A. Ayisha Bivi vs Karaikudi Municipality

R. Mala, J.—This Second Appeal arises out of the judgment and decree, dated 14.12.1993 made in A.S. No. 39 of 1990 on the file of the

Subordinate Judge''s Court, Devakottai, confirming the judgment and decree dated 23.08.1990 made in O.S. No. 294 of 1986 on the file of the

District Munsif Court, Devakottai.

The averments in the plaint, are as follows:

The suit property is in possession and enjoyment of the plaintiff. It was not used as a public pathway, and it was neither used by the Defendant, nor

the public have any right or possession over the suit property. Town Survey No. 168 is lay out made by one Karaikudi Property Development

Company Limited. The plaintiff purchased Plot Nos. 17 and 18 under a sale deed, dated 8.11.1970 and Plot Nos. 15 and 16 were purchased by

the plaintiff''s brother and for their enjoyment, Karaikudi Property Development Company Limited handed over 20 feet lane on the Northern side

of the property and also 18-1/2 feet pathway to Plot No. 18. Since dispute arose between the plaintiff and her brother in respect of enjoyment of

the path way, the plaintiff put up a fence and she was enjoying the property on her own and the plaintiff''s brother also put up a fence straight to his

property and enjoying the same, and they have also planted trees and were enjoying the property. Since she was enjoying the property from

8.11.1970 onwards, she prescribed title by adverse possession and the sub-division has been given in the name of the plaintiff. Now, at the

instigation of the personal enmity towards the plaintiff, the Defendant-Karaikudi Municipality wanted the property to lay a road and therefore, they

issued a notice on 25.07.1981, in which it is stated that the property was needed for putting up a road and suitable reply also been given by the

plaintiff. Then, the Defendant-Municipality issued another notice, dated 10.11.1981, stating that they will initiate land acquisition proceedings

against the plaintiff. On 31.12.1982, the Defendant-Municipality gave application to remove the encroachment, fence and trees and hence, the

plaintiff was directed to appear before the Revenue Divisional Officer to substantiate her case by way of filing the documents. On 9.7.1984, the

plaintiff sent a letter along with a document and on 28.7.1984, the Defendant-Municipality sent a reply and on 6.9.1984, the Defendant-

Municipality has again issued a notice to cancel the sub-division in respect of the pathway, and the same was also cancelled and the appeal before

the District Revenue Officer was dismissed and hence, the plaintiff was constrained to file the suit for declaration, to declare that the suit property is

not a public pathway of the Defendant and also for permanent injunction restraining the Defendant and their men not to interfere with her

possession and enjoyment and accordingly, she prayed for a decree.

The Defendant-Municipality filed a written statement, raising the defence that the plaintiff has not prescribed title by adverse possession and the

suit property was in possession and enjoyment of the public and maintained by the Defendant; before the plaintiff purchased the property, the

pathway was used by the public and at the time of lay-out, it was shown as a common pathway. The plaintiff purchased only Plot Nos. 17 and 18

and before plotting out the property, the suit property was used as a pathway by the public for more than 40 years. The plaintiff''s husband was

working as a Government Deputy Survey Inspector and he has given a sub-division in favour of his wife (plaintiff), and only on that basis, the

Defendant-Municipality issued notice for purchasing the property for putting up the road and now the plaintiff put up a fence and restraining the

public to use the pathway. After due enquiry, the sub-division had been cancelled. She has preferred an appeal before the District Revenue

Officer, which was dismissed. The property measuring 3369 sq. ft., which was in encroachment by the plaintiff, was removed with the help of

Police and Tahsildar and from 10.08.1986 onwards, it was used as a path way by the public and the plaintiff has no right over the property and

hence, she is not entitled for declaration of the title. It is further submitted that only after due notice, the encroachment has been removed. It is true

that the Defendant-Municipality issued notice for taking acquisition proceedings against the plaintiff. Admitting that she claims title only on the basis

of the opinion given by the Subordinate Officer and after the Defendant-Municipality came to know that the plaintiff is not the owner of the

property, they have taken steps to remove the encroachment and hence, they prayed for dismissal of the suit.

