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High Court of Judicature at Madras
M. VENUGOPAL
Venkatesan & Another
Versus
Kuttiappa Gounder (Died) & Others
S.A. NO.1153 OF 1997
Decided On : 24-04-2012
CART TRACK - SUIT PROPERTY - OWNERSHIP - TEMPLE PORAMBOKE LAND - CART TRACK EXISTENCE - INJUNCTION - MANDATORY INJUNCTION - RELIEF - EASEMENT RIGHT - RIGHT OF ACCESS - PUBLIC HIGHWAY - RIGHT OF WAY - RIGHT OF EASEMENT - ADVERSE POSSESSION - ENCROACHMENT - SPECIFIC RELIEF ACT - SECTION 2(A) - SECTION 54 - SECTION 91 - EASEASE ACT - SECTION 13 - CL (E) - TAMIL NADU LAND ENCROACHMENT ACT - NATURAL JUSTICE - PRINCIPLES.
Fact of the Case:
The suit property, a cart track, was situated in poramboke land belonging to the Tamil Nadu Government. The Plaintiff claimed ownership of the cart track and sought a permanent injunction restraining the Defendants from obstructing its use. The Defendants contended that the cart track was situated in temple poramboke land and that they had not obstructed its use.
Finding of the Court:
The Court held that the Plaintiff was entitled to a permanent injunction restraining the Defendants from obstructing the use of the cart track in the portion marked ABCD in Ex.C.4-Commissioner's Report. However, the Court held that the Plaintiff was not entitled to a mandatory injunction to remove the pandal in the portion marked SRQU in Ex.C.4-Commissioner's Report.
Issues: 1. Whether the Plaintiff was entitled to a permanent injunction restraining the Defendants from obstructing the use of the cart track. 2. Whether the Plaintiff was entitled to a mandatory injunction to remove the pandal in the portion marked SRQU in Ex.C.4-Commissioner's Report.
Ratio Decidendi: 1. The Court held that the Plaintiff was entitled to a permanent injunction restraining the Defendants from obstructing the use of the cart track in the portion marked ABCD in Ex.C.4-Commissioner's Report because: (a) the Plaintiff had established his legal right to the cart track; (b) the Defendants had infringed that right; and (c) there was a threat of further infringement. 2. The Court held that the Plaintiff was not entitled to a mandatory injunction to remove the pandal in the portion marked SRQU in Ex.C.4-Commissioner's Report because: (a) the Plaintiff had not established that he had a legal right to the pandal; (b) the Defendants had not infringed that right; and (c) there was no threat of further infringement.
Final Decision: The Court allowed the Second Appeal in part, leaving the parties to bear their own costs. The Court held that the Plaintiff was entitled to a permanent injunction restraining the Defendants from obstructing the use of the cart track in the portion marked ABCD in Ex.C.4-Commissioner's Report. The Court also held that the Plaintiff was not entitled to a mandatory injunction to remove the pandal in the portion marked SRQU in Ex.C.4-Commissioner's Report.
JUDGMENT
The Appellants/Defendants 2 and 3 have preferred the present Second Appeal as against the Judgment and Decree dated 03.04.1996 in A.S.No.46 of 1995 passed by the Learned Subordinate Judge, Gobichettipalayam.
2.The Plaint Facts [projected by the 1st Respondent/ Plaintiff]:
(i)The suit landed property described in the Plaint Schedule is the absolute property of the Plaintiff. The cart track mentioned in the description of property is situated in poramboke land belongs to the Tamil Nadu Government. The dispute is in regard to the cart track which is called as suit property. The suit agricultural landed properties belonged to the 1st Respondent/Plaintiff as per Sale Deed dated 09.05.1967. Ever since the Sale Deed dated 09.05.1967 the 1st Respondent/Plaintiff is in possession and enjoyment of the suit agricultural landed properties T, Q, P, O, V, U as shown in the Plaint plan with the help of the suit cart track ABDEIMRSWX. The suit cart track is in existence time immemorial. As such, the suit cart track is in existence prior to the 1st Respondent/Plaintiff's Sale Deed dated 09.05.1967. The 1st Respondent/Plaintiff purchased the suit agricultural landed property through a Sale Deed dated 09.05.1967 mentioning the suit cart track.
(ii)The suit cart track is running in R.S.F.No.305/1 – a poramboke land. In that land, an Angalammal temple and Karivaradharaja Perumal temple have been situated in a good condition and both are ruined now. Both the temples have been situated on the southwestern side of the suit cart track i.e. within the place MNOPUS as shown in the plaint plan. The temples are not in any way hindrance to the suit cart track at any point of time. The Plaintiff and the Defendants are not entitled to any right or title over the suit cart track except the right of enjoyment as cart track.
(iii)The 1st Defendant constructed a house on the southern side of the suit cart track within the place AA, YZ as shown in the plaint plan. The 2nd Defendant is the poojari of Karivaradharaja Perumal temple and Angalammal temple and he resided at the temple itself. Just six months ago, he constructed the house FGJK as shown in the plaint plan on the western side of the cart track leaving 12 feet breadth GHIJ as shown in plaint plan. Since the 12 feet breadth place GHIJ as mentioned in the plaint plan is sufficient to take the carts, cattle, men and material etc., the 1st Respondent/Plaintiff has not objected the 2nd Defendant to construct the house and living thereon.
(iv)Due to recent enmity and on the instigation of the enemies of the 1st Respondent/Plaintiff, the 1st Appellant/1st Defendant cut the suit cart track force at point 'C' and tried to dug a pit on 24.03.1988 by about 10.00 a.m. The Plaintiff with the help of his servants stopped the 1st Defendant from digging pit in the suit cart track. But the 1st Defendant cut the suit cart track force at point C to a breadth of 4 feet. After the intervention of the 1st Respondent/Plaintiff, the 1st Defendant kept quite. Hence, the 1st Respondent/Plaintiff returned to his land i.e. the suit agricultural landed property wherein he is residing. On 25.03.1988 morning, the 1st Respondent/Plaintiff have seen pandals at point JGHI and RQCS as shown in the plaint plan, that too put across the suit cart track so as to obstruct the 1st Respondent/ Plaintiff from using the suit cart track. The 1st Respondent/Plaintiff met the 1st Appellant/2nd Defendant and when he 1st questioned about the pandals, later replied that he will not allow the Respondent/Plaintiff to use the cart track as before. The Defendants are not entitled to obstruct the suit cart track in any manner.
(v)The 1st Appellant/2nd Defendant with his family members are threatening the 1st Respondent/Plaintiff not to use the suit cart track. The 2nd Defendant is added as a family manager to represent his family members. The 1st Respondent/Plaintiff has got no other cart track except the suit cart track to reach the m
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