Dismissed

Devendran v. Vanju Gandhi

Madras HC4 Apr 2018SA/609/2016

Case brief

AI extract

What is this about?

This Court dismissed a second appeal filed by a Government assignee of a pathway. The appellant argued the Government lease prevented the adjacent landowner's access. The Court held that leasing government land cannot deny adjacent landowners their right of ingress and egress.

What did the court decide?

The Second Appeal was dismissed and the connected miscellaneous petition was closed.

Devendran Vs Vanju Gandhi — Property and Title | Madras HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Reserved on:21.03.2018

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Pronounced on:04.04.2018

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Coram:

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The Honourable Dr.Justice G.Jayachandran

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Devendran ...Appellant/1^st Respondent/1^st Defendant

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/versus/ 1. Vanju Gandhi ... 1^st Respondent/Appellant/Plaintiff 2. Govindasamy 3. Lakshmi Ammal ... 2^nd & 3^rd Respondent/ 2^nd & 3^rd Defendants

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PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure Code, against the judgment and decree dated 27.01.2016 made in A.S.No.40/2013 on the file of the I Additional District and Sessions Judge, Vellore, Vellore District by partly allowing the Appeal preferred against the judgment and decree dated 03.10.2012 made in O.S.No.12 of 2000 on the file of the Additional District Munsif, Vellore by decreeing the suit in so far as the suit A and C Schedule property.

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For Appellant : Mr.R.G.Narendhiran For R-1 : Mr.K.Moorthy For R-2 & R-3 : No appearance

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This Second Appeal is directed against the judgment and decree dated 27.01.2016 made in A.S.No.40 of 2013 on the file of 1^st Additional District and Sessions Judge, Vellore. Partly allowed the Appeal preferred against the judgment and decree dated 03.10.2012 made in O.S.No.12 of 2000 on the file of Additional District Munsif Court, Vellore.

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Brief facts of the case as found in the plaint is that,

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the plaintiff purchased A schedule property from Devendran and others on 14.11.1980, the survey number of the property which he has purchased is 338/3 however, in the sale deed it was wrongly mentioned as 338/4. The remaining extend of land held by Devendran and others was sold to one Teekaraman under sale deeds dated 27.02.1997 and 2.02.1997. One Jayavelu has also purchased a portion of the land mentioned in the A schedule property on 15.07.1998. The plaintiff has purchased from Jayavelu and Teekaraman, the properties falling under A schedule property on 13.10.1999. Thus, the plaintiff had become the absolute owner of entire extend of A schedule property. The B schedule property is battai poramboke [pathway] situated in Survey No.338/2 between the highways Road called as Vellore to Odugathur Road. The A1 schedule property owned by the plaintiff. This battai poramboke falling under Survey No.338/2 measuring about 10 feet East to West running from North to South on the western side of the plaintiff property which is the adjacent road for the plaintiff. The property which is described as C schedule property is also additional path way for his ingress and egress to reach his property described under A schedule. While so, the defendants, in order to harass the plaintiff, cause in connivance and loss to him, claiming ownership of piece of land in survey no.338/3 which is actually a portion of plaintiff' A schedule property. First Defendant causing disturbance to peaceful possession and enjoyment upon the plaintiff right over the portion of land marked as AEGH in sketch annexed with the plaint. The claim of the first defendant that they have purchased land measuring North to South two feet and East to West 74 feet in S.No.338/3 which is actually a portion of the plaintiff's A schedule property is not legal and valid. It does not bind the right of the plaintiff or others. The defendants by claiming right over that piece land illegally trying to prevent the plaintiff reaching his property through the said battai poramboke described in the B Schedule property.

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In addition, they also tried to prevent the plaintiff from having access C schedule property since, the claim of the defendant are illegal and unlawful they have no right to prevent the plaintiff to have access over the A schedule property either through B-schedule property or C schedule property. Hence permanent injunction restraining the defendants from preventing the plaintiff from reaching is A schedule property passing through B and C schedule properties and permanent injunction restraining the defendants from interfering with the plaintiff possession and enjoyment of the A schedule property.