The trial Court, after considering the rival submissions made by both sides, framed necessary issues and considering the oral and documentary

evidence, dismissed the suit. Against that, the Appellant/plaintiff preferred First Appeal in A.S. No. 39 of 1990. The first appellate Court, after

considering the rival submissions made by either side, framed necessary points for consideration and dismissed the First Appeal. Against that, the

present Second Appeal has been preferred by the Appellant/plaintiff.

At the time of admission of the Second Appeal, the following substantial questions of law were framed:

(i) Whether the lower appellate Court was right in holding that the suit property is a public street, in the absence of any declaration u/s 179 of the

Tamil Nadu District Municipalities Act, 1920?

(ii) Whether the lower appellate Court was right in holding that the Respondent-Municipality has a right over the suit property, having held that the

suit pathway is not under the management and control of the Municipality? and

(iii) Whether the lower appellate Court was right in holding that the suit property will vest in the Respondent Municipality, in the light of the finding

that the lay-out has not been approved and that no gift deed has been executed by the original owner?

The learned Counsel for the Appellant/plaintiff submitted that Survey No. 168 belongs to one Karaikudi Property Development Company

Limited and they have laid out the property, from whom the Appellant-plaintiff purchased Plot Nos. 17 and 18 under Exs.A-1 and A-2 and on the

west of Plot Nos. 17 and 18, there is a vacant place and on the east and north of the property, it measures nearly 3369 sq. ft., which was in

possession of the Appellant/plaintiff, and since there is a specific road provided in the lay-out, she was enjoying the property, as the seller has

conferred the right for using the property for herself and her brother, who is the purchaser of Plot Nos. 15 and 16. Learned Counsel for the

Appellant/plaintiff further submitted that the Respondent/defendant/Municipality admitted the plaintiff''s title and issued notice on 25.7.1981 under

Ex.A-6 stating that they were in need of 67-1/2"" � 18-1/2"" property to lay the road. Reminder was also issued under Ex.A-7 on 10.11.1981

and then only, the Respondent/defendant/Municipality issued a notice as per Ex.A-8 on 14.9.1983, stating that the Appellant/plaintiff encroached

upon the property. It is only an after-thought and so, the learned Counsel for the Appellant-plaintiff submitted that the trial Court and the first

appellate Court have not considered the documents and without appreciating the contents in the documents, they have committed error in

dismissing the suit. Learned Counsel for the Appellant/plaintiff further submitted that the Appellant/plaintiff was in possession and enjoyment of the

property for more than the statutory period and hence, she has prescribed title by adverse possession. The trial Court and the first Appellate Court

have not considered this aspect in proper perspective and dismissed the suit. Hence, he prayed for allowing this Second Appeal and to set aside

the judgments and decrees of both the Courts below.

Per contra, the learned Counsel for the Respondent/defendant/Municipality contended that as per Ex.A-1 and Ex.A-2, the Appellant/plaintiff

purchased only Plot Nos. 17 and 18. Further, as per the plan included in Ex.B-2 files, the pathway situated on the northern side of Plot No. 18

and eastern side of Plot No. 18, is not purchased by her, but it is used as a public pathway. Since the plaintiff''s husband is a Government Deputy

Survey Inspector, he sub-divided and patta has also been issued in her name, by misusing his official power and only during that period, the

Respondent/defendant/Municipality issued a notice demanding that the area is needed for laying a road, but she refused and the

Respondent/defendant/Municipality also intended to initiate acquisition proceedings. Then, the Respondent/defendant/Municipality came to know

that the property is not belonging to the Appellant/plaintiff. After due enquiry, patta has been cancelled on 6.9.1984, against which, the

Appellant/plaintiff preferred an appeal, which was also dismissed. The trial Court and the first appellate Court have considered these aspects in

proper perspective and came to the conclusion that the Appellant/plaintiff is not the owner of the property and hence she is not entitled for any

relief. It is further stated by learned Counsel for the Respondent/defendant/Municipality that the trial Court rightly dismissed the suit, which was

confirmed by the first appellate Court and therefore, he prayed for dismissal of the Second Appeal, stating that the impugned judgments and

decrees of the Courts below do not warrant any interference.

