IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.06.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.38 of 2011 1.Manonmani 2.V.Sekaran Appellants/Respondents/Defendants 1 & 2 vs. Mayiladuthurai Town, Srinivasapuram East, Shanmuganagar Residents by 1.N.A.T.Sudhakar 2.P.Amirthavalli 3.The President, Pattamangalam Panchayat Office, Thiruvarur Road, Srinivasapuram East, Pattamangalam Village, ..Respondents 1 to 3/Appellants 1 & 2 Mayiladduthurai, & 3rd Respondent/Plaintiff & 3rd Defendant Nagapattinam District. This Second Appeal is focussed as against the judgment and decree dated 1.4.2010 passed by the Principal Subordinate Judge, Mayiladuthurai, in A.S.No.67 of 2009 reversing the judgment and decree dated 20.1.2009 passed by the Principal District Munsif, Mayiladuthurai, in O.S.No.189 of 2008. For appellants : Mr.K.Chandramouli,Sr.counsel for Mr.A.Muthukumar For respondents : Mr.S.Sounthar for R1 and R2 JUDGMENT This Second appeal is focussed by the defendants 1 and 2, animadverting upon the judgment and decree dated 1.4.2010 passed by the Principal Subordinate Judge, Mayiladuthurai, in A.S.No.67 of 2009 reversing the judgment and decree dated 20.1.2009 passed by the Principal District Munsif, Mayiladuthurai, in O.S.No.189 of 2008, which was filed for mandatory and permanent injunctions. https://hcservices.ecourts.gov.in/hcservices/ 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) Respondents 1 and 2 herein, as plaintiffs, filed the suit seeking the following reliefs: "a. to direct the 1st and 2nd defendants to remove the protective wall put by them in the suit property by way of mandatory injunction. b.to restrain the defendants, their men and their agents not to disturb or make hindrance to the peaceful utilization of the suit property by plaintiff as public street by way of permanent injunction. c. to direct the defendant to pay the cost of the suit." (b) D1 and D2 filed the common written statement resisting the suit. D3-the Panchayat filed its separate written statement. (c) Whereupon the trial Court framed the issues. On the plaintiff's side, P.W.1 and P.W.2 were examined and Exs.A1 to A8 were marked. The second defendant examined himself as D.W.1 along with D.W.2 and Exs.B1 and B2 were marked. Exs.C1 and C2 were marked as Court documents. (e) Ultimately the trial Court dismissed the suit, as against which, the appeal was filed. Whereupon the first appellate Court reversed the judgment and decree of the trial Court and decreed the suit as prayed for. 3. Being aggrieved by and dissatisfied with the said judgment and decree of the first appellate Court, this second appeal has been filed by D1 and D2 on various grounds and also suggesting the following substantial questions of law: "1.Whether the layout obtained under Ex.A5 is legally valid and binding on the defendants 1 and 2, when their mother Renganayagi Ammal has not given consent or executed any Power of Attorney in favour of the promoter,P.W.2? B. Whether the lower appellate Court erred in law in holding that the suit pathway is a public one when the mandatory requirements of Rule 3 of the Tamil Nadu Panchayat Building Rule, 1970, have not complied with https://hcservices.ecourts.gov.in/hcservices/ and Ranganayagi Ammal had not executed any Registered Gift Deed or Sale Deed in favour of the Panchayat? C.Whether the lower appellate Court erred in holding the suit pathway as per Ex.A5 is meant for the use of northern plots owners in Shanmuga Nagar overlooking the fact even if the Ex.A5 layout is valid the alleged pathway can only be for the benefit of occupants and owners of Sri Shanmuga Nagar? D.When the plaintiffs have not claimed prescriptive easement, whether the learned sub-ordinate Judge erred in holding that the suit pathway was used for over 21 years? E.Whether the learned Sub-Ordinate Judge erred in law in decreeing the suit for mandatory injunction whereby the true owner is restrained from putting up compound wall to safeguard his properties?" (extracted as such) 5. This Court feels that the following substantial questions of law could be framed for consideration. "1.Whether the first appellate Court was justified in taking it for granted that Exs.A5, A6 and A7 are genuine documents even though the alleged registered Power of Attorney (or at least the certified copy of it) executed by Ranganayagi Ammal-the admitted original owner of R.S.No.443/12 in favour of P.W.2-Subramanian was not produced on the plaintiffs' side? 2. Whether the first appellate Court was justified in observing in paragraph Nos.13 and 14 of its judgment that Ranganayagi Ammal and her heirs, virtually, by their conduct, signified their consent for the conversion of the said 18 cents of land into plots, leaving space for road, in the absence of any clinching evidence adduced on the side of the plaintiffs? 3. Whether there is any perversity or illegality in the judgment of the first appellate Court?" 