This second appeal is directed against the judgment and decree, dated 30.10.1998 made in A.S.No.70 of 1997 on the file of the Principal Subordinate Judge, Nagercoil, reversing the judgment and decree, dated 21.02.1997 made in O.S.No.739 of 1996 on the file of the Principal District Munsif, Nagercoil.
2.The case of the plaintiff is that the suit schedule property is a Government poramboke land, which was used as a public lane by the plaintiff as well as the public and it commences from and at the north eastern corner of the East Car Street, proceeds towards east then turns towards north and goes further and the plaintiff had purchased 2 Acres of land comprised in Re-Survey No.673/3A of Kanyakumari Village from its previous owner by a registered sale deed, dated 05.05.1988 and that the old building stood on the property purchased by the plaintiff had been pulled down and a new concrete building was constructed by the plaintiff and the new building contains several rooms in the cellar floor and a clinic-cum-residential portion in the upper floor and the plaintiff's house is abutting on the public land on http://www.judis.nic.in 3 the north, which is the plaint schedule property and as such, the plaintiff is entitled to some basic rights and amenities, such as access to the land from any points of his land and the plaintiff and his predecessors-in-interest have been getting air and light through the window facing towards the public land on the north and that the defendant, who had no right whatsoever to the plaint schedule property encroached upon a portion of some on the south and constructing a building over the southern half of the property from 10.03.1995 onwards and the defendant had also bricked up and blocked the door way situated at the north-eastern corner of the plaintiff's house, which opens into the lane on the north and caused damage to the northern compound wall also and as such, the light passes through the windows in the plaintiff's house from the suit land has been practically shut out and the air passage has been materially interfered with and practically no light could pass to the plaintiff's window, which caused nuisance to the plaintiff and the members of his family and as the plaintiff's right is infringed, he filed the suit for declaration that the plaintiff's right to access in the plaint schedule property from all points on the northern compound wall of the plaintiff's house; mandatory injunction to remove the constructions and permanent injunction to refrain the obstruction of flow of air and light into the plaintiff's house.
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3.The defendant filed a written statement contending that the suit schedule property was purchased by him through valid sale deeds and patta has been issued in his name and with regard to the construction of the building, the same was commenced only after obtaining due permission from the Municipal Authority in the year 1993 and immediately thereafter, he started construction and at the time of filing the suit, he has completed cellar floor and ground floor and the construction of the first floor was in progress and hence, the suit is liable to be dismissed.
4.The trial Court had dismissed suit on 21.02.1997. On appeal preferred by the plaintiff, the first appellate court reversed the judgment and decree of the trial court on 30.10.1998. Aggrieved by the judgment and decree of the first appellate court, the defendant and their legal-heirs are before this court.
5.While admitting the second appeal, this court has framed the following substantial question of law:-
“Whether the reversing judgment of the lower appellate court is sustainable in law as it has not appreciated the entire evidence available on record to decide the http://www.judis.nic.in 5 issue and also not applied the correct proposition of law for the issue involved?
6.The learned counsel for the appellant(s)/defendant argued that the plaintiff in his prayer seeks declaration that his right to access the plaint property from all points on the northern compound wall of his house and mandatory injunction to remove the constructions and permanent injunction to refrain the obstruction of flow of air and light into his house and that which was enjoyed by his predecessors' and from causing nuisance by constructing structures in the plaint property and the first appellate court on the basis of Exs.A1, A4 and A16 came to the conclusion that Survey No.6731/1 is a poramboke land and used as public lane and the entries in the Registers are not proof of positive of the character of the land and the evidence of PW2 and PW3 are mutually contradictory and it is not correct that the first appellate court relied upon Ex.A1 for the boundary recitals therein particularly the northern boundary recital in Ex.A1 and the defendant not being a party to the document, it is not binding on the defendant and further the executant of the document has not been examined as a witness for the plaintiff for relying on the boundary recitals and the documentary evidence let in by the defendant in support of his case that the defendant had alienable interest in the suit property and the plaintiff cannot question the grant http://www.judis.nic.in 6 of patta in favour of the defendant or his predecessor in title and the remedy of the plaintiff is as against Kanyakumari Township and Exs.B10, B14 and B15 were not considered by the first appellate court and the plaintiff has not let in best evidence and the plaintiff never objected the construction done by the defendant and even if the land is poramboke and patta is granted, the pattadar gets title to the land and his right become indefeasible and the plaintiff is not entitled to any relief and hence, the findings of the first appellate court has to be set aside and prays that the second appeal has to be allowed.
