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2018 Supreme(Mad) 3339
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. Hemalatha, J.
P. Radhakrishnan – Appellant
Versus
Chennimalai Gounder (Died) – Respondent
Second Appeal No. 1413 of 2002
Decided On : 03-10-2018
P. Valliappan, C.E. Pratap, S. Sounthar.
The central legal point established in the judgment is the determination of property entitlement based on the measurement of the pathway and the appellant's claim to title and permanent injunction.
Headnote:
Pathway - Property Dispute - Ex.C7, Ex.C8, Ex.C9 - The court analyzed the evidence and advocate commissioner's reports to determine the entitlement to the suit property, ultimately concluding that the pathway measures 0.01.5 hectares and the appellant cannot claim title and permanent injunction to this piece of land in survey number 158/3 of Kathirappati Village.
Fact of the Case:
The plaintiffs filed a suit for a declaration of their title to the suit property and for a permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment over the property. The trial court initially decreed the suit, but it was later remanded and ultimately dismissed. The plaintiffs appealed, and the first appellate court upheld the trial court's findings.
Finding of the Court:
The court found that the pathway measures 0.01.5 hectares and concluded that the appellant cannot claim title and permanent injunction to this piece of land in survey number 158/3 of Kathirappati Village.
Issues: The substantial questions of law raised in the appeal were related to the dismissal of the cross appeal without considering relevant documents and the discrepancy in the area measurement of the pathway.
Ratio Decidendi: The court relied on the advocate commissioner's report and the evidence adduced on both sides to determine the area measurement of the pathway, ultimately dismissing the appeal based on the findings.
Final Decision: The appeal was dismissed with no costs.
1. The appellant is the second plaintiff in O.S. No. 870 of 1989 on the file of the II Additional District Munsif, Erode the first plaintiff Palanimalai Gounder @ Palaniappal Gounder (since deceased) is his father.
2. The plaintiffs filed the above suit for a declaration of their title to the suit property and for a permanent injunction restraining the respondents/defendants from interfering with their peaceful possession and enjoyment over the suit property.
3. The case of the plaintiffs is that the entire extent of 0.47.0 hectares comprised in Resurvey number 158/3 (old survey number 127) of Kathirampatti Vilalge and a strip of land (foot path) in R.S.F. No. 158/2 running East-West through the middle of Resurvey number 158/3 belong to them absolutely and that the residents of Kathirampatti Village lead by the respondents/defendants wanted the foot path to be converted as a 25 feet wide public road. It is further contended that the respondents/defendants insisted the plaintiffs to convey the suit pathway in R.S.F. No. 158/2 in their favour and all the residents of Kathirampatti Village attempted to trespass into the plaintiffs' property.
4. The respondents/defendants have denied the contention of the plaintiffs that they are entitled to 0.47.0 hectares in R.S.F. No. 158/3 (Old S.R. No. 127) of Kathirampatti Village. They have also contended that their ancestors purchased a land in Survey No. 127 for forming a cart track measuring 0.26 cents vide a sale deed dated 27.10.1919 and that the first plaintiff purchased only 1/6th share of remaining extent of 1.03 1/2 acres in Survey Number 127. The respondents specifically denied that the lands on either side of Survey Number 158/2 together with pathway belonged to the plaintiffs. They have infact pleaded ignorance about the resurvey of lands in the suit village.
5. The suit was decreed by the learned II Additional District Munsif, Erode vide decree and judgment dated 31.03.1994 as against which, appeal in A.S. No. 179 of 1993 was filed before the Principal District Judge, Erode. The first appellate court set aside the decree and judgment passed by the II Additional District Munsif, Erode and the case was remanded to the trial court vide decree and judgment dated 22.06.1993 for framing necessary issues and for adducing further evidence on both sides. Accordingly, the trial court framed additional issues and after giving opportunity to both sides, dismissed the suit filed by the plaintiffs vide decree and judgment dated 27.07.1994. Aggrieved over the same, the plaintiffs filed first appeal in A.S. No. 48 of 1995 before the Principal District Judge, Erode. The learned Principal District Judge once again remanded the suit to the trial court directing the trial court to appoint an advocate commissioner to measure the suit properties in R.S. No. 158/2 and158/3. Accordingly, an advocate commissioner was appointed and he filed his reports and plan as Ex.C1 to Ex.C9. After full contest, the suit was decreed by the Additional District Munsif, Erode holding thus.
In the result:
1. The plaintiff is entitled for a declaration of his absolute and exclusive title to R.S. No. 158/3 of Kathirampatti Village leaving an extent of 0.015 hectares described as pathway in Ex.C7, Ex.C.8, Ex.C.9.
2. The plaintiff is entitled for a perpetual injunction restraining the defendants and other residents of the other hamlet of Kathirampatti Village, who are represented by the defendants in the suit from interfering with the peaceful possession and enjoyment of R.S. No. 158/3 of Kathirampatti Village, more fully described in the schedule excluding an extent of 0.015 hectares described as pathway in Ex.C7 and Ex.C8, Ex.C9 by trespassing thereon or by laying a road thereon or in any other manner, whatsoever.
3. Ex.C7, Ex.C8 and Ex.C9 do form part of the decree.
4. No costs.
Aggrieved over the same, the respondents/defendants filed appeal in A.S. No. 154 of 1999 before the I Additional District Judge Cum Chief Judicial
