Pichammal Vs. Natarajan and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1186392
CourtChennai Madurai High Court
Decided OnDec-16-2016
Case NumberSecond Appeal (MD) No. 466 of 2011
JudgeS.S. Sundar
AppellantPichammal
RespondentNatarajan and Another
Excerpt:
(prayer: second appeal filed under section 100 of civil procedure code, against the judgment and decree passed in a.s.no.45 of 2009 dated 25.03.2010 on the file of learned principal subordinate judge, kovilpatti, reversing the judgment and decree passed in o.s.no.244 of 2005, dated 09.07.2009 on the file of the learned principal district munsif, kovilpatti.) 1. the plaintiff in the suit in o.s.no.244 of 2005 on the file of the district munsif court, kovilpatti, is the appellant in the above second appeal. 2. the appellant filed the suit in o.s.no.244 of 2005 for declaration that the suit second schedule property is a common lane and that for removal of encroachment made by the first defendant over the suit third schedule by putting up tin doors. 3. along with the plaint, the plaintiff filed a rough sketch. it is the case of the plaintiff that the suit property is described as abcd in the plaint plan and that the common lane is shown as adeg which lies in between the property of the first defendant on the western side and the property of the plaintiff on the eastern side. the plaintiff claimed title on the basis of the sale deed dated 03.07.1973 through which the plaintiff's mother has purchased the property which is described in the first schedule. according to the plaintiff, her mother had executed a registered will dated 28.12.2000 and that it came into effect after the death of her mother. the plaintiff though admitted the title of the defendants over the property on the western side of the common lane, she submitted that on the north and south of the suit second schedule property, there are east-west street and that the defendants are not entitled to exclusive right over the second schedule. it is also the definite case of the plaintiff that the plaintiff and defendants are using the common lane for maintaining their walls and to white wash the said walls. since the parties to the suit and their predecessor-in-interest were using the second schedule property as their common lane, and the plaintiff had two big windows and a small window facing the common lane, the plaintiff has stated that she has right over the common lane. it was also stated by the plaintiff that the defendants 1 and 2 made an attempt to fix tin doors in their respective properties so as to cause obstruction in the public passage namely the suit second schedule. since the plaintiff pleaded that the conduct of the defendants to fix doors in their properties was to cause obstruction to the enjoyment of the plaintiff over the suit second schedule, it was alleged by the plaintiff that she was constrained to file the suit. 4. the suit was contested by the defendants specifically denying and disputing the right of the plaintiff over the suit second schedule. the contention of the plaintiff that she was using the suit second schedule for maintaining her wall and to whitewash the wall of the plaintiff, was specifically denied by the defendants. the suit second schedule, according to the defendants, is their exclusive property and that it is only through this property the defendants were let in their drainage and waste water for more than fifty years. since the vendors of the plaintiff's mother did not have any right over the suit second schedule, it was contended by the defendants that the plaintiff has no right under the will alleged to have been executed by her mother in her favour. the second defendant has also filed a written statement in tune with the written statement of the first defendant claiming exclusive right over the suit second schedule in respect of the portion which lies immediately on the east of their property. further, it was contended by the defendants 2 and 3 that the plaintiff was using the suit property only on the basis of the permission that was subsequently given by the defendants. hence, the defendants 1 and 2 prayed for dismissal of the suit. 5. the trial court after framing necessary issues decreed the suit as prayed for. aggrieved by the same, the defendants 1 to 3/the respondents herein preferred an appeal in a.s.no.45 of 2009 before the subordinate judge, kovilpatti. the lower appellate court, however, reversed the findings of the trial court and dismissed the suit in o.s.no.244 of 2005. aggrieved by the judgment and decree of the lower appellate court in a.s.no.45 of 2009, the plaintiff has filed the above second appeal. 6. at the time of admitting this second appeal, the following questions of law were framed by this court: (1) whether the first appellate court is justified in deciding the appeal almost mechanically even without a proper discussion of the evidence produced? (2) whether the judgment and decree passed by the first appellate court is vitiated for failing to decide the appeal as per the procedure prescribed under order 41 rule 31 of c.p.c.? (3) whether the first appellate court is justified in reversing the judgment of trial court by misreading the document namely exhibit a-1 and without considering other documents relied on by the trial court? 