Subbukutti Deceased Vs S.Balasubramaniyam(Die… — Contract and Commercial Disputes | Madras HC (2022)

Subbukutti Deceased Vs S.Balasubramaniyam(Die… — Contract and Commercial Disputes | Madras HC (2022)

S.A.No.637 of 2013

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:13.09.2022

CORAM:

THE HON'BLE MRS. JUSTIC E T.V.THAMILSELVI

S.A.No.637 of 2013

and

M.P.No.1 of 2013 & C.M.P.No.9053 of 2017

Subbukutti (Deceased)

S.Easwari

S.Navaneethakrishnan

[Appellants brought on record as legal heirs of the deceased Subbukutti and the cause title accepted vide order of this Court dated 04.06.2013 made in

M.P.No.1 of 2013 in SA.SR.413 of 2013] ... Appellants

Vs.

S.Balasubramaniam (Died)

The District Collector, Erode.

The Tashildar, Dharapuram.

B.Kulanthathal

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B.Yuvaraj

B.Prakash,

[R4 to R6 are brought on record as legal heirs of the deceased R1 viz., S.Balasubramaniyam vide order of this Court dated 28.01.2020 made in C.M.P.No.1410 of 2020 in S.A.No.637 of 2013] ... Respondents

Prayer:

Second appeal filed under Section 100 of C.P.C., against the judgment

and Decree passed by the Court of Subordinate Judge, Dharampuram in A.S.No.29 of 2010 dated 17.08.2012 confirming the judgment and decree

passed by the District Munsif Court, Dharapuram in O.S.No.512 of 2007 dated 26.07.2010.

For Appellants : Mr.Vijay Shankar For R1 : Died For R2 & R3 :Mr.S.Suriya, AGP For R4 to R6 :Mr.S.Saravanan *****

J U D G M E N T

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S.A.No.637 of 2013

In this Second Appeal, challenge is made to the judgment and decree

dated 17.08.2012 passed in A.S.No.29 of 2010 on the file of the Subordinate Court, Dharampuram, confirming the judgment and decree dated 26.07.2010 passed in O.S.No.512 of 2007 on the file of the District Munsif Court, Dharapuram.

The Second Appeal has been admitted on 01.03.2022 on the following substantial questions of law:

a) Whether both the Courts below erred in relying upon the report of the Advocate Commissioner to come to a conclusion that there is no alternative pathway available to the plaintiff to reach the highways from his property?

b) Whether the Courts below failed to appreciate the fact that the right of pathway claimed by the plaintiff by itself may not be a ground to cancel the assignment patta that was granted by the 1^st and 2^nd defendant in favour of the 3^rd defendant, since it involves only a right of use of pathway and not a right over the property belonging to the 1^st and 2^nd defendants?

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c) Whether the findings of both the Courts below can be termed as perverse due to improper appreciation of oral and documentary evidence that was available in record?

The deceased appellant Subbukutti was the third defendant in the

suit in O.S.No.512 of 2007 filed by the first respondent herein, for the relief of declaration, permanent injunction and mandatory injunction in respect of using the public cart track in S.F.No.552/2 and 552/5 to reach his land in S.F.No.552/1C, 552/1A from Dharampuram to Tiruppur Main Road. The third defendant is a private individual who denied the existence of poramboke cart track in S.F.Nos.552/2 and 552/5, on the other hand, he claimed that the said poramboke land was under the enjoyment of his family members for more than 100 years and they enjoyed the said poramboke land along with the lands in S.F.Nos.552/3A and 552/3C and in the year 2007 only, he came to know that the said poramboke land was classified as cart track as per the Revenue Records. He approached the Revenue authorities to purchase the said property by paying the Government value and accordingly, the Tahsildar, Dharapuram/second defendant, on 20.03.2007 4/15

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S.A.No.637 of 2013

sold the said poramboke land in his favour by receiving Rs.14,400/- as sale consideration and thereby, he became the owner of the property and the same was purchased as per the Revenue rules and in which the plaintiff has not owned any property adjacent to the alleged poramboke land, thereby, he prayed to dismiss the suit.

