IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :10.06.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.907 OF 1995 1.Krishnaswamy (Died) 2.Savithiri 3.Prabhaakaran 4.Baby ... Appellants (Appellants 2 to 4 brought on record as LRs of the Deceased sole appellant vide order dt.30.03.2010 made in CMP.No.373 & 374 of 2010) Vs. 1.Mungoora Gounder (Died) 2.Rangammal 3.Selvaraj 4.Karuppusamy 5.Chinnaraj 6.Mani 7.Kalyanani 8.Vijayalakshmi ... Respondents/Respondents (Respondents 3 to 8 brought on record as LRs of the Deceased R1 vide order dt.08.06.2010 in CMP.NO.1188 of 2007) Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 24.2.1995 in A.S.No.180 of 1994 on the file of the Principal District Judge, Coimbatore confirming the Judgment and Decree dated 30.06.1994 in O.S.No.1862 of 1985 on the file of the 2nd Additional District Munsif, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.V.Nicholas For Respondents 2 to 8 : Mr.B.Soundarapandian J U D G M E N T The Deceased First Appellant/Plaintiff, during his life time, has filed the present Second Appeal before this Court and during the pendency of the Second Appeal, in lieu of his death, his Legal Representatives have been impleaded as his Legal Representatives and brought on record as Appellants. 2.The short facts of the Appellants' case are as follows: The Deceased First Appellant/Plaintiff's Grandfather was one Thippanna Gowder. The Deceased First Respondent/First Defendant's Grandfather was Mungoora Gowder. Thippanna Gowder and Mungoora Gowder were brothers. The Second Respondent/Second Defendant is the wife of the Deceased First Respondent/First Defendant. The plaint schedule A and B properties initially belonged to the great Grandfather of the Deceased First Appellant/Plaintiff and the Deceased First Respondent/First Defendant. The great Grandfather of the First Appellant/Plaintiff left behind him sons one Thippanna Gowder and Mungoora Gowder. Thippanna Gowder left a son by name Perumal Gowder. Perumal Gowder left three sons 1)Ramaswamy 2)Thippanna and 3) Krishnaswami. Mungoora Gowder left five sons 1)Kalappa Gowder, 2) Thippanna Gowder, 3)Nanjundan, 4)Marudappan and 5)Vellingiri. Kalappa Gowder left a son Mungoora Gowder, who is the Deceased First Respondent/First Defendant. 3.According to the Appellants, the ancestors of the Deceased First Appellant/Plaintiff and the First Respondent/ First Defendant had effected an oral partition of their properties and some portions of the properties were left as common properties for convenient enjoyment of the other properties. The plan annexed to the plaint shows the ancestral property viz., the portions which were allotted to co-sharers and other portions were retained as common for joint enjoyment by co-owners. The houses allotted to the Deceased First Appellant/Plaintiff and Deceased First Respondent/First Defendant are shown in the plan. For smooth ingress and egress and for free flow of men and cattle, some portions were held in common and the same were described as common place in the plan. There are openings at the points in X and Y in the plaint plan so as to enable the sewage and other water to pass through the house of the Respondents/ Defendants so that the water may reach the common space. The Appellants/Plaintiffs are entitled to use the common space shown as A https://hcservices.ecourts.gov.in/hcservices/ B C D and A B E F G in the plan and they have access to the Drain and other water to pass through the points X and Y. 4.On the Eastern side of the Deceased First Appellant/Plaintiff's house, the property belonging to Vellingiri and Marudappan is located. Marudappan had two wives. The first wife Karammal did not live with him and she deserted him. The children of Karammal were not born to Marudappan Gowder. The Deceased First Respondent/First Defendant got a Sale Deed in favour of the Second Defendant from Karammal and her sons. In fact, the Sale Deed describes the property as a vacant space. There is no vacant space immediately on the Eastern side of the Appellant/Plaintiff's house. But there is a house on the Eastern side of the Appellant's house. The Sale Deed is invalid and not binding on the co-sharers. 5.In the Plaint, the Deceased First Appellant/Plaintiff has mentioned that the Deceased First Respondent/First Defendant and the Second Respondent/Second Defendant and their men were preventing the Deceased First Appellant/ Plaintiff and his cattle from using the common space and also obstructing the free flow of water along the points X and Y and the Defendants said acts are unlawful. Hence, the Deceased First Appellant/Plaintiff has laid the suit praying for the relief of declaration that he is entitled to have access and right of way through or along with the space called common place and in particular through the space marked as A B C D and A B E F G and for the grant of consequential injunction. Also the Deceased First Appellant/ Plaintiff has sought a relief of declaration that he is entitled to have access to his rain, drain and other water to pass from his house to the common place through or along the openings marked as X and Y in the plaint plan and grant consequential injunction. 