7. the only issue that arise for consideration in this second appeal is whether the suit property is the common lane or the exclusive property of the defendants? the plaintiff has produced exs.a1 to a12. the documents filed by the plaintiff would not show the plaintiff's right over the suit second schedule. the right of easement to use the suite property for the purpose of maintaining the plaintiff's wall is not proved by any of the documents relied upon by the plaintiff. hence, the lower appellate court has come to the conclusion that the suit property is not a common lane and that the findings of the trial court are vitiated. when the plaintiff has not let in any evidence, either oral or documentary to prove his right of easement or enjoyment over the suit property, it is very difficult to accept the case of the plaintiff especially when the defendants specifically dispute the case of the plaintiff regarding her right over the suit second schedule. the appellate court has reversed the findings of the trial court after considering the entire evidence on record. in such circumstances, the findings of the lower appellate court cannot be termed as perverse or not supported by any evidence. 8. the learned counsel for the appellant relied upon a judgment of a learned single judge of this court in the case of v.s.singaram mudaliar (died) and others v. ambalavana mudaliar reported in 2010-2-l.w.6 wherein this court has recognized the right of the plaintiff also to use a common lane to repair his wall and to whitewash his wall even though the plaintiff therein failed to prove his right to use the common lane. the relevant portions read as follows: 27. ... this reasoning of the courts below in the considered view of this court cannot be accepted. simply because the plaintiff has been allowed to use the lane to carry out repairs to his western wall and whitewash the same, it will not confer any right of ownership over the lane. similarly, as of the eaves of the plaintiff's property are protruding into the lane, it will not confer any right of ownership over the lane. in this context, it has to be pointed out that in ex.a2 western boundary is not shown as common lane, whereas the eastern boundary is shown as common lane. the words in tamil, namely, ehuhrk; kw;wk; bghjr; re;j have been consciously used to distinguish the nature of the right and usage. this aspect has not been properly considered by the courts below. when ex.a5, a6 and b3 do not refer to the common lane and none of the said documents relied upon by the plaintiff refers to the common lane on the west of his property, the courts below are not right in holding that the suit lane is a common lane belonging to the plaintiff and the defendants. 29. ... but as pointed out above, since the courts below on a consideration of entire evidence on record and on the basis of the admission made by d.w.1 in his cross examination, namely, that the plaintiff is using the suit lane for whitewashing and to carry out repairs on the western wall and put up eaves over the common lane, the decree granted by the courts below is modified to the following effect:- there shall be a decree for permanent injunction restraining the defendants from interfering with the right of the plaintiff to use the suit lane to whitewash and to carry out the repairs to his western wall and to put up sun shades upto the middle of the common lane. it is made clear that the suit lane is not the common lane as claimed by the plaintiff and such finding recorded by the courts below is hereby set aside. 9. in the case on hand also the facts are similar. though the courts below have failed to give any finding in favour of the plaintiff recognising her right to enjoy the suit second schedule for undertaking repair works and to whitewash the western wall of the appellant, the learned counsel for the first respondent and the appellant have filed a joint memo stating that the appellant can be permitted to enter into the suit second schedule property for the purpose of whitewashing and repairing the western wall of the appellant's house. the memo filed by them is extracted below for convenience: it is respectfully submitted that the appellant herein may be permitted to enter into the suit ii schedule properties only for the purpose of whitewashing and repairing the western wall of the appellant's house. this right can be exercised by giving proper prior notice to the respondent and his successor-in-interest within the reasonable time. the appellant does not have any other proprietary right over the suit ii schedule property except the above said right. 10. similarly, the learned counsel appearing for the respondents 2 and 3 also filed a memo agreeing to acknowledge the plaintiff to use the second schedule common lane for the purpose of whitewashing and repairing the western wall of the appellant's house. subject to the right that has been recognized by the parties in the memo above stated, the second appeal is dismissed. the memo filed by the respondents shall form part of record. however, there is no order as to costs.
Judgment:

(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the Judgment and Decree passed in A.S.No.45 of 2009 dated 25.03.2010 on the file of learned Principal Subordinate Judge, Kovilpatti, reversing the Judgment and Decree passed in O.S.No.244 of 2005, dated 09.07.2009 on the file of the learned Principal District Munsif, Kovilpatti.)

1. The plaintiff in the suit in O.S.No.244 of 2005 on the file of the District Munsif Court, Kovilpatti, is the appellant in the above Second Appeal.

2. The appellant filed the suit in O.S.No.244 of 2005 for declaration that the suit second schedule property is a common lane and that for removal of encroachment made by the first defendant over the suit third schedule by putting up tin doors.

3. Along with the plaint, the plaintiff filed a rough sketch. It is the case of the plaintiff that the suit property is described as ABCD in the plaint plan and that the common lane is shown as ADEG which lies in between the property of the first defendant on the western side and the property of the plaintiff on the eastern side. The plaintiff claimed title on the basis of the sale deed dated 03.07.1973 through which the plaintiff's mother has purchased the property which is described in the first schedule. According to the plaintiff, her mother had executed a registered Will dated 28.12.2000 and that it came into effect after the death of her mother. The plaintiff though admitted the title of the defendants over the property on the western side of the common lane, she submitted that on the north and south of the suit second schedule property, there are east-west street and that the defendants are not entitled to exclusive right over the second schedule. It is also the definite case of the plaintiff that the plaintiff and defendants are using the common lane for maintaining their walls and to white wash the said walls. Since the parties to the suit and their predecessor-in-interest were using the second schedule property as their common lane, and the plaintiff had two big windows and a small window facing the common lane, the plaintiff has stated that she has right over the common lane. It was also stated by the plaintiff that the defendants 1 and 2 made an attempt to fix tin doors in their respective properties so as to cause obstruction in the public passage namely the suit second schedule. Since the plaintiff pleaded that the conduct of the defendants to fix doors in their properties was to cause obstruction to the enjoyment of the plaintiff over the suit second schedule, it was alleged by the plaintiff that she was constrained to file the suit.

4. The suit was contested by the defendants specifically denying and disputing the right of the plaintiff over the suit second schedule. The contention of the plaintiff that she was using the suit second schedule for maintaining her wall and to whitewash the wall of the plaintiff, was specifically denied by the defendants. The suit second schedule, according to the defendants, is their exclusive property and that it is only through this property the defendants were let in their drainage and waste water for more than fifty years. Since the vendors of the plaintiff's mother did not have any right over the suit second schedule, it was contended by the defendants that the plaintiff has no right under the Will alleged to have been executed by her mother in her favour. The second defendant has also filed a written statement in tune with the written statement of the first defendant claiming exclusive right over the suit second schedule in respect of the portion which lies immediately on the east of their property. Further, it was contended by the defendants 2 and 3 that the plaintiff was using the suit property only on the basis of the permission that was subsequently given by the defendants. Hence, the defendants 1 and 2 prayed for dismissal of the suit.

5. The trial Court after framing necessary issues decreed the suit as prayed for. Aggrieved by the same, the defendants 1 to 3/the respondents herein preferred an appeal in A.S.No.45 of 2009 before the Subordinate Judge, Kovilpatti. The lower appellate Court, however, reversed the findings of the trial Court and dismissed the suit in O.S.No.244 of 2005. Aggrieved by the judgment and decree of the lower appellate Court in A.S.No.45 of 2009, the plaintiff has filed the above Second Appeal.

6. At the time of admitting this Second Appeal, the following questions of law were framed by this Court:

(1) Whether the first appellate Court is justified in deciding the appeal almost mechanically even without a proper discussion of the evidence produced?

(2) Whether the judgment and decree passed by the first appellate Court is vitiated for failing to decide the appeal as per the procedure prescribed under Order 41 Rule 31 of C.P.C.?

(3) Whether the first appellate Court is justified in reversing the judgment of trial Court by misreading the document namely Exhibit A-1 and without considering other documents relied on by the trial Court?

