S.A.(MD)No.8 of 2011
1.Abusali
2.Madhavan Pillai .. Respondents in S.A.(MD)No.9 of 2011 Common Prayer :Second Appeals filed under Section 100 of Civil Procedure Code, to set aside the common Judgment and Decree dated 29.12.2009 passed in A.S.Nos.8 and 45 of 2009 on the file of the learned Subordinate Judge, Padmanabhapuram by confirming the Judgment and Decree dated 25.09.2008 passed in O.S.No.318 of 2000 on the file of the Principal District Munsif Court, Padmanabhapuram.
Heard the learned counsel appearing on either side.
2.These appeals are filed against the Judgment and Decree passed in A.S.Nos.8 and 45 of 2009 dated 29.12.2009 on the file of the learned Subordinate Judge, Padmanabhapuram by confirming the Judgment and Decree passed in O.S.No.318 of 2000 dated 25.09.2008 on the file of the Principal District Munsif Court, Padmanabhapuram.
3.The appellants in S.A.(MD)No.8 of 2011 are the defendants 1 to 3, the first respondent in S.A.(MD)No.8 of 2011 is the fourth defendant and the second respondent in S.A.(MD)No.8 of 2011 is the plaintiff in the suit. The second respondent in S.A.(MD)No.8 of 2011 has filed a suit in O.S.No.318 of 2000 before the Subordinate Judge, Padmanabhapuram seeking for a prayer of declaration and for possession and for mandatory injunction to remove the cement constructions and to hand over the suit property in its original stage. The trial Court has decreed the suit. Against the Judgment and Decree, the first respondent in S.A.(MD)No.8 of 2011 has filed an appeal in A.S.No.8 of 2009 before the Subordinate Judge, Padmanabhapuram and the appellants in S.A. (MD)No.8 of 2011 has filed an appeal in A.S.No.45 of 2009 before the Subordinate http://www.judis.nic.in Judge, Padmanabhapuram. The first Appellate Court has dismissed the appeals 3 by confirming the Judgment and Decree passed by the trial Court. Against which, the appellants herein have filed these appeals before this Court.
4.For the sake of convenience, the appellant in S.A.(MD)No.8 of 2011 herein after will be referred as defendants 1 to 3, the first respondent in S.A. (MD)No.8 of 2011 herein after will be referred as 4th defendant and the second respondent in S.A.(MD)No.8 of 2011 herein after wil be referred as the plaintiff.
5.The case of the plaintiff is that the suit properties originally belonged to one Sathikumari and on 14.11.1991, Sathikumari's Power Agent, Krishnan Kutti Nair has sold 13 cents of land in favour of the plaintiff and his brother, namely Sahul Hameed. On the same date, he has sold 7 cents of land to the fourth defendant. On the southern side of both the property, there was a common wall. The fourth defendant has purchased plot no.1 of the property and the plaintiff has purchased plot no.2. The fourth defendant has demolished the old wall and constructed a new wall in the same place. The plaintiff and his brother, Sahul Hameed constructed a house in the plot and they removed the southern old compound wall and constructed a new compound wall leaving some space on the southern side. There was a distance of 600 sq. links between the old compound wall and the new compound wall. On 22.06.1994, the plaintiff's brother handed over the property to the plaintiff. The plaintiff is the absolute owner http://www.judis.nic.in of the property. The plaintiff has constructed a house leaving in the 4 second portion of the property that belonged to Sathikumari. There was a foot pathway of 5 links on the southern side of the compound wall. When the plaintiff was working abroad, on Auguest 2000, the defendants entered into the property and raised the level of the suit property and laid a concrete pathway. As the suit property is raised, the rain water could not be let out. After arriving India, the plaintiff issued a notice to the defendants on 25.09.2000. There was no reply for the notice. The plaintiff has also addressed a letter to the Collector through his lawyer. The defendants are to be directed to remove the concrete construction to lower down the height of the path way and to hand over the possession of the sut property.
6.The case of the defendants 1 to 3 is that there was a path way starting from Nagercoil-Trivandrum main Road till the channel. The width of the pathway is 10 links and this pathway is on the southern side of plaintiff's property. The pathway neither belonged to the plaintiff nor to the fourth respondent. This pathway is being used by 50 houses and the defendants formed a concrete road on 03.08.2000. The plaintiff cannot have any right over the suit property and he cannot drain the rain water into the suit property and prayed the suit is to be dismissed.
