This Second Appeal has been filed against the judgment and decree dated 27.04.2000 made in A.S.No.205 of 1999 on the file of the Principal District Court, Karur reversing the judgment and decree dated 26.02.1999 made in O.S.No.434 of 1997 on the file of the Additional District Munsif Court, Karur.
2. The gist and essence of averments in the plaint is as follows: The husband of the first plaintiff, the second plaintiff, the defendant and one Viswanathan are brothers and they are the sons of Ramasamy. The said Ramasamy and his sons had partitioned their properties under the registered partition deed, dated 05.04.1972, which was duly executed, registered and acted upon. In the above said partition, 'C' Schedule properties were alloted to the defendant, 'D' Schedule properties to the first plaintiff and 'E' Schedule properties to the second plaintiff. In pursuance of the partition, the sharers were in peaceful possession and enjoyment of their respective shares. On the West of the defendant's property, a common land has been allotted for common use for the parties, to the partition deed. The defendant is using the same to reach his property. The plaintiffs are reaching their properties through the red- washed pathway shown in the plaint plan. The said pathway is about 10 feet width. Except the said pathway, there is no other pathway to reach the plaintiffs' property. The red-washed suit pathway is the exclusive pathway of the plaintiffs. The plaintiffs are paying kist for the suit properties. The defendant has no manner of interest, title or possession whatsoever over the suit property. The defendant is reaching his property, which situated on the East of the common land, through the common land. After the demise of the first plaintiff's husband Krishnan, the first plaintiff is enjoying his respective share as a legal heir along with her children. Now, due to the recent enmity between the plaintiffs and the defendant, the defendant is attempted to obstruct the plaintiffs for using the 'C' Schedule path way. He has no manner of right to do so. Hence, the plaintiffs are constrained to file a suit for permanent injunction restraining the defendant from in any manner obstructing the plaintiffs from using 'C' Schedule pathway and prayed for a decree.
3. The sum and substance of averments in the Written Statement are as follows:
The suit is not maintainable. It is false to contend that the 'D' Schedule property in the partition deed has been alloted to the first plaintiff. It is also false to contend that the western side of the defendant's property is common property, that property has been used by the defendant to reach his property is absolutely false and west of the defendant's property, common property is there, common well and motor pump-set were there. So the plaint plan is not correct. Since the plaintiff has suppressed the material facts, the suit is liable to be dismissed. The allegation that the width of the disputed pathway is 10 feet is absolutely false. But it is only 1 1/2 feet and it is only foot pathway. It is not an exclusive for the plaintiffs. It is a common pathway for all. It is absolutely false to contend that the plaintiff has prescribed title by adverse possession is suit pathway. The cause of action is not correct. In the 'C' Schedule pathway, which is situated on the northern side of the defendant's properties, there is a bore-well and 5 H.P Oil engine and there are 55 coconut trees, two mango trees and plantains were there. The plaintiffs have taken steps to remove all the trees, since they failed to do so. Now, they come forward with the vexatious suit. During the pendency of the suit, the plaintiffs have removed the coconut in the tree, which is against law. Description is not correctly given. No cause of action for the suit as he prayed for the dismissal of the suit.
4. The learned District Munsif, Karur after considering the averments both in Plaint and Written Statement, framed six issues and considering the oral evidence of P.Ws.1 and 2 and D.W.1, documents Exs.A1 to A4, Exs.B1 to B4 and Exs.C1 and C2 and come to the conclusion that as per the Commissioner's Report, the width of the suit pathway is 1 . feet. It is only foot pathway. It is a common pathway for both plaintiffs and defendant. So the defendant is restrained to interfere with the peaceful possession and enjoyment of the plaintiffs in the 1 . feet common pathway and also dismissed the suit that it is not in an exclusive pathway of the plaintiffs. Against that, the plaintiffs preferred an appeal before the Principal District Court, Karur. The learned Principal District Judge after considering the averments, document and framed three points for consideration and come to the conclusion that 'C' Schedule pathway of the plaintiffs is exclusive. So they are entitled to a decree as prayed for in the plaint. Therefore, the defendant has come forward with this Second Appeal.
