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S. Muthulakshmi v/s G. Sankaranarayanasamy & Another

    S.A(MD). No. 603 of 2009 & M.P(MD). No. 1 of 2009

    Decided On, 01 March 2019

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE R. PONGIAPPAN

    For the Appellant: M. Jothi Basu, Advocate. For the Respondents: R1, R. Vijaya Kumar for P. Athimoolapandian, Advocate, R2, No Appearance.



Judgment Text

(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree passed by the Sub Court, Sivakasi in A.S.No.5 of 2008 dated 13.10.2008 in reversing the Judgment and Decree passed by the District Munsif Court, Sivakasi in O.S.No.45 of 2004 dated 14.11.2007.)

1. This second appeal has been filed by the appellant/second defendant against the Judgment and Decree dated 13.10.2008 made in A.S.No.5 of 2008 on the file of Sub Court, Sivakasi reversing the Judgment and Decree dated 14.11.2007 made in O.S.No.45 of 2004 on the file of the learned District Munsif Court, Sivakasi.

2. The first respondent/plaintiff herein has filed a suit in O.S.No45 of 2004, on the file of the learned District Munsif, Sivakasi, seeking for the relief of declaration declaring that the 'B' schedule property is a common pathway and consequently, for the relief of injunction restraining the defendants from interfering with the peaceful enjoyment of the 'A' schedule property. Further he prayed for the relief of mandatory injunction for removing the shed situated in 'B' schedule property.

3. The learned District Munsif, Sivakasi, by judgment and decree dated 14.11.2007 had dismissed the suit. Aggrieved by the same, the first respondent/plaintiff has filed an appeal in A.S.No.5 of 2008 on the file of the learned Subordinate Judge, Sivakasi.

4. The learned Subordinate Judge, Sivakasi by judgment and

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decree dated 13.10.2008 allowed the appeal and decreed the suit declaring that suit 'B' schedule property is the pathway open to everyone and also directed the appellant/ second defendant to remove the encroachment within a period of three months. The learned Subordinate Judge, Sivakasi has directed the parties to bear their respective costs. Feeling aggrieved by the same, the appellant/ second defendant has filed the present Second Appeal.

5. For the sake of convenience, the parties are referred to as, as described by the trial Court.

6. The averments made in the plaint, in brief, are as follows:-

The suit 'A' schedule property was originally belonged to one Subbiah Nadar. By virtue of a sale deed dated 13.08.1996, he sold the property to one Chandrasekar and from the date of purchase the said Chandrasekar, he is in possession and enjoyment of the same till his death. Subsequent to the death of the said Chandrasekar, his legal heirs sold the said property in favour of the plaintiff through the sale deed dated 09.03.1998. The property purchased by the plaintiff was mentioned in the plaint as 'A' schedule. Suit 'B' schedule property is a common pathway belonging to the plaintiff and defendants. The property of the defendants are situated on the south of the 'B' schedule property which is the passage with a width of 12 feet. The defendants have not any exclusive right over the 'B' schedule property. Now the defendants encroached the portion of 'B' schedule property. Hence, the plaintiff has come forwarded with the present suit for the reliefs stated supra.

7. The averments made in the written statement filed by the first defendant, in brief, are as follows:-

The plaintiff has no right over the suit 'A' and 'B' schedule properties and he never in possession and enjoyment of the same. The suit 'B' schedule property was not mentioned as a common passage in the sale deed dated 13.08.1996 and 09.03.1998. The ' suit B' schedule properties were assigned to the wife of this defendant on 04.08.2000, by Assistant Director of Surveys, Virudhunagar. The plaintiff has suppressed it in order to give troubles to the defendant. Since the wife of the first defendant refused to the sell the property owned by her, the plaintiff filed the suit.

