IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.4.2008 C O R A M The Honourable Mr.Justice M.JAICHANDREN S.A.No.210 of 2007 Perumal .. Appellant/ Defendant Versus 1. Chinnammal 2. Saraswathy 3. Rukmani .. Respondents/ Plaintiffs PRAYER: This second appeal has been filed against the judgment and decree, dated 17.8.2005 made in A.S.No.217 of 2003, passed by the Principal District Judge, Namakkal, Namakkal District, confirming the judgment and decree of the Principal District Munsif, Namakkal, Namakkal District, dated 10.3.2003, made in O.S.No.157 of 2002. For Appellant : Mrs.R.Radha For Respondents : Mr.S.Mukunth for M/s.Sarvabhauman Associates J U D G M E N T This second appeal has been filed against the judgment and decree, dated 17.8.2005, made in A.S.No.217 of 2003, on the file of the Principal District Judge, Namakkal, confirming the judgment and decree, dated 10.3.2003, made in O.S.No.157 of 2002, on the file of the Principal District Munsif, Namakkal. 2. The defendant in the suit O.S.No.157 of 2002, is the appellant in the present second appeal. The plaintiffs, who are the respondents in the second appeal, had filed the suit praying for the reliefs of declaration and for permanent injunction. https://hcservices.ecourts.gov.in/hcservices/ 3. The brief facts of the case, as stated by the plaintiffs, are as follows: The suit property described in the schedule forming part of the plaint is situated at Siluvampatti Village. The property shown as B series portion in the rough plan, filed along with the plaint, belongs to the plaintiffs. The D series portion in the plan belongs to the defendant. B.1 and B.2 portions had originally belonged to Nallappa Reddiar and his brothers Krishna Reddiar and Virudhachala Reddiar. Later, the said portions had been purchased by one Nanjaiyammal, on 2.11.1940, for a valid consideration of Rs.300/-. Since then, she has been in possession of the said properties. The suit B.3 portion has been mentioned in the sale deed executed in favour of Nanjaiyammal. Nanjaiyammal had died. Muthu Gounder, Subbaraya Gounder and Sengoda Gounder are the legal heirs of Nanjaiyammal. On 17.4.1959, Muthu Gounder and Subbaraya Gounder had sold their portions of the properties in B.1 and B.2, along with their rights in B.3, to Sengoda Gounder for a valid consideration of Rs.100/- and they had put Sengoda Gounder in possession of the said properties. Thereafter, the portions in B.1 and B.2 and the rights in B.3 portions had belonged to Sengoda Gounder, absolutely. Sengoda Gounder had died intestate in the year 1984. The first plaintiff is his wife. The second and third plaintiffs are his children. The plaintiffs are the only legal heirs of Sengoda Gounder. Therefore, B.1, B.2 and B.3 portions belonged to the plaintiffs, absolutely, and they are in enjoyment of the same. 4. The first plaintiff is living in a hut in B.2 portion of the suit property. The second and third plaintiffs are living in other places along with their husbands. The defendant has no right or interest in B.1, B.2 and B.3 portions of the suit property. In the year 1980, the defendant had purchased D.1 and D.2 portions from Krishnaswamy Reddiar and Perumal Reddiar son of Nallappa Reddiar, who had sold some of their properties to Nanjaiyammal. While so, the defendant had attempted to put up a door in D.1 portion belonging to him and had attempted to encroach into the B.3 portion of the suit property. In spite of attempts made for mediation, the defendant had continued to interfere with the peaceful possession and enjoyment of the properties belonging to the plaintiff. In such circumstances, the plaintiffs had filed the suit in O.S.No.157 of 2002, praying for the reliefs as stated therein. 5. In the written statement filed on behalf of the defendant, it has been stated that the suit filed by the plaintiffs is unsustainable, both in law and on facts. The portions shown as B.1 and B.2 in the plan filed by the plaintiffs are the house and the vacant site. The portion shown as B.3 does not belong to the plaintiff exclusively. It is a common passage running from south to https://hcservices.ecourts.gov.in/hcservices/ north. The B.3 passage proceeds further south to reach the main road of the village. The portions shown as D.1 and D.2 belong to the defendant. It is for the plaintiffs to prove that they had purchased the B.1 and B.2 suit property. If the plaintiffs had purchased the properties, including the common passage of the Village, it would not be binding on the defendant's right of possession and enjoyment of the same. It is accepted that the defendant does not have any right or title in the portions B.1 and B.2 belonging to the plaintiffs. However, the portions B.3 does not belong to the plaintiffs exclusively. The defendant also has the right of use of the common passage. The defendant has been using the door ways provided in the southern portion of the compound in the passage. Further, the suit common passage is 15 feet wide south-North and it is being used as a passage as found by the Commissioner appointed by the Court. Further, the common passage has been in existence from time immemorial, long before the defendant had purchased the portions D.1 and D.2. The plaintiffs have not been objecting the use of the common passage by the defendant. There is no other passage to reach the D.1 and D.2 portions belonging to the defendants. If there was any other passage, the plaintiffs would have shown the same in the rough plan filed by them. Even the Commissioner appointed by the Court has not shown any such pathway in his sketch. Those who are using the passage are using it for taking cattle and carts and other vehicles. In such circumstances, the suit is to be dismissed with costs. 