Before the trial court, both the parties adduced oral and documentary evidence. In support of the plaintiff's case, P.Ws.1 and 2 were examined. Exs.A1 to A 3 were marked. On the side of the defendants, D.W.1was examined. Exs.B1 to B14 were marked and on considering patta, sale deed and the proceedings of the Tahsildar, the trial court held that the suit property belongs to the plaintiff and adjacent to his land, there is a poramboke cart track in S.F.Nos.552/2 and 552/5 and therefore he is having the right to ingress and egress to reach Thiruppur to Dharampuram Main Road. Accordingly, relief of declaration as prayed for by the plaintiff was granted. The learned Trial Judge also held that the Revenue Authorities have no right to assign the poramboke cart track in favour of private individual/third defendant, even by receiving the sale consideration as such,

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which is invalid under law and thereby the said proceedings were cancelled by way of of mandatory injunction and thus the suit was decreed as prayed for by the plaintiff.

Aggrieved by the said findings of the trial Court, the third defendant preferred an appeal in A.S.No.29 of 2010 on the file of the Subordinate Court, Dharapuram, wherein, the learned Appellate Judge analysed the facts and evidence independently and held that the plaintiff is entitled to reach Thiruppur to Dharapuram Main Road from the poramboke cart track to reach his property, as he has no other access except under the easement of necessity and the plaintiff is having the right to use the said cart track, but the Tahsildar/second defendant erroneously assigned the land which was classified as poramboke cart track in favour of a private individual, and as such, it is invalid and erroneous and the appeal was dismissed by confirming the trial Court's findings.

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Challenging the said findings, the third defendant has preferred this

Second Appeal. During the pendency of the proceedings, the third defendant as well as the plaintiff died and their legal heirs are broought on record and they contested the case.

Learned counsel for the appellant submitted that the Courts below failed to note that though the land in S.F.Nos.552/2 and 552/5 were classified as porammboke cart track, but it was not used by any of the public as cart track, on the other hand, the third defendant's family was in possession and enjoyment of the property along with their other properties adjacent to that land. The Western boundary of the land mentioned in the property belongs to Govindaswami Gounder/father of the third defendant which itself sufficiently proves that the third defendant enjoyed the property as a land and it was not used as cart track. But the Courts below failed to appreciate these facts and erroneously decreed the suit in favour of the plaintiff which is totally unjust and unfair and is liable to be set aside. Further, learned counsel for the appellant submitted that, after conducting due enquiry, the second defendant/Tahsildar received valid sale

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consideration as per the prevailing Revenue guidelines and assigned the said

poramboke land in his favour and thereby, he became the absolute owner and the plaintiff has not raised any serious objections to that assignment. Hence, the suit as such with regard to the cancellation of assignment by way of mandatory injunction, is not maintainable in law. Since the Courts below failed to appreciate these aspects, the findings of the Courts below are to be set aside by allowing this appeal.

The facts reveal that according to the plaintiff, S.F.Nos.552/2 and 552/5 are classified as poramboke cart track, through which, he is having the right to ingress and egress to his lands/suit property from Thiruppur to Dharapuram Main Road. But the second defendant assigned the said cart track in favour of the third defendant, for which he has no right, thereby the plaintiff approached the Court for the relief of declaration to enjoy the said cart track as well as to cancel the said assignment order by way of mandatory injunction and also seeking relief of injunction against the third defendant from not making any interference to use the said cart track to reach his lands.

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The third defendant contended that more than 100 years, his

family members enjoyed the said poramboke land and only in the year 2007 he came to know that the same was classified as cart track and hence, he approached the Revenue authorities and as per the guideline value, he paid sum of Rs.14,400/- as sale consideration and as per the proceedings passed by the Tahsildar, the said land was assigned in his favour and the same was marked as Ex.B9. Further, the third defendant also denied that the plaintiff owned lands adjacent to the said poramboke land. By producing the sale deeds/Exs.A1 to A3, the plaintiff was able to establish that he is having lands adjacent to the said promboke land. It is also the admitted fact that the poramboke lands in S.F.Nos.552/2 and 552/5 were classified as promboke cart track and this fact is admitted by the third defendant in his written statement as well as during cross examination. Further from Ex.B9 document, the proceedings of the Tahsildar also reveals that the said poramboke land was classified as cart track as per the Revenue Records. As rightly pointed out by the plaintiff's counsel, there is no evidence placed by the third defendant that before assigning the said land in favour of third defendant, proper enquiry was conducted by the Tahsildar by receiving

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objections from the public. Admittedly, the said poramboke cart track is branched out from Dharampuram to Thiruppur Main Road. So, the plaintiff claims the right of ownership of the land abutting the highway, as a right of access to the high way from any part of his premises.

