Dismissed

Palaniammal and 2 Others v. Subbaraya Gounder

Madras HC25 Jun 2021SA/1189/1997

Case brief

AI extract

What is this about?

In a second appeal, the Madras High Court dismissed the plea seeking permanent injunction over the A schedule property. The Court upheld the lower appellate Court's finding that a 3-feet pathway existed and was not obliterated, rejecting the claim that the canal construction created an alternate route.

What did the court decide?

The second appeal was dismissed; the judgment and decree of the lower appellate Court were confirmed; no costs.

Palaniammal and 2 Others Vs Subbaraya Gounder — Service and Employment | Madras HC (2021)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATE OF RESERVING JUDGMENT DATE OF PRONOUNCING JUDGMENT 22.02.2021 25.06.2021

¶3

CORAM

¶4

THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

S.A.NO.1189 OF 1997

1.Palaniammal

2.Natarajan

3.Mottaiyan @ Subramaniam

¶9

.. Appellants/Plaintiff

¶10

Vs.

¶11

1.Subbaraya Gounder

¶12

2.Thulasimani

¶13

3.Raja @ Devarajan

¶14

(The third respondent herein was set exparte)

¶15

.. Respondents/Defendants

¶16

Prayer:

¶17

Second Appeal filed under Section 100 of C.P.C., to set aside the judgment and decree passed by the Principal District Judge, Erode, Periyar District on 09.10.1996 made in A.S.No.95 of 1995 modified the judgment and decree passed by the District Munsif Court, Erode, Periyar District on 20.02.1995 made in O.S.No.1017 of 1991.

¶18

For Appellants : Mr.K.K. Ramakrishnan

¶19

For Respondents: Mr.R. Singaravelan, Senior Counsel

¶20

The plaintiffs in the suit are the appellants herein. For the sake of convenience, parties are referred to as per the litigant's status before the trial Court.

¶21

2. The plaintiffs / appellants filed a suit in O.S.No.1017 of 1991 seeking relief of permanent injunction in respect of schedule A and B property. The defendant in the written

¶22

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

¶23

statement have admitted regarding status of part A in B schedule property.

¶24

3. The trial Court, on consideration of the evidence had granted the decree in toto namely permanent injunction in respect of the schedule A and B pathways. Hence, aggrieved against the said finding, the defendants preferred A.S.No.95/95 before the Principal District Court, Erode. Wherein, the appeal was allowed in part and the suit was decreed only in respect of B schedule property and in respect of A schedule property, the suit has been dismissed, for the reasons stated therein.

¶25

4. As against the rejection of the prayer in respect of A schedule property, the plaintiffs have preferred this appeal. In respect of decreed portion, the defendant has not preferred any appeal and hence, the scope of the second appeal is narrowed down to the fact that whether, the plaintiffs are entitled for the relief in respect of A schedule property alone.

¶26

5. On 19.09.1997, notice of motion was only ordered. After hearing the parties, the following substantial questions of law were framed:

¶27

(i) Has not the appellate Court committed in error of law in holding that the plaintiffs / appellants have not established their case respecting the plaint 'A' schedule property?

¶28

(ii) Is the first appellate Court correct in holding that they are existed a pathway in part after due obliteration?

¶29

(iii) Are the respondents entitled to the pathway rights over the plaint 'A' schedule property without they filing a separate suit for restoration of the destroyed pathway?

¶30

6. Heard, the learned counsel for the appellants and the learned counsel for R2.

¶31

7. A schedule property is in S.No.199/2, 199/3, 199/4, 199/5 and 199/6 with mamool pathways with pathway right to reach the above lands along with cart track pathway described fully in the B schedule property.

¶32

8. The specific relief sought for by the plaintiffs is permanent injunction from forming a new pathway / cart track in the Western Portion of the said field, further west of the existing Lower Bhavani Project Canal course and pathway and second relief is permanent injunction restraining the defendants from causing any obstruction to the joint user of the plaintiffs right over B schedule cart track / pathway. Prayer B was

¶33

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

¶34

granted by the lower appellate Court. As against which the defendant has not preferred any appeal. In respect of prayer A namely pathway cart track on the western portion of the lands described in the A schedule.

¶35

9. After hearing the rival submissions, the crux of the issue is narrowed down under A schedule property, certain lands have been owned by the plaintiffs and the property is situated on the border of the plaintiffs land is the A schedule property. The plaintiffs are not disputing the pathway but disputing right to use as a pathway by the defendant is the only objection raised by the plaintiffs.

¶36

10. The reason assigned by the plaintiffs is that on the formation of Lower Bhavani Project canal, water course, the second line of irrigation was developed across the land of the defendants and hence the plaintiffs contended that since the defendant is having an alternate pathway, he should be prevented from using the pathway situated in the A schedule property.

¶37

11. The sum and substance of the arguments of Mr.R.Singaravelan, learned Senior Advocate is that for strengthening the Bhavani Project Canal, the authorities under the PWD have applied mortar and cement to the foot path lying adjacent to the koppu vaikkal and the same is used for pathway and to take cattles and hence the same should not be considered as pathway and the defendants have no other pathway except the subject matter of the pathway situated adjacent to the land owned by the plaintiffs namely as prayed in the prayer 1 relating to schedule A property.

¶38

12. To resolve the dispute, the trial Court had appointed an Advocate Commissioner and thereafter decreed the suit granted relief of permanent injunction in respect of both A and B schedule property. However, in respect of the relief granted under A schedule property was set aside by the lower appellate Court. At this juncture, the submissions of Mr.Ramakrishnan, the learned Senior counsel for the plaintiffs/appellants assumes significance. The lower appellate Court has committed an error in dismissing the relief of permanent injunction in respect of A schedule property by wrongly construing the Advocate Commissioner's report C1 and C2 and hence prayed for setting aside the lower appellate Court order.