The Appellant as plaintiff, filed the suit for declaration that the suit property is not the public pathway belonging to the

Respondent/defendant/Municipality and also sought for permanent injunction. At this juncture, it is pertinent to state that it is trite that the person

who pleads, has a duty to prove the same. The plaintiff has claimed her right over the property only on the basis of Ex.A-1 and Ex.A-2, stating that

she has purchased the property in Plot Nos. 17 and 18 under Ex.A-1 and Ex.A-2. So, it is appropriate to consider the same. Under Ex.A-1, the

Appellant/plaintiff has purchased Plot No. 17, in which it is stated that, ""North of Karaikudi Kanmai Channel, East of Plot No. 16, South of 20

feet path way which was left for convenient enjoyment of Plot Nos. 15 to 18 and West of Plot No. 18"" and under Ex.A-2, the Appellant/plaintiff

has purchased Plot No. 18, in which it is stated that, ""North of Karaikudi Kanmai Channel, East of Plot No. 17, South of 20 feet pathway which

was left for convenient enjoyment of Plot Nos. 15 to 18 and West of 18-1/2 feet road which was left by the founder for convenient enjoyment of

Plot No. 18"". But admittedly, Plot Nos. 17 and 18 have been purchased by the Appellant/plaintiff and Plot Nos. 15 and 16 have been purchased

by her brother. It is also evidenced that there is dispute between them in respect of the pathway and eastern, southern and western properties were

not sold to her, and it was only as a pathway left for enjoyment of the purchaser of Plot Nos. 15 to 18. So, the Appellant/plaintiff is only having

right to enjoy the property, and she is not having any exclusive right as the owner of the property, and no title to the suit property has also been

conferred on the Appellant under Exs.A-1 and A-2. The Appellant-plaintiff also filed Ex.A-3, survey measurement notes, which shows that 6.386

sq. m. stands in her name. The Karaikudi Municipality Commissioner''s proceedings/order had been marked as Ex.A-4, in which, it is stated that

as per Town Survey No. 168/1, 33341.5 sq. m. stands in the name of the Managing Director, Karaikudi Property Development Company

Limited and as per Town Survey No. 168/2, 593.2 sq. m. stands in the name of the Appellant/plaintiff and that proceedings/order had been issued

on 28.02.1978 by the Respondent-Municipality. The Karaikudi Municipality sketch/plan in T.S. No. 168 had been marked as Ex.A-5 and as per

Ex.A-6 notice, dated 25.7.1981 the Respondent/defendant/Municipality sent a notice to the Appellant/plaintiff claiming 67-1/2""�18-1/2

portion, which was needed by them for laying a road and they were ready to pay the amount fixed by the Collector.

At this juncture, it is appropriate to consider the plan/sketch Ex.A-5 which shows that east-west of Plot No. 18, 18-1/2 feet has been left and

also north-south 64-1/2 feet. So, the Respondent-defendant-Municipality only wanted the pathway on the east of Plot No. 18 and they have also

issued another letter Ex.A-7 on 10.11.1981, with a further reminder/notice Ex.A8 on 14.9.1983 through Tahsildar, Karaikudi, stating that the

Appellant/plaintiff encroached upon the property and hence, she was directed to produce the documents to show her title to the property; under

Ex.A-9, dated 9.7.1984, another reminder, had been issued and in Ex.A-10, dated 27.8.1984, another notice was issued by the Respondent-

defendant-Municipality, directing her to produce the documents to show that the property had been owned by her and a penal clause has also

been provided therein that if she fails to produce the documents to show that the pathway belongs to her, the encroachment would be removed

and they would also cancel the sub-division made earlier in her favour by the Municipality and legal action will also be taken on all concerned.

Ex.A-11 proceedings dated 6.9.1984, had been issued, stating that due to failure to produce the documents by the Appellant/plaintiff as indicated

above, the sub-division made by the Municipality, earlier, had been cancelled. Ex.A-12 notice dated 22.4.1986, was issued for removal of

encroachment. Exs.A-13 to A-16 are the house tax receipts and they do not relate to the pathway, i.e. the suit property.

