1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01.04.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL No.124 of 2011 Kaliyappa Goundar .. Appellant/Plaintiff Vs. 1.Vembanna Goundar 2.Chinnasamy .. Respondents/Defendants Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 22.11.2010 passed in Appeal Suit No.20 of 2009 by the Sub Court, Palani confirming the Judgment and decree dated 13.02.2009 passed in Original Suit No.33 of 2008 by the District Munsif Court, Ottanchathram. For Appellant : Mr.V.Chandrasekar For Respondents : Mr.R.Udhayakumar JUDGMENT The concurrent Judgments and decrees passed in Original Suit No.33 of 2008 by the District Munsif Court, Ottanchathram and in Appeal Suit No.20 of 2009 by the Sub Court, Palani are being challenged in the present second appeal. 2. The appellant herein as plaintiff has instituted Original Suit No.33 of 2008 on the file of the trial Court for the reliefs of declaration and permanent injunction, wherein the present respondents have been shown as defendants. 3. It is averred in the plaint that the plaintiff is the only son of his father and his name is Ramasamy Goundar and he passed away prior to twenty years. The second defendant is the son of the first defendant. Both the plaintiff and defendants are having adjacent lands. The suit properties are the absolute properties of the plaintiff and some items of suit properties have been purchased by the plaintiff under registered sale deeds and with regard to some items of suit properties, the father of the plaintiff has executed a settlement deed dated 06.10.1970 and thus the plaintiff has become the absolute owner of the suit properties and in which the defendants are not having any manner of right, title and interest and now the defendants have been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff by way of denying his title. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 4. In the written statement filed on the side of the defendants, it is averred that in Survey No.579, various sub- divisions are available and in sub-division Nos.1,6,7,8 and 5, the defendants are also having interest. The defendants have https://hcservices.ecourts.gov.in/hcservices/ 2 filed a separate plan for showing the lands, in which they are having their exclusive possession and enjoyment. In Survey No.579/5, a well and channel are also situate and the same are common. The plaintiff has filed the present suit so as to restrain the defendants from taking water from common well. In between Survey Nos.579/8 and 6, there is a common way to a width of five feet. It is false to say that the plaintiff is the owner of the suit properties. There is no merit in the suit and the same deserves to be dismissed. 5. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after evaluating both the oral and documentary evidence has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiff as appellant has filed Appeal Suit No.20 of 2009 on the file of the first appellate Court. 6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments passed by the Courts below, the present second appeal has been preferred at the instance of the plaintiff as appellant. 7. As agreed by the learned counsels appearing for both sides, the present second appeal is disposed of on merits at the stage of admission. 8. On the side of the appellant/plaintiff, the following substantial questions of law have been raised for consideration: a) Whether the Courts below are right in coming to the conclusion that the appellant/plaintiff has not established that he is the owner of the properties, when the appellant/ plaintiff has filed registered documents to prove his title to the properties in question? b) Whether the Courts below are right in coming to the conclusion that the appellant/plaintiff has established the ownership of the properties through unimpeachable documents? c) Whether Judgment of the Courts below could be sustained when the approach of the Courts below are perverse while appreciating the evidence both oral and documentary and when the Judgments are vitiated by error apparent on the face of the record? d) Whether the Judgments of the Courts below could be sustained when the Courts below omitting in taking into account the admission of the respondents/defendants during the course of evidence which are not only relevant and proved as https://hcservices.ecourts.gov.in/hcservices/ 3 against the person who makes them as enshrined in Section 21 of the Evidence Act? 9. The crux of the case of the plaintiff is that the plaintiff is the only son of his father and his name is Ramasamy Goundar and he passed away prior to twenty years and before his demise, he executed a settlement deed in favour of the plaintiff on 06.10.1970 in respect of some items of suit properties and the plaintiff has purchased the remaining items of suit properties and thus the plaintiff has become the absolute owner of the suit properties and in which the defendants are not having any manner of right, title and interest and since the defendants have been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff by way of denying his title, the present suit has been instituted for the reliefs sought for in the plaint. 