IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 29-06-2010 Coram: THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.387 of 2009 and M.P.No.1 of 2009 1. Malarkodi 2. G.Subramaniam .. Appellants/defendants Versus 1.K.Subramanian 2.Lalithakumari .. Respondents/Plaintiffs PRAYER: Appeal against the judgment and decree, dated 28.11.2008, made in A.S.No.45 of 2008, on the file of the Subordinate Court, Kanchipuram, confirming the judgment and decree, dated 29.11.2007, made in O.S.No.249 of 2003, on the file of the District Munsif Court, Kanchipuram. For Appellants : Mr.R.Thiruneelakandan For Respondents : Mr.A.S.Narasimhan (R1 & R2) J U D G E M E N T This second appeal has been filed against the judgment and decree, dated 28.11.2008, made in A.S.No.45 of 2008, on the file of the Subordinate Court, Kanchipuram, confirming the judgment and decree, dated 29.11.2007, made in O.S.No.249 of 2003, on the file of the District Munsif Court, Kanchipuram. 2. The appellants in the present second appeal were the defendants in the suit, in O.S.No.249 of 2003. The respondents herein had filed the suit, in O.S.No.249 of 2003, on the file of the District Munsif Court, Kanchipuram, praying for a judgment and decree for permanent injunction restraining the defendants in the said suit, their men and agents from, in any way, interfering with the plaintiffs right of usage of common Narasam, and for a mandatory interim injunction directing the defendants to remove the unauthorised construction of the wall and the sunshade over the common Narasam and the iron gate put up by the defendants in the common passage. https://hcservices.ecourts.gov.in/hcservices/ 3. The plaintiffs in the suit are claiming that they are having absolute right to use and enjoy the common Narasam, as per the partition deed and the sale executed by the plaintiffs' father. It had been further stated that, as per the partition deed, dated 30.7.1990, there is a common Narasam starting from the street to the backyard, which is measuring about 3 feet East to West and 175 feet North to South, as shown in the plaint plan. The common Narasam is being enjoyed by the plaintiffs and their predecessors, for a long time. The common Narasam has been specifically mentioned in the Will, dated 31.1.1989 and the partition deed, dated 30.7.1990. There is a right of access from the street to the rear portion and the common Narasam is also used by the municipal workers for carrying the waste and for cleaning the toilets. While so, the defendants are threatening the plaintiffs and they are restraining the plaintiffs from using the common Narasam. In fact the plaintiffs, as well as the defendants have the right to use the common Narasam and therefore, it is unlawful for the defendants to prevent the plaintiffs from using the common Narasam. The defendants had unlawfully closed the common Narasam and they have raised a brick wall measuring about 3 feet in breadth and 5 feet in length, on 12.2.2003, shown as `J' in the plan, filed along with the plaint. The defendants have also put up a sun shade (roof slab projection) all over the common Narasam, measuring about 4 feet in breadth and 70 feet in length, as shown in the rough plan. Further, the defendants had unlawfully fixed the iron gate, on 25.4.2003, in the common Narasam preventing its usage by the plaintiffs and others. In such circumstances, the suit had been preferred, in O.S.No.249 of 2003. 4. In the written statement filed on behalf of the first defendant and adopted by the second defendant, the averments and the allegations made by the plaintiffs had been denied. It had been stated by the first defendant that she is the owner of the back portion of the house property, bearing Door Nos.50-A and 50-B. The said defendant had purchased the same, under a registered sale deed, dated 29.4.1992, from the previous owners, namely, K.Bhaskaran, K.Gnanasambandam, K.Srinivasan and Komalavalli. The first plaintiff is the brother of the vendors. The second plaintiff is the wife of the first plaintiff. They are the owners of the front portion of the house. One of the sharers, namely, Shanthakumari, wife of Ellappan, had sold her share to the second plaintiff. In the partition that had taken place between the sharers, by a partition deed, dated 30.7.1990, a lane with 3 ½ feet in breadth and 175 feet in length had been set apart for having access to the back portion which had been purchased by the first defendant. 5. It had also been stated that in all the schedules in the partition deed the lane has been shown for having the right of access from the street to the rear portion. The said land had been in existence for several years and the sharers of the property have been https://hcservices.ecourts.gov.in/hcservices/ using the same for more than 30 years. There is no other way to reach the back portion of the first defendant. The first plaintiff after his purchase of a share of the property had removed the super structures, which were in the said property, intending to build a terraced house therein. The plaintiffs had already constructed two shops along `AJ' portion. The plaintiffs have been planning to extend their portion east to west annexing the land to their portion of the property, thereby preventing the first defendant from having the right of way to reach her portion. The existence of the lane is essential for the defendant to go to her portion of the property. It had also been stated that the suit for bare injunction, without a prayer for declaration, is defective in nature. It is also bad in law, as the correct plan had not been filed, along with the suit. When the right of the first defendant in the suit property had been acknowledged by the plaintifs in certain earlier documents, the present suit had been filed by them only as a counter blast to the suit filed by the first defendant, in O.S.No.234 of 2003. 