Partly allowed

Kalaiammal v. R.Balasubramanian

Madras HC24 Feb 2020SA/1440/2001

Case brief

AI extract

What is this about?

In a dispute over a pathway right and easement to access a common well following a partition deed, the High Court allowed the second appeal filed by certain defendants. The Court set aside the decree granting injunctions against them, holding the lower court erred in concluding the plaintiffs had absolute ownership and failed to frame proper issues regarding title.

What did the court decide?

The Second Appeal No. 1440 of 2001 allowed; judgment and decree of Additional Subordinate Judge set aside; decree of District Munsif restored. Second Appeal No. 2138 of 2001 dismissed.

Kalaiammal Vs R.Balasubramanian — Partition | Madras HC (2020)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Reserved on : 27.01.2020

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Date of Verdict : 24.02.2020

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CORAM

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THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

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S.A.Nos.1440 and 2138 of 2001
and
C.M.P.Nos.15459 & 22409 of 2001
1.Kaliammal
2.Krishnan
3.Thangavel
4.Lakshmi
5.Minor Selvi
(Rep by her guardian Mother
Kaliammal 1 st Appellant)
6.Dhandapani ..Appellants in
S.A.No.1440/2001/ Respondents 3 to 8/
Defendants 3 to 8/ Defendants3 to 8
1.R.Balasubramanian
2.Thangammal(died)
R2 died memo dated 19.03.2018 memo received
1 st Appellant recorded as LR's by A1 vide
order dated 19.03.2018 in SA.NO.2138/01
..Appellants in S.A.No.2138/2001/ Appellants
Vs.
1.R.Balasubramanian
2.Thangammal (deceased)
3.P.Nallamuthu
4.N.Mohanasundaram
R2 died memo dated 22.03.2018 memo recorded
R1 recorded as LR of R2 vide
order dated 22.03.2018 in SA.NO.1440/01
..Respondents 3 & 4in S.A.No.1440/2001/
Respondents 1 & 2/ Respondents 1 & 2
1.P.Nallamuthu
2.N.Mohanasundaram
3.Kaliammal
4.Krishnan
5.Thangavel
6.Lakshmi

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..Respondents1 to 6/ Respondents 1 to 6 Respondents 1 to 6 in S.A.No.2138/2001

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https://hcservices.ecourts.gov.in/hcservices/

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7.Minor Selvi (Rep by guardian Mother Kaliammal 3^rd Respondent ) 8.Dhandapani

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.. Respondents 7 & 8/ Respondents7 & 8 Defendants7 & 8 in SA.No.7&8

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Prayer in S.A.1440 of 2001 :- This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree passed in A.S.No.174 of 1997 on the file of the I Additional Subordinate Judge, Erode dated 05.01.2001 by reversing the Judgment and Decree passed in O.S.No.410 of 1995 on the file of the I Additional District Munsif, Erode, dated 06.12.1996 .

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Prayer in S.A.No.2138 of 2001:- This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree passed in A.S.No.174 of 1997 on the file of the I Additional Subordinate Judge, Erode dated 05.01.2001 confirming the judgment and decree passed in O.S.No.410 of 1995 dated 06.12.1996, on the file of the First Additional District Munsif, Erode, against the respondents 1 and 2 may kindly be set aside and the appeal be allowed with cost throughout.

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For S.A.No.1440 of 2001:

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For Appellants : Mr.R.Venkatachalapathy for M/s.S.Kadarkarai For Respondents R1 & R2 : M/s.R.Ramya for Mr.T.V.Krishnamachari R3 & R4 : Given up

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For S.A.No.2138 of 2001:

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For Appellants : M/s.R.Ramya for

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COMMON JUDGEMENT

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The Second Appeal No.1440 of 2001 is directed as against the judgment and decree passed in A.S.No.174 of 1997 on the file of the I Additional Subordinate Judge, Erode dated 05.01.2001 by reversing the Judgment and Decree passed in O.S.No.410 of 1995 on the file of the I Additional District https://hcservices.ecourts.gov.in/hcservices/ Munsif, Erode, dated 06.12.1996 .