10. The consistent stand taken on the side of the defendants is that in Survey No.579, various sub-divisions are available and in sub-division Nos.1,6,7,8 and 5, the defendants are also having right and in between Survey Nos.579/8 and 6, there is a common way to a width of five feet and the present suit has been instituted with a view to deter the defendants from taking water from common well and therefore the present suit deserves to be dismissed. 11. As pointed out earlier, the Courts below have concurrently rejected the claim made on the side of the plaintiff. Under the said circumstances, apart from the substantial questions of law raised on the side of the appellant/plaintiff, the Court has to look into the following factual aspects: a) Whether the plaintiff is entitled to get the reliefs of declaration and perpetual injunction? b) Whether the plaintiff can claim title over the Sub Division Nos.579/1, 6, 7, 8 and 5? c) Whether a common way to a width of five feet is situate in between Survey Nos.579/8 and 6? 12. The learned counsel appearing for the appellant/plaintiff has repeatedly contended that some items of suit properties are originally belonged to the father of the plaintiff viz., Ramasamy Goundar and he passed away prior to twenty years and before his demise, he has executed a settlement deed dated 06.10.1970 in favour of the plaintiff and thus the plaintiff has become absolute owner of the entire suit properties and the Courts below without considering the documents filed on the side of the plaintiff and also without considering the clear admission made by D.W.1, have erroneously non-suited the plaintiff and therefore the concurrent Judgments and decrees passed by the Courts below are liable to be interfered with. 13. Per contra, the learned counsel appearing for the respondents/defendants has also equally contended that in Survey https://hcservices.ecourts.gov.in/hcservices/ 4 No.579, various sub-divisions are available and in sub-division Nos.1,6,7,8 and 9, the defendants are also having interest and further in between Survey Nos.579/8 and 6, a way to a width of five feet is in existence and with a view to deter the defendants from taking water from common well, the present suit has been instituted and the Courts below after considering the evil design of the plaintiff have rightly non-suited him and therefore the concurrent Judgments and decrees passed by the Courts below are not liable to be interfered with. 14. For considering the rival submissions made by either counsel, the Court has to look into the clear admission made by the second defendant viz., Chinnasamy and also vital documents filed on the side of the plaintiff. In the plaint, totally ten items of suit properties have been mentioned. 15. The second defendant has been examined as D.W.1. During the course of cross-examination, he has clearly stated in his evidence that with regard to item Nos.1 and 2, he is not having any objection. In paragraph No.3 of the written statement, it has been clearly stated that the defendants are having right, title and interest only in respect of Survey Nos.579/1, 579/6, 579/7, 579/8 and 579/5. Admittedly, the suit items 1 and 2 are in Survey No.584/2. Considering the clear admission made by D.W.1 and also considering the fact that no claim has been made in respect of item Nos.1 and 2 in the written statement, it is needless to say that the plaintiff is entitled to get the reliefs sought for in the plaint with regard to item Nos.1 and 2. 16. In item No.3, Survey No.579/1 measuring 32 cents of land has been mentioned. The plaintiff has purchased the same under Exs.A5 and A6. In Survey No.579/1, totally 57 cents of land is available. But the plaintiff has claimed right, title and interest in respect of 32 cents under Exs.A5 and A6. Since in item No.3, 57 cents of land is available and the plaintiff has claimed only 32 cents of land under Exs.A5 and A6 with regard to item No.3 also, the relief claimed in the plaint can be granted in favour of the plaintiff. 