6. Based on the averments made in the plaint as well as in the written statement, the trial Court had framed the following issues for consideration:- 1. Whether the plaintiffs are entitled to the reliefs of declaration and permanent injunction, as sought for by them? 2. Is it correct to state that the B.3 portion is a south-north common passage? 3. What other reliefs the plaintiffs are entitled to? 7. The sale deed, dated 2.11.1940, in favour of Nanjaiyammal has been marked as Exhibit A.1. The defendant had purchased his property, on 18.2.1980. In the said document a passage has been shown having a width of 5 ½ yards east-west and 46 yards south- north. Even in a later sale deed, dated 17.4.1959, marked as Exhibit A.2 a similar description is seen. From the said documents, it is clear that the said portion of pathway was belonging to Nanjaiyammal. On the contrary, the trial Court had found that the defendant has not shown sufficient proof to show that the suit pathway is a common pathway, as claimed by the defendant. On the other hand, there was sufficient evidence in favour of the https://hcservices.ecourts.gov.in/hcservices/ plaintiff to show that the property in question belongs to the plaintiffs. In such circumstances, the trial Court had decreed the suit as prayed for. 8. With regard to the issues 1 to 3, the trial Court had found that in the evidence of D.W.1, he had accepted that in the sale deed of the year 1940 shows that a passage of 5½ yards is belonging to Nanjaiyammal. It was also admitted that there is no common pathway in the document relating to Survey No.473/2. Further, there is no mention that the pathway belongs to the Panchayat. 9. The trial Court had also found that the defendant had accepted that B.3 portion had belonged to the predecessor-in -title to the property, purchased by the plaintiffs, even in the year, 1940. The Village Administrative Officer of the Village examined on behalf of the Revenue Department, had also stated that the survey No.473/2 is not a common pathway. The defendant has not shown any evidence or proof to show that the whole of the suit pathway is a common pathway. Once such facts are admitted by the defendant, it is clear that the plaintiffs are entitled to the reliefs sought for by them in the suit O.S.No.157 of 2002. 10. Aggrieved by the judgment and decree, dated 10.3.2003, made in O.S.No.157 of 2002, on the file of the Principal District Munsif, Namakkal District, the defendant had filed an appeal in A.S.No.217 of 2003, on the file of the Principal District Judge, Namakkal District. 11. Considering the rival contentions and the evidence available on record, the first appellate Court had framed the following points for consideration: "1. Whether the appeal is to be allowed for the reasons stated therein by the appellant/defendant? 2. What reliefs, the appellant/defendant is entitled to?" 12. On analysing the evidence available and in view of the contentions raised, the first appellate Court had come to the conclusion that B.3 portion shown in the rough plan filed by the plaintiffs, along with the plaint, belongs to the plaintiffs. The first appellate Court had found that since the predecessor-in-title of the plaintiffs had the title and the consequential right in the B.3 portion, the plaintiffs have also sought for similar title and rights in the same. Thus, the B.3 portion cannot be termed as south -north common pathway, as claimed by the defendant. From the documents filed by the defendant, it could not be seen that the B.3 portion is a common pathway of the Village. It has been found that https://hcservices.ecourts.gov.in/hcservices/ from the year 1940, the predecessor-in-title of the plaintiffs had the rights over B.3 portion. Further, it was found that the defendant has not been in a position to show that the entire suit pathway is a common pathway, contrary to the claims made by the plaintiffs. D.W.2 the Village Administrative Officer, Siluvampatti Village, had admitted in his cross-examination that in the records in his possession survey No.473/2 is not shown as a common pathway and also that it is not a panchayat pathway. In such circumstances, the first appellate Court had confirmed the findings of the trial Court. 13. Aggrieved by the judgment and decree of the first appellate Court, dated 17.8.2005, made in A.S.No.217 of 2003, the defendant had filed the present second appeal raising various grounds forming part of the memorandum of grounds of appeal. 14. The following substantial questions of law raised in the present second appeal are as follows: "1. Whether the Courts below erred in law in granting declaration and injunction to the plaintiffs who do not have title and possession in the common pathway (suit property)? 