Heard Mr.C.Dhanaseelan, learned counsel appearing for the appellant, Mr.G.K.R.Pandian, learned counsel appearing for the respondents 1 and 2 and Mr.C.Selvaraj, learned counsel appearing for the respondents 3 and 4.
2.This appeal is filed against the Judgment and Decree passed in A.S.No.28 of 2008 dated 27.01.2009 on the file of the Principal Sub Court, Nagercoil confirming the Judgment and Decree in O.S.No.583 of 2005 dated 11.10.2006 on the file of the Principal District Munsif, Nagercoil.
3.The appellant herein is the first defendant, the respondents 1 and 2 herein are the plaintiffs 1 and 2 and the respondents 3 and 4 herein are the defendants 2 and 3 in the suit. The respondents 1 and 2 herein have filed a suit in O.S.No.583 of 2005 before the learned Principal District Munsif, Nagercoil seeking for a prayer of permanent injunction and the suit was decreed in favour of the respondents 1 and 2. Against the Judgment and Decree, the appellant filed an appeal in A.S.No.28 of 2008 before the learned Principal Sub Judge, Nagercoil. The learned Principal Sub Judge dismissed the appeal by confirming the Judgment and Decree passed by the trial Court. Against the Judgment and Decree, the appellants filed this present second appeal.
4.The case of the plaintiffs is that the suit property is the pathway that http://www.judis.nic.in belonged to the Temple and the pathway was maintained by the Temple during the 3 festival time. The Temple chariot will pass through this pathway. One Rohini Vijayakumar filed a petition before the Electricity Board, Nagercoil for getting the electricity connection through the pathway. A suit in O.S.No.102 of 1997 was filed by Rohini and an injunction not to take electricity connection through the pathway was granted. The appeal filed by Rohini Vijayakumar in A.S.No.225 of 2004 was also dismissed. The first defendant purchased the suit property and he was not a member of the Village. He filed a petition for electricity connection and the defendants 2 and 3 tried to help him, though there is a permanent injunction against them. The defendants colluding with the first defendant filed a suit before District Consumer Forum without the knowledge of the plaintiffs. The plaintiffs filed a petition to implead them and the petition was dismissed and an appeal is pending against the petition. The suit property is the patta property of the plaintiffs and prayed that an order of permanent injunction is to be granted.
5.The case of the first defendant is that the suit property is a public pathway and the public are using the pathway and there is no other pathway for the first defendant to reach the main road. The first defendant purchased the property with an extent of 6 cents of land with the right over the pathway in the year 1996 and he was using the pathway from the year 1996 onwards and he constructed a house in the year 1998 and the house is facing this pathway. The first defendant applied for the electricity connection and the same was accepted by the defendants 2 and 3. The Temple http://www.judis.nic.in is a common temple and the people in and around the temple are relatives. Due 4 to previous enmity, the second plaintiff is objecting electricity connection through this pathway. The pathway was formed by all the people residing in that area. The first defendant is not a party in O.S.NO.102 of 1997 and prayed the suit to be dismissed.
6.The case of the defendants 2 and 3 is that there is a pathway from Holy Cross Road to Arulmighu Mutharamman Temple, Koothangadu, Moovendar Nagar, Nagercoil and there is a gate. The defendants and others are using the pathway and the pathway is not the individual property of the plaintiffs. The first defendant is not a party to the earlier suit in O.S.No.102 of 1997. The judgment passed in O.S.No.102 of 1997 will not affect the first defendant. Rohini was having alternative pathway at that time whereas there is no other pathway for the first defendant. The first defendant applied for electric connection as per application P/Y NO.22/98-99. The first defendant filed a petition in C.O.P.No.57 of 2007 and the petition filed by the plaintiffs to implead themselves as parties was dismissed. C.M.P.Nos.1989 of 2005 and 1294 of 2005 were filed by the plaintiffs and the same is pending and prayed the suit to be dismissed.
7.This Court by order dated 18.10.2018, has admitted the second appeal and has framed the following substantial questions of law, which are as follows:
“(i)Whether the injunction decree granted against the drawing of Electricity supply line along a common pathway is sustainable in law?” http://www.judis.nic.in 5 Issue No.1:
8.On the side of the appellant, it is stated that the pathway was formed by the appellant and 10 others and that an injunction order cannot be granted against the usage of a common pathway and that both the Courts below are legally incorrect in receiving Ex.A5 which is an unregistered document.