6. All the aforesaid substantial questions of law are taken together for discussion, as they are inter-linked and inter woven with one another. 7. The gist and kernel, and the pith and marrow of the arguments as put forth by the learned counsel for the appellants/D1 and D2 would run thus: https://hcservices.ecourts.gov.in/hcservices/ (i) Even though the defendants 1 and 2 specifically suggested, during cross-examination of P.Ws.1 and 2 that Ranganayagi Ammal did not execute any Power of Attorney much less registered Power of Attorney, yet no steps were taken on the plaintiffs side to produce at least the certified copy of the registered Power Deed. (ii) There is no presumption that Exs.A5 to A7 are genuine documents, in the absence of specific proof, and that too, in the wake of those documents having been challenged by D1 and D2. (iii) Neither Ranganayagi Ammal nor her legal heirs-D1 and D2 were ever parties for getting such alleged approval as per Exs.A5 to A7. (iv) The first appellate Court fell into error in assuming and presuming as though Ranganayagi Ammal and her heirs, despite knowing such carving out of plots in their land, leaving space for road, kept quite for 20 long years and that too, in the absence of any evidence showing that they had knowledge about Exs.A5 to A7 even prior to the filing of the suit. (v) The suit itself was framed based on the said alleged approval as contained in Exs.A5 to A7 and it is not based on easement of necessity and accordingly the trial Court was justified in dismissing the suit, whereas, the first appellate Court, throwing to winds Order 41 Rule 31 of C.P.C. reversed the reasoned judgment of the trial Court and decreed the original suit, warranting interference in second appeal. Accordingly, the learned counsel for the appellants/D1 and D2 would pray for setting aside the judgment and decree of the first appellate Court and for restoring the judgment and decree of the trial Court. 8. In a bid to torpido and pulverise the arguments as put forth and set forth on the side of the appellants/D1 and D2, the learned counsel for the plaintiffs would advance his arguments, the warp and woof of them would run thus: (a) The first appellate Court, taking into consideration the pro et contra, correctly decided the lis by holding that D1 and D2, after the death of Ranganayagi Ammal, as an after thought, by having a volte face turned turtle and raised untenable pleas challenging and impugning Exs.A5 to A7 and such a finding, warrants no interference in second appeal. (b) The first appellate Court being the last Court of facts correctly upset the erroneous finding of fact by the trial Court and rendered a discernible judgment. https://hcservices.ecourts.gov.in/hcservices/ (c) The first appellate Court correctly inferred that Ranganayagi Ammal and her heirs, for about two decades simply kept quiet without raising their little finger as against Exs.A5 to A7 and holus-bolus, during the year 2008 raised objection, necessitating the plaintiffs to file suit. (d) The evidence of D.W.2-the Panchayat official would display and demonstrate, convey and portray that when the Panchayat installed electrical lamp posts in the suit property, the defendants simply kept quiet and whereby they signified their consent to it. (e) The first appellate Court, based on analysis of evidence held that Ranganayagi Ammal was instrumental in getting approval through P.W.2 and such a finding was rendered by the first appellate Court based on the conduct of Ranganayagi Ammal and her heirs-D1 and D2, warranting no interference in second appeal. Accordingly, the learned counsel for the plaintiffs would pray for confirming the judgment and decree of the first appellate Court and for dismissing the second appeal. 9. The indubitable and indisputable or atleast the undeniable facts would run thus: (i) Ranganayagi Ammal owned an extent of 18 cents of land in S.No.443/12 in Mayiladuthurai Town, Pattamangalam Village. To the almost North and West of her land, one Subramania Iyer owned lands. The present suit is only relating to a portion of the land which originally belonged to Ranganayagi Ammal. (ii) It is the contention of the plaintiffs, who purchased two plots in the land belonging to Subramania Iyer; that P.W.2 happened to be the common power of attorney for the said Subramania Iyer as well as Rangayanagi Ammal and on the strength of the said Power Deeds, P.W.2 got approval, as evidenced by documents even as early as in the year 1987, and subsequently got enlargement of the approval during the year 2005; the plaintiffs purchased two plots during the year 2002 among the plots carved out in Subramania Iyer's land. The land situated to the North of Ranganayagi Ammal's land came to be known as 'Shanmugha Nagar'; however the defendants' land and Subramania Iyer's remaining land situated to the West of Ranganayagi Ammal's land came to be known as 'Sri Shanmugha Nagar'. (iii) According to the plaintiffs the land belonging to Ranganayagi Ammal