5. The substantial questions of law arises in the Second Appeal are as follows:
"1. When the suit 'C' Schedule property is an undivided Hindu family property of the appellant and the respondents as per Ex.B1 to B4 and when it was not specifically allotted to any sharer under Ex.B3 partition deed whether the lower appellate Court is right in law in holding that the suit 'C' Schedule property belongs to the respondents exclusively who are only sharers like the appellant overlooking?
2. Whether the lower appellate Court is right in law in reversing the findings of the trial Court as regard to the ownership of the 'C' Schedule property by overlooking the material evidence namely Exs.B1 to B4 and the admission of P.W.1?
3. When the width of the pathway in 'C' Schedule property was found to be only 1 1/2 feet in Exs.C1 and C2 - the Commissioner's Report and plan and when there is no contra evidence to the same. Whether the lower appellate Court is right in law in assuming that the width of the 'C' Schedule pathway is 10 feet in the absence of any material evidence to come to such conclusion?"
6. The appellant is defendant in the trial Court. The respondents/plaintiffs filed a suit for bare injunction in respect of 'C' Schedule property i.e. pathway. In that pleading, they contend that it is the exclusive property of the respondents. Now the appellant attempted to obstruct to use the suit property. So they are constrained to file a suit for bare injunction. But the trial Court, after considering the oral and documentary evidence, come to the conclusion that the suit pathway is a common pathway for both the appellant and respondents. Since the appellant attempted to obstruct the enjoyment of the respondents, the learned trial Judge has granted injunction restraining the appellant to obstruct the peaceful enjoyment of the plaintiffs/respondents in the suit property. Against that, the respondent as the appellant preferred an appeal. In that appeal, the learned First Appellate Judge has come to the conclusion that the suit property is exclusive property of plaintiffs/respondents and granted the relief as prayed in the plaint. Against that, the present Second Appeal has been preferred by the appellant/defendant. Point Nos.1 and 2:
7. The admitted facts of the case is as follows:-
The property originally belonging to Thirugnanam and his brothers. They entered a partition deed as per Ex.B4. As per the partition deed, the suit pathway and other properties have been allotted to Thirugnanam and he sold the same to the appellant's father Ramasamy and his brother Sadasivam/P.W.2 under Ex.B1. That Ramasamy and Sadasivam entered a registered partition under Ex.B2 on 06.09.1969. The properties purchased under Ex.B1 is admittedly allotted to Ramasamy as per Ex.B2. It is a partition deed i.e. Ex.B2 between Ramasamy and P.W.2, they divided the property in East West and southern portion allotted to P.W.2 and northern portion allotted to Ramasamy. Ramasamy divided the property in South North and allotted to his sons. Western portion of the property has been allotted to appellant. Adjacent East of the appellant's property has been allotted to first respondent. East of the first respondent's property has been allotted to second respondent. That northern boundaries for all the properties have been shown as South of drainage channel thadam i.e. pathway. In 'E' Schedule property, it was mentioned as South of East West channel. In 'D' Schedule property also it was stated East West drainage channel thadam i.e. pathway. It shows that is only a drainage channel bund.
