IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.09.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN S.A.No.18 of 1999 and C.M.P.No.263 of 1999 1.Vannimuthu Gounder 2.Marimuthu Gounder .. Appellants / Defendants -vs- P.Palanisamy .. Respondent / Plaintiff Prayer:- This Second Appeal has been filed under Section 100 of CPC against the decree and judgment dated 31.08.1998 in A.S.No.46 of 1997 on the file of the Subordinate Judge, Udumalpet, reversing the judgment and decree dated 24.12.1996 in O.S.No.40 of 1995 on the file of the District Munsif, Pollachi. For appellants : Mr.T.Murugamanickam, Advocate For respondent : Mr.Palani Selvaraj, Advocate for Mr.P.Palanisamy JUDGMENT This second appeal has been directed against the decree and judgment in A.S.No.46 of 1997 on the file of the Court of Subordinate Judge, Udumalpet, which had arisen out of the decree and judgment in O.S.No.40 of 1995 on the file of the Court of District Munsif, Pollachi. Defendants are the appellants herein. The plaintiff has filed the suit for declaration of the plaintiff's right over the plaint 'A' schedule property and also for mandatory injunction for the restoration of cart track, which is plaint 'B' schedule property. 2.The short facts in the plaint relevant for deciding this appeal are as follows:- The plaintiff is the owner of the property comprised in S.F.No.134/1 of No.Mo.Muthur Village, Pollanchi Taluk, by means of a registered sale deed dated 5.12.1988 purchased from one Selladurai, who in turn had purchased the same from one Shanmughasundaram in the year 1980 under a sale deed dated 17.09.1980. The vendors under the sale deed dated 17.09.1980 derived title to the property under a partition deed dated https://hcservices.ecourts.gov.in/hcservices/ 25.5.1974. The predecessors in title of the property derived title by means of the partition dated dated 2.5.1964 and also under sale deed dated 30.10.1963. The defendants are the owners of the property situated on the southern side of the suit property comprised in S.F.No.134/2 and 134/3. The entire properties have been partitioned in the year 1964 between the parties and the northern portion was allotted to the plaintiff and his predecessors in title while the southern portion was allotted to the defendants and their predecessors in title. On the southern side of S.F.No.134 there is a common cart track run East to West. From the said common cart track a North South cart track was provided to the suit property and the same runs through S.F.No.134/2, 134/3 on the Eastern side. The width of the cart track was about 10 feet and it reaches the suit property viz., S.F.No.134/1. The said cart track has been provided in the partition deed and the plaintiff has purchased the property with a specific recitals of the cart track. Eversince from the date of purchase the plaintiff is using the same without any interference. The defendants intended to purchase the suit property and having failed in their attempt had developed a hostile attitude towards the plaintiff and have been continuously causing trouble to the plaintiff. The cart track exclusively run within the defendants land and taking advantage of the same the defendants in the month of Puratasi 1994 have made obstruction here and there in the cart track and the plaintiff has with great difficulty resisted their action. Since the obstruction was continuous the plaintiff was constrained to issue a notice, dated 30.11.1994 calling upon the defendants not to cause further damages to the cart track. After the receipt of the notice, the defendants have completely ploughed over the cart track and gave false untenable reply notice. The defendants have contended that the plaintiff has failed to show the existence of the cart track by appointment of a Commissioner etc. The nature of prior obstruction was in such a manner to prevent the plaintiff's user but however carts can be taken along. Now, the defendants have completely ploughed over the cart track within few hours. The plaintiff's remedy is only to get the cart track restored by means of a decree through this suit. The defendants have started to obliterate initially in the month of puratasi 1994 and has completely obliterated the cart track in the 2nd week of December 1994. Hence, the suit. 3.The second defendant has adopted the written statement filed by the first defendant, which runs as follows:- There is a cart track on the southern side of S.F.No.134 to the east west. From the said cart track a north south cart track was not provided to the suit property and the same does not run through S.F.No.134/2 and 134/3 on the eastern side. It is false to state that the width of the said cart track was about 10 feet and it reaches the suit property viz., S.F.No.134/2. The alleged cart tract is an imaginary one. No such cart track has ever been in existence. It is false to state that the said cart track has been provided in the partition deed. It is also equally false to state that from the date of purchase the plaintiff is using the same https://hcservices.ecourts.gov.in/hcservices/ without any interference. The defendants never intended to purchase the suit property. The allegations that this defendant had developed a hostile attitude towards plaintiff and causing trouble to the plaintiff is false. The question of obstruction of the cart track does not arise, when there is no cart track at all. If really there was a cart track and obstruction as alleged in the notice dated 20.11.1994, the plaintiff could have very well took out a Commissioner to show the alleged obstruction instead of issuing the notice. The defendant have categorically denied the averments made in the notice dated 30.11.1994 whilso the plaintiff instead of taking a Commissioner to show the alleged obliteration has come forward