6. Based on the averments made on behalf of the parties concerned, the trial Court had framed the following issues for consideration: "1. Whether the plaintiffs have right over the suit narasam as prayed for? 2. Whether the defendants had made unauthorized construction in the suit property? 3. Whether the plaintiffs are entitled to the relief of permanent injunction? 4. Whether the plaintiffs are entitled to the relief of mandatory injunction? 5. To what relief?" 7. On analysing the oral, as well as the documentary evidence adduced on behalf of the plaintiffs, as well as the respondents, the trial Court had decreed the suit, as prayed for by its judgment and decree, dated 29.11.2007, made in O.S.No.249 of 2003. 8. Aggrieved by the judgment and decree of the trial Court, the defendants in the suit had filed an appeal, in A.S.No.45 of 2008, on the file of the Subordinate Court, Kanchipuram, stating that the judgment and decree of the trial Court is contrary to the accepted principles of law. It had been stated that the trial Court had failed to note the existence of an exparte decree against the plaintiffs, in O.S.No.234 of 2003. The plaintiffs in the suit having suffered a decree, in O.S.No.234 of 2003, are prevented by filing a fresh suit based on the principles of res judicata. It had also been stated that https://hcservices.ecourts.gov.in/hcservices/ the trial Court had failed to note that the plaintiffs have not taken the necessary steps to set aside the exparte decree passed, in O.S.No.234 of 2003. Instead the trial Court had erroneously come to the conclusion that the exparte decree, made in O.S.No.234 of 2003, is not having a binding effect on the plaintiffs. 9. It had also been stated that the trial Court had given unnecessary importance to the Will, dated 31.1.1989, which had been superceded by the partition deed, dated 30.7.1990. The trial Court had failed to note that the plaintiffs had no necessity or reason to have access to the rear portion. The trial Court had not noted the fact that the iron gate, mentioned in the plaint, had been in existence for nearly 10 years and that the plaintiffs had not objected to its existence. The trial Court had also failed to appreciate the fact that the municipal Narasam had been abandoned and there was no need for the plaintiffs to go to the Narasam. The First Appellate Court having framed the point for consideration, as to whether the appeal can be allowed, had dismissed the appeal, confirming the judgment and decree of the trial Court. 10. The First Appellate Court had found that, originally, the suit property belonged to late Kuppusamy Mudaliar, who had executed a Will, marked as Ex.B-4, allotting the property to his children in six shares. Accordingly, Ex.A-1 partition deed had been executed allotting the six shares A to F. In the partition deed the `B' schedule property had been allotted to the first plaintiff. A,C,D,E and F schedules had been allotted to E.Santhakumari, K.Baskaran, K.Gnanasambandan, K.Srinivasan and Komalavalli, respectively, with specific measurements, leaving 3 feet x 175 feet Narasam leading to the municipal lane. The First Appellate Court, on a perusal of Ex.B- 6, the decree and the plan marked, in O.S.No.234 of 2003, had held that the contention of the appellants in the first appeal, who were the defendants in the suit, that the present suit filed by the plaintiffs, in O.S.No.249 of 2003, is hit by the principles of res judicata, is not sustainable, since it was an exparte decree and that the appellants had not filed the copy of the plaint, in O.S.No.234 of 2003, to know the details of the claims made therein. 11. Further, the First Appellate Court had held that the claim of the appellants that the suit is hit by laches cannot be accepted, as the cause of action for the filing of the suit had arisen only, on 12.2.2002, when a brick wall had been raised by the appellants and a sun shade had been put up over the common Narasam, on 25.4.2003, and when an iron gate had been fixed by the appellants, on 6.7.2003, and when they had threatened to interfere with the respondents peaceful possession and enjoyment of the common Narasam. There was no evidence adduced on behalf of the appellants to prove that the alleged https://hcservices.ecourts.gov.in/hcservices/ encroachment had been made before ten years. According to the respondents, it is clear from Ex.B-4, Will, Ex.A-1 partition deed and Exs.A-3 to A-5, municipal plan and survey plan, Ex.B-3, sale deed and Exhibits C-1 and C-2, Advocate Commissioner's report and plan, that a 3 feet x 175 feet Narasam is in existence. D.W.1 had also admitted the existence of the common Narasam. In such circumstances, the First Appellate Court had found that the findings of the trial Court were correct and valid. 12. Aggrieved by the judgment and decree of the First Appellate Court, dated 28.11.2008, made in A.S.No.45 of 2008, the appellants have filed the present second appeal before this Court raising the following questions, as substantial questions of law: "1. It is submitted that Exhibit-D4 will dated 31.01.1989 superceded by the Exhibit-P1 Registered Partition deed date 30.07.1990. Hence, whether the court below can determine the right of the parties in the suit property based on the Exhibit-D4? 