7.The learned counsel for the respondent/plaintiff argued that the suit property is a Government land and it is used as public way to the plaintiff as well as public and the above said public way starts at the northern west corner of the East Car Street and it leads to eastern side and then to northern side and the plaintiff purchased the property at Survey No.673/3A of Kanyakumari Village through a sale deed, dated 05.05.1988 and the plaintiff demolished the old building existed in the land purchased by him and constructed a new building therein and there are several rooms in the down floor of the building and in the upstairs of that building, there is a house for the use of the plaintiff's residence and his hospital also and plaintiff''s house situates on the northern side of the suit public way and hence, the plaintiff has right to use anywhere of the place of public way, which is on the http://www.judis.nic.in 7 northern side to his access and the plaintiff and his vendors also had availed the air and sun-light through the public way existed on the northern side and there is no right to the defendant to construct a building on the southern half side encroaching the suit property pubic way and the defendant started building construction on 10.03.1995 onwards encroaching the southern half portion of the suit property public way and he constructed the wall nearby the northern side compound wall of the defendant and further, he closed the north- eastern corner way of the plaintiff's house and he damaged the north side compound wall of the plaintiff and the plaintiff and his vendors are using the way existed on the northern side of the plaintiff's property for their ingress and engross from their property and there is no right to the defendant to obstruct that way and prays for dismissal of the second appeal.
8.Heard both sides and perused the materials available on record.
9.In this case, the plaintiff was examined as PW1. PW1 stated during his evidence that he purchased the lands from his previous owner as per Ex.A1 wherein he constructed new building for his residence and hospital and adjacent to the north of that property, there was the suit pathway and only through the pathway, he got air http://www.judis.nic.in 8 and light and he used that way for existing the drainage water and rain water and the plaintiff encroached a portion of the suit pathway and constructed building without parental documents near the northern side of the compound wall of the plaintiff and obstructed the way existed in the north-east corner of the house and obstructed the air and light flouring to the plaintiff's house and hence, he filed the suit.
10.The plaintiff purchased his property under Ex.A1 and the survey number is 673/3A and in Ex.A1, the boundary for the new survey No.673/3 is that on the north pathway and in the Revenue Adangal, it is mentioned as 'Pathai'. The defendant claims title on the basis of Exs.B1 to B3 and he stated that he purchased his property from Seethaiammal, Pappa and Selvam and after getting approval from the Kanyakumari Municipal Corporation, he started construction.
11.The main contention of the respondent/plaintiff is that the new survey No.673/1, which is adjacent to north of the plaintiff's property is Government poramboke public way and in Ex.A4, it is mentioned as poramboke pathway and hence, the predecessor-in-title has no right to sell the suit property in favour of the first appellant/defendant. Hence, it is necessary to decide, whether the new survey No.673/1 adjacent to the north of the plaintiff's property is http://www.judis.nic.in 9 Government poramboke public pathway or previously owned by Seethaiammal, Pappa and Selvam.
12.On perusal of Ex.A4, wherein it is mentioned as Survey No. 673/1 for an extent of 0.02.2 Acres as poramboke pathway and in Ex.A1 sale deed, it is stated that on the north of the plaintiff's property, poramoboke pathway exists. In Exs.B1 to B3, patta numbers were shown as 1188, 1189 and 1190, but on perusal of Exs.A6 to A8, it is seen that in Ex.A6, patta No.1188 is correlated to survey No. 662/24 owned by Sours, S/o.Devasahayam as well as Ex.A7 patta No. 1189 is correlated to the Survey No.663/13 owned by Sours, S/o.Anthony and in Ex.A8, patta No.1190 is correlated to the Survey No.663/14 owned by Sours Anthony, S/o.Chitherias. Hence, it is held that patta numbers mentioned in Exs.B1 to B3 are not correlated to the suit property, which lies in Survey No.673/1.
