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2019 Supreme(Mad) 3103
IN THE HIGH COURT OF MADRAS
ABDUL QUDDHOSE, J.
Sivasankaran - Appellant
Versus
S.B. Raman - Respondent
S.A. No. 477 of 2007 and M.P. No. 1 of 2007
Decided On : 12-11-2019
Subject
Property Law - Injunctions
Headnote
Constitution of India, 1950 - Seeking for an injunction restraining - Peaceful possession and enjoyment of suit schedule property - Appellant is defendant in suit on file of District Munsee Court and respondent is plaintiff - For purpose of convenience parties herein are referred to as per ranking in Trial Court - Plaintiff filed a suit against defendant in O.S. seeking for an injunction restraining defendant from interfering with his peaceful possession and enjoyment of suit schedule property - As seen from plaint averments grievance of plaintiff is that defendant is using foot path belonging to plaintiff having a width of feet and totally measuring cents unauthorized without plaintiffs permission - A written statement has been filed by defendant in suit denying allegations of plaintiff and stating that pathway is common for all residents in locality - It is case of defendant that plaintiff is not owner of said pathway having a width of feet and totally measuring cents – Held, In case on hand plaintiff has himself admitted in his oral evidence as seen from his cross examination that disputed pathway is being used by residents of that locality to reach Western side of property for past years - Title deeds which were marked as Ex. P1 and P2 on side of plaintiff pertain to suit schedule property and does not pertain to disputed pathway having a width of feet and totally measuring cents - It is case of plaintiff that he is owner of feet pathway - Therefore it is for him to establish his title over the same - As seen from records and evidence available on record plaintiff has not established his title over cents having feet pathway - This Court has also perused and examined Advocate Commissioners report which was considered by lower Appellate Court for having come to conclusion that plaintiff is entitled for injunction - Advocate Commissioners report has only furnished details of suit schedule property and does not mention anything about disputed pathway having a width of feet and totally measuring cents – However lower appellate court by total non application of mind has given a finding that Advocate Commissioner has filed a report as if cents pathway belongs to plaintiff - Burden of proof is on plaintiff to establish his title over cents pathway which he has miserably failed in instant case - For foregoing reasons this Court is of considered view that lower appellate Court has reversed findings of Trial Court without any application of mind and judgment and decree of lower appellate Court suffers from perversity - Appeal is allowed
Advocate Appeared:
For the Appellant : S.L. Sudarsanam.
JUDGMENT :
Abdul Quddhose, J.
1. This Second Appeal has been filed challenging the judgment and decree dated 11.01.2007 passed by the Subordinate Judge, Uthagamandalam in A.S. No. 47 of 2006 reversing the judgment and decree dated 13.03.2006 passed by the District Munsif, Coonoor in O.S. No. 101 of 2001.
Brief facts leading to the filing of the Second Appeal:
2. The appellant is the defendant in the suit O.S. No. 101 of 2001 on the file of the District Munsif Court, Coonoor and the respondent is the plaintiff.
3. For the purpose of convenience, the parties herein are referred to as per the ranking in the Trial Court.
4. The plaintiff filed a suit against the defendant in O.S. No. 101 of 2001 seeking for an injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit schedule property.
5. As seen from the plaint averments, the grievance of the plaintiff is that the defendant is using the foot path belonging to the plaintiff having a width of 2 feet and totally measuring 1 1/2 cents unauthorisedly without the plaintiff's permission.
6. A written statement has been filed by the defendant in the suit denying the allegations of the plaintiff and stating that the pathway is common for all the residents in the locality. It is the case of the defendant that the plaintiff is not the owner of the said pathway having a width of 2 feet and totally measuring 1 1/2 cents.
7. The Trial Court after framing issues and after trial dismissed the suit on 13.03.2006 on the ground that the plaintiff has not established his title over the 2 feet pathway measuring 1 1/2 cents.
8. Aggrieved by the dismissal of the suit, the plaintiff filed an appeal before the Sub Court at Uthagamandalam in A.S. No. 47 of 2006.
9. By judgment and decree dated 11.01.2007 in A.S. No. 47 of 2006, the lower appellate Court reversed the findings of the Trial Court based on the Advocate Commissioner's report and allowed the appeal filed by the plaintiff and granted the injunction as prayed for in the suit.
10. Aggrieved by the judgment and decree dated 11.01.2007 passed in A.S. No. 47 of 2006, this Second Appeal has been filed by the defendant in the suit.
11. At the time of the admission of the Second Appeal, the following Substantial questions of law were formulated by this Court:-
(a) Whether the Lower Court is right in holding that the burden of proof to prove the case lies with the Defendant instead of the Plaintiff?
(b) Whether the Plaintiff is liable to prove his case with proper documents and evidence or the Defendant is liable to prove the case?
(c) Can the lower court insist on the Defendant to prove the case in a bare injunction suit filed by the Plaintiff instead of Plaintiff proving his case before the trial Court?
(d) Is the Lower Court right in ignoring the admissions made by the Plaintiff regarding the existence of the footpath and that the Defendant has easementary right over the passage and his usage of the said passage for more than 60 years?
(e) Is the lower court right in granting permanent injunction against the person who has been using the passage with all rights for more than 60 years and it has been admitted by the Plaintiff that the passage is an absolute necessity for the Defendant to approach his property?
12. Heard Mr. S.L. Sudarsanan, learned counsel for the appellant. Despite service of notice on the respondent and a counsel having entered appearance in this Second Appeal, there is no representation on their side.
Submissions of the learned counsel
13. According to the learned counsel for the appellant, the pathway which is the subject matter of the dispute is being used by the residents of the locality for the past 60 years without any interruption whatsoever. He also drew the attention of this Court to the judgment and decree passed by the Trial Court and to the findings contained therein. He referred to the findings of the Trial Court, wherein, the Trial Court has observed that the plaintiff has not filed any doc