9.On the side of the appellant, it is stated that the suit property is measuring 230 ft length and 12 ft width. Originally the Temple did not have a pathway on the eastern side and this pathway was formed by the appellant and 10 others. Out of them, 5 to 6 persons are close relatives of the first defendant and each of them contribute 6 ft of their land on each side and formed this pathway. Ex.A5, agreement was handed over to the then President of the Temple. It is stated that there was no pathway between the main road and the Temple and only by the contribution of the appellant and his relatives, the pathway was formed on the eastern side of the temple. The appellant and his succeessors were also having the right to use the pathway to reach the Temple. This agreement was signed by 11 persons and no body has signed on behalf of the Temple and that the document was not even registered. Ex.B2, patta reveals that the pathway is still in the name of the plaintiffs' name and that the pathway was named as 'Nilavilyal Pathai'.
10.On the side of the appellant, it is stated that the appellant sold his property http://www.judis.nic.in to one Rohini and Rohini constructed a house and that the villagers showed 6 their enmity and they prevented Rohini from getting electricity connection through this pathway. It is stated that the plaintiffs filed a suit in O.S.No.102 of 1997 for a prayer of mandatory injunction and preventive injunction and that no suit was filed for declaration of title. Rohini did not file the suit under representative capacity and the suit was decreed in favour of the plaintiffs, Exs.A1 and A2 are the decree and Judgment passed in O.S.No.102 of 1997. Against which, appeal in A.S.No.225 of 2004 was filed and the appeal was dismissed. Exs.A3 and A4 are the Decree and Judgment of A.S.No.225 of 2004.
11.On the side of the appellant, it is stated that there is bar under Section 11 of C.P.C. The appellant is not claiming any right under Rohini and that the other co- owners are not parties in the earlier suit. The suit is not filed in representative capacity and that there is no question of res judicata. Rohini got alternative arrangement from the Electricity Board and she got electricity connection from the back side of the house through Electricity Board Post. It is the duty of the plaintiff to prove the case and that no patta was produced and the entire case depends upon Ex.A5, which is not a registered document. The plaintiffs have not signed Ex.A5. Under Section 47, any document regarding immovable property required under law has to be in writing and has to be registered. An unregistered document cannot be taken into as a defence. This document is not accepted as a collateral security and that though the patta was in the name of the appellants, they cannot consent to record the suit property as pathway. In Ex.B2, http://www.judis.nic.in it is clearly stated that the property is 'Nilaviyal Pathai'. Electricity Board has 7 given connection up to the house of the appellant. Electricity Board is having right to use the private property to erect the Electricity Board Post, if it is necessary and that the Electricity Act 2003 provides such a right to the Electricity Board. The owner of the property if he wants can claim only damages and he cannot object. The appellant suffered without electricity connection for the past 20 years and the respondent deny the right of the appellant only due to their enmity, there is no car or chariot in the temple. Even if there is a car or chariot, the height of the chariot will be only 9 ft and the Electricity Board Line will be above that height.
12.On the side of the appellant, it is stated that there is no other possible way to give electricity connection to the appellant and the Electricity Board filed memo and sketch to that effect.
13.On the side of the respondent, it is stated that the temple has filed a case against one Rohini seeking for injunction and that the same issue was already decided. The appellant donated the land in favour of the temple for forming pathway and 10 such persons also denoted through Ex.A5. The appellant is one of the donors who donate 6ft and this pathway was laid for the procession of temple car and chariot and that all the 11 persons are living along both sides of this pathway and that the appellant sold the property to Rohini and she constructed a building and she tried to get E.B. connection through this pathway and that a suit was filed for temporary injunction and was decreed in favour http://www.judis.nic.in of the temple and that the appeal filed by Rohini was dismissed and it was 8 decided that the pathway is the exclusive pathway of the temple.
14.On the side of the appellant, it is stated that the appellant is not a party in the earlier proceedings. Rohini claimed title through Vishvalingam and Suyambulingam. The suit of the temple is not in the representative capacity and that the injunction relief is only a discretionary relief and the Judgment of the case is not binding upon the appellant. The Temple has not filed any suit for injunction and the suit filed by the temple is not binding upon this appellant.
15.On the side of the appellant, it is stated that the plaintiff did not prove exclusive right to the suit property and that Ex.A5 is not valid under
Section 49(1) of the Registration Act and
Section 35 of the Indian Stamp Act and under
Section 17(b) of the Registration Act.
16.In support of his contention, the Judgment passed by this Court in the case of A.C.Lakshmipathy and another v. A.M.Chakrapani Reddiar and others reported in (2001) 1 MLJ 1 is cited. Another Judgment passed by the Rajasthan High Court in the case of Ganpat Mal Dhariwal v. Sukhraj and another reported in AIR 2001 RAJESTHAN 372 is cited.
