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High Court of Judicature at Madras
R. MAHADEVAN, J.
Thukkaram
Versus
Shanthi Varadharajan & Another
S.A. No. 324 of 2006
Decided On : 17-12-2014
Transfer of Property Act - Section (3) – Civil Procedure Code - Section 100 - Claiming pathway as his absolute property - Right to use common pathway – Registered sale deed - Case of plaintiff before Trial Court was that he is absolute owner of A schedule property including common pathway measuring in width and in length having purchased same by a registered sale deed - First defendant is owner of B schedule property including pathway in width and length having purchased same by a registered sale deed - Plaintiff his tenants and first defendant are using said common pathway to reach their respective portions - Plaintiff has a Press front side of A schedule property which got direct entry from street - Except common pathway there is no other pathway for plaintiff to reach rear portion behind Press of A schedule property and first floor - First defendant is attempting to interfere with plaintiffs right to use common pathway and issued a notice claiming pathway as his absolute property for which plaintiff caused a suitable reply – Held, As laid down above said decision first respondent does not have any right to purchase right of appellant – Normally this Court second appeal would not interfere with concurrent findings of courts below - Judgment reported it is held that even though findings of Court below are concurrent High Court is empowered to interfere under Section 100 C.P.C. if finding is recorded without any legal evidence on record or suffers from legal infirmity which materially prejudice case of one of parties or finding is perverse - Apart from that judgment of Honorable Apex Court reported has laid down as follows - An appeal can be entertained by High Court only on a substantial question of law - There can be no quarrel with this legal proposition - Scope of powers of High Court is a matter of settled - Counsel for appellant cited several judgments support of his contention – Court do not consider necessary to discuss these decisions because so far as question of powers of High Courts concerned it needs no discussion - If findings of subordinate Courts on facts are contrary to evidence on record and are perverse such finding can be set aside by High Court in appeal High Court cannot shut its eyes to perverse findings of the Courts below - Present case findings of fact arrived at by lower appellate Court were contrary to evidence on record and therefore perverse and High Court was fully justified in setting aside same resulting in appeal being allowed and suit being decreed - A perusal of judgments of courts below would show that courts below have miserably failed to analyze oral and documentary evidence and that they have come to a wrong finding and conclusion - Therefore is inevitable for this Court to interfere with findings and conclusions of courts below - Accordingly they are set aside - In view of foregoing discussions substantial questions of law are answered favor of appellant plaintiff - Appeal is allowed
R. MAHADEVAN, J.
1. Plaintiff has preferred the second appeal, aggrieved against the concurrent finding of the courts below in dismissing the suit filed by him for declaration of title and permanent injunction.
2. The case of the plaintiff before the Trial Court was that he is the absolute owner of the 'A' schedule property including the common pathway measuring 2 = feet in width and 42 = feet in length, having purchased the same by a registered sale deed dated 24.03.1983. The first defendant is the owner of the 'B' schedule property, including the pathway measuring 2 = feet in width and 42 = feet in length, having purchased the same by a registered sale deed dated 23.05.1985. The plaintiff, his tenants and the first defendant are using the said common pathway to reach their respective portions. The plaintiff has a Press in the front side of 'A' schedule property, which got direct entry from the street. Except the common pathway, there is no other pathway for the plaintiff to reach the rear portion (behind the Press) of 'A' schedule property and the first floor. The first defendant is attempting to interfere with the plaintiff's right to use the common pathway and issued a notice on 21.04.1988 claiming the pathway as his absolute property, for which the plaintiff caused a suitable reply dated 02.05.1988. Hence, the suit.
3. The suit was resisted by the first defendant, by filing written statement and reply statement, contending that she is the purchaser of the rear portion of the 'A' schedule property along with pathway from the second defendant, who is the wife of the plaintiff; and that with the knowledge of the plaintiff, the entire right of using the suit pathway was sold away to the first defendant and the plaintiff, who is aware of the alieantion of the pathway by his wife to the first defendant, has now come forward with the relief of declaration of title and permanent injunction. The first defendant allowed the plaintiff and his tenants to use the pathway only on licence basis and the first defendant had terminated the licence granted to the plaintiff by issuing a legal notice dated 21.04.1988. Hence, the plaintiff has no right in the pathway, which had been exclusively purchased by the first defendant. Therefore, the first defendant prayed for dismissal of the suit.
4. The second defendant, who is none other than the wife of the plaintiff, virtually supported the case of the plaintiff by contending that what was conveyed was only 'B' schedule property with the common pathway measuring 42 = feet x 2 = feet from Singanna Chetty Street and that both the plaintiff and first defendant are entitled to use the common passage.
5. The Trial Judge framed the following issues:-
(1) Whether the plaintiff is having any right over the common pathway?
(2) Whether the defendant No. 1 is the owner of the common passage and revoked the permission granted to the plaintiff?
(3) Whether the plaintiff is entitled for declaration prayer?
(4) Wheher the plaintiff is entitled for injunction prayer?
(5) For what relief?
6. Before the Trial Court, the plaintiff examined himself as PW1 and examined one more witness as PW2 and marked five documents. On the side of the defendants, three witnesses have been examined and fifteen documents were marked. The Trial Court, on analysis of the oral and documentary evidence adduced on both sides, dismissed the suit. Aggrieved against the same, the plaintiff preferred the appeal before the first appellate Court. The first appellate court confirmed the finding of the Trial Court and dismissed the appeal. Aggrieved against the concurrent judgment and decree of both the courts below, the present second appeal has been filed.
7. The second appeal has been admitted identifying the following questions to be the substantial questions of law involved in the second appeal:-
(a) Whether the courts below were correct in dismissing the suit when the suit passage was mentioned as common passage under Exs.A1
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