2. It is submitted that when the Exhibit-P1 clearly says there is no common pathway on the Komanavalli's "F" share in the suit property, whether the court below exclude the documentary evidence and relied the respondent oral evidence to decide the claim of the parties? 3. Whether the courts below wrongly construed the exhibit-P1? 4. Whether the suit is hit by Resjudicate? 5. It is submitted that when the appellant is an absolute owne of the E,D,C share property, and there is no common passage was allotted in the "F" share property, whether the respondent is entitle 3 feet of common pathway in the E,D,C share property as a matter of right?" 13. The learned counsel appearing on behalf of the appellants had submitted that the Courts below had erred in decreeing the suit, as prayed for by the plaintiffs, without properly appreciating the evidence on record. Both the Courts below had come to an erroneous conclusion based on the misreading of Ex.P-1. They had failed to note that Ex.D-4, Will, dated 31.1.1989, had been superceded by the partition deed, dated 30.7.1990 and therefore, the said document would not give any right to the respondents. Both the lower Courts had failed to consider the fact that the `F' schedule property, which is 20 feet in width and 25 feet in length had been allotted to one Komalavalli, without any common pathway passing through the said property. Therefore, the respondents have no right to claim a pathway https://hcservices.ecourts.gov.in/hcservices/ through the appellants property. Further, the Courts below had failed to consider the fact that the respondents had derived the right in the suit property from Ex.P-1 registered partition deed and that the respondents would not have any right in the said property. Further, it had also been clear from Ex.P-1 that the common pathway of three feet in width had been found only in A, B, C, D and E shares in the suit property, which is about 150 feet in length. However, the Courts below, relying on Ex.D-4, Will, had wrongly considered Ex.P-1, partition deed, in coming to the conclusion that the length of the common pathway is 175 feet in length. The Courts below had failed to note that, as per Ex.P-1 registered partition deed, there is no common pathway allotted in the `F' schedule, which had been allotted to Komalavalli, in the suit property. 14. It had also been contended that the Courts below had failed to consider that a suit, in O.S.No.234 of 2003, had been filed against the respondents, in respect of the suit property and an exparte decree had been passed in favour of the respondents. Without setting aside the judgment and decree passed in the said suit, a fresh suit is not maintainable, as it is barred by the principle of res judicata. Further, the Courts below had not considered the aspect of delay in filing the present suit and the suit is hit by laches. The Courts below had also failed to note that the first respondent had purchased the `A' share in the suit property, by way of Ex.P-2 sale deed, dated 23.7.1998, wherein it had been clearly stated that the rights in the common pathway was only towards the southern side road. In such circumstances, the judgment and decree of the Courts below are erroneous and invalid in the eye of law. 15. The main contention of the learned counsel appearing on behalf of the appellants is that the Courts below had erred in coming to the conclusion that the appellants were interfering with the respondents' right to use the 3 feet x 175 feet common Narasam in the suit property, based on a misleading sketch forming part of the decree. It had been contended that the appellants are entitled to put up any construction, as found fit by them in their property in `F' schedule. In such circumstances, the respondents cannot prevent the appellants by way of an interim injunction from entering into the properties belonging to the appellants. 16. It had also been stated that the Courts below had committed an error by coming to the conclusion that the exparte decree, in O.S.No.234 of 2003, would not operate as res judicata, in respect of O.S.No.249 of 2003, filed by the respondents. Further, it had also been stated that the Courts below had erred in coming to the conclusion that the appellants had caused certain obstructions by putting up sun shade over the common Narasam and by building a wall obstructing the usage of the said Narasam and by putting up a gate preventing the respondents and others from using the common Narasam. https://hcservices.ecourts.gov.in/hcservices/ 17. The learned counsel appearing on behalf of the appellants had relied on the following decisions in support of their contentions: 17.1. In Mohideen Sahib V. A.Amena Bi and others (2007(1) CTC 505), it had been held as follows: "In such circumstances, though, generally, concurrent findings of the Courts below are not interfered with by this Court while dealing with an Appeal under Section 100, CPC, since these two aspects have not been duly considered by the Courts below in the proper perspective, I do not find any sort of hesitation in interfering with their erroneous finding that the plaintiff is not entitled to the relief of specific performance." 