with a suit belatedly. This itself would clearly prove the malafide intention of the plaintiff to create new right. The notice dated 30.11.1994 has been issued by the plaintiff only to create an evidence. The averment made in the plaint that after the receipt of the notice the defendants completely ploughed the cart track is false. The suit is an abuse of process of law. The plaintiff has no cause of action to file the suit. The Court fee paid is not correct. The plaintiff is not entitled to any declaration. The plaintiff has no right whatsoever over the property belong to the defendants. When there is no right in the property and when there is no cart track at all there is no question of restraing it. The alleged recital in the documents will not bind the defendants because they are self-serving documents. The defendants are not the parties to those documents. Even according to the plaintiff the alleged obstruction of the cart track by the defendant was started in the moth of Puratasi 1994 and it was completed in the second week of December-1994. If that be so the plaintiff could have very well filed the suit immediately and he could have taken out a Commissioner to prove his case. The failure on the part of the plaintiff to take such steps itself wold clearly reveal the falsity of the plaintiff's case. Hence, the suit is liable to be dismissed. 4.On the above pleadings the learned trial Judge has framed five issues for trial. On the side of the plaintiff P.W.1 & P.W.2 were examined and Ex.A.1 to Ex.A.7 were marked. The first defendant has examined himself as D.W.1 and exhibited Ex.B.1 and Ex.B.2. At the instance of the defendants, a Commissioner was appointed to note down the physical features of the property. The learned Commissioner has filed Ex.C.1-report and Ex.C.2-plan. After scanning the evidence both oral and documentary the learned trial Judge has come to the conclusion that the plaintiff has failed to prove the existence of the alleged cart track and also failed to produce any material to show that the said alleged cart track was obliterated by the defendant in Puratasi 1994, had dismissed the suit with costs. Aggrieved by the findings of the learned trial Judge the plaintiff has preferred an appeal before the learned Subordinate Judge, Udumalpet in A.S.No.46 of 1997. The learned first appellate Judge holding that the Commissioner's report and plan are not reflecting the true facts of the case has allowed the appeal thereby granted the relief of declaration and mandatory injunction as prayed for by the plaintiff in the plaint after setting aside the trial Court's decree and judgment. https://hcservices.ecourts.gov.in/hcservices/ Aggrieved by the findings of the learned first appellate Judge, the defendants have preferred this second appeal. 5.The following substantial questions of law came up for determination in this second appeal:- 1)When a right of easement has been extinguished, whether it can be revived to the detriment of the servient owner's vested rights? 2)Whether a suit for mandatory injunction can be decreed, when the plaintiff's witness (P.W.2) himself admits the non- existence of the suit property even 18 years prior to the institution of the suit? 6.Substantial Question of Law No.1:-The plaint 'A' schedule property is 1 acre 25 cents in S.No.134 in No.Mo.Muthur Village, Pollachi Taluk. It is the case of the plaintiff that 'B' schedule cart track was running from east west road on the south of the defendants' land towards north of the plaintiff's land previously and the same was obliterated by the defendants in the month of Puratasi 1994, and during the second week of December 1994, the defendants have completed the obliteration work. The plaintiff as P.W.1 would depose that under Ex.A.1 he had purchased the plaint 'A' schedule property from one Chelladurai. Ex.A.2 & Ex.A.3 are predecessors in title. Ex.A.4 is a partition deed entered into between the predecessors in title. The plaintiff has also produced Ex.A.5 – document relating to the plaint schedule property of the year 1963 to show that plaint 'B' schedule property viz. Cart track was in existence even before his purchase of the plaint schedule property under Ex.A.1. According to P.W.1, the said cart track, plaint 'B' schedule property was obliterated by the defendants in the month of Puratasi 1994. Ex.A.67 is the notice issued by the plaintiff to the defendants. But in Ex.A.6 the plaintiff has not stated that in the month of Puratasi 1994, the defendants have obliterated the alleged cart track. The plaintiff would only allege in Ex.A.6 that the defendants have recently tried to obliterate the cart track. It is the specific case of the plaintiff that even during the partition of his predecessors in title in respect of land in S.F.No.134/2 and S.F.No.134/3, which are situated on the south of plaint schedule property S.No.134/1, a cart track has been provided in the said partition deed. In plaint 'A' schedule property viz. S.No.134 is set to be on the north of east west road and there is no cart track shown as the eastern boundary for S.No.134. Even in the 'B' schedule to Ex.A.4 – partition deed also nowhere the eastern boundary for S.No.134 is shown as the cart track. There is a recital in Ex.A.4 as to the effect that a north south pathway is to be provided to go from S.No.134 to further north to enable the other shareholders to take their cattles to the area, which is lying low on the north of S.No.134. Ex.A.3 – partition deed is subsequent to Ex.A.4-partition deed. Even in Ex.A.3 while describing S.No.134 the cart track was not shown as a boundary on the east of S.No.134. Only S.No.133B was shown as the eastern boundary for S.No.134. Even in Ex.A.3, which is subsequent to Ex.A.4 it is not shown whether any pathway on the eastern side