Solave Gounder (Died) vs P. S. Venkatachalam

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Mad) 1149

IN THE HIGH COURT OF JUDICATURE AT MADRAS
V. LAKSHMINARAYANAN, J.
Solave Gounder (Died) – Appellant
Versus
P.S. Venkatachalam – Respondent
S.A. No. 73 of 2004
Decided On : 14-03-2023

Advocates:
Advocate Appeared:
For the Appellant : A.S. Vijay Ragavan.
For the Respondent: C. Venkatesan.

Headnote:
Civil Procedure Code, 1908 - Section 100 - Second Appeal filed under Section 100 of Code of Civil Procedure against Judgment and Decree in A.S. on file of learned I Additional District Judge, Coimbatore, reversing Judgment and Decree on file of learned III Additional District Munsif, Coimbatore - Held, Court refraining from going into issue of title or easement because suit is not based on either but on basis of long enjoyment - Lower Appellate Court has applied its mind and reversed Judgment of trial Court after proper appreciation of evidence - Findings given in Paras 22 to 25 of Lower Appellate Court Judgment are based on material facts and evidences - Lower Appellate Court is last Court of appeal on facts sitting in Section 100 of Code of Civil Procedure, unless finding is perverse, Court afraid Court cannot exercise power of reversal - Fact that plaintiffs did not produce evidence that he was earning bullocks or bullock cart does not make difference to suit because it was his right to use passage common which was in issue - Therefore, argument of easement of necessity do not stand for consideration - Entire Second Appeal is predicated on plea of easement as it does not arise in present situation and question of law does not arise - In any event, question of law framed is not a substantial question of law and therefore, this Court need not answer an academic question - Second Appeal dismissed.

JUDGMENT :

V. LAKSHMINARAYANAN, J.

Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 29.08.2003 in A.S.No. 125 of 2002 on the file of the learned I Additional District Judge, Coimbatore, reversing the Judgment and Decree dated 07.12.2001 in O.S.No. 978 of 1991 on the file of the learned III Additional District Munsif, Coimbatore.

1. The legal heirs of the defendants in O.S.No. 978 of 1991 on the file of the learned III Additional District Munsif, Coimbatore, are the appellants before this Court.

2. The aforesaid suit was presented for the following relief:

“(a) granting a mandatory injunction directing the defendants to remove the obstructions that were made in the suit passage.

(b) granting a permanent injunction restraining the defendants from putting up any further construction on the suit passage.

(c) granting a permanent injunction restraining the defendants from interfering with the peaceful possession, enjoyment and user of the suit passage in any manner whatsoever.”

3. It is the case of the plaintiffs that they are the owners of the property bearing Door Nos.45, 45A and 45B of Pachapalayam Village, Padathurai Post, Madhukkarai Via, Coimbatore. The defendants are the owners of the properties situated at 46A, 46B and 46C of the same Village. All the houses were constructed 50 years ago. They lie immediate East of a North - South Road and South of the East - West 'Thadam' measuring about 15 x 25 feet. The said passage is a common passage to the plaintiffs and the defendants. The lie of the passage is described by way of a Plaint plan. It is the case of the plaintiff that no one has exclusive right over the suit passage. While such is the case, the defendants obstructed the plaintiffs from using the suit passage and put up temporary constructions in and over the passage. In order to settle the matter out of Court, a Panchayat was called for and despite the intervention of the Village elders and the President of Panchayat, the defendants proceeded further and put up temporary constructions. As the first plaintiff died the legal representatives were brought on record in the suit.

4. On service of summons, the defendants stated that the properties are the joint family properties and the area which has been left open by 25 feet and 15 feet belonged to them absolutely. They claimed that they constructed a shed for tethering cattle reared by the 2nd defendant. According to them, the front way of their house had been described as Thadam and it is a cart track line that it is a common passage. It was further pleaded that original the entries of the property was facing East and 15 years ago, they reconstructed house facing the North. They also pleaded about other alternative passages available for the defendants' use to reach the North – South road. They further asserted that the plaintiff has no right or interest subject over the property and the plaintiff has no right to take his bullocks through the front yard. According to them, the existing structure had been there for over 24 years and that there was no Panchayat held on 02.04.1991 and the open space of 15 feet belongs to them and it is not a part of the common passage.

5. An Advocate Commissioner was appointed pending the suit in I.A.No. 23 of 1996. After giving due notice to both the plaintiffs and the defendants, the property was inspected on 15.11.1996. The Advocate Commissioner pointed out that ABCDE in his Plan, where the houses of the parties in the suit and the Point AB is a single wall and the point UV in his Plan are the wall which has been divided by the petitioner and the respondent's property. He pointed out the newly constructed house belonging to the defendants on the Eastern side of the defendants house and marked it as point B1 to B6 in the Plan. He also pointed out that there was vacant site in front of the parties houses and it has been used to dry the agricultural products. He pointed out from the Nort