8. The learned appellant counsel would contend that as per the Commissioner's Report and plan, i.e. Exs.C1 and C2 that the width of the pathway is only 1 1/2 feet. It is not in a straight pathway and it contains curves and bents. In that pathway, coconut trees, mango trees and plantains were there. Originally, the properties owned by one Thirugnanam Pillai and his brothers. They partitioned the suit property in 1955 as per Ex.B4. The respondent/appellant's father Ramasamy and his brother Sadasivam-P.W.2 purchased the same under Ex.B1 on 27.01.1957. The appellant's father Ramasamy and his brother Sadasivam-P.W.2 have partitioned the property as per Ex.B2 under the registered partition deed dated 06.09.1969. The appellant's father Ramasamy having 4 sons. They are Viswanathan, Arulanandam/the appellant herein, Krishnan is the first respondent's husband and Ganesan/second respondent. The appellant's father and his sons entered a registered partition deed dated 05.04.1972 under Ex.B3. In that partition, 'A' Schedule properties were alloted to Ramasamy. 'B' Schedule to Viswanathan. 'C' Schedule to Arulanandan/the appellant herein. 'D' Schedule to Krishnan/the first respondent's husband. 'E' Schedule to Ganesan/the second respondent herein. The above factum were not disputed by both the parties. In Ex.B4 their boundary has been shown as south of drainage channels thadam i.e. pathway. It is known as drainage channel. So all the appellant and respondents having common right over the property. So the first appellate Court has come to the wrong conclusion that the pathway 'C' Schedule property is exclusive for respondents herein. Hence, the learned appellant counsel would contend that the first appellate Court's decree and judgment to be set aside.
9. The learned first respondent counsel would contend that the suit property is situated on the north of shares allotted to appellant and respondents. It is the drainage channel and only a channel bund. Since the appellant/defendant's property has been allotted on the East of common property, he can reached his property only through the common property, not by the suit pathway. In such circumstances, first and second respondents alone having right over the property. They alone reached their properties only through the suit property. Hence, it is the exclusive property of respondents herein. In that, he fairly conceded that there is no documentary evidence to show that the suit property is an exclusive property of respondents. But however, P.W.2's oral evidence and admission made by the appellant in counter, filed in injunction application in I.A.No.383 of 1997 is clearly proved that the 'C' Schedule property is exclusive property of the respondents herein. Hence, he prayed for the dismissal of this appeal.
10. The learned first respondent counsel would further contend that it is a suit for bare injunction, even though the first appellate Court have given a finding that the suit 'C' Schedule property is an exclusive pathway of respondents herein, but the suit has been decreed as prayed for. Since the suit is for bare injunction alone, injunction has alone been given. Hence, there is no need to set aside the decree and judgment passed by the lower appellate Court.
11. The second respondent counsel would contend that in para 6 of his counter, the appellant herein has made a candid admission that the width of pathway is 3 to 7 feet. P.W.2 Sadasivam, who is the junior paternal uncle of appellant and second respondent herein, has also given an oral evidence that the 'C' Schedule pathway has been exclusively used by the respondents herein. Hence, he prayed for dismissal of this appeal.
12. The learned appellant counsel would vehemently argued that since the suit is for bare injunction, the trial Court as well as the appellate Court have given a finding that the suit pathway is a common pathway for both appellant and respondents and exclusively for respondents herein respectively. So his main argument is the finding given by the first appellate Court that the suit property is exclusive property of the respondents is to be set aside.
13. It is true in a suit for bare injunction, the title to the suit property to be incidentally looked into and decided for granting discretionary relief of injunction. But no finding is necessary. But here, admittedly the appellant and respondents properties are adjacent properties. The appellant has allotted western portion. Then brother has allotted east of the appellant's property and second respondent has allotted east of the first respondent's property. The common boundary for these properties is only East West drainage channel thadam that means pathway. So it can be used by all the three sharers.
14. It is the duty of the plaintiffs/respondents to prove their case. But to prove their case, one Sadasivam has examined as P.W.2, who is none other than junior paternal uncle of appellant and second respondent herein. There is an enmity between the appellant and P.W.2. In his cross-examination, he has stated as follows: In the East of the drainage channel there is a bridge, under that bridge P.W.2 has put up the pipeline. In that process, there is a dispute between the appellant and P.W.2. But in the suggestion made to P.W.2 that there was a dispute in respect of laying pipeline below the channel has been denied by him. In his evidence also he fairly conceded that nearly 200 coconut trees are there in the suit property. He also denied the suggestion that because of the enmity between the defendant and himself, he has given an evidence against the defendant. It is pertinent to note that except P.W.2, no independent witness has been examined before the Court. While considering the plaint Plan-Ex.A4 and Commissioner's Plan-Ex.C1, that the 'C' Schedule suit property has been one of the boundaries to appellant and respondents. so the appellant and respondents are enjoying the property commonly. In the above said circumstances, the learned first appellate Judge has not correct into come to the conclusion that the suit property, exclusive property of the plaintiffs/respondents herein. It is also not correct that the defendant/appellant has enjoying his property only through the common property allotted in Ex.B3-Partition Deed. Hence, this Court come to the conclusion that the suit pathway is only a common pathway for all the sharers i.e. plaintiffs/respondents and the defendant/appellant herein. So the finding of the first appellate Court that the suit property is exclusive property of the respondents is not correct. Point Nos.1 and 2 are answered accordingly.