17.2. In Saroja V. Chinnusamy (Dead) (2007(5) CTC 233), it had been held as follows: "It is well settled that an ex parte decree is binding as a decree passed after contest on the person against whom such an ex parte decree has been passed. It is equally well settled that an ex parte decree would be so treated unless the party challenging the ex parte decree satisfies the Court that such an ex parte decree has been obtained by fraud." 17.3. In Sarojini V. Mohandoss (2008(2) CTC 135), it had been held as follows: "Both the Courts below proceeded on the basis that Ex.A-1-Will was executed by the testatrix and the said Will had come into force immediately after the death of the testatrix. The decree for declaration and recovery of possession were also granted on the said factual premises. But the fact remains that the testatrix did not execute Ex.A.1 and the factum of absence of the signature of the testatrix in the Will was overlooked by the Trial Court as well as the First appellate Court. Therefore, it has to be concluded that while ranting the decree in favour of the first respondent, the Court below ignored material evidence and, as such a case is made out warranting interference in Second Appeal. The approach of the Trial Court as well as the First Appellate Court were erroneous as both the Courts below analysed the issue on the basis that the Will is valid and genuine. No attempt was made by the Trial Court as well as the First Appellate Court to verify the Will for the purpose of ascertaining the validity or genuineness of the Will." https://hcservices.ecourts.gov.in/hcservices/ 17.4. In M.B.Subramaniam V. A.Ramasamy Gounder (2009() CTC 59), it had been held as follows: "Person found to be in exclusive and established possession of property is entitled to get protection from Court in form of injunction" 17.5. In Dubaria V. Har Prasad and another (2009(5) CTC 563), it had been held as follows: "Non consideration of materials on record would be a ground to set aside the judgment of High Court because the findings of the High Court must be held to be contrary to the documents already on record." 18. In fact at this stage of the hearing of the second appeal, the learned counsel appearing on behalf of the respondents had stated that the respondents would have no objection, if the appellants had built a wall in the `F' schedule property belonging to them, which is located at one end of the common Narasam. However, the appellants are not entitled to prevent the respondents and others from using the 3 feet x 175 feet common Narasam, located on one side of A,B,C,D & E schedule properties. 19. The learned counsel appearing on behalf of the respondents had submitted that there is no error in the findings of the Courts below. There is no dispute with regard to the fact that `F' schedule property, exclusively, belongs to the appellants. The respondents had claimed their rights only in respect of the common Narasam, as per the partition deed, dated 30.7.1990, marked as Ex.P-1. From the documents marked in support of the claims made by the respondents, the common pathway extends up to the beginning of `F' schedule property. In other words, upto the end of `E' schedule property. He had also submitted that the obstructions caused by the appellants is only in the common Narasam and therefore, the Courts below were right in directing the appellants to remove the obstructions by a decree of mandatory injunction. The learned counsel had also admitted that the common Narasam or pathway would not extend into `F' schedule property, which belongs, exclusively, to the appellants. As such, the second appeal filed by the appellants is devoid of merits. 20. In view of the averments made on behalf of the appellants, as well as the respondents and in view of the submissions made by the learned counsels appearing on their behalf and on a perusal of the records available, this Court is of the considered view that the appellants have not shown sufficient cause or reason to interfere with the concurrent findings of the Courts below. https://hcservices.ecourts.gov.in/hcservices/ 21. From Ex.A-1 partition Deed, Exs.A-3 to A-5 municipal plan and survey plan, Exhibits B-3 sale deed, and Ex.B-4, Will, and Exs.C- 1 and C-2, Advocate Commissioner's report and plan, it is clear that a 3 feet x 175 feet common Narasam is existing on one side of A,B,C,D and E schedule properties. Further, both the Courts below had rightly found that the appellants have no right to obstruct the respondents and others from using the common Narasam. Even if the claim of the appellants that the respondents and others cannot prevent the appellants from putting up constructions in the properties belonging to them may be acceptable, any encroachment or obstruction caused by the appellants in the common Narasam cannot be allowed, as per the concurrent findings of the Courts below. The claims made by the appellants that the suit filed by the respondents, in O.S.No.249 of 2003, is hit by principles of res judicata and by laches cannot be sustained. As such, it is clear that the findings of the trial Court, as well as the First Appellate Court, cannot be held to be erroneous and invalid in the eye of law, as claimed by the appellants. In such view of the matter, the second appeal is liable to be dismissed. Hence, it is dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar csh To 1) The Subordinate Court, Kanchipuram 2) The District Munsif Court, Kanchipuram. S.A.No.387 of 2009 TEJ(CO) EU 4.12.10 https://hcservices.ecourts.gov.in/hcservices/