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The defendant in the written statement had contended that the suit filed by minor through next friend is not

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maintainable and it has to be dismissed in limini. At the time of filing the suit, the plaintiff was a minor aged about 16 years. In the plaint, he claims that he purchased A schedule property on 13.10.1999. Since he was minor at that point of time, the contract by minor without proper representative and next friend is void ab initio and no right shall flow to the plaintiff through a void contract.

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Further it is also contended that Devendran and others are not the absolute owner of property in the Survey No.338/3 described as 'A' schedule property in the suit. The parent title deed of the plaintiff is only in respect of S.No.338/4 and not in respect of S.No.338/3 without any valid title over the S.No.338/3, the plaintiff can have no right to sustain the suit, based on the sale deed in his favour executed when he was a minor that to in respect of S.No.338/4.

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In so far as the allegation of preventing the plaintiff from enjoying the Battai Poramboke referred as by B and C schedule properties, it is contended by the defendants that the vendor of the plaintiff have no saleable right in respect of battai in S.No.338/2. Any reference about the Battai poramboke in the sale deed of the plaintiff can only be an insertion without valid right. The alleged 10 feet battai poramboke does not run upon S.No.338/2 as alleged by the plaint. The plaint had no access to his land mentioned in A schedule property through B or C schedule property. He had access to the Vellore to Odugathur high way through the Kalyana Mandapam road and not through B and C schedule property. In fact the defendant is running a convent school on the western side and the 2 feet is necessary for ingress and egress for his school children. For the said purpose he has purchased two feet from the other defendants for valuable consideration. Even if the title deed of the plaintiff mentions about any battai poramboke it is now not been used by the public and being exclusively used by the 1^st defendant. Therefore, the plaintiff cannot seek any injunction restraining the 1^st defendant from enjoying the B Schedule property. As far as C schedule property is concerned, it is Government poramboke land assigned to the defendant for better use of his property to run the school.

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With these pleading the parties have gone for Trial. The Trial Court framed 6 issues. After considering the ocular evidence of PW.1 to PW.3, DW.1 to DW.3, Documentary evidence Ex.A.1 to Ex.A.22 and Ex.B.1 to Ex.B.5 in addition Court Ex.C1 to Ex.C.8 dismissed the suit with costs.

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Aggrieved by that the plaintiff has preferred the First Appeal A.S.No.40 of 2013. The First Appellate Court had formulated the following points for consideration.

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[i] Whether the trial Court was correct in deciding the

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plaintiff not proved the cause of action for the suit?

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[ii] Whether the trial Court was correct in deciding the plaintiff not proved the suit B and C schedule properties are the path way to reach the Odugathu Road?

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[iii] Whether the trial Court was correct in deciding the purchase of A schedule property directly by the plaintiff being a minor and suit framed without prayer for declaration of title in maintainable?

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[iv] Whether the trial Court was correct in deciding there was alternative pathway to the suit A schedule property?

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[v] Whether the trial Court was correct in deciding the plaintiff filed to prove the sale deed under Ex.A.4 is invalid by appointing advocate commissioner to measure the A schedule proprty?

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[vi] Whether the appeal has to be allowed?

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After re-appreciating the evidence, the first appellate Court partly allowed the appeal by granting permanent injunction restraining the defendants from preventing the plaintiff from reaching his A schedule property from Vellore to Odugathur Main Road by passing through C schedule property and also permanent injunction restraining the defendant by interfering with the plaintiff peaceful possession and enjoyment of the A schedule property. In respect of the plea raised by the plaintiff his right over the B Schedule property, it was negative by confirming the judgment of the Trial Court.

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The Second Appeal is preferred by the 1^st defendant aggrieved by the decree passed in favour of the plaintiff in respect of his right of access over the C schedule property.

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Heard the learned counsel for the appellant and the learned counsel for the respondent.