Admittedly, the plaintiff is having land in S.F.No.552/1C adjacent to Thiruppur to Dharapuram Main Road and to reach the same, he is entitled to use the poramboke cart track.

Even otherwise, the Revenue authorities has no right to assign the land which is classified as poramboke cart track in favour of private individual and to that effect, proceedings were issued on 20.03.2007 [Ex.B9] which is totally erroneous and not valid under law. The Courts below rightly appreciated these aspects which needs no interference by this Court.

But the learned counsel for the appellant/third defendant submitted that the poramboke land was in possession of the defendant's family for more than 100 years and it was never used as a cart track by any

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of the public, and hence he purchased the said property for a valuable consideration as per guidelines and Rules in force. But, the first defendant has no right to assign the land which was classified as cart track in favour of private individual, even assuming that it was not used by any person in the locality. Therefore, grant of assignment of patta in favour of the third defendant through Ex.B9 proceeded by the Tahsildar is invalid under law and so findings rendered by the Courts below are valid which needs no interference and there is no perversity in the findings as claimed by the third defendant. Hence, the substantial question of law (b) and (c) are answered accordingly. Furthermore, with regard to alternative pathway for the plaintiff, it is admitted fact that on the West of the poramboke pathway, originally the plaintiff owned vast extent and the same was subsequently sold by converting into plots and for that purpose, a link road was formed, through which he can reach another Main Road from Kunnadam to Udhiyur. But, as per the field map Ex.B5, the plaintiff is having the land in S.F.No.552/5 abutting Thiruppur to Dharapuram Main Road and he is entitled to use the poramboke cart track in S.No.552/2 as discussed above. Therefore, even alternative pathway was available to the plaintiff, and he is

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entitled to use the poramboke cart track to reach the Thiruppur to Dharapuram Main Road and the same is proved with the help of the field map marked as Ex.B5. The plaintiff established that the suit property belongs to him and to reach Thiruppur to Dharapuram Main Road, he is having every right to access through poramboke cart track in S.F.No.552/2. Hence, the assignment of patta granted by the second defendant/Tahsildar in favour of the third defendant is not valid under law and the same is liable to be cancelled. Therefore, by way of mandatory injunction, the defendants 1 and 2 are directed to cancel the assignment patta which stands in the name of the third defendant by way of mandatory injunction. Accordingly, substantial question of law (a) is answered.

The plaintiff's counsel in support of his contentions placed reliance upon the decision of this Court reported in 2008 (3) CTC 405 [Tamil Nadu Electricity Board, rep. By Superintending Engineer, Tuticorin and others Vs.Madasamy Konar] The principles of law outlined in the abvoesaid decisions are to be followed as applicable to the case on hand.

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Hence, the findings rendered by the Courts below with regard to

the usage of the poramboke cart track as well as the cancellation order by way of mandatory injunction granted in favour of the plaintiff are confirmed. Thus, the Second Appeal is dismissed as devoid of merits. The suit is decreed as prayed for. The Judgment and Decree of both the Courts below are confirmed. No costs. Consequently, connected miscellaneous petition, if any, is closed.

13.09.2022

mfa Index:yes/No Internet:yes/No

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S.A.No.637 of 2013

To

Subordinate Judge, Dharampuram

2.The District Munsif, District Munsif Court, Dharapuram

The District Collector, Erode.

The Tashildar, Dharapuram.

Copy to

The Section Officer, VR Section, High Court, Chennai

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S.A.No.637 of 2013

T.V.THAMILSELVI , J.

mfa

S.A.No.637 of 2013 and M.P.No.1 of 2013 & C.M.P.No.9053 of 2017

13.09.2022

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