17.On the side of the appellant, it is stated that the plaintiff has not proved the exclusive http://www.judis.nic.in possession. D.W.2 has deposed that the appellant is using the pathway and 9 he has no other pathway except this one and that a suit for bare injunction is not maintainable when there is a dispute over the exclusive title.
18.On the side of the appellant, it is stated that the pathway right is an esmentary right attached with and running along with every piece of landsof the 11 persons by contributing each 6 ft of their land and they gave licence or permission to the villagers to use the pathway for an access to the temple under Section 52 of the Esmentary Right and that the temple cannot claim exclusive right under Ex.A5 and that Ex.A5 is not a valid contract under
Section 25 of the Indian Contract Act and that no transfer of property was taken place only licence was given to the pathway. Even if the pathway is a common property the pathway is vest only with the Municipality and not with the temple under Section 61 of the Tamil Nadu District Municipalities Act (V of 1920) and that already this pathway is mentioned as 'Nilaviyal Pathai' and all the streets belongs to the Municipality.
19.It is stated that the suit against Electricity Act is not maintainable under Section 145 of the Electricity Act. In support of his contention, the Judgment passed by this Court in the case of C.Ramasamy v. The Assistant Engineer reported in CDJ 2014 MHC 167 is cited.
20.It is stated that the E.B. Is having a right to draw electricity supply line through http://www.judis.nic.in a common pathway and that the duty is cast upon the Electricity Board under 10 43 of the Tamil Nadu Electricity Act, 2003 and the Electricity Board has every right under Section 67 of the Tamil Nadu Electricity Act, 2003 and the owner of the property can claim only compensation of damages.
21.The Electricity Board can invoke its power under Section 67 of the Tamil Nadu Electricity Act, 2003 by opening up the streets, railways, etc to ensure supply of electricity. The owner is eligible only for claiming compensation. In support of his contention, the Judgment passed by this Court in the case of A.R.A.S.Duraisamy Nadar v. Tamil Nadu Electricity Board reported in 2001(4) CTC 129 is cited. Another Judgment passed by this Court in the case of Assistant Engineer and others v. S.Baskaran reported in 2008 (5) CTC 309 is cited.
22.The pathway was formed by the appellant as well as 10 others. This fact was admitted by the plaintiffs. The evidence of D.W.2 reveals that the pathway was used as a common pathway by all the persons residing on either side of the pathway. This fact was admitted by the respondents. Ex.B2 reveals that this suit property is mentioned as 'Nilaviyal Pathai'. The report of the respondents 3 and 4 reveals that there is no other pathway to give electricity connection. The contention of the respondents is that erecting electricity posts in the pathway will be a disturbance to the procession of temple chariots through this pathway.
http://www.judis.nic.in 23.The case of the plaintiffs is that pathway was formed by the appellant and 11 10 others. Ex.A5 clearly reveals that the pathway was formed by 11 persons for usage of a common pathway for the villagers to reach this temple and that this document permits the public to use the pathway to reach the temple and that this document never confirms any individual right to the temple, as such, the temple cannot claim the pathway as an individual property. Under the Tamil Nadu Electricity Act, 2003, the Electricity Board is having a right to use even a private property for erecting electricity post and to take electric line. As per Ex.A5 the pathway is to be used by the public, admittedly, the appellant has also contributed land for the pathway and the usage of the pathway by the appellant is not prevented by the plaintiffs. The appellant is also having an esmentary right over the common pathway. The appellant is one of the persons who is using the common pathway and the Others who are using the common pathway were not impleaded in the suit. In the above circumstances, both the lower Courts have failed to consider the above said points and passed an order of injunction in favour of the plaintiffs.
24.This court deems it fit to give a direction to the Electricity Department/respondents 3 and 4 herein to erect electric pillars if necessary and to draw the electric line if possible by avoiding the usage of the path way, or to use minimum space on the ground, without much disturbance to the usage of the pathway.
25.With the above direction, this second appeal is allowed by setting aside the Judgment http://www.judis.nic.in and Decree passed by the Judgment and Decree passed in A.S.No.28 of 12 R.THARANI, J.
mrn 2008 dated 27.01.2009 on the file of the Principal Sub Court, Nagercoil confirming the Judgment and Decree in O.S.No.583 of 2005 dated 11.10.2006 on the file of the Principal District Munsif, Nagercoil. No Costs.