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The Second Appeal No.2138 of 2001 is directed as against the judgment and decree passed in A.S.No.174 of 1997 on the file of the I Additional Subordinate Judge, Erode dated 05.01.2001 confirming the judgment and decree passed in O.S.No.410 of 1995 dated 06.12.1996, on the file of the First Additional District Munsif, Erode, against the respondents 1 and 2 may kindly be set aside and the appeal be allowed with cost throughout.

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For the sake of convenience, the parties are referred to as per their rankings in the trial Court.

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The case of the plaintiffs in brief is as follows :-

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4.1. The suit is filed for injunction and permanent injunction. The suit property was provided as per the partition deed dated 15.04.1937 entered between the Perumal Naicker and Annamar Naicker and his three sons. The northern side of the portion described in the B schedule of the partition deed was allotted to the Perumal Naicker. The Southern portion described in the A schedule in the partition deed was allotted to Annamar Naicker and his three sons. The said Perumal Naicker sold out his share namely A schedule property in the partition deed by the registered sale deed dated 09.03.1939 to one Ponnayee @ Ponnayammal, who is none other than the grandmother of the first plaintiff and the mother in law of the second plaintiff. She died on 05.12.1967 and her husband died on 26.04.1969. After their demise the plaintiffs are entitled to the property. In respect of the A schedule property, mentioned in the partition deed, there was oral partition between the legal heirs of the Annamar Naicker in which the southern portion was allotted to Peria Kolandan @ Ranga Naicker, middle portion was allotted to Kolandan @ Kuppa Naicker and northern portion was allotted to one Karuppa Naicker @ Samiappa Maistry and A schedule property of the partition deed dated 15.04.1937. After demise of the Peria Kolandan @ Ranga Naicker, the defendants 3 to 8 as his legal heirs became entitled to the share of Peria Kolandan @ Ranga Naicker. The first defendant is entitled to have the middle portion by virtue of purchase. Similarly, the second defendant entitled to the northern portion, who is none other than the son of the first defendant. The suit property was solely provided in the partition deed to reach the B schedule property in the original partition deed as the A schedule. Such portion was situated abutting the main Sathy Road. The owners of the A schedule property have been given only right to use the suit pathway to take water from the common well located in the northern extremity of the suit pathway. Except the said rights, the owners of the A schedule property have no other rights in the suit pathway. The properties belonged to defendants 1 & 2 are lying vacant and there is a pacca wall to the east of the pathway. The wall belongs to defendants 3 & 4 https://hcservices.ecourts.gov.in/hcservices/ and there is no opening in the said wall to enter into their

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property. In fact, the legal heirs of the Annamar Naicker orally divided the entire A schedule property and they made provision to have access to their respective shares with the two feet lane situated on the eastern extremity of the A schedule property. While being so, the defendants 1 & 2 are threatening to put up construction and make entry to reach their property by using the suit pathway and to make a provision to draw water into suit pathway. The defendants 3 to 8 are also threatening to open the doorway and windows in their western wall abutting the suit pathway. They have absolutely no right in the suit pathway except to draw water from the common well. Hence the suit.

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Resisting the plaintiffs' case, the first defendant filed written statement and stating that the plaintiff cannot claim any exclusive right over the suit pathway. There is absolutely no recital in the partition deed dated 15.04.1937 as alleged by the plaintiff. In fact, the sale deed by the grandmother of the first plaintiff described the suit property as Mamool Thadam. While being so, the plaintiffs are making exclusive claim over the suit pathway only with the intention to grab the entire suit property. The share of the defendants 1 & 2 are being vacant, the plaintiffs admitted to prevent them from putting up on the western side. In fact, the defendants 3 to 8 are having common right in the suit pathway and they cannot be prevented from putting up any openings from western side wall. The provision of the two feet lane on the eastern extremity on A schedule property has nothing to do with the rights of these defendants in the suit pathway. The well is situated in the north western side and necessarily the defendants 1 to 8 have to reach the well only through 5 feet suit pathway. Therefore, the suit property does not belong to the plaintiffs exclusively and prayed for dismissal of the suit.