was carved out into four plots as plot Nos.3, 4, 5 and 6, abetting the newly laid road therein. The approval was granted by the Panchayat in such a manner that the residents of 'Shanmugha Nagar' can reach Thiruvarur Main Road by passing through the newly laid road in 'Sri Shanmugha Nagar'. When such is the position, ignoring the approval granted by the authorities concerned, defendants 1 and 2, after the death of Ranganayagi Ammal holes-boles https://hcservices.ecourts.gov.in/hcservices/ raised compound wall enclosing the entire 18 cents of land, which stood in the name of Ranganayagi Ammal and thereby prevented the plaintiffs, who happened to be the residents of 'Shanmugha Nagar' from having free access to Thiruvdarur Main Road. (iv) However, the learned counsel for D1 and D2 would contend that Ranganayagi Ammal at no point of time executed any power deed much less registered power deed in favour of P.W.2, by way of authorising him to carve out her 18 cents of land into several plots, leaving road therein. Neither the alleged original Power Deed nor a certified copy of it was produced. 10. The core question arises as to whether illustration (e) to Section 114 of the Indian Evidence Act could straight away be ushered in, as contended by the learned counsel for the plaintiffs. 11. No doubt, a presumption is contemplated under illustration (e) to Section 114 of the Indian Evidence Act in respect of official acts performed in the normal course. Nowhere it is found stated in the Indian Evidence Act that such presumption is a conclusive one. It is a rebuttable presumption. Defendants 1 and 2 being the legal heirs of Ranganayagi Ammal unambiguously and unequivocally, without mincing words challenged the alleged Power Deed executed by Ranganayagi Ammal in favour of P.W.2. In fact, P.W.2 went to the extent of averring that he returned the original Power Deed to Ranganayagi herself, after he having succeeded in getting approval from the Panchayat Union concerned. Whereas, D1 and D2-the legal heirs of Ranganayagi Ammal would gain say the said fact. In such a case, the onus probandi is on the plaintiffs to produce at least the certified copy of the Power Deed which they never even attempted to do so. 12. In this context, during the second appellate stage, the appellants/D1 ad D2 filed M.P.No.2 of 2001 under Order 47 Rule 27 read with Sec.151 of C.P.C. seeking permission to file additional documents, to wit, (i) Copy of the communication sent by Joint Sub- Registrar-I, Myladuthurai, along with letter and receipt dated 3.9.2010; and (2) Communication from Joint Sub-Registrar-II, Myladuthurai with copies of letters and receipts dated 2.9.2010, so as to highlight and spotlight the fact that no such Power Deed was got registered during the year 1986 or 1987 in the Registration Offices concerned, which are having jurisdiction over the said area. 13. Unarguably and unassailably P.W.2, during cross-examination would come forward with a specific case that during the year 1986/87 such registration of Power Deed took place. As such, the appellants/D1 and D2 herein in order to torpedo the said stand of P.W.2 did choose to file the additional documents, which are having relevance and hence, those documents could be allowed to be filed and also marked as Exs.B3 and B4 because those are all public documents. https://hcservices.ecourts.gov.in/hcservices/ 14. The first appellate Court without insisting for the production of at least a certified copy of the Power Deed simply took it for gospel truth the arguements of the plaintiffs as though Ranganayagi Ammal got her 18 cents of land carved out as plots, leaving road portions. 15. Trite the proposition of law is that nothing could be presumed unless the law enables a person to presume. I hark back to the following maxims: (i) Affirmatis est probare – He who affirms must prove. (ii) Affirmanti, non neganti incumbit probatio – The burden of proof lies upon him who affirms, not upon one who denies. 16. It is the duty of the person who affirms a particular fact to prove it and he cannot call upon the other side to prove the negative aspect. 17. In this case, D1 and D2 have even took pains to place before this Court that such alleged registered power deed did not emerge at all. Shockingly and surprisingly, the first appellate Court failed to take into consideration this fact. I am of the view that the first appellate Court was very much carried away by the fact that Exs.A5 and A6 are pertaining to the year 1987, whereas, the suit was of the year 2008 and as such, the long lapse of time weighed very much in the mind of the first appellate Court in deciding the lis in favour of the plaintiffs. 18. I call up and recollect the following maxim: 'Ubi jus, ibi remedium' – Where there is a right, there is a remedy. 19. Unless the plaintiffs could prove their right over Ranganayagi Ammal's land, the question of the Court extending its support in favour of their plea would be a well neigh impossibility. 