Second appeal against dismissal of suit for declaration and permanent injunction regarding a common pathway. The court held that title deeds conferred only a right of use, not absolute title, and the pathway was not clearly demarcated, rejecting the claim for partial relief.
Second appeal dismissed with costs; connection to lower courts confirmed judgment and decree.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 08.12.2017 PRONOUNCED ON : 09.01.2018
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S. A.No.861 of 2002
Vs.
Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 26.11.2001 in A.S.No.7 of 2000 on the file of the Subordinate Judge's Court, Mettur confirming the judgment and decree dated 28.4.2000 in O.S. No.289 of 1996 on the file of the District Munsif cum Judicial Magistrate's Court, Omalur.
For Appellants : Mr.R.Subramanian For Respondents : Mr.S.Saravanakumar for M/s. V. Jaikumar
JUDGMENT
This second appeal is directed against the judgment and decree dated 26.11.2001 passed in A.S.No.7 of 2000, on the file of the Subordinate Court, Mettur confirming the judgment and decree dated 28.4.2000 passed in O.S. No.289 of 1996 on the file of the District Munsif cum Judicial Magistrate Court, Omalur.
plaintiffs that the defendants attempted to interfere with the possession and enjoyment of the pathway is not correct. The defendants' father had purchased the properties on 30.08.1940, measuring east west 37 feet and north south 50 feet and enjoying the tiled house bearing no.32 and thatched house bearing no.31 and to the east of the said property, there is a common pathway measuring 6 feet breadth and 38 feet length and since 1940 onwards, the defendants' father had been in enjoyment of the said common pathway and it is located in poramboke property and other than the said pathway, there is no pathway for the defendants to have access to the main road and hence, the suit laid by the plaintiffs is liable to be dismissed.
Whether in law are not the decree and
judgment of the lower appellate Court vitiated in that after finding that the suit property is a common lane, the relief should have been moulded instead of dismissal of suit in toto?
is no dispute between the parties as regards the title deeds through which they claim title to their respective properties. The plaintiffs claim exclusive right to the pathway situated to the east of the defendants property. On the other hand, according to the defendants, the said pathway is a common pathway to them as well as to the plaintiffs and others for having access to the main road situated on the northern side. The plaintiffs having traced their title to the disputed pathway both under Exs.A1 and A2, it has to be seen whether the plaintiffs are entitled to claim exclusive right to the disputed pathway. Ex.A1 is the partition deed executed between the first plaintiff and his brother Angappa servai. As per the said deed, it is found that the A schedule property described therein had been allotted to Angappa servai and the B schedule property described therein had been allotted to the first plaintiff. According to the plaintiffs, the share allotted to Angappa servai under Ex.A1 had been sold by his legal heirs to the second plaintiff by way of Ex.A2, sale deed. A perusal of the property described in the A schedule, under Ex.A1, would go to show that the said property has been described as three units and it is found that Angappa servai had been allotted the property consisting of the ground situated to the south of Krishnan's land and the common pathway to the east of Marakkal's house and Papathiammal's vacant space to the north of V.Subbaraya chettiar's house and to the west of the B schedule share described therein and the above said first unit has been stated to be measuring eastwest 17½ feet and northsouth 24 feet and the said unit also consists of two houses facing north located within the above said boundaries and the second unit is described as the land situated within the above mentioned boundaries measuring east west 13 ½ feet and north south 15 feet and the thatched hut located therein and the third unit is described as the common pathway situated to the north of the first unit above stated to the east of Marakkal's house to the west of the B schedule property described therein and to the south of the common pathway and Krishnan's land measuring east west 17 ½ feet, north south 6 feet and in the above said common pathway described in the third unit, it is seen that Angappa servai had been allotted common half share and apart from the above said three units described in the A schedule property, it is also found that Angappa servai had also been given common right of using the common pathway measuring 6 feet width running north to south from the common pathway described in the third unit to reach the union road and also given right in the service connection and the electrical fittings and the common share in the wall described in the A schedule property. In toto, it is found that as rightly determined by the Courts below, only in the third unit of the A schedule property, as stated above, Angappa servai had been given a right of share over the common pathway belonging to their family and the other half right had been given to his brother, the first plaintiff and as regards
the common pathway measuring 6 feet width running north south for having access to the union road, it is seen that he has been given only the right of way and not absolute right towards his share. Therefore, as rightly found by the Courts below, the disputed pathway measuring 6 feet width situated to the north of the third unit of A schedule property above stated, has not been allotted to either Angappa servai or the first plaintiff under Ex.A1. On the other hand, they have given only the right of using the said pathway under the said document. Similarly, in the B schedule property described in Ex.A1, the first plaintiff had been allotted the property consisting of the ground measuring East west 20 feet and north south 30 feet, situated to the north and west of Kuppusamy gounder's house to the east of the A schedule property and to the south of the lands of Krishnan and others and the said property also consists of two houses and further, the first plaintiff had also been granted half right in the common pathway belonging to the brothers described in the third unit of the A schedule property and further, it is also noted that the first plaintiff has also been given the right of using the disputed common pathway measuring 6 feet width running north to south for reaching the union road as given to Angappa servai in the A schedule and in addition to that, the first plaintiff has also been given the right over the common Wall etc.