7.The case of the fourth defendant as stated in the written statement is that http://www.judis.nic.in on 14.11.1991, the fourth defendant has purchased the property plot no.1 5 having an extent of 7 cents from the vendor of the plaintiff. There was a pathway on the southern side of the property with a width of 5 links. Before the sale of the property itself, the pathway was extended up to 10 links to facilitate the vehicles to enter the pathway. The pathway was used by the public. Even before the execution of the sale deed on the directions of the vendor, the old compound wall was removed and instead of 5 links pathway a 10 links pathway was laid. There was a house available in the property purchased by the plaintiff but availability of the house was concealed in the document. The plaintiff has demolished the building and constructed a new house in the same property. The height of the pathway was not raised by the fourth defendant. The plaintiff is not entitled for declaration or for mandatory injunction. If the breadth of the pathway is reduced, the fourth defendant could not take any vehicle to enter the pathway and the suit is to be dismissed.
8.The case of the fourth defendant as stated in the additional written statement is that the measurement stated in the main plaint and in the sketch of the plaintiff are different. The Commissioner has failed to measure and locate the adjoining properties and to note down that this pathway was used by the public to reach the National Highways. Only on the public interest, the defendants have constructed the concrete pathway and prayed to dismiss the suit.
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9.This Court by an order dated 20.01.2011, has admitted the following substantial questions of law:
“1.Whether the finding of the Courts below that the width of the public road was five links alone and the same was widened to 10 links is perverse?
2.Whether the Courts below have committed an error in granting mandatory injunction that the portion of the concrete road which is claimed to be laid by encroaching upon a portion of the plaintiff's property, when the exact extent of such encroachment has not been provided for?” Question No.1:
10.On the side of the appellant, it is stated that the trial Court and the first Appellate Court held that the width of the public road is only 5 links which is a wrong decision. It is stated that in Ex.A2, the availability of the pathway on the side of the south is stated and that the parent deed of the document is not filed and that admittedly there is a road on the south side of the property and the right over the public road is vested with the village Panchayat and that the plaintiff property is sloping towards the east and that the plaintiff has filed the suit with the motive to encroach the road.
11.On the side of the appellant, it is stated that the trial Court has come to a finding that the defendants have failed to prove the case and that the trial Court has decided that the defendants have failed to prove that the pathway http://www.judis.nic.in was handed over to the Panchayat and has dismissed the suit on that 7 ground. It is stated that the first Appellate Court in paragraph no.15 has decided that “it is the bounden duty of the defendants to prove that the suit property is also a part of the pathway”. Both the lower Courts has come to the wrong conclusion that it is the duty of the defendants to prove his case. The plaintiff has failed to produce any parent deed to prove that his vendor is having right over the 13 cents of the land and that the plaintiff has failed to take necessary steps to prove that he was having property beyond the southern side compound wall.
12.On the side of the plaintiff/second respondent, it is stated that the defendants are not disputing the purchase of 13 cents of land by the plaintiff and that no document was filed by the defendants to show that the suit property is a pathway and that no witness was examined to show that the pathway was used by the public and that Ex.B1 sale deed of the fourth defendant did not show any pathway on the southern side of the defendants' property and that the fourth defendant has failed to examine the vendor to prove that the suit property was given as a pathway to the fourth defendant and that the contention of the fourth defendant that the suit property was given by the vendor for facilitating vehicles to his property in unbelievable.
13.On the side of the plaintiff/second respondent, it is stated that the plaintiff http://www.judis.nic.in had purchased 13 cents of land through sale deed Ex.A2 dated 8 14.11.1991 and that the sale deed covers the suit property also and that neither the fourth defendant nor the revenue authorities can claim any right over the 13 cents of land and that no document was filed to prove that the suit property was a Government property and that there is no enteries regarding the availability of the public pathway and that the Advocate Commissioner has established that the property mentioned in Ex.A2 was encroached and that the concurrent findings of both the lower Courts are based on documentary evidence and on the Commissioner reports and prayed the appeal to be dismissed.
14.Both the plaintiff and the defendants have purchased the suit property from the same vendor through his power Agent Sathikumari. The plaintiff has purchased 13 cents of land. The fourth defendant has purchased 7 cents of land. It is stated that there was a pathway on the southern side of the property. This fact was not disputed by the plaintiff. The only contention of the plaintiff is that width of the pathway is only 5 links. The defendants 1 to 3 have constructed a concrete pathway with a width of 10 links. Admittedly the plaintiff demolished the southern side of the old compound wall and constructed a new compound wall.