6.The Deceased First Respondent/First Defendant has filed a written statement (adopted by the Second Respondent/ Second Defendant) to the effect that the suit properties were allotted to the family of Mungoora Gowder, the Grandfather of the First Respondent/First Defendant who died leaving his five sons 1)Kalappa Gowder, 2)Thippanna Gowder, 3)Nanjundan, 4)Marudappan and 5) Vellingiri and that in the oral partition effected between the Defendants' father Kalappa Gowder and his four brothers, the suit properties were allotted to his junior paternal uncles Marudappan and Vellingiri. Since Vellingiri was not married and his whereabouts were not known for the past 30 years, the entire suit properties were under the occupation and enjoyment of Marudappan. 7.Marudappan expired three years ago leaving his wife Karammal and his two sons. From whom the Deceased First Respondent/First Defendant has purchased the property under the Sale Deed in the name of Second Respondent/Second Defendant as per Sale Deed dated https://hcservices.ecourts.gov.in/hcservices/ 15.12.1984. The suit property was under the occupation and enjoyment of the Defendants from more than 20 years though the property belonged to Marudappan Gowder who was the absolute owner of the property. The Deceased First Appellant/Plaintiff was not able to succeed in his endeavour to purchase the suit property mentioned in A schedule from the wife and sons of Marudappan Gowder and therefore, he has projected the suit, there was no necessity for the Defendants to cause any obstruction in the underground drainage which was laid to allow the drain and rain from the houses of the Plaintiff and Defendants. 8.The Second Respondent/Second Defendant is the absolute owner of the property purchased by her and no one had any right to question the title of the suit property. The suit, therefore, was not maintainable. 9.Before the Trial Court, on the side of the Deceased First Appellant/Plaintiff, witnesses P.W.1 to P.W.3 were examined and Exs.A.1 to A.4 were marked. On the side of the Deceased First Respondent/First Defendant and the Second Respondent (Defendants), D.W.1 and D.W.2 were examined and no exhibits were marked. Also, the Advocate Commissioner's Report was marked as Exs.C.1 and C.2. 10.The Trial Court, on an appreciation of oral and documentary evidence available on record, came to the resultant conclusion that the Deceased First Appellant/ Plaintiff was not entitled to seek the reliefs sought for in the Plaint and resultantly, dismissed the Suit without costs. 11.The Deceased First Appellant/Plaintiff filed A.S.No.180 of 1984 before the First Appellate Authority viz., the Principal District Judge, Coimbatore and the said appeal was dismissed by the Appellate Authority confirming the dismissal of the suit by the Trial Court without costs. 12.Aggrieved against the concurrent findings rendered by the Trial Court and the First Appellate Court, the Deceased First Appellant/Plaintiff, during his life time, had preferred the Second Appeal before this Court. Later, on his death, the Appellants 2 to 4 viz., his Legal Representatives were brought on record. 13.At the time of admission of the Second Appeal, this Court has framed the following Substantial Questions of Law: 1.When the report of the Advocate Commissioner was not objected or no ill-will or motive was suggested against the Advocate Commissioner whether the Courts below are correct in not accepting the said report? https://hcservices.ecourts.gov.in/hcservices/ 2.When the report of the Commissioner clearly establishes the fact that the plaintiff has to reach the 'patti' meant for his sheep only through the suit pathway, whether the Courts below are correct in declining to grant the relief to the plaintiff? 14.Findings on Substantial Questions of Law No.1 & 2: According to the Learned Counsel for the Appellants, both the Courts below have failed to appreciate that the Ancestors of the Deceased First Appellant/Plaintiff and the Deceased First Respondent/First Defendant had effected partition of the properties and some portions of the properties were left as common property for their convenient enjoyment and as a matter of fact, the suit properties were kept in common for the smooth ingress and egress for men and cattle as well as to enable the sewage and other water to pass through the house of the Defendants so that the water may reach a common space. 15.It is the further contention on the side of the Appellants that the Report of the Commissioner would clearly establish that the Appellants have to reach the patti (A place to keep sheeps) only through the suit pathway by crossing the Respondents property and that the Defendants when they had not filed objections to the Report of the Commissioner, then the same ought to have been accepted and reliefs consequentially would have been granted to the Deceased Plaintiff. 