17. Item No.4 is nothing, but Survey No.579/2 admeasuring 12 cents of land. With regard to item No.4 also, D.W.1. has not claimed anything and in the written statement also no claim has been made. Therefore the suit can be decreed in respect of item No.4 also. 18. Item No.5 is comprised in Survey No.579/4 admeasuring 27cents. With regard to item No.5, the defendants have not claimed anything and even in the written statement no claim has been made and therefore the suit can be decreed in respect of item No.5 also. 19. Item No.6 is comprised in Survey No.579/5 measuring 1 acre 40 cents of land. The plaintiff has claimed right in respect of item No.6 on the basis of Exs.A4 and A6. In the written statement filed on the side of the defendants, it is stated that in item No.6, a common well and channel are situate. Considering the fact that in Ex.A4 the plaintiff has claimed 1 https://hcservices.ecourts.gov.in/hcservices/ 5 acre 40 cents of land, the reliefs of declaration and injunction can be granted excluding the common well and also channel running from it. 20. In item No.7, Survey No.579/6 is found place, wherein the plaintiff has claimed 1 acre 11 cents, out of 4 acre 72 cents. Even though in the plaint, it has been stated that in Survey No.579/6, 4 acres 72 cents are available as per Exs.A4 and A6, its total extent is only 4 acres 20 cents. However, the plaintiff has purchased 1 acre 11 cents under Exs.A4 and A6. Therefore with regard to 1 acre 11 cents, reliefs of declaration and injunction can be granted. 21. Item No.8 is situate in Survey No.579/7. The plaintiff has claimed right in respect of item No.8 under Ex.A5. Since under Ex.A.5, the plaintiff has purchased 24 cents of land he is entitled to get the reliefs sought for in the plaint. 22. Item No.9 is comprised in Survey No.579/8 and D.W.1 has not claimed anything. Even in the written statement, no mention has been made with regard to item No.9 and further under Ex.A4, the plaintiff has purchased item No.9. Under the said circumstances, with regard to item No.9 also, the reliefs sought for in the plaint can be granted. 23. Item No.10 is comprised in Survey No.579/9 admeasuring 1 acre 30 cents of land and the plaintiff has purchased the same under Exs.A4 and A6 and further D.W.1 has not claimed anything and even in the written statement no mention has been made with regard to item No.10 and therefore with regard to item No.10 also the reliefs sought for in the plaint can be granted. 24. The learned counsel appearing for the respondents/defendants as stated earlier has argued that a way is in existence to a width of five feet in between survey Nos.579/8 and 579/6. But the learned counsel appearing for the appellant/ plaintiff has contended that the said common way is in existence in Survey No.579/5. The learned counsel appearing for the appellant/plaintiff has relied upon the recitals found in Ex.A.5. On the basis of Ex.A.5 the Court cannot come to a conclusion that the said common way is in existence in Survey No.579/5 alone. Under the said circumstances, this Court is of the view to grant the reliefs of declaration and permanent injunction excluding the common well and channel, which situate in Survey No.579/5 and also the common way to a width of five feet, which is mentioned in the written statement. 25. It has already been pointed out that the plaintiff is entitled to get the reliefs as mentioned supra. Under the said circumstances, the present second appeal can be allowed and the substantial questions of law raised in the present second appeal are having substance and altogether the present second appeal can be allowed at the stage of admission. https://hcservices.ecourts.gov.in/hcservices/ 6 26. In fine, this second appeal is allowed without costs at the stage of admission. The concurrent Judgments and decrees passed in Original Suit No.33 of 2008 by the District Munsif Court, Ottanchathram and in Appeal Suit No.20 of 2009 by the Sub Court, Palani are set aside and Original Suit No.33 of 2008 is decreed without costs excluding the common well and channel, which are situate in Survey No.579/5 and also excluding the common way, which situate to a width of five feet mentioned in the written statement. Sd/- Deputy Registrar(LA) /True Copy/ Assistant Registrar To 1.The Subordinate Judge, Palani. 2.The District Munsif Court, Ottanchathram +One Cc to Mr.V.Chandrasekar, Advocate, SR.No.12396 smn rl/4c – 8.6.2011 S.A.(MD)No.124 of 2011 https://hcservices.ecourts.gov.in/hcservices/