15.The case of the plaintiff is that the plaintiff has constructed a compound wall leaving 10 links on the southern side. On the side of the plaintiff, it is stated http://www.judis.nic.in that both the lower Courts have come to the correct conclusion that 9 the defendants have encroached upon 5 links of the property of the plaintiff.
16.A perusal of the records reveals that the first Appellate Court has misconstrued the provision of law and have decided that the defendants have to prove the case. There are specific remarks in the Judgment that the defendants were duty bound to disprove the case. Both the lower Courts failed to consider that it is the duty of the plaintiff to prove the case. The plaintiff failed to file any parent document to show the width of the pathway and the plaintiff has failed to prove that he left 5 links of land beyond his southern side compound wall. The defendants have alleged that the pathway is used by the public at large and that the pathway is used at least by 50 residents and that the plaintiff has failed to implead them as parties and that the plaintiff has to prove his case independently and that the plaintiff cannot put holes in the case of the defendants. The trial Court and the first Appellate Court have blindly held that the width of the pathway is not 10 links but only 5 links. In the above circumstances, it is decided that there is an apparent error in the findings of the first Appellate Court which requires consideration. Question No.2:
17.On the side of the appellant, it is stated that under Section 125 of the Panchayat Act, all the pathways are vested with the Village Panchayats and that the http://www.judis.nic.in defendants 1 to 3 have every right to lay the concrete road for the use 10 of the public at large.
18.On the side of the respondents, it is stated that both the lower Courts have given a concurrent findings that the concrete pathway to be demolished and the height of the road is to be lowered down and both the lower Courts have granted the relief of mandatory injunction, it is stated in the Judgments of both the lower Courts it is stated that no document was filed on the side of the defendants 1 to 3 to show that the suit property is a pathway and that the defendants have marked only the document relating to tender and that both the Courts failed to consider that it is the duty of the plaintiff to prove his case.
19.When the plaintiff has approached this Court for a prayer of mandatory injunction, it is the duty of the plaintiff to prove the exact measurement of the property for which he require mandatory injunction. Though the measurement of the suit property is stated in the plaint, the plaintiff was not ready to examine his vendor or his power agent to prove the measurement of his property. It is the duty of the plaintiff to prove the case, the plaintiff has failed to prove that his vendor was entitled to 13 cents of land. The plaintiff has failed to prove that the width of pathway is only 5 links and the plaintiff has failed to prove that the defendants have encroached upon 5 links of land to form the road.
http://www.judis.nic.in When the defendants have taken a specific plea that the pathway was 11 used by more than 50 residents, the plaintiff has failed to implead them as parties. The plaintiff has failed to sue the defendants in respective capacity for all the persons who use the pathway.
20.As per Section 125 of the Panchayats Act, all the public roads belonged to the Panchayat. It is duty of the Panchayat to lay down the Village roads and hence, the defendants are having right to construct the pathway.
21.In issue no.1, it is decided that both the lower Courts have come to a wrong conclusion that it is the duty of the defendants to prove the case. Both the lower Courts have failed to consider that the pathway on the southern side of the property purchased by the plaintiff is stated in his sale deed. Both the lower Courts have failed to consider that the plaintiff has failed to prove the extend of the suit property. The plaintiff has failed to prove that there was an encroachment in the property with specific measurements and only when the plaintiff establish the above points, questions relating to right of mandatory injunction can be decided. For the above said reasons, it is decided that the questions raised by the appellants are sustainable. Hence, it it decided that the Judgment and Decree passed in A.S.Nos.8 and 45 of 2009 on the file of the learned Subordinate Judge, Padmanabhapuram is set aside and the Judgment and Decree passed in O.S.No.318 of 2000 on the file of the Principal District Munsif http://www.judis.nic.in Court, Padmanabhapuram is also to be set aside. 12
R.THARANI, J.
mrn
22.With the above observation, these second appeals are allowed. No Costs.
04.01.2019 Index : Yes/No Internet : Yes/No Mrn To 1.The Subordinate Judge, Padmanabhapuram.
2.The Principal District Munsif Court, Padmanabhapuram.
3.The V.R.Section, Madurai Bench of Madras High Court, Madurai.
S.A.(MD)Nos.8 and 9 of 2011 04.01.2019 http://www.judis.nic.in