8. The averments made in the written statement filed by the second defendant, in brief, are as follows:-

The plaintiff and his predecessor in title never had any right of enjoyment over the 'B' schedule property and they never enjoyed it. The sale deeds dated 13.08.1996 and 09.03.1998 were silent in respect to the use of 'B' schedule property. Hence, the plaintiff cannot claim any pathway right. In fact, T.S.No.2 is the Sivakasi bus stand, which is surrounded by a high compound wall and south of the said compound wall 'A' schedule property was situated. On the south of the 'A' schedule property, the alleged pathway was available. Actually this defendant was delivered with more extent of the property than what was conveyed through the above sale deed. Thus the portion called as alleged path way was also delivered to this defendant. The defendant is in continuous possession and enjoyment of the 'B' schedule property. The northern boundary of the property purchased by this defendant is wrongly noted as pathway. The plaintiff never used 'B' schedule property as a pathway. The plaintiff has not stated as to the alleged date of encroachment. Since the second respondent is running a snacks stall for the past 20 years, the claim made, if any, it is barred by the principles of latches and acquiescence. So the suit is barred by limitation. Hence, this defendant prayed for dismissal of the suit.

9. Based on the above said pleadings, the learned District Munsif, Sivakasi had framed necessary issues and tried the suit.

10. Before the trial Court, during trial, on the side of the plaintiff, he examined himself as P.W.1 and marked three documents as Ex.A.1 to Ex.A.3. On the side of the defendants, the first and second defendants were examined themselves as D.W.1 and D.W.2. Mr.Subramanian, Town Surveyor, was examined as D.W.3. During the time of trial, the Advocate Commissioner was appointed and thereafter, he filed a report in respect of the suit schedule properties with necessary enclosures.

11. The learned District Munsif, Sivakasi, after considering the materials placed before him, had dismissed the suit.

12. In the appeal filed by the plaintiff in A.S.No.05 of 2008, the learned Subordinate Judge, Sivakasi, had observed the evidence given by the plaintiff and defendants and documents exhibited on either side will prove the existence of pathway and allowed the appeal. Accordingly, the suit was decreed as 'B' schedule property is the pathway open to every one. Further direction was given to the appellant / second defendant to remove the encroachment within a period of three months.

13. In the said circumstances, while at the time of admitting the Second Appeal, this Court has formulated the following Substantial Questions of Law, for consideration:-

1. Whether the first Appellate Court is correct in shifting the burden to the second defendant that she should prove that 'B' schedule property is not common pathway?

2. Whether the first Appellate Court is correct in reading the vital documents Ex.A2 and Ex.A3. It does not state that 'B' schedule property is common pathway and plaintiff can enjoy the property?

14. In the present case, the first respondent/plaintiff claims pathway right vide sale deeds dated 13.08.1996 and 09.03.1998 which were marked as Ex A.2 and Ex A.3. Further, he relied the sale deed executed in favour of one Muthulakshmi, who is the wife of first defendant dated 28.05.1986. The said document was exhibited as Ex.B1. More than that, the Commissioner's report and sketch, dated 06.01.2003, are marked as Ex.C1 and Ex.C2.

Substantial Question of law No.1:

15. It is an admitted fact that there was a gap available in between the houses of the plaintiff and defendants. In reality, the house belonging to the plaintiff was situated on the northern side and the house belonging to the defendants was situated on the southern side. In the report filed by the Commissioner, it was mentioned that the width of the said alleged pathway is about 12 feet. In other words, on going through the recital made in Ex.A2 and EX. A3, which were sale deeds pertaining to the 'A' schedule property, it was mentioned as ''12 mo mfy fpHnky; ghijf;F tlf;F''. Now it is relevant and useful to see 'Ex.B1', which was the sale deed stands in the name of the wife of the first defendant, wherein it was alleged as ''12 mo mfy fpHnky; ghijf;F bjw;;F''. So in all the sale deeds pertain to the houses of the plaintiff and defendants, it was mentioned about 'B' schedule property as '12 mo mfy ghij'. The Lower Appellate Court while at the time of deciding the appeal filed by the plaintiff in respect of issue No.6, concluded that the onus was on the second defendant to prove that the recitals found in her own document were wrong and the property was delivered to her by her vendor. As already discussed on going through the documents filed on the side of the plaintiff and defendants, the suit 'B' schedule property was mentioned as pathway. The plaintiff in this suit affirmed that the said recital is found correct. Only the defendants had agitated that the said word was wrongly entered in the sale deed executed in favour of the second defendant/wife. So it is automatic that the defendants take a specific plea that it is their duty to prove the same. The learned Subordinate Judge, Sivakasi has also taken the same and concluded the appeal in favour of the first respondent/plaintiff. In this aspect, it is necessary to see Section 103 of the Indian Evidence Act and the same reads as follows:

103. Burden of proof as to particular fact.-The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

16. So, in this case the appellant/second defendant pleaded that the 'B' schedule property is not a pathway. So burden is automatically shifted at her side and the same principle is followed by the first appellate Court. Thereby, the substantial question of law No.1 is answered as above.

