been his property commenced from the northern boundary of the first defendant, then he should not have kept that property described in the second schedule of the plaint as a pathway for being used by the first and the second defendant as well as the plaintiff.
22. Ex.A.7 is the field measurement extract and it also refers to such a pathway. Even though ancient documents of the second defendant which emerged long prior to the plaintiff's documents, yet there is no presumption that the said description as found in the defendants' documents continued for ever without any change.
23. The above narration of facts including the Commissioner's reports and also the respective cases of the defendants and the plaintiff, would clearly highlight that even well before 1960's, or at least, during 1960's, the physical features got changed and there existed the pathway as described in the plaintiff's documents.
24. The trial Court in paragraph No.6 clearly discussed all these facts. Both the Courts below properly understood the real issues and rendered the findings based on facts.
25. The learned Counsel for the second defendant would contend that even though the plaintiff might be having the right of pathway, yet it cannot be taken as a public street. There is no specific issue framed as to whether the plaint second scheduled property is a public street or not. In fact, the first issue framed by the trial Court is only relating to the fact as to whether the property described in the second schedule of the plaint is a pathway or not and the second issue is relating to the width of the said pathway. As such, in this case, there is no prayer for declaring the said property as a public street. But, the plaintiff prayed only for granting injunction so as to restrain the defendants from interfering with his use of the plaint second scheduled property and for removal of encroachment. In such a case, the question of invoking Section 91 of the Code of Civil Procedure does not arise and that the plea of the second defendant based on Section 91 of the Code of Civil Procedure is an untenable one.
26. The learned Counsel for the second defendant further correctly drew the attention of this Court to the admission made by P.W.1, during cross- examination that the said street, is not a public street. The following excerpts from P.W.1's (plaintiff) deposition during cross-examination, are extracted:
"2k; jgrpy; brhj;J gq;rhaj;J rh!;jh Bfhtpy; bjU vd;Wk; Bghlg;gl;Ls;sjh vd;gij ehd; ghh;f;ftpy;iy. gpuhjpy; 2k; jgrpy; brhj;J Cuhl;rp kd;w MtzA;fspYk;, tUtha;j;Jiw MtzA;fspYk; bjU vd;W Fwpg;gplg;gl;oUf;fpwjh vd;gij ehd; rhpghf;ftpy;iy....
2k; jgrpy; brhj;J vdf;Fk;, 2k; gpujpthjpf;Fk; kl;LBk ghj;jpag;gl;lJ. mJ bghJkf;fSf;F ghj;jpag;gl;lbjU my;y."
27. I am of the considered view that the scope of the suit itself is not for declaring the said plaint second scheduled property as a public street and the question of declaring it as a public street does not arise. Any finding to the contrary would be untenable. The finding could be only to the effect that the plaintiff has got the right of ingress and egress over the plaint second scheduled property as identified and located by the Commissioner and set out in his reports and sketches.
28. The said property could be a public street if at all it was handed over by the persons having the right over it, to the public body namely Municipality or Panchayat concerned having jurisdiction over it. There is nothing on record to show that the Municipality or Panchayat concerned, took possession of it or declared so as per law. Simply because, one water tap or some benevolent measures have been implemented in a portion of that area, it would not amount to conversion of a private pathway into a public street.
29. If it is a public street or treated so, the officials of the civic body, should have been summoned and examined with reference to authentic public records. But, it was not done so. There was no public records maintained by Municipality or Panchayat concerned, to show that it is a pathway. It is obvious and axiomatic that there cannot be any public street without any public records evidencing the same. Ex.A.7 F.M.B copy by itself does not prove that it is public street within the meaning of the definition of public street as found set out in the relevant legislation. Hence, I am of the firm opinion that the said pathway is only a private pathway available for the plaintiff and the defendants 1 and 2 having properties abetting and adjoining the said pathway. Accordingly, with this finding, these points are decided.
Point Nos:(iii) and (iv)
30. The learned Counsel for the second defendant would develop his argument that even though the plaintiff might be having the right of ingress and egress, he is not entitled to get the removal of the projections and constructions made by the second defendant over that property described in the second schedule of the plaint. Similarly, the first defendant also would contend that the plaintiff is having no right to get removed that whatever the first defendant had placed on that pathway.
31. Both the Courts below clearly gave a finding of fact that shortly prior to the filing of the suit alone, such developments/encroachments were made by the defendants 1 and 2. The Commissioner also adverted to the same in his report and sketch. As such, the developments and encroachments and the said projections made by the defendants are necessarily to be removed. There is no point in contending that the plaintiff is having the right of ingress and egress only over the plaint second scheduled property, but he cannot ask for removing the obstructions therein. The common pathway to be used meaningfully and reasonably should be kept free from encroachments or projections in any manner and it should be levelled and kept free from ups and downs by the joint effort of all the parties to the proceedings herein. The trial Court very correctly by examples discussed as to how the pleas of the defendants are untenable. It is obvious that the trial Court arrived at the clear finding of fact and it was confirmed by the first appellate Court also which is the last Court of fact regarding the factual aspect and this Court cannot sit in judgment over the findings of both the Courts below. Both the Courts below in the printed judgments here and there while referring to the west to east suit pathway wrongly described as 'bjd;tly;' pathway and it is only a printing or typographical error. There is no illegality in the finding arrived at by both the Courts below. Accordingly, these points are decided.
32. In the result, S.A.Nos.381 and 382 of 2000 are dismissed. However, I would like to reiterate that the plaint second scheduled property described and located by the Commissioner in his reports and sketches, shall be treated as a private pathway of the plaintiff and the defendants 1 and 2 and it is not a public street or public pathway and the developments/encroachments, ups and downs created thereon, by the defendants 1 and 2 should be removed as ordered by both the Courts below. The parties to these proceedings shall maintain at their costs and joint efforts in a usable manner the said pathway, until they all chose to hand over the same to the public civic body as per law. No costs.
rsb To
1.The Additional Sub Court, Tenkasi.
2.The Additional District Munsif, Sankarankoil.