Dismissed

S.Arumuga Velar (Age 64/2011) v. Jeyapal (Age 49/2011)

Madras HC3 Jan 2023SA(MD)/265/2016

Case brief

AI extract

What is this about?

In this second appeal, the Madurai Bench of the Madras High Court dismissed the appeal filed by property owners. The lower courts dismissed a suit seeking declaration of title and injunction against a neighbor's entry. The High Court held that the appellee proved his right of way over the disputed pathway via a common pathway admission by the appellants' own witness and corroborating testimony, fi

What did the court decide?

The Second Appeal was dismissed; the respondent is entitled to use only the existing pathway on the eastern extremity of the suit property.

S.Arumuga Velar (Age 64/2011) Vs Jeyapal (Age 49/2011) — Property and Title | Madras HC (2023)

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S.A.(MD) No.265 of 2016

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 03.01.2023

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CORAM

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THE HONOURABLE MR. JUSTICE S.SOUNTHAR

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S.A.(MD) No.265 of 2016

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1.S.Arumuga Velar 2.T.Arumuga Nambi

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... Appellants/Appellants/ Plaintiffs

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Jeyapal

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... Respondent/Respondent/ Defendant

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Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside the judgment and decree dated 19.11.2010 made in A.S.No.116 of 2008 on the file of the Sub Court, Valliyur, confirming the judgment and decree dated 06.02.2008 passed in O.S.No.130 of 2005 on the file of the Additional District Munsif's Court, Nanguneri.

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For Appellants : Mr.KS.Sreenivasan For Respondent : Mr.R.Manimaran

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https://www.mhc.tn.gov.in/judis

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J U D G M E N T

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S.A.(MD) No.265 of 2016

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Plaintiffs are the appellants. The suit is for declaration and injunction. The suit was dismissed by the trial Court and the judgment of the trial Court was confirmed in first appeal. Aggrieved by the same, the plaintiffs are before this Court.

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2.1. According to the appellants/plaintiffs, a total extent of 1 acre and 1 cent in suit Survey No.527/1B originally belonged to one Ponnuthai. She sold 15 cents of her property to one Kurungudi Ammal, mother of the 1^st appellant under Ex.A.2 dated 19.11.1963. The said 15 cents was inherited by the 1^st appellant by inheritance from his mother. The remaining 86 cents were partitioned among the three daughters of Ponnuthai, after her death. The northern 43 cents was allotted to Pushpam, one of the daughters of Ponnuthai and the southern 43 cents was allotted to another daughter Arumai Ranjitham. The said Pushpam sold southern 38 cents out of northern 43 cents allotted to her to the 2^nd appellant under Ex.A.3 dated 28.12.1985. She reserved her right of way in the property sold by her to reach her remaining 5 cents on the north. Subsequently, Pushpam sold the

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remaining 5 cents also to the 1^st appellant under Ex.A.1 dated 29.12.1985. Thus, the appellants/plaintiffs claim right over the suit properties.

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2.2. It was further averred by the appellants that from 01.01.2005

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onwards, the respondent/defendant without any intimation, tried to enter into the appellants' property and used the pathway to reach the northern side of the appellants' land. Therefore, the appellants were constrained to file a suit for declaration of their title and for injunction restraining the respondent from entering the suit property.

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The respondent herein filed a written statement and claimed that he purchased 43 cents on the south of the appellants' property from one Nicholas Charles under Ex.B.2 dated 11.12.1986. It was specifically claimed by him that from the recital in that document, the respondent is entitled to use the disputed pathway in the suit property. It was further claimed that the property purchased by him was allotted to the share of Nicholas Charles in a partitional arrangement dated 10.11.1983. The unregistered partition deed was marked as Ex.B.1. It was specifically

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averred by the respondent that the disputed pathway in the suit property had been in existence for a long time and the same is absolutely necessary for the respondent to enjoy his property.