Substantial question of law No.2:

17. The learned counsel appearing for the appellant / second defendant would contend that Ex.A-2 and Ex.A-3 do not state that 'B' schedule property is a common pathway and the plaintiff can enjoy the property. It is already stated in both Ex.A-2 and Ex.A-3, the 'B' schedule property has been mentioned as pathway, which is about 12 feet, on comparative analysis with Ex.B1, which was the sale deed executed in favour of the defendants with an extent availed in the 'B' schedule property as per the Commissioner's Report. At the time of purchase, on 28.05.1986, the defendants purchased the property only an extent which had been mentioned in their sale deed. She has not paid any amount towards the purchase of stamp papers in respect of 'B' schedule property. All are aware that the path way means a way across a peace of land, that is made by or used by people walking. So mere mentioning the word pathway is sufficient to hold that there is a pathway existing before the purchase of their respective lands by the plaintiff and defendants. So it is necessary to state the said pathway is for the use of plaintiff or defendants or other person. The first appellate Court has also concluded the said issue in correct manner and decided the said pathway is common to all.

18. The learned counsel appearing for the appellant/second defendant would further contend that the case of the plaintiff should be proved by placing relevant documents to establish the right of pathway. The burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration. In this aspect, he relied the judgment of the Hon'ble Apex Court in the case of Union of India & Ors Vs. Vasavi Co-op. Housing Society Ltd & Ors. reported in 2014 SAR (Civil) 191. Now applying the principle laid down by the Hon'ble Apex Court in this case also, the plaintiff alone had proved the title documents in order to establish the existing road and also by appointment of Advocate Commissioner, he proved the case. He did not stand on the case of the defendants for proving his case.

19. In other words, the learned counsel has made a submission that the recital in the sale deed should be proved only by examining the executants on the said deed and not through by means of other evidence, for which, he relied the Judgment of the of this Court in the case of M.Subramani Vs.P.Shanmugam and others reported in 2007 (4) CTC 125. It is true that as per the said case which was decided for proving the recital as to boundaries, the examination of executants are necessary. But applying the said principle with the case in our hand, the facts and circumstances of the case are entirely different from the case cited by the learned counsel appearing for the appellant / second defendant. Now in the case, apart from Ex.A-2 and Ex.A-3 the plaintiff had proved the case by showing Town Planing Survey and through the report filed by the Advocate Commissioner. Those documents clearly established the existence of 'B' schedule property as a pathway. In respect of the limitation, now raised by the learned counsel appearing for the appellant/ second defendant, the Hon'ble Apex Court has already decided in the judgment reported in AIR 2011 SCC 952 (Hari Ram Vs. Jyoti Prasad & Anr.), wherein the relevant portion is extracted hereunder:-

18. Any act of encroachment is a wrong committed by the doer. Such an encroachment when made to a public property like encroachment to public road would be a graver wrong, as such wrong prejudicially affects a number of people and therefore is a public wrong. So long any obstruction or obstacle is created to free and unhindered access and movement in the road, the wrongful act continues thereby preventing the persons to use the public road freely and unhindered. Therefore, that being a continuing source of wrong and injury, cause of action is created as long as such injury continues and as long as such injury continues and as long as the doer is responsible for causing such injury.

20. So the question of limitation does not arise in the case in our hand. Accordingly, this Court affirms the findings arrived at by the first appellate Court and concluded that the second appeal is liable to be dismissed.

21. In the result, this Second Appeal is dismissed, by confirming the Judgment and Decree, dated 13.10.2008, passed in A.S.No.5 of 2008, by the learned Subordinate Judge, Sivakasi reversing the Judgment and Decree, dated 14.11.2007 in O.S.No.45 of 2004 on the file of the learned District Munsif, Sivakasi. No costs. Consequently, connected miscellaneous petition is closed
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