The suit for declaration of title in respect of 1st item of property and easmentary right in respect of 2nd item of property coupled with the prayer of injunction restraining the defendant from disturbing the peaceful possession and enjoyment of the plaintiff's right held not in favour of the plaintiff resulting in dismissal of the suit by the trial Court. Whereas, the appeal was partly allowed in favour of the plaintiff by granting declaration of title restricted to a lesser extent in the 1st item of property. Aggrieved against the judgment of the lower appellate court, the defendant has preferred this second appeal.
2. The case of the plaintiff is that the 1st item of the suit property is his ancestral property. The 2nd item is adjacent to the 1st item of property on the west of the 1st item property. He has put up a terrace house in the year 2001 in his property. The 1st item of property is left vacant to maintain his wall and to have access to his terraced house located south of his terrace house. While so the defendant, who has put up a cow shed in his land falling East of the portion marked as B, B1, D1, D in the plaint plan attempting to prevent access to the plaintiff portion of land shown as ABCDE portion in the plaint plan and also the easmentary right of way through the portion shown as BB1,D1D in the plaint plan.
3. The rival case of the defendant is that, the plaintifff have no title over the 1st item of property and also no easmentary right enure to him over the 2nd item of property as claimed. In fact, the defendant is in enjoyment of the entire property measuring 30 x 90 feet on the East of the line marked as AD since 1952 and paying tax for it. He inherited 1/2 share from his father and remaining 1/2 share through the settlement deed dated 18.02.1976 executed by his paternal uncle Sadaiappa Pillai, who died issueless. Both items 1 and 2 falls within the boundary of the defendant land. The description of property not adequate and the suit is filed with wrong description. The Advocate Comissioner Report will show that there is a drum stick tree at the entrance of the suit property. The suit land is a narrow passage and it is difficult to enter into it. Since cattles enter through the passage and cause damage to his roof in order to prevent it, he put a thorn fence. That fence was later removed by police at the instance of the plaintiff. The plaintiff had constructed his terrace house on the boundary of his land and put up two windows and sun shades facing the defendant property. That was objected by the defendant. Infuriated by this, the plaintiff has filed this suit alleging falsely that the rain water collected on the roof top of this property flow on the suit property and runs through the suit land towards the road.
4. In the trial, the plaintiff examined 3 witnesses and marked 24 exhibits. The defendant examined 4 witnesses and marked 6 exhibits. The Advocate Commissioner's Report and sketch are marked as Ex.C-1 and C-2. The surveyor sketch is marked as Ex.C-3. The Trial Court dismissed the suit holding that thought he plaintiff claims there is 4 feet of land on the East of his property, evidence reveals that there is no 4 feet of land as claimed. Thus, the claim of the plaintiff regardint title and easement not proved.
5. The aggrieved plaintiff preferred the first appeal restricting his relief to a portion of the suit first item alone shown as 'ABCD' portion in the commissioner plan marked as Ex C-2. Thus modifying the prayer, based on the commissioner report and plan, the appellant sought declaration of title to a portion of the first item property mentioned in his plaint. The lower appellate court allowed the same and granted decree of declaration of title in favour of the plaintiff in respect of 37 ½ feet running North-South by length and 1.3 feet on the north and 9 inches on the south running East-West by breath.
6. Aggrieved by the lower appellate court judgment, the defendant has preferred this appeal on the ground that, the the lower appellate court has overlooked the contineous, undisturbed possession and enjoyment of the suit property by the defendant for more than 50 years. Contrary to the said fact, established through the tax receipts from the year 1973, even without title document in the name of the plaintiff, the Court had granted the relief of declaration of title and injunction restraining the real user of the property who are enjoying it for a considerable length of time and thereby prescribed their title over it.
7. This Court at the time of admission has formulated the following Substantial Questions of Law for consideration:-
“(1)Whether the learned Subordinate Judge erred in reversing the well considered findings of the trial court without any reasons?
(2) Whether the learned Subordinate Judge is correct in granting a decree for declaration when even the relief of easement of necessity has been negatived?