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Before the trial Court, the 2^nd appellant was examined as P.W.1. The 1^st appellant was examined as P.W.2. Three documents were marked on the side of the appellants as Ex.A.1 to Ex.A.3. On behalf of the respondent, he was examined as D.W.1 and two other independent witnesses, who are said to be his neighbours were examined as D.W.2 and D.W.3. The sale deed in favour of the respondent was marked as Ex.B.2 and the unregistered partition deed, under which the property conveyed to the respondent was allotted to the share of his vendor, was marked as Ex.B.1. The Advocate Commissioner's report and plan were marked as Ex.C.1 and Ex.C.2. The Surveyor's plan was marked as Ex.C.3.

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The trial Court, on consideration of oral and documentary evidences, came to the conclusion that the respondent/defendant proved his right of way through the pathway situated in the suit property and hence,

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dismissed the suit. Aggrieved by the same, the appellants had preferred a first appeal in A.S.No.116 of 2008 on the file of the Sub Court, Valliyur, and the same was dismissed. Hence, the appellants are before this Court

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The learned counsel for the appellants submitted that as far as the prayer for declaration is concerned, the dismissal of the suit is not justified on the face of the admission by the respondent with respect to the title of the appellants over the suit property. The learned counsel for the appellants further submitted that the respondent, who claimed right of pathway, failed to produce the documents in favour of his vendors to prove the existence and exercise of the right of pathway over the suit property. The learned counsel further submitted that Ex.B.1 partition deed produced by the respondent is an unregistered document and the same is inadmissible in evidence, in view of the bar created under Section 17 read with Section 49 of the Registration Act.

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The learned counsel for the respondent submitted that the extent and user of the suit pathway by the respondent and his predecessors in title

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had been clearly admitted by the 1^st appellant as P.W.2 and hence, both the Courts below, based on the evidence of the appellants' own witnesses, dismissed the suit. As far as the contention raised by the learned counsel for the appellants with regard to the dismissal of the suit concerning the prayer for declaration is concerned, the learned counsel for the respondent submitted that there is no dispute with regard to the title of the appellants and hence, there is no cause of action for the appellants/plaintiffs to maintain a prayer for declaration.

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Heard the arguments of the learned counsel for the appellants and the learned counsel for the respondent. Perused the typed set of papers and the other records.

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It is not in dispute that appellants 1 and 2 together entitled to 58 cents in the suit survey number. The respondent herein purchased 43 cents on the south of the appellants' property under Ex.B.2. According to the respondent, his vendor acquired 43 cents in a partition arrangement in his family, which was marked as Ex.B.1. In order to prove the exercise of right

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of pathway by the respondent and his predecessors in interest, the respondent examined two neighbours viz., D.W.2 and D.W.3 and they deposed in his favour. As far as the exercise of right of pathway by the respondent and his predecessors in interest is concerned, the evidence of P.W.2 assumes significance. The 1^st appellant was examined as P.W.2 and he admitted in his cross examination that the respondent and his predecessors in interest had been using the suit property for quite a long time. The relevant portion of the evidence of P.W.2 in vernacular is extracted below:

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“njw;Nf uQ;rpjk; mk;khSf;F tlf;Nf G;gk; mk;khSf;F. uQ;rpjk; mk;khSf;F 43 nrd;l;. ghfgphptpid nra;Ak; Kd;G jgrpy; nrhj;Jf;F klj;J epyk;topNajhd; nrd;Wte;jhh;fs;. i\ ghij topahfjhd; Kw;ghj;jpa];jh;fs; nghd;Djha;> nghd;dk;khs;> G;gk; mUikuQ;rpjk; gad;gLj;jp te;jdh;. ......... jgrpy; nrhj;jpd; fPo;Xukhf gpujpthjp ghijahf gad;gLj;jp tUfpwhH vd;why; rhpjhd;. 2k; thjpAk; jgrpy; nrhj;jpd; fpof;Fgf;fk; cs;s ghijia jhd; gad;gLj;jp tUfpwhh;. 38 nrd;l; epyj;jpd; fPo;gf;fk; ghijia gad;gLj;jp tUfpNwhk; vd;gij FUq;nfhbak;khs; gj;jpuj;jpYk; fhl;lgl;Ls;sJ. FUq;nfhbak;khs; ,we;J 2 tUlkhfpwJ. mjw;Fgpd;G ehd; KOikahf mDgtpf;fpNwd;. mjw;F Kd;G FUf;nfhbak;khs;