2. Whether the trial Court is correct in law in allowing the suit on considering the oral evidence of P.W.1 who had admitted that the suit property is a common pathway? 3. Whether the courts below have erred in law in appreciating Exhibits C.1 and C.2 (Commissioners report and sketch)? 4. Whether the Courts below erred in law in shifting the burden of proving the case from the plaintiff to the defendant?" 5. Whether the recitals as to the boundaries in the document marked as Exhibit A.1 not inter partes is admissible in evidence without examining the executant? 15. The defendant/appellant had stated that the Courts below have failed to appreciate the evidence let in on behalf of the defendant. The finding of the trial Court that the defendant has not proved that the 15 feet common passage has been used as a common passage is incorrect in the light of the admission made by P.W.1 in her evidence and by the documents marked as Exhibits A.1 and A.2. Further, the Courts below have failed to consider the report of the Advocate Commissioner marked as Exhibits C.1 and C.2, which clearly show the existence of the 15 feet common passage. https://hcservices.ecourts.gov.in/hcservices/ 16. The learned counsel appearing for the appellant had submitted that both the trial Court as well as the first appellate Court have arrived at the wrong conclusion holding that the plaintiffs have proved their claims based on sufficient evidence. 17. The Courts below had not considered the report of the Advocate Commissioner marked as Exhibits C.1 and C.2. The said report shows the existence of 15 feet common passage. Exhibit A.1 marked on behalf of the plaintiffs has not conveyed any title in the suit property to the plaintiffs. Inspite of the admission made by P.W.1, the Courts below have decided against the defendant by wrongly shifting the onus of proof on him. 18. The learned counsel appearing for the plaintiffs/respondents had submitted that both the Courts below have arrived at their findings based on the oral as well as the documentary evidence let in on behalf of the plaintiffs. The defendant has not proved his claims regarding the portion B.3 shown in the rough plan to be a common passage as alleged by him. On the contrary, sufficient evidence is available to prove the claims made by the plaintiffs that the B.3 portion belonged to the plaintiffs and their predecessor-in-title. 19. The learned counsel appearing for the appellant had relied on the decision of this Court in SADHURAJAN Vs. SRIRAMULU NAIDU (AIR 1999 MAD.377), to show that recitals of boundaries in deeds, not inter partes, are inadmissible in evidence, unless the executants thereof are examined. Based on the said decision, the learned counsel appearing for the appellant/defendant had contended that the sale deeds relied on by the learned counsel appearing for the respondents/plaintiffs in support of their contentions cannot bear any evidentiary value, since the executants have not been examined. 20. The learned counsel appearing for the appellant had also relied on the decision of this Court in SUBRAMANI M. Vs. P.SHANMUGAM (2007 (4) CTC 125), to state that the plaintiffs who claim to be in possession of the suit property should prove the claim on their own merits and not on the demerits on the defendants. Accordingly, the plaintiffs have failed to discharge the onus of proof caused on them under law. 21. On analysing the records and in view of the rival contentions raised on behalf of the parties concerned, this Court is of the considered view that the appellant/defendant has not shown sufficient cause or reason to interfere with the findings of the Courts below. Based on the evidence, both the trial Court as well as the first appellate Court have come to the conclusion that https://hcservices.ecourts.gov.in/hcservices/ B.3 portion, marked in the rough plan, belonged to the plaintiffs as claimed by them. 22. Based on the oral evidence adduced and the documentary evidence made available, the plaintiffs have proved that their predecessor-in-title had the title and the consequential rights in the suit property. The said fact has also been admitted by D.W.1. Further, during his cross-examination, D.W.2 the Village Administrative Officer, Siluvampatti village, had stated that the records available with him do not show the suit property as a common passage. He had also stated that it is not a panchayat pathway. In such circumstances, the trial Court as well as the first appellate Court had decided in favour of the plaintiffs and they had granted the reliefs as prayed for in the suit O.S.No.157 of 2002. 23. In such circumstances, the second appeal stands dismissed, confirming the judgment and decree of the Courts below. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. lan To: 1. The Principal District Judge, Namakkal District 2. The Principal District Munsif, Namakkal District, 1 cc to Mr.S. Senthilnathan, Advocate, Sr. 25183 1 cc to M/s. Sarvabhuman Associates, Advocate, Sr. 25059 S.A.No.210 of 2007 RA (CO) kk 12/6 https://hcservices.ecourts.gov.in/hcservices/