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5.1. The defendants 3 to 8 filed a separate written statement and stated that the partition was took place on 15.04.1937 in the area admeasuring 47 feet north south on the west and east, 32 feet east-west on the north and 32 ¾ feet on the south, i.e., including the suit property had been allotted under A Schedule to Annamar Naicker and his three sons. The predecessors in title had given a pathway right on the west over 5 feet broad space to A schedule. Therefore, only the pathway right was allotted to the A schedule allottee to have egress and ingress to the common well situated in the B schedule property under the said partition. Therefore, the plaintiffs have no right to dictate any terms to the defendants with regard to user of the suit property. The defendants have every right to have opening in their wall of their house and west facing suit property to have ingress and egress to their house situated on the east of the suit property. In fact, eastern north to south, 2 feet lane is only for scavengers. Further stated that they have got every right https://hcservices.ecourts.gov.in/hcservices/ to open doorways, windows on the western side abutting the

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suit pathway. In fact, it will not be any way affected the plaintiffs right and prayed for dismissal of the suit.

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In support of the plaintiff's case, P.W.1 & P.W.2 were examined and twenty documents were marked as Ex.A.1 to Ex.A.20. On the side of the defendants, D.W.1 and D.W.2 were examined and Ex.B.1 to Ex.B.3 were marked. The Advocate's Commissioner Report and Plans were marked as Ex.C.1 and Ex.C.2. On considering the oral and documentary evidences adduced by the respective parties and the submission made by the learned counsel, the trial Court dismissed the suit. Aggrieved by the same, the plaintiff preferred an appeal suit in A.S.No.174 of 1997 and the first Appellate Court partly allowed the suit filed by the plaintiff. Aggrieved by the same, both the plaintiffs as well as the defendants preferred these two second appeals. The plaintiffs have filed second appeal in S.A.No. 2138 of 2001 and the defendants have filed in S.A.No.1440 of 2001. Pending appeal suit, the plaintiffs filed an application in I.A.No.520 of 1998 to amend the prayer in the plaint with allegation that pending the suit, the defendants have put up the door and windows on their wall abutting the suit property, which is not permitted according to the partition deed. The said application was dismissed by the First Appellate Court on 12.10.1998, against which the plaintiffs filed a Revision Petition before this Court and the same was allowed and permitted the plaintiffs to amend the prayer. Thereafter the Mandatory Injunction was granted against the defendants 3 to 8 but removed the door fixed by them abutting the suit property. Insofar as the permanent injunction is concerned against the defendants 1 and 2 was dismissed and as against the defendants 3 to 8, permanent injunction was also granted. Aggrieved by the same, both the plaintiffs as well as the defendants preferred these two second appeals.

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At the time of admission of the second appeal in S.A.No.2138 of 2009, the following substantial questions of law were framed by this Court :-

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“a) Whether the Courts below have properly considered the material evidences in this case regarding the rights of parties as per Exs.A1, A2, C3 and C4?

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b) Whether the Courts below have properly appreciated the principles of law relating to a decree under Section 38 of Specific Relief Act?

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c) Whether the Courts below are right in dismissing the suit against the defendants 1 and 2 contrary to the pleadings and evidence pleaded by the defendants 1 and 2?

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d) Whether the Courts below are right in dismissing the suit against the defendants 1 and 2 having decreed the suit against the defendants 3 to 8, who are the defendants of the Common Ancestor, https://hcservices.ecourts.gov.in/hcservices/ having got Schedule 'A' as per Ex.A1?”

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At the time of admission of the second appeal in S.A.No.1440 of 2001, the following substantial questions of law were framed by this Court :-

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“a) Whether the findings of the Lower Appellate Court are vitiated in law by the failure to consider the entire evidence on record and fails to apply the correct principles of law?