20. The learned counsel for the appellants/D1 and D2 by inviting the attention of this Court to the various provisions of the Tamil Nadu panchayats Building Rules, 1997 would develop his argument that were there any portion of the land of Ranganayagi Ammal was set apart for road or street purpose, then it should have been handed over by her to the Municipality through P.W.2. 21. Even though faintly P.W.2 might answer during cross- examination that such a measure was undertaken by him, there is no proof at all. Adding fuel to the fire D.W.2-a clerical official of D3- Panchayat, in a wishy-washy manner, and that too, in a non committal way would depose that he was not aware of the details https://hcservices.ecourts.gov.in/hcservices/ because he was not in possession of the records and that he himself assumed office only two years anterior to the date of his deposing before this Court. 22. I would like to point out that in a serious matter like this D3 was not justified in authorising a clerical official to depose on behalf of D3-Panchayat. I believe that wisdom would down on the higher officials of D3 to see that hereafter whenever such similar case arises, the responsible higher officials themselves appear and depose before the Court with necessary records. 23. The trial Court delved deep into the facts and applied the law correctly and held that the plaintiffs have not proved their case. Whereas, the first appellate Court in paragraph No.13 and 14 simply took it for granted as though the averments of the plaintiffs are true mainly based on long lapse of time between the emergence of Exs.A5 to A7 and the filing of the suit during the year 2008. Such an approach, in my opinion, is not legally tenable and acceptable. 24. The learned counsel for the plaintiffs would very much place reliance on the factum of D1 and D2 having kept quiet when D3 laid road in their land and also installed electrical pole thereon. Such occurrence of installing electric pole only took place during the year 2007 and not during the year 1987. Furthermore, there is nothing to indicate that any road was laid by D23 on the said land. Ranganayagi Ammal died during the year 2002. When such is the case, the doctrine of acquiescence also cannot be pressed into service as against D1 and D2. 25. The deposition of D.W.2-the official of D3 would exemplify and demonstrate that Ranganayagi Ammal or her Power Agent did not virtually hand over the road portion in favour of Panchayat by executing any document and for that matter D3 also has not produced any such document. 26. In the written statement, the stand of D3 is to the effect that only during the year 2007 electrical pole was installed. There is nothing to indicate that any metal road was laid in the area belonging to D1 and D2. Even in the written statement of D3 or in the deposition of DW.2, there is nothing to convey or indicate that metal road was laid. The Commissioner's report also would not in any way highlight that any metal road was laid by D3 on the land of D1 and D2. 27. Precisely the case of D1 and D2 is to the effect that Ranganayagi Ammal was owning an extent of 18 cents of land in Survey No.443/12; she continued to be in possessiin of it during her life time the said area; after her death, her legal heirs, namely, D1 and D2 continued to enjoy the said land and in that process they put up compound wall, enclosing the said land which could not be found fault https://hcservices.ecourts.gov.in/hcservices/ with by any one, as no one, including the plaintiffs are having any right to interfere with such land. When such is the stand of D1 and D2, the onus was on the plaintiffs to prove the facts in the legally acceptable manner. 28. I recollect the following decisions of the Honourable Apex Court. (i) AIR 2001 Supreme Court 1158 (Bipin Shantilal Panchal vs. State of Gujarat and another), certain excerpts from it would run thus: "13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) 14. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses." (ii) (2010) 8 SCC 423 [ Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries and others) ]. Certain excerpts from it would run thus: https://hcservices.ecourts.gov.in/hcservices/ 10. ....................."An objection to the admissibility of the document can be raised before such endorsement is made and the court is obliged to form its opinion would depend, the document being endorsed, admitted or not admitted in evidence. In support of the submission he relied upon a decision of this Court in R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.Temple where it was observed as follows: (SCC p.764, para 20) "20. .....The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself is inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both https://hcservices.ecourts.gov.in/hcservices/ the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court." (emphasis in original). 15. On a careful consideration of