https://hcservices.ecourts.gov.in/hcservices/ of S.No.134 on the north south direction was provided as directed in Ex.A.4 – partition deed. So on the basis of Ex.A.4 recitals the plaintiff cannot claim that there was north south pathway on the east of his land in S.No.134/1. The evidence of P.W.2 cuts at the root of the case of the plaintiff. P.W.2 would depose in the cross- examination that the plaintiff had purchased the suit property some 7 or 8 years back, but would state that the cart track was obliterated within one year from the date of purchase of plaintiff's property. So it is clear from the evidence of P.W.2 itself that the alleged cart track was obliterated within one year from the dae of Ex.A.1, which is of the year 1988. Even though in the plaint the plaintiff would state that in the month of Puratasi 1989, the defendants have made attempt to obliterate the alleged cart track, in Ex.A.6-notice the plaintiff has not stated when exactly the defendants have obliterated the cart track. P.W.2 would state that the width of the alleged cart track is about 10 feet. Even though plaintiff has not chosen to take steps for appointment of the Commissioner, at the instance of the defendants, a Commissioner was appointed, who had filed Ex.C.1-report and Ex.C.2-plan. The Commissioner has identified the eastern boundary for the suit Survey number property as 'AB' - 'CB' in his Ex.C.2- plan. He has stated that the said boundary is 6 feet above the east west road on the southern side of the plaint 'A' schedule property. The Commissioner has also noted about 11 palmyra trees within the portion marked as 'AB' – 'CB', the alleged cart track. The Commissioner has stated that the said palmyra trees are of 25 years of age. He has also pointed out a banniyan tree also in the said earmarked portion of 'AB' – 'CB'. In categorical terms the Commissioner has stated that in nowhere in the portion 'AB' – 'CB' he could see any cart track or wheel mark in the said portion. So absolutely there is no material placed before the trial Court to show that there was an existence of cart track as alleged in the plaint as 'B' schedule to the plaint. Even according to the plaintiff, the obliteration of the cart track was made by the defendants in Puratasi 1994 ie., around September 1994, but the suit was filed only in the month of March 1995. There is no explanation forthcoming from the side of the plaintiff for the delay in filing the suit. According to Ex.C.1-report the alleged portion 'AB' – 'CB' is about 6 feet above the east west road on the southern side of S.No.134/1, 134/2, 134/3. The plaintiff has also failed to show that as per Ex.A.4-partition deed a pathway was provided on the east of S.No.135 for the shareholders to take their cattle to the land, which is liying low on the north. Admittedly there is no objection filed by the plaintiff to the Commissioner's report and plan. Under such circumstance, the reasoning stated by the learned first appellate Judge for rejecting Ex.C.1 and Ex.C.2 is not sustainable. Under such circumstance, I hold on substantial question of law No.1 that the plaintiff cannot also claim easmentary right on the basis of a cart track. Substantial question of law No.1 is answered accordingly. 7.Substantial Question of Law No.2:- P.W.2's evidence cuts at the root of the case of the plaintiff. According to P.W.2, he is not a witness to the alleged obliteration of the cart track by the https://hcservices.ecourts.gov.in/hcservices/ defendants. According to P.W.2's evidence, he had visited the plaint schedule property some 4 months prior to the filing of the suit. In the cross-examination P.W.2 would state that he had seen when the defendants obliterated the cart track. But neither P.W.2 nor P.W.1 have preferred any complaint with the police immediately against the defendants. A notice under Ex.A.6 was also issued by the plaintiff two months after the alleged occurrence. Even in Ex.A.6 the plaintiff has not specifically stated that on which date or month the alleged obliteration of the cart track by the defendants had taken place. At one place P.W.2 would depose that within one year from the date of Ex.A.1-sale deed, the alleged cart track was obliterated. P.W.2 would further depose that he has not enquired about the illegal act of the defendants with them. But according to the Commissioner's report Ex.C.1 there is absolutely no evidence for the existence of a cart track in the portion marked as 'AB' – 'CB' in Ex.C.2-plan. The trial Court has considered all those things and come to a right conclusion that the plaintiff is not entitled to any relief in the suit. But unfortunately the first appellate Court eschewing Ex.C.1 & Ex.C.2 by giving his own reasoning has come to the conclusion that the plaintiff is entitled to the relief of restoration of plaint 'B' schedule cart track, which is not in existence at any point of time as per Ex.C.1. Under such circumstance, I hold on Substantial Question of Law No.2 that the plaintiff is not entitled to any relief under the suit. 8.In fine, the appeal is allowed and the decree and judgment of the learned first appellate Judge in A.S.No.46 of 1997 on the file of the Subordinate Judge, Udumalpet, is set aside and the suit in O.S.No.40 of 1995 on the file of the District Munsif, Pollachi, is dismissed, with costs through out. Ex.C.2 shall form part of the decree. C.M.P.No.263 of 1999 is closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssv To, 1.The Subordinate Judge, Udumalpet. 2.The District Munsif, Pollachi. 3.The Section Officer, V.R.Section. High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ 1 cc To Mr.T.Murugamanikkam, Advocate, SR.53289 1 cc To Mr.Palaniselvaraj, Advocate, SR.53251 S.A.No.18 of 1999 VSV(CO) SRA(21/10/2008) https://hcservices.ecourts.gov.in/hcservices/