13.The defendant filed Exs.B4 to B6 tax receipts in the name of Seethaiammal, Pappa and Selvam. Exs.B4 to B6 receipts were obtained 10 days before execution of Exs.B1 to B3 sale deeds. It is to be noted that patta numbers mentioned in Exs.B1 to B3 sale deeds differ while comparing with Agasteeswaram Taluk, Kanyakumari settlement Jamabandhi Chitta copy and they are in other names and other survey numbers.
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14.The learned counsel for the respondent/plaintiff argued that the revenue documents cannot be construed as document of title and chitta extract by itself is not proof of one's title and the defendant failed to establish his title. For that, the learned counsel for the respondent/plaintiff submitted a ruling reported in 2018-5-CTC 883 (K.Thirunavukkarasu Vs. Loganathan (deceased). In that case, it has been held in paragraphs 10, 12 and 14 as follows:-
...There is no plea made in the plaint as to how his vendor had derived title to the plaint A schedule property whether by way of purchase or ancestrally or by any other mode. Other than stating that he had purchased the Plaint A schedule property under the sale deed, dated 12.01.1989, which document has come to be marked as Ex.A1, there is no plea projected as to how the title of the suit property vested with the plaintiff's vendors.
..It is found that based on the above said evidence of PW1, it is seen that without making any basic enquiry as to how his vendor or his vendor's father had acquired title to the Plaint A schedule property and also not even obtaining any of the revenue records standing their names either showing prima facie.
http://www.judis.nic.in 11 ..The presumption that could be raised under
Section 90 of the Evidence Act is confined only to the execution and the attestation of the document as such. With reference to the nature and truth of the contents of the document, no presumption could be raised as regards the genuineness of the same and with reference to the same, it is for the plaintiff to establish his case by placing acceptable materials.
15.The learned counsel appearing for the appellants/defendant submitted that the plaintiff places reliance on Ex.A4 (Land Register/Adangal for R.S.No.673/1), Ex.A5 (Re-survey plan for R.S.No. 673/1) and A16 (Kanyakumari Village Settlement Register) to prove that R.S.No.673/1 is a Government poramboke pathway and that Ex.A4 is after the filling of the suit and in so far as Ex.A16 is concerned, it is pleaded that R.S.No.673/1 correlated to Old Survey No.1/157, which is a poramboke land and no document is filed by the plaintiff to prove the correlation pleaded and the Village Administrative Officer, who was deposed as PW2 also stated that Ex.A4 was issued without verification of the original land register and a conjoint reading of Exs.A4 and A16 shows that RS No.673/1 is Government Poramboke pathway and Old Survey No.1/157 is Government Poramboke and there is a variation in the nature of classification and this categorically proves that the correlation is http://www.judis.nic.in 12 wrong and does not indicate the suit property and the burden of proof lies on the plaintiff to show that RS No.673/1 correlates to old survey No.1/157, which is a Government poramboke and the deposition of PW2 and PW3 are contradictory and categorically proves that Ex.A4 was issued without verification of original documents and the suit property is not used as a public lane and prays that the respondent/plaintiff is not entitled to any relief.
16.On perusal of Ex.A16, it is stated that Survey No.673/1 is a Government Poramboke pathway. It is admitted on the side of the defendant that he purchased the property in Survey No.673/1. This court has already decided that the patta numbers for Exs.B1 to B3 are different and it stood in the name of some other persons and not in the name of the previous owner of the defendant. The defendant stated that old Survey No.1/157 is shown as Government poramboke. But the property in old survey No.1/157 was not standing in the name of the predecessor-in-title of the defendant. The plaintiff purchased his property as per Ex.A1 on 05.05.1988. But the defendant purchased his property only on 14.03.1990. Ex.A1 is earlier than the defendant's title deed. But in Ex.A1, it is stated that on the northern side of the plaintiff's property, poramboke pathway exists. Hence, the plaintiff proved that Survey No.673/1 is a Government poramboke pathway. http://www.judis.nic.in 13
17.Further, the learned counsel for the appellant argued that the plaintiff in order to establish his special/un-recognized right pleads that the suit property is a public pathway and that the defendant has put up construction on the same and if such a plea is to be admitted, no other number from the public have questioned the action of the defendant by way of any complaint or suit and this only proves the contrary that the suit property is the property of the defendant and it is relevant to note that though the plaintiff claims that the suit property is a public land, not only any member from public has filed any suit or complaint against the defendant and no one from public was also examined by the plaintiff to prove his claim. On the other hand, in support of his claim of the respondent/defendant that the suit property is a patta land purchased from 3 persons, one Pascalis is deposed as DW2 as a member of public and was also formerly elected to Municipal Body and therefore, he had prior knowledge on the existence of previous buildings in the suit property and the deposition of DW2 is completely ignored by the lower appellate court and prays that the plaintiff is not entitled to any relief.