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Insofar as the C schedule property for which the First Appellate Court has granted permanent injunction restraining the defendant in favour of the plaintiff, the Government has assigned the said portion of land to the appellant herein and the plaintiff/respondent herein would submit that the said assessment itself is pursuant to the interim order passed in the writ petition and it cannot stand in the way of the plaintiff from asserting the right of enjoyment through C schedule property. In respect of B schedule property, this Court finds that the plaintiff has not preferred any appeal disallowing his right of passing through B schedule property which according to him, a battai poramboke and he has right over the battai poramboke for ingress and egress to reach his property mentioned in A schedule property.

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Regarding question of law raised by the appellant namely no one can convey better title then what he has, pointing the plaintiff vendor's parent documents have different survey numbers, [S.No.338/4] whereas the plaintiff is seeking relief for different survey number [S.No.338/3] in the suit does not carry any merit for the reason that the suit is for permanent injunction and not for title. There is no dispute regarding the possession and enjoyment of A schedule property by the plaintiff. No doubt there is some mis-description in the survey number of the property what the plaintiff has purchased. In the plaint itself he has admitted and his specific case is that his vendor is the owner of S.No.338/3 but however, their sale deed it is wrongly referred as S.No.338/4. The Revenue documents marked as Ex.D.1 to Ex.D.8 through Official of Revenue Department also goes to show that the A schedule property is in possession of the plaintiff. The B Schedule property is show as patta land falling under S.No.338/2. The plaintiff has claimed it as battai promaboke which is not in consonance with the revenue record. However, the said battai promaboke [pathway] is mentioned in the sale deed executed by the common owners and therefore, the access to A schedule property through the said battai cannot be disturbed. Further, it is an admitted fact that the C schedule property is Government land. The proceedings has been initiated and it appears right of enjoyment has been granted in favour of the 1^st defendant/Appellant. The contention of the appellant that, the Government has leased out the C schedule property to him in entirety is correct or not and whether such lease was issued after the due claim of the plaintiff/respondents herein is matter for consideration before Revenue authority and does not fall within the purview of the Second appeal.

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The other plea of the appellant is that, the plaintiff has no locus to maintain the suit, in view of the fact that, he was minor at the time of purchasing the property and he has not disclosed his incapacity in the sale deed is too far-fetched at this point of time. Since, the said contract not been avoided within the period prescribed and also any incapacity for the plaintiff to contract can be questioned by the vendor or the purchaser. Therefore, it does not give any raise to a substantial question of law which could be agitated by the 3^rd party.

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In a suit for permanent injunction it is the right of enjoyment and attempt to disturb the enjoyment are the primary points to be considered. It is not the case of the appellant herein that A schedule property is not enjoyed by the plaintiff/1^st defendant. While the plaintiff claims right of access through B and C schedule property the appellant herein

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contents that B schedule property has been purchased by him and C schedule property had been lease out by the Government to him. The first appellate Court has rejected the claim of the plaintiff, insofar as B schedule property and the plaintiff has not preferred any Second Appeal as pointed out earlier. Insofar as the C schedule property is concerned, it is not the property of the appellant. The lease hold right alleged to have been assigned by the Government is always subject to the right of the adjacent land owners, their ingress and egress to the respective land. By leasing out a piece of property, the government cannot prevent the adjacent land owner without access. If any such event has occurred in this case, it is always open to the plaintiff/1^st respondent to question the said lease before the appropriate authority.

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For the above said reasons, this Court finds no
substantial question of law involved in this case. Therefore,
Second Appeal No.609 of 2016 is dismissed. Consequently,
connected Miscellaneous petition is closed, if any. No order as
to costs.
Sd/-
Assistant Registrar(CS VII)
//True copy//
Sub Assistant Registrar
bsm
To
1.The I Additional District and Sessions Judge,
Vellore District.
2.The Additional District Munsif, Vellore
3.The Section Officer,
VR Section, High Court, Madras.
+2cc to Mr.K.Moorthy, Advocate SR.No.25157, 25251
+1cc to Mr.R.G.Narendhiran, Advocate SR.No.24775

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Second Appeal No.609 of 2016

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CNR(CO) GN(24/04/2018)

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Devendran v. Vanju Gandhi

Case brief

What is this about?

What did the court decide?

Devendran v. Vanju Gandhi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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