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b) Whether the Lower Appellate Court is correct in decreeing the suit without the prayer for declaration of title when the title itself is in dispute?

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c) Whether the Lower Appellate Court is correct in decreeing the suit without framing proper issues for determination of the dispute?

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d) Whether the Lower Appellate Court strictly complied with the mandatory character of Order 41 Rule 31 of C.P.C?”

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This Court has dealt with the factual matrix of the case in detailed as above, no need to reiterate the same any further. However, for the purpose of deciding the substantial questions of law, certain facts which are absolutely germane and answered alone will be reiterated and discussed herein. Originally, the plaintiff filed a suit for bare injunction. Subsequently, amended the prayer for mandatory injunction and also permanent injunction as against the defendants. While pending the appeal, the share of the defendants 1 and 2 are purchased by the plaintiffs. Therefore, nothing survives in the second appeal filed in S.A.No.2138 of 2001, insofar as against the defendants 1 and 2 are concerned.

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The plaintiffs have entitled to become absolute owner of the B schedule property described in the partition deed dated 15.04.1937, which was marked as Ex.A1. According to the plaintiffs, the 5 feet broad pathway is provided to reach the B schedule property. The said pathway is also given right to the A schedule property owners to draw water from the common well situated in the B schedule property. On perusal of the Ex.A.1 and the recitals mentioned in the A schedule as well as the B schedule as follows:

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“,jd; kj;jpapy; bjd;tlypy; $hjp mo 47 bjd;g[wk; fpHnky; $hjp 32 3/4 tlg[wk; fpHnky; $hjp mo 32 ,e;j mst[s;s ,lKk; ,jpy; fl;oapUf;Fk; tlf;F ghh;j;j Tiu rhisfs; ,uz;Lk; bjw;F ghh;j;j Tiu rhisfs; , uz;Lk; Mfpa ,itfSk; ,itfSf;F nrh;e;j fjt[ epyt[ fl;Lf;nfhg;g[k; nkw;Twpa 'gp' broa{y; ghfj;jpypUf;Fk; nrj;J fpzh; xd;wpy; 1/4 g';F fpzWk; 'gp' broa{y; ghfj;jpy; nky;g[wkha; ehk; Vw;gLj;jpapUf;Fk; 5 mo mfyKs;s jlj;jpd; tHpaha; 2.3.4 yf;fkpl;lth;fs; tlf;nf te;J fpHf;nf jpUk;gp 'gp' broa{y; tPl;od; Kd; thry; gf;fk; nkw;Twpa fpzw;wpy; nghl;oUf;Fk; uhl;odj;jpy; jz;zPh; nrj;jpf;bfhs;Sk; ghj;jpaKk; jok; rfpjk;/

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https://hcservices.ecourts.gov.in/hcservices/ vd;W fz;oUf;fpd;wJ/ mnjnghy; nkw;brhd;d Mtzj;jpy; gp broa{y;

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brhj;J tptuj;jpYk; fPHfz;l thrf';fs; ,lk;bgWfpwJ/

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nkw;go tPl;od; Kd;dhYs;s nrj;J fpzh; xd;wpy; 1/4 g';F fpzWk; fPH;g[wKs;s uhl;ozj;jpy; jz;zPh; nrj;jpf;bfhs;Sk; ghj;jpaKk; 'v' broa{y; ghfj;jpy; nky;g[wk; vUl;of;fhu khug;gft[z;ld; ,lj;jpd; Xukha; bjw;nf rj;jpak';fyk; nuhl;oypUe;J 5 mfyKs;sjha; bjd;tlypy; Vw;gLj;jpapUf;Fk; jlj;jpy; ele;J bfhs;Sk; ghj;jpaKk; rfpjKk;/ ”