(3) Whether the learned Subordinate Judge erred in granting a decree for declaration even without any documents to prove that the plaintiff is the owner of the property?”
8. Before adverting to the merits of the appeal, the description of suit property as found in the plaint is relevant to understand and answer the question of law under consideration “Item 1: Viruthachalam Taluk, Veppur sub-division Chepakkam village natham old survey number 218 / 54 A, new survey number 496/9 , South - North 44 1/2 feet, East -West 2 feet land bounded by North- Street on North , suit second item property on East , Jamalbai and Defendant property on South, plaintiff terraced house, lane and a thached house on West.
Item 2: Viruthachalam Taluk , Veppur sub-division Chepakkam village natham old survey number 218 / 54 , new survey number 496/11 , South - North 44 1/2 feet, East -West 2 feet land bounded by North Street on North, thatched house and vacant site of the defendant on East, Defendants land on South , first item of the plaint suit schedule on West.
9. The case of the plaintiff is, the first item of the suit schedule property is his ancestral property. Except patta in his name, no other evidence produced to show his title. It is also an admitted fact that the plaintiff has constructed the terrace house only in the year 2001. The specific plea as found in the plaint is that, the total breath of the suit property(item 1 and 2) is about 4 feet. The rain water collected on the roof of his thached house flow towards north and fall on the suit items properties. The rain water so falling run through the length of the suit property towards the road. Furthe his case is that he is using the suit property to reach his thached hut located south of his terrace house and there is no other access to that property except the suit lane. These averments made in the plaint found to be false by the trial Court based on the evidence. Thereafter, the plaintiff by modifying his prayer in the appeal in tune with the commissioner report and sketch and has preferred the first appeal and eventually succeeded.
10. Examination of Ex C-1 to C-3 reveals the physical feature of the property in dispute. The property as described in the plaint plan and the actual physical feature recorded in Exs.C-1 to C-3 differs substantially. First of all, as per the Commissioner's plan, the measurements indicates that it is only a narrow passage ranging from 9 inches to 15 inches running for about 37 1/2 feet on north-south direction and not a 4 feet lane as claimed by the plaintiff. By no stretch of imagination, this narrow passage could have been the access to the hut lying on the southern end. Thus it is evidently proved, that the plaintiff had constructed to the last foot of his property and seeking right of access in the neighbours land as if he have no other access. This assertion also not a true reflection of the fact.
11. Secondly, regarding the delaration of title restricting to the portion of the 1 item property, the lower appellate court has failed to take note of the fact that no evidence is produced by the plaintiff to prove that he inherited the suit property through his ancestors. Neither document to prove title placed before the court. On the other hand, the defendant has not only produced title document in respect of his property bearing S.No. 496/11, he has also ascertained that, the plaintiff has encroached upon a portion of his land and had obtained patta in his name including the encroached portion. However, so far as the suit property is concern he is in possession and enjoyment for sufficient length of time and had set up possessory right as a shield. The trial court has gone into all the aspects such as description of property, falsehood in the pleadings, ownership and possession along with the advocate commissioner's report before arriving at the conclusion. Whereas, the lower appellate court, has miscerably failed to take note of any of the above facts, but erroneously relied upon the commissioner report alone for granting declaration of title to the restricted portion without going into the evidence regarding the title and possession of the property and the plea of possessory right set up by the defendant. Accordingly, the substantial question of law is answered as above.
12. In the result, the Second Appeal is allowed and the judgment and decree of the first appellate Court is set aside and the jdugment and the decree of the trial Court is restored. No order as to costs. Consequently, connected Miscellaneous Petitions are closed.
..02.2017 Index:Yes/No Internet:Yes/No ari To The Principal Subordinate Judge, Vriddhachalam. 1st Additional District Munsif, Vriddhachalam.
Dr.G.Jayachandran, J.
ari
Pre-delivery judgment made in
S.A.NO.1540 OF 2008
15.02.2017
http://www.judis.nic.in