16.The gist of the contention of the Learned Counsel for the Appellants is that the available materials on record clearly point out that the Appellants are entitled to have access and right of way through the suit open space and also entitled to let out rain, drain and other waste waters from his house to the common place through the openings. But these factual aspects of the matter have not been looked into by the Trial Court as well as the First Appellate Court and therefore, the Appellants pray for allowing the Second Appeal in furtherance of Substantial cause of Justice. 17.Contending contra, the Learned Counsel for the Respondents submits that the Deceased First Appellant/ Plaintiff has not proved before the Trial Court that the suit properties were the common properties of their ancestors which remained as an undivided one and as a matter of fact, both the Courts had held that the Deceased First Appellant/Plaintiff had not proved the factum of common property in respect of the suit properties which remained undivided and being a concurrent finding of fact, the same need not be interfered with by this Court. https://hcservices.ecourts.gov.in/hcservices/ 18.Further, it is the contention of the Respondents that the suit properties were allotted to the Grandfather of the First Defendant-Mungoora Gowder who died leaving behind his five sons and in the oral partition that took place between the Defendants father Kalappa Gowder and four brothers, the suit properties were allotted to the Junior paternal uncle Marudappan and Vellingiri. Also, the Vellingiri's whereabouts were unknown for 30 years and the entire suit properties were under the occupation and enjoyment of Marudappan Gowder. From the wife of Deceased Marudappan Gowder viz., Karammal and his two sons, the suit properties were purchased by the Second Respondent/Second Defendant as per Sale Deed dated 15.12.1984 and they were in enjoyment for more than 20 years. 19.It is the evidence of P.W.1 Deceased First Appellant/ Plaintiff that on the south of his house there is a patti and if one has to go to the patti one has to proceed north of his house and then will have to take a turn towards east and through the common space on the Southern side, has to go to the patti and this common space etc. are in their possession from their Grandfather's and from the Southern side of the Panchayat road, there is no way to come to the patti. 20.It is the specific evidence of P.W.1 (Deceased First Appellant/Plaintiff) that through the common space only one has to go to the patti and oral and written partition took place between Perumal Gowder's sons and that from Marudappan Gowder the Defendants had purchased a property on the Eastern side. Significantly, P.W.1, in his re-cross examination, has categorically stated that to come from patti there is a way on the Eastern side and further that he has not obtained the document by mentioning that he has a right to drain the water on the Eastern side. 21.P.W.1 in his cross examination has stated that the suit property belonged to his Grandfather Mungoora Gowder separately and that the First Defendant is the Grandson of Mungoora Gowder. 22.It is the evidence of P.W.2 that the A B C D portion shown in the plaint plan belongs to common place between the parties and the portion marked as A E F G is that of the Panchayat space and on the Southern side of the Deceased First Appellant/Plaintiff's house, there is a patti and one has to go to the patti by coming from the Deceased First Appellant/Plaintiff's house on the Northern side and then one has to proceed to the Eastern side and then come to that place and on the Southern side from the house of Deceased First Appellant/Plaintiff there is no way to go to the patti and the Deceased First Appellant/Plaintiff was still keeping his cattle and sheeps in that patti. https://hcservices.ecourts.gov.in/hcservices/ 23.P.W.3 (Advocate Commissioner) in his evidence had stated that in his plan he had mentioned in red arrow marking the way to proceed to patti from Plaintiff's house and except this way, there is no other way to go to the said patti and that he had inspected the suit property and submitted his Plan-Ex.C.1 and Report-Ex.C.2. 24.It is the further evidence of P.W.3 that in X point there is stagnant drainage water and in Y point there is Bush. 25.At this stage, it is to be pointed out by this Court pertinently that the Advocate Commissioner viz., P.W.3 in his chief examination had stated that he had not seen as to whether there was any door on the back of Deceased First Appellant/Plaintiff. 