Point No.3
15. The second argument put forth by the appellant counsel is that the width of the pathway is 1 . feet. In Ex.B3, it was mentioned "fHpt[ePh; tha;f;fhy; jlk;;" i.e. drainage channel pathway. In that, admittedly nearly 200 coconut trees and other trees are there. So the thadam is only foot pathway. Here, Commissioner has been appointed and he filed a Commissioner's Report and Plan i.e. Exs.C1 and C2. In that, he has stated that the width of the bund of channel is in some place it was 18 feet, 10 feet, 15 feet, 13 feet, 8 feet etc. But he has mentioned only the foot pathway contains so many curves and bents and the width of the suit pathway is only 1 . feet. Admittedly, both parties to the proceedings not filed any objection to Commissioner's Plan and Report i.e. Exs.C1 and C2.
16. At this juncture, the learned respondent counsel would contend that some of the portion in cross-examination of D.W.1 that he himself admitted that the width of the pathway is 3 to 7 feet in his counter in injunction petition. But after Commissioner's visit, in his written statement, he has mentioned that the width of the suit pathway is only 1 . feet. As already discussed, the suit property is only the bund of the drainage channel. In that, admittedly 200 coconut trees and other trees are there. So it is only a foot pathway and the width is 1 . feet. It contains so many curves and bents. In such circumstances, the first appellate Court is error into come to the conclusion that the width of the pathway is 10 feet. Merely, because of appellant herein in his counter statement he has mentioned that the width of the suit pathway is 3 to 7 feet, it will not help the respondents/plaintiffs case. It is settled principles of law that plaintiffs must prove their case. The plaintiffs cannot taking advantage of weakness in the evidence of the defendant and sought for relief. Admission made by a party - Use of the same against the person making such admission. Here the appellant in his counter he has stated that the width of the pathway is 3 to 7 feet and after the Commissioner's inspection, he has stated that the pathway is 1 . feet width. So, it is not an admission made by the appellant. As already discussed, the respondents/plaintiffs cannot taking advantage of the weakness in the case of the appellant/defendant and claiming relief. So the width of pathway is 10 feet is unacceptable. The width of the suit pathway is only 1 1/2 feet. Point No.3 is answered accordingly.
17. As already stated, since it is the suit for bare injunction, the suit property is only drainage channel bund, which is one of the boundary for these properties allotted to appellant and respondents, in the Partition deed-Ex.B3. They are enjoying the pathway to reach their properties. So it is only a common pathway for appellant and respondents. Since the appellant is attempted to obstruct the enjoyment of suit property by respondents, the respondents have come forward with the suit for injunction restraining the appellant from in any manner obstructing the plaintiffs from using 'C' Schedule Pathway. So, the respondents are entitled to an injunction as prayed for in the plaint. Hence, the finding of the suit property is a common pathway is set aside.
18. In fine, that the suit pathway is common pathway of appellant and respondents. Since the appellant attempted to obstruct the enjoyment by the respondents, the respondents are entitled injunction as prayed for in the plaint. Hence, this Court confirmed the decree and judgment of the first appellate Court, for the reasons stated above. In the result, the Second Appeal is dismissed. No costs.
akv To
1. The Principal District Court, Karur.
2. The Additional District Munsif Court, Karur.