In a second appeal regarding possession recovery, the Madras High Court dismissed the appeal. The court held that prior proceedings negated any pathway rights for the appellant, rendering the claim against the sale deed unsustainable and confirming the lower decree.
Confirmation of the first appellate court decree allowing partial recovery of possession.
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.
S.A.(MD)No.174 of 2005
Dhanavelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT RESERVED ON : 30.11.2021 DELIVERED ON : 03.12.2021 CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR S.A.(MD)No.174 of 2005
... Appellant/Appellant/Defendant
Vs
Nandhagopal @ Jeyaraj ... Respondent/Respondent/Plaintiff
PRAYER : Second Appeal is filed under Section 100 of Civil Procedure Code, to set aside the decree and judgment of the Additional Subordinate Judges Court, Kumbakonam passed in A.S.No.94 of 2003 dated 07.10.2004 partly modifying the decree and judgment of the First Additional District Munsif Court, Kumbakonam passed in O.S.No.122 of 1993 dated 21.10.2002.
For Appellant : Mr.M.R.S.Prabhu Advocate for Mr.V.K.Vijayaraghavan Advocate For Respondent : Mr.B.Anandan Advocate
JUDGMENT
The defendant is the appellant herein.
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defendant has filed O.S.No.89 of 1990 before the Subordinate Court, Kumbakonam seeking declaration and permanent injunction with regard to the present suit schedule property alleging it to be an exclusive pathway of the defendant. The said suit was dismissed and the present defendant filed A.S.No.131 of 1991 before the District Court, Thanjavur. The said appeal was also dismissed. Thereafter, the defendant had preferred second appeal No.1740 of 1992 before the Principal Seat and the said second appeal was also dismissed. Despite the dismissal of the said suit, the defendant is not handing over the possession of the suit schedule property.
6.The defendant has filed a first appeal, the learned Subordinate Judge confirmed the findings of the trial Court holding that the present defendant cannot re-agitate his right over the suit schedule property. The first appellate Court also found that in the previous proceedings, a right claimed by the defendant has been negatived by all the Courts. The first appellate Court also found that the present plaintiff is the 5th https://hcservices.ecourts.gov.in/hcservices/ defendant in the previous suit and hence, the first defendant is
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not entitled to make any claim over the suit schedule property. However, the first appellate Court based upon the Commissioner's report and the measurement given in the previous suit, arrived at a conclusion that the width of the pathway is just 12 feet and not 13 feet. On the basis of the above said findings, the first appellate Court modified the decree and held that the defendant has encroached upon 110 Sq.ft. and not 220 Sq.ft.
“1. Whether the sale deed in favour of the respondent dated 26.09.1991 is legally enforceable when the subject matter of dispute between the parties is WAY intended for public use?”
2. Whether the lower appellate Court was correct in dismissing the application filed by the appellant for reception of documents in I.A.No.9 of 2004 in A.S.No.94 of 2003?
3. Was the lower appellate Court correct in rejecting the evidence of D.W.2 surveyor who had stated that no encroachment was committed by the appellant?
8 . The learned counsel for the appellant contended that the judgment and decree in O.S.No.89 of 1990 and confirmed in second appeal No.1740 of 1992 will not operate as res judicata as against the appellant. He further contended that in the previous proceedings, the present appellant had contended that the suit schedule property is an exclusive pathway and prayed for consequential injunction. There is an observation in the judgment of the first appellant Court in A.S.No.131 of 1991 to the effect that it is not as exclusive pathway of the present defendant. Relying upon the said observation, the learned counsel for the appellant contended that though it may not be the exclusive pathway of the defendant, yet the suit schedule property continues to be a pathway and the plaintiff will not be entitled to seek recovery of possession from him.
https://hcservices.ecourts.gov.in/hcservices/ 10. Per contra, the learned counsel for the respondent
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contended that the present appellant claimed exclusive right over the present suit schedule property and sought for permanent injunction in O.S.No.89 of 1990. The trial Court as well as the first appellant Court in the previous proceedings have held that the present appellant does not have any right or possession over the present suit schedule property. The learned counsel for the respondent also drew my attention to the judgment of this Court in second appeal No.1740 of 1992 which was filed by the present appellant. In the said judgment, this Court has categorically held that the appellant has not produced any evidence even remotely to indicate that he had any right to use the pathway, even as an easement. In view of the above said finding, this Court in second appeal, the learned counsel for the respondent contended, that the present appellant cannot re-agitate the said issue again claiming right of pathway in the suit schedule property.
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as held that there is no such pathway and the present defendant/appellant, has no right to use the pathway even as an easementary right. Hence, the contention of the appellant that the pathway cannot be alienated is not legally sustainable. That apart, Plot Nos.5 and 6 purchased by the defendant is facing the main road and hence, the defendant cannot complain that he does not have any access to the main road. The plaintiff has established his title over the suit schedule properties and the defendant is not in a position to establish his right to be in possession over the suit schedule properties.
btr/msa
Note :
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
To
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S.A.(MD)No.174 of 2005
Copy to The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
+1 CC to M/s.V.K.VIJAYARAGAVAN, Advocate (SR-37669[F] dated 07/12/2021)
S.A.(MD)No.174 of 2005 03.12.2021
KM(CO) SB(24.01.2022) 6P 6C
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2 issues framed by the court
Whether the sale deed in favour of the respondent is legally enforceable when the subject matter of dispute is a way intended for public use?
Whether the lower appellate court was correct in dismissing the application for reception of documents and rejecting the surveyor's evidence regarding encroachment?
Colour shows how this judgement treated each authority
second appeal No.1740 of 1992Referred¶32
1 provisions across 1 enactments
Dhanavelu
Nandhagopal @ Jeyaraj
R. Vijayakumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