contention does not merit acceptance. No doubt, the defendants have also pleaded easementary right for using the disputed common pathway for accessing the main road. By way of the above said defence, it cannot be held that the defendants have conceded that the plaintiffs have absolute title over the disputed pathway. It is found that the defendants are consistent in their pleadings that the disputed common pathway is common to all, for accessing to the main road, which is situated on the north side. The plaintiffs having come forward with the specific case that they had been allotted absolute right over the disputed common pathway under Exs.A1 and A2 and on the other hand, on a perusal of Exs.A1 and A2, when it is found that the plaintiffs had been allotted only the right of using the disputed common pathway and not conferred any absolute right over the same and when it is found that they had been given the absolute right in the common pathway only situated to the south of the disputed common pathway, it is found that by way of the above said easementary plea projected by the defendants, we cannot uphold the plaintiffs title to the disputed common pathway. As rightly argued by the defendants' counsel, the defendants are entitled to take inconsistent pleas and accordingly, on that footing, it cannot be held that they have accepted the plaintiffs title to the disputed common pathway. At the most, it can only be understood that the defendants by way of the above said easementary claim, is seeking the said claim against the true owner of the disputed common pathway. However, when the true owner of the disputed common pathway is not arrayed as a party to the lis, it is seen that the claim of the easementary right putforth by the defendants, has to be negatived. 14. The Courts below having found that the plaintiffs have not been granted any absolute right over the disputed common pathway and the plaintiffs having not clearly demarcated the disputed common pathway either in the plaint schedule or in the plaint plan and when the plaintiffs have described the suit property as being located to the south of the Panchayat road, Krishnan house and Marakkal's house and Marakkal demolished house and on the other hand, when it is found that the plaintiffs had been granted only the right to use the disputed common pathway situated to the south of the panchayat road and when the disputed common pathway has not been clearly identified by the plaintiffs by giving clear linear measurements and also the survey number in which it is located, it is seen that excluding the same, the plaintiffs cannot be granted the relief of declaration as regards the other portions of the suit property, since the suit property has been described as one unit in the plaint, although, as found earlier, excepting the disputed common pathway, the defendants had not raised any issue with the title of the plaintiffs in respect of the other portion of the suit property inclusive of the door numbers mentioned in the plaint schedule.
s/d-
Assistant Registrar(CS-V)
True Copy
Sub-Assistant Registrar
sli
To
Copy to The Section officer VR Section, High Court, Madras(2 copies)
S. A.No.861 of 2002
SVI(CO)
SP(12/02/2018)
3 issues framed by the court
Whether the plaintiffs are entitled to a declaration of title to the disputed common pathway based on partition and sale deeds which only confer a right of use and not absolute ownership.
Whether the plaintiffs failed to clearly demarcate the disputed pathway in easement or title terms preventing the grant of partial relief.
Whether the substantial question of law regarding the moulding of relief instead of dismissal was answered in favour of the appellants.
1 provisions across 1 enactments
Perumal Servai and Another
R. Subramani and Others
T. Ravindran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