26.A scrutiny of the Report of the Advocate Commissioner (P.W.3) points out that the Deceased First Appellant/Plaintiff's property lies on the Western side having its entrance facing North and the Southern side of the Deceased First Appellant/Plaintiff's property their lies 'patti' in which more than about 10 sheeps were kept and Northern side of the Deceased First Appellant/ Plaintiff's property there is a 'thoni' with a hole in it to clear out the stagnating rain water etc. 27.It is to be noted that in para 3 of P.W.3 -Commissioner's Report it is mentioned that the Deceased First Appellant/Plaintiff has to reach the patti meant for keeping sheeps only through the way described in Arrow Marks in Ex.C.1-Plan etc. 28.It is the evidence of Deceased First Respondent/ First Defendant as D.W.1 that the Deceased First Appellant/ Plaintiff had constructed a new house in his portion and the portion purchased from his brother and the said house had got a way on the northern side and the patti is situated on the Southern side of the house and the Deceased First Appellant/Plaintiff was coming to the patti from Panchayat road and the Deceased First Appellant/Plaintiff had no right to come to patti through the place from where they purchased and already the partition had taken place and therefore, it was incorrect to state that the property was a common property. 29.D.W.2 (Second Defendant) in her evidence had deposed that through their place the Deceased First Appellant/ Plaintiff had no right to drain the rain and drain water and it was not correct to state that through their way one had go to patti. D.W.2 in her cross examination had also stated that patti was in existence for 30 years. 30.As far as the present case is concerned, one cannot loose sight of an important fact that the Deceased First Appellant/Plaintiff/ Appellants will have to prove that they are https://hcservices.ecourts.gov.in/hcservices/ entitled to claim the relief of declaration and consequential injunction in respect of their right to have access of way through or along with the space marked as common place and in particular through the space marked as A B C D and A B E F G and to get the consequential relief of injunction. Also they have to prove that they have right to drain and rain water and other water to pass from their house to the common place through or along the openings marked as X and Y etc. 31.It is for the Appellants to establish with sufficient oral and documentary evidence before a Court of Law that the suit properties remained as an undivided one as a common property and it belong to their ancestors. But the stand of the Respondents/Defendants is that the properties were already divided and though the First Respondent/First Defendant has purchased the portion of suit property as per Sale Deed dated 15.12.1984 in the name of Second Respondent/ Second Defendant, the Second Respondent/Second Defendant is the absolute owner of property and no one has any right over the same. 32.The evidence of P.W.3/Commissioner is also to the effect that he has not seen any door that has been situated on the back side of the Deceased First Appellant/ Plaintiff's house. Though the Commissioner-P.W.3 has stated in his Report and Plan that one has to go to the patti through the red markings mentioned in his plan, yet the fact that in his evidence, he has stated that he has not seen as to whether there was any door on the back side of the Deceased First Appellant/Plaintiff's house, is certainly not a favourable circumstance in favour of the Deceased First Appellant/Plaintiff. When a specific stand has been taken on behalf of the Respondents that the properties were already divided and that the Second Respondent/Second Defendant had purchased a property as per Sale Deed dated 15.12.1984, then the onus on proving the case clearly rests on the Appellants/Plaintiff. But in the present case on hand, after going through the oral and documentary evidence available on record, this Court comes to an inevitable conclusion that the Appellants/Plaintiff have not established to the satisfaction of this Court that the suit properties remained as an undivided one which belonged to their ancestors and also the Appellants/Plaintiff have failed to establish that the suit properties belonged to their common enjoyment and also when the evidence of D.W.1 is to the effect that the deceased First Appellant/Plaintiff was proceeding to patti from the Panchayat road etc., then they are not entitled to claim the reliefs as prayed for in the suit and as such, it is held by this Court that both the Courts below have rightly not accepted the Commissioner's Report and declined the relief of declaration and injunction and in that view, the two substantial questions are answered against the Appellants and consequently, this Second Appeal fails. https://hcservices.ecourts.gov.in/hcservices/ 33.In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Consequently, the Judgment and Decree in A.S.No.180 of 1994 dated 24.2.1995 of the learned Principal District Judge, Coimbatore are affirmed for the reasons assigned by this Court in this Appeal. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sgl To 1.The Principal District Judge, Coimbatore. 2.The 2nd Additional District Munsif, Coimbatore. 3.The Section Officer, V.R.Seciton, High Court, Madras 1 cc To Mr.B.Soundarapandian, Advocate, SR.41652 1 cc To Mr.V.Nicholas, Advocate, SR.41405 S.A.No.907 of 1995 PUR(CO) sra 25/6/2010 https://hcservices.ecourts.gov.in/hcservices/