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S.A.(MD) No.265 of 2016

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ngahpy; ,Ue;jJ. gpujpthjp jgrpy; nrhj;ij 1986y; fpiuak; thq;fpdhh;. mth; G;gk;;khs; ,lj;jpw;F njd;gf;fk; cs;s ,lj;ij fpiuak; ngw;Ws;shh;. nghJ ghijahf vy;NyhUk; gad;gLj;jp te;jhh;fs;. jw;NghJ me;jghij jdf;F ghj;jpak; vd;W fl;rp nra;jjhy; tof;F jhf;fy; nra;Njd;. ........ mjpy; mtuJ rNfhjuUf;Fk; ghfk; cz;L. jgrpy; nrhj;ij thq;fpa fhyk; Kjy; Kw;ghj;jpa];jiu njhlh;e;J gpujpthjpf;Fk; chpik cz;L vd;why; rhpay;;y.”

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A perusal of P.W.2's evidence would suggest that he clearly admitted that the pathway in the suit property has been used as a common pathway by the predecessors of both the appellants and the respondent.

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The learned counsel for the appellants mainly submitted that the respondent failed to prove the right of easement available to the respondent's vendor by producing documents in favour of the respondent's vendor. However, the 1^st appellant himself as P.W.2 admitted the existence of common pathway and use of the same by the predecessors of the respondent in his own evidence. It is settled law that “admission is a best evidence” and hence, both the Courts below, based on the well pronounced

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admission of P.W.2, came to the conclusion that the respondent/defendant proved the right of way pleaded by him over the suit property.

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The admission made by P.W.2 has been corroborated by the evidence of D.W.2 and D.W.3, who are said to be the neighbours of the suit property. D.W.2 in his evidence had deposed that the suit pathway had been used by the general public for the past 30 years. After upholding the right of pathway available to the respondent over the disputed suit pathway, the appellate Court also said that since the title of the appellants over the suit property had not been challenged by the respondent, there is no cause of action for maintaining a suit for declaration. In view of the factual finding rendered by the Courts below, based on the evidence of P.W.2, D.W.2 and D.W.3, that the respondent proved his right of pathway over the suit property, this Court finds no question of law, much less substantial question of law to interfere with the factual findings rendered by the Courts below.

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Accordingly, this Second Appeal is dismissed. In the facts and circumstances of the case, there is no order as to costs.

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S.A.(MD) No.265 of 2016

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The learned counsel for the appellants submitted that in view of the dismissal of the second appeal, the respondent shall not claim that he can use the entire suit property as a pathway.

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It is spoken to by the witnesses examined by the appellants as well as the respondent that the disputed pathway lies on the eastern extremity of the suit property. Therefore, it is clarified that the respondent/defendant is entitled to use only the existing pathway in the suit property which lies on the eastern extremity of the suit property, not the entire suit property.

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03.01.2023

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NCC : Yes Index:Yes/No Internet:Yes abr

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S.A.(MD) No.265 of 2016

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1.The Sub Judge, Valliyur.

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2.The Additional District Munsif, Nanguneri.

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3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

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S.A.(MD) No.265 of 2016

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S.SOUNTHAR, J.

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abr

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03.01.2023

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https://www.mhc.tn.gov.in/judis

S.Arumuga Velar (Age 64/2011) v. Jeyapal (Age 49/2011)

Case brief

What is this about?

What did the court decide?

S.Arumuga Velar (Age 64/2011) v. Jeyapal (Age 49/2011)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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