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2018 Supreme(Mad) 4407
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
A.Kathirvel & Ors. - Appellants
Vs.
C.Thiagarajan & Ors. - Respondents
S.A. No.560 of 2015
Decided On : 29-10-2018
Subject
Civil Law - Suit for Injunction
Act Referred
Headnote
Civil Procedure Code - Section 100 - Challenge is made to the judgment - Whether the suit for bare injunction in respect of suit cart track is maintainable in absence of relief seeking for declaration of title over such cart track especially when defendants in their statement disputed claim of plaintiff and claim suit cart track as their exclusive property - Suit has been laid by plaintiffs for relief of permanent injunction in respect of the cart track as described in the plaint restraining defendants from denying the plaintiffs right of usage of same and it is stated that the cart track branches out from road towards south and runs through survey shown as ABCD in plaint plan of width feet leading to patty. On a reading of plaint averments as rightly put forth by defendants plaintiffs have not made it clear as to on what basis they seek the right in respect of usage of cart track in question - At one place plaintiffs would aver that defendants and other land owners are using the cart track in question as a public pathway – Held, When as per admitted case of plaintiff as spoken to when none of their documents show their entitlement to use cart track passing through survey and when plaintiffs are found to be having other access to reach their lands and plaintiffs have not come out with a clear case as to nature of right they seek to enforce in respect of suit cart track and despite defendants’ stout denial to the plaintiffs right of usage of cart track even prior to the institution of suit and also by way of written statement plaintiffs having not sought for relief of declaration of nature of right they seek to enforce in respect of suit cart track merely from fact that cart tract is found to be running in survey same having been admitted by defendants that by itself, would not entitle the plaintiffs to maintain their suit for the relief of permanent injunction more particularly as above discussed when materials placed on record do not show legal entitlement of plaintiffs to use suit cart track - Other than taking advantage of pleas of defendants that cart track is running in survey when there is no clear cut evidence on part of plaintiffs that cart track in question runs in entirety through the Government lands, the courts below are found to have not appreciated the plaintiffs’ case in proper perspective both factually as well as legally and thereby found to have accepted the plaintiffs case without considering the defiance version in the correct angle and in such view of the matter, as rightly contended by the defendants’ counsel, the suit laid by the plaintiff for bare injunction without seeking the relief of declaration of title for enforcing their alleged nature of right in the suit cart track despite the denial of their alleged right by defendants in written statement as well as even prior to institution of suit as above pointed out on that score alone when it is seen that plaintiffs’ suit is not legally sustainable substantial question of law formulated in this second appeal is accordingly answered against the plaintiffs and in favors of defendants - petition closed
For the Appellants : Mr. S. Kalyanaraman
For the Respondents: Mr. S.K. Raghunathan, Senior Counsel for Mr. S. Kaithamalai Kumaran
JUDGMENT :
Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 21.02.2014 passed in A.S.No.23 of 2013 on the file of the principal subordinate Judge, Salem, confirming the judgment and decree dated 27.09.2012 passed in O.S.No.508 of 2008 on the file of the II Additional District Munsif, Salem.
In this second appeal, challenge is made to the judgment and decree dated 21.02.2014 passed in A.S.No.23 of 2013 on the file of the principal subordinate Court, Salem, confirming the judgment and decree dated 27.09.2012 passed in O.S.No.508 of 2008 on the file of the II Additional District Munsif Court, Salem.
2. The second appeal has been admitted on the following substantial question of law.
“(a) Whether the suit for bare injunction in respect of the suit cart track is maintainable in the absence of the relief seeking for declaration of the title over such cart track especially when the defendants in their statement disputed the claim of the plaintiff and claim the suit cart track as their exclusive property?”
3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.
4. The suit has been laid by the plaintiffs for the relief of permanent injunction in respect of the cart track as described in the plaint restraining the defendants from denying the plaintiffs right of the usage of the same and it is stated that the cart track branches out from Veerapandi road towards south and runs through survey Nos. 79 and 78 shown as ABCD in the plaint plan of awidth of 15 feet leading to Annamalai patty. On a reading of the plaint averments, as rightly put forth by the defendants, the plaintiffs have not made it clear as to on what basis, they seek the right in respect of the usage of the cart track in question. At one place, the plaintiffs would aver that the defendants and the other land owners are using the cart track in question as a public pathway. Further, the plaintiffs would also aver that the suit cart track has been in their exclusive possession from ancient time and it is the plaintiffs’ ancestors, who had formed the suit cart track and thereby the plaintiffs are having independent right in respect of the same. In addition to that, the plaintiff would also aver that they and their forefathers have been using the suit cart tract uninterruptedly for more than the statutory period and thereby they have acquired the prescriptive right of easement in the usage of the same. Therefore, as above pointed out, when the plaintiffs have claimed various modes of rights in respect of the suit cart track, at the first instance claiming the same as their private cart track and that they have independent right and inconsistently later pleading that they have prescriptive easementary right in respect of the same on account of uninterrupted usage for more than statutory period and would also at one place aver that the defendants and others had been using the suit cart track as a public pathway. It is thus found that the plaintiffs are not sure as to the nature of the right they seek to enforce in respect of the suit cart track and accordingly they are unable to present a clear and consistent picture as to how they claim the right in respect of the suit cart track. When the above said pleas projected in the plaint by the plaintiffs for claiming the right in the suit cart track are found to be mutually contradictory and inconsistent, as rightly argued, it is evident that the plaintiffs are not sure as to the nature of the right they seek to enforce in respect of the suit cart track. Accordingly, as rightly put forth, conveniently, the plaintiffs had not sought for the relief of declaration in respect of the suit cart track as to the nature of the right they seek to enforce with reference to the same. If according to the plaintiffs, the suit cart track is the public pathway and the