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Further according to the plaintiffs, the A schedule property was abutting the main road and as such, the owners of the A schedule property have given only a right to use the pathway to fetch water from the well located in the northern extremity of the suit property. Except this right, the A schedule owners did not have any other right over the suit pathway. Whereas, it is seen from the recital of the Ex.A.1 namely partition deed has given right of drawing water in the common well situated in the suit property and also as a pathway. Further, the ownership of the lane lies with the adjacent owners, but the easement right has been granted to the owner on each side of the property. Therefore, the suit lane is given to the owners of the B schedule property and had given easement right by grant to the others. Further it is the duty of the plaintiffs, who claim exclusive right over the suit property to establish that the measurements given in the partition deed includes 5 feet breadth. But it is seen from the Ex.A.1, which does not say that the suit lane belong to the B schedule holder absolutely. Further the Ex.A2 is the sale deed executed by Perumal Naicker in favour of the grand mother of the first plaintiff. In the said sale deed also the same recitals categorically mentioned and the measurements also clearly mentioned in which common pathway alone had given and it implies only right of passage. Therefore, this Court finds there is absolutely no evidence to confer an absolute title over the suit property in favour of the plaintiff.

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While pending the appeal, the plaintiff purchased the property belong to the defendants 1 and 2. Therefore, the prayer sought for against the defendants 1 and 2 has now become infructuous. Insofar as the mandatory injunction is concerned, the plaintiffs produced photographs showing the 5 feet lane namely the suit property. She also submitted that the common well situated in the B schedule property was demolished and new construction was made by the plaintiffs. Now except the property belong to the defendants 3 to 8, the other property owned by the plaintiffs. Further, the photographs clearly shows that the adjacent to the suit pathway there is a wall and looks very old. In the said wall there is an entry with the door to the house. In the front side adjacent to the Sathy Main Road, there is a shop. Even according to the Commissioner's Report, the defendants 3 to 8 house properties have no entries beyond the Sathy Raod, the newly constructed house is the only access to their house. https://hcservices.ecourts.gov.in/hcservices/ Except the door, there are no windows. Further, the A schedule

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of Ex.A.1 owners on the respective shares in the common well and right of pathway in the suit schedule property, now the common well also closed and as such, there is no possibility for drawing water from the common well. Though it was closed, the other owners of the A schedule property namely the defendants 3 to 8 are having pathway right in the suit property to reach the Sathy Road. They are having north face houses and as such, except the suit pathway they have no other access to reach Sathy Road. Further the plaintiffs have no absolute right over the suit property, as per clear recital of Ex.A.1.

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Therefore, this Court finds the valid reason to interfere with the reasonings and findings rendered by the first Appellate Court as perverse and against the evidence on record and they are liable to be interfered with. Accordingly, this Court is of the considered opinion that all the substantial questions of law formulated in the second appeal in S.A.No.1440 of 2001 are accordingly answered in favour of the defendants 3 to 8 and against the plaintiffs. Insofar as the substantial questions of law formulated in the second appeal in S.A.No.2138 of 2001 are answered accordingly in favour of the defendants 3 to 8 and against the plaintiffs.

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In fine, the S.A.No.1440 of 2001 is allowed and the judgment and decree dated 05.01.2001 passed in A.S.No.174 of 1997 on the file of the I Additional Subordinate Judge, Erode, are hereby set aside and consequently, the judgement and decree passed in O.S.No.410 of 1995 are restored on the file of the I Additional District Munsif, Erode. Insofar as the Second Appeal No.2138 of 2001 is concerned, the same is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.

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Sd/-

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Assistant Registrar(CS II)

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Pns

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I Additional District Munsif, Erode. Copy to:

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The Section Officer, VR Section, High Court,Madras.

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+2ccs to Mr.C.Jagadish , Advocate SR.No. 15877 +1cc to Mr.S.Kadarkarai , Advocate SR.No. 15549 in S.A.Nos.1440 & 2138 of 2001

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A.SK(27.04.2021)

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https://hcservices.ecourts.gov.in/hcservices/

Kalaiammal v. R.Balasubramanian

Case brief

What is this about?

What did the court decide?

Kalaiammal v. R.Balasubramanian

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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