18.To prove that the suit property is a poromboke pathway, the Village Administrative Officer of Kanyakumari District and the Tashildhar of Agesteeswaram were examined. PW2 deposed that on http://www.judis.nic.in 14 perusal of his official records, he endorsed that the old survey No. 1/157 is correlated to new survey No.673/1. PW3 stated during his evidence that the Village Administrative Officer endorsed that the old Survey number for 673/1 is 1/157.
19.The learned counsel for the appellant(s)/defendant argued that question of the title of the vendors to the defendant cannot be raised when the plaintiff has failed to prove beyond reasonable doubt that the suit property is a public lane, especially when there is patta issued to the defendant and the building construction was approved by the Municipality and the building is assessed for tax and particularly when the Government is not impleaded as a party, these questions cannot be raised.
20.On the other hand, the learned counsel appearing for the respondent/plaintiff submitted that the right of the plaintiff and public are not interfered with by the Government and the suit is not bad for non-joinder of necessary parties. For that the learned counsel appearing for the respondent/plaintiff submitted a ruling reported in (2017)1 MLJ 56 LNIND 2016 BMM 730 (Dharmaraj Robert Manickam and another Vs. Rajendran and others), wherein it has been held as follows:-
http://www.judis.nic.in 15 “Suit filed against defendants without impleading either Government or Church cannot be faulted especially when right of plaintiff and public are not interfered with by them – finding of lower appellate court on maintainability of suit on ground on non-joinder of necessary party namely State Government or Church legally un-sustainable – Plaintiffs entitled to declaration to declare suit second schedule property as public cart track and consequential relief – appeal allowed.
21.In this case, the plaintiff cannot ask any relief as against the Government or Municipality and hence, it is not necessary to add the Government as a party. Hence, the argument put forth on the side of the appellant/defendant stating that the suit is bad for non-joinder of necessary party is not at all acceptable.
22.The learned counsel for the respondent/plaintiff argued that the suit property is a poramboke pathway and hence, the plaintiff being the owner of the property abutting the public street, has the right of the access to the suit pathway from any part of his premises and hence, the defendant has no right to put up any fence preventing the plaintiff from having access to the suit pathway and due to the http://www.judis.nic.in 16 construction in the suit property the air and light to the property was obstructed and hence, the respondent/plaintiff is entitled to the relief as prayed for.
23.On perusal of the Ex.A16, it reveals that the suit property is a poramboke pathway. Hence, the plaintiff has right of access to the suit property from any part of his premises. Further, on perusal of Exs.A12 to A14, due to the construction put up by the defendant in the suit property, the access of air and light to the property of the plaintiff was obstructed and hence, it is held that the defendant had put up construction in the suit property, thereby prevailing the access of air and light to the property of the plaintiff. Hence, it is held that the plaintiff is entitled to the relief as prayed for.
24.For all the reasons stated above, this court is of the considered view that the first appellate court after considering the above aspects, has correctly given a finding, which does not require any interference by this court. Accordingly, the substantial question of law is answered in favour of the respondent/plaintiff. http://www.judis.nic.in 17
25.In the result, this second appeal is dismissed. The judgment and decree, dated 30.10.1998 made in A.S.No.708 of 1997 on the file of the Principal Subordinate Judge, Nagercoil is confirmed. No costs. Consequently connected CMP is closed.
18.02.2019 Index : Yes/No Internet: Yes/No er To,
1.The Principal Subordinate Judge, Nagercoil.
2.The Principal District Munsif, Nagercoil.
http://www.judis.nic.in 18 T.KRISHNAVALLI,J er S.A.No.1768 of 1998 18.02.2019 http://www.judis.nic.in