¶39

13. Before the trial Court, the plaintiffs were examined as PW.1 and P.W.2, Exs.A1 and A2 were marked and for the defendants DW1 and DW2 were examined. C1 and C2 are the reports of the Advocate Commissioner and the map.

¶40

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

¶41

14. After going through the evidence of P.W.1 and P.W.2, DW1 and DW2 and C1 and C2, the Advocate Commissioner had noted the physical features of the property that the plaintiffs own the property under A schedule and on the east of the said property, the Lower Bhavani project water canal was going and on the north portion of the property, a new fencing was put up by the plaintiffs. In respect of B schedule property, it is marked as cart track situated on the eastern portion of the A schedule property and cart track was running north to south with three feet width.

¶42

15. Furthermore, as per C1 report, A schedule property which is owned by the plaintiffs, the plaintiffs have not disputed the existence of the 5 feet width footpath, the same is also reflected in the sale deed in their favour under Ex.A1 assumes significance and the said foot path has been used by annexture by the plaintiffs. In the said three feet width foot path being used by the defendant even as per Ex.A1 description, the contention of the respondent counsel is that the defendant to have the access to the defendant land that is the only path way that can be used which is duly reflected under Ex.A1 and also duly corroborated by Ex.C1 Advocate Commissioner's report.

¶43

,e ; j ntypahdJ ehd ; Kjy ; Kiw jhth brhj ; ij ghh ; itapl ; l nghJ nghlg ; gl ; L ,Uf ; ftpy ; iy/ mnj nghy ; thjpapd ; epyj ; jpy ; khl ; Lf bfhl ; liff ; F gphpa [ k ; tHpapy ; g [ jpajhf 4 mo ePsj ; jpy ; fpStd ; ntyp mikf ; fg ; gl ; L ,Ue ; jJ/ Kjy ; Kiw jhth ,lj ; ij ghh ; it ,l ; l- nkw ; go ntyp m' ; F ,y ; iy/

¶44

tha ; f ; fhy ; xl ; o eil ghij jtpu thjpapd ; epyj ; jpy ; ntW ve ; j jlKk ; ,y ; iy/

¶45

16. The plaintiffs have not produced any document to show whether the original 3 feet width foot path has been acquired by LBP Project or not. As per Ex.A1 sale deed, 5 feet width public foot path is being mentioned, it is being used by the defendant and therefore, the plaintiffs cannot lock the defendant from using it nor he can obliterate the foot path by annexing to his lands.

¶46

17. Furthermore, P.W.2 in the cross examination has admitted that there exists 3 feet width common foot path on the eastern side of the A schedule property and its existence has been admitted by him and hence, based upon the oral evidence and based upon the description of the property under Ex.A1 which is duly corroborated by Exs.C1 and C2 Advocate Commissioner's report and the map coupled with oral admission of P.W.2 in the cross examination, the lower appellate Court has rightly come to the conclusion as to the existence of 3 feet width public foot

¶47

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

¶48

path road on the eastern side of the A schedule property which is meant for being used by the defendant to go over to his land and to take the cattle.

¶49

18. The lower appellate Court also held that the plaintiffs

¶50

have failed to prove whether the plaintiffs A schedule property lies between the two canals and hence, the lower appellate Court has rightly concluded that the plaintiffs have not proved the existence of the alternate pathway to the defendant land and hence, the finding rendered by the lower appellate Court is by interpreting the Advocate Commissioner's report and evidence of P.W.2 as to the existence of the common pathway to an extent of 5 feet breadth has been annexed to the land of the plaintiffs by obliteration and the said finding does not suffer from any irregularity or illegality warranting interference by this Court in the appellate stage. Hence, the finding rendered by the lower appellate Court is based upon the evidence before the Court.

¶51

19. Hence, in view of the clear and cogent evidence of Ex.A1, C1 and C2 coupled with the admission of P.W.2, the lower appellate Court has rightly rejected the claim of the plaintiffs / appellants in respect of A schedule property and the same does not warrant any interference and it is the case of encroachments and obliteration of pathway by the plaintiffs / appellants and he has encroached upon the 5 cubic feet pathway and subsequently annexed to their land. Therefore, the lower appellate Court has correctly held that there existed a pathway in the A schedule property for the use of the defendant and the defendant is having no other pathway and rightly rejected the relief.

¶52

20. In this view of the matter, all the substantial questions of law are answered in negation against the appellants / plaintiffs and in favour of the respondent / defendant. Accordingly, the second appeal is dismissed. The judgment and decree passed by the lower appellate Court modifying the judgment and decree passed by the trial Court is hereby confirmed. No costs.

¶53

Sd/Deputy Registrar

¶54

//True Copy//

¶55

Sub Assistant Registrar

¶56

¶57

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

¶58

To
1.	The Principal District Judge, Erode, Periyar District.
2.	The District Munsif Court, Erode, Periyar District.
3.	The Record Keeper, V.R.Section, High Court, Madras.
+1c	c to Mr.P.T.Ramadevi, Advocate, S.R.No.29759
	S.A.No.1189 of 1997
BS(	CO)
PM/	17/11/2021

¶59

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

Palaniammal and 2 Others v. Subbaraya Gounder

Case brief

What is this about?

What did the court decide?

Palaniammal and 2 Others v. Subbaraya Gounder

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Arunachala Padayachi Vs Velayudam

Prince Samuvel Vs Annie Priya Price Samuvel

S.R.Rajendran Vs Usha Rani

K.Palanisamy @ Palaniyappan Vs Tamil Nadu Electricity Board

K.Sundar Raj Vs the Assistant Commissioner of

K.Mohammed Rizwan, Vs M/S.Hamdaan Leathers