7. The only issue that arise for consideration in this Second Appeal is whether the suit property is the common lane or the exclusive property of the defendants? The plaintiff has produced Exs.A1 to A12. The documents filed by the plaintiff would not show the plaintiff's right over the suit second schedule. The right of easement to use the suite property for the purpose of maintaining the plaintiff's wall is not proved by any of the documents relied upon by the plaintiff. Hence, the lower appellate Court has come to the conclusion that the suit property is not a common lane and that the findings of the trial Court are vitiated. When the plaintiff has not let in any evidence, either oral or documentary to prove his right of easement or enjoyment over the suit property, it is very difficult to accept the case of the plaintiff especially when the defendants specifically dispute the case of the plaintiff regarding her right over the suit second schedule. The appellate Court has reversed the findings of the trial Court after considering the entire evidence on record. In such circumstances, the findings of the lower appellate Court cannot be termed as perverse or not supported by any evidence.

8. The learned counsel for the appellant relied upon a judgment of a learned Single Judge of this Court in the case of V.S.Singaram Mudaliar (died) and others v. Ambalavana Mudaliar reported in 2010-2-L.W.6 wherein this Court has recognized the right of the plaintiff also to use a common lane to repair his wall and to whitewash his wall even though the plaintiff therein failed to prove his right to use the common lane. The relevant portions read as follows:

27. ... This reasoning of the Courts below in the considered view of this Court cannot be accepted. Simply because the plaintiff has been allowed to use the lane to carry out repairs to his western wall and whitewash the same, it will not confer any right of ownership over the lane. Similarly, as of the eaves of the plaintiff's property are protruding into the lane, it will not confer any right of ownership over the lane. In this context, it has to be pointed out that in Ex.A2 western boundary is not shown as common lane, whereas the eastern boundary is shown as common lane. The words in Tamil, namely, ehuhrk; kw;Wk; bghJr; re;J have been consciously used to distinguish the nature of the right and usage. This aspect has not been properly considered by the Courts below. When Ex.A5, A6 and B3 do not refer to the common lane and none of the said documents relied upon by the plaintiff refers to the common lane on the west of his property, the Courts below are not right in holding that the suit lane is a common lane belonging to the plaintiff and the defendants.

29. ... But as pointed out above, since the courts below on a consideration of entire evidence on record and on the basis of the admission made by D.W.1 in his cross examination, namely, that the plaintiff is using the suit lane for whitewashing and to carry out repairs on the western wall and put up eaves over the common lane, the decree granted by the Courts below is modified to the following effect:-

There shall be a decree for permanent injunction restraining the defendants from interfering with the right of the plaintiff to use the suit lane to whitewash and to carry out the repairs to his western wall and to put up sun shades upto the middle of the common lane. It is made clear that the suit lane is not the common lane as claimed by the plaintiff and such finding recorded by the Courts below is hereby set aside.

9. In the case on hand also the facts are similar. Though the Courts below have failed to give any finding in favour of the plaintiff recognising her right to enjoy the suit second schedule for undertaking repair works and to whitewash the western wall of the appellant, the learned counsel for the first respondent and the appellant have filed a joint memo stating that the appellant can be permitted to enter into the suit second schedule property for the purpose of whitewashing and repairing the western wall of the appellant's house. The memo filed by them is extracted below for convenience:

It is respectfully submitted that the Appellant herein may be permitted to enter into the suit II Schedule properties only for the purpose of whitewashing and repairing the western wall of the appellant's house. This right can be exercised by giving proper prior notice to the respondent and his successor-in-interest within the reasonable time. The Appellant does not have any other proprietary right over the suit II schedule property except the above said right.

10. Similarly, the learned counsel appearing for the respondents 2 and 3 also filed a memo agreeing to acknowledge the plaintiff to use the second schedule common lane for the purpose of whitewashing and repairing the western wall of the appellant's house. Subject to the right that has been recognized by the parties in the memo above stated, the Second Appeal is dismissed. The memo filed by the respondents shall form part of record. However, there is no order as to costs.