The Respondent/defendant/Municipality filed the entire file relating to the sub-division and cancellation of sub division. On perusal of the plan, it

is clearly proved that no title had been conferred on the Appellant/plaintiff, but she was given only the right to use the pathway. Even though it was

stated in records/documents that the pathway was left for the convenient enjoyment of Plot No. 18, but the Appellant/plaintiff has not purchased

the property and she is also not the owner of the suit property. Approved plan has shown the area of the road as 13082 sq. ft. The suit property is

shown as a road and Plot No. 18 has been surrounded by three side pathway and Plot Nos. 15 to 17 is surrounded by pathway on the north and

south.

Now, the dispute is only in respect of the property situated on the east of Plot No. 18. But, as per Exs.A-1 and A-2, the Appellant/plaintiff has

not purchased the suit property. In such circumstances, the sub-division initially made by the Respondent-defendant-Municipality in favour of the

Appellant/plaintiff is erroneous. At this juncture, it is appropriate to mention that the husband of the Appellant/plaintiff was a Government Deputy

Survey Inspector and he used his official power and capacity to sub-divide the property and patta has also been issued in his wife''s (plaintiff''s)

name. Subsequently, the defect came to the knowledge of the Respondent-defendant-Municipality and they took steps to ascertain as to whether

actually, the Appellant-plaintiff is the owner of the suit property and on a perusal of Exs.A-1 and Ex.A-2, they have cancelled the subdivision

earlier made in her favour. In the above circumstances, 18-1/2 feet pathway does not belong to the Appellant/plaintiff and hence, she is not entitled

to get any relief.

Further more, she has not filed a suit for a declaration that she is the owner of the 18-1/2 feet pathway, but she wanted only the negative relief

that the Respondent/defendant/Municipality is not the owner of the public pathway. Since the suit property does not belong to the

Appellant/plaintiff, she is not entitled to get the negative relief also.

Furthermore, after cancellation of the sub-division earlier made in favour of the plaintiff by the Municipality, the property had been taken by the

Respondent-Municipality and now it is being used by the public as a pathway. It is also essential for the public to use this pathway and only for that

reason, the Respondent-defendant-Municipality took steps to acquire the property and subsequently, they came to know that it does not belong to

the Appellant-plaintiff and cancelled the patta standing in her name. In such circumstances, I am of the view that the trial Court and the first

appellate Court have considered this aspect and came to the correct conclusion that the suit property is not owned by the Appellant/plaintiff.

In the first substantial question of law, it is stated that, ""Whether the lower appellate Court was right in holding that the suit property is a public

street, in the absence of any declaration u/s 179 of the Tamil Nadu District Municipalities Act, 1920?"". It is appropriate to quote Sections 178 and

179 of the Tamil Nadu District Municipalities Act:

Section 178: Power of executive authority to order work to be carried out or carry it out himself in default.-(1) If any private street or part thereof

is not levelled, paved, metalled, flagged, channelled, drained, conserved or lighted to the satisfaction of the executive authority, he may by notice

require the owners or occupiers of buildings or lands fronting or abutting on such street or part thereof to carry out any work which in his opinion

may be necessary and within such time as may be specified in such notice.

(2) If such work is not carried out within the time specified in the notice, the executive authority may, if he thinks fit, execute it and the expenses

incurred shall be paid by the owners or occupiers in default according to the frontage of their respective buildings, or lands, and in such proportion

as may be settled by the executive authority.

Section 179: Right of owners to require street to be declared public-If any street has been levelled, paved, metalled, flagged, channelled, drained,

conserved and lighted under the provisions of Section 178 such street shall, on the requisition of not less than three-fourths of the owners thereof,

be declared a public street.

The above provisions of law are not applicable to the facts of the present case, because the owner--Karaikudi Property Development

Company Limited, has not raised issue that they had not handed over the property to the Respondent-defendant-Municipality, but the property is

not belonging to the Appellant/plaintiff. Laying of the roads, maintaining of parks, etc., are the developments for convenience and enjoyment of the

public and the inmates of the locality. In such circumstances, merely because the property was not gifted to the Municipality and the owner-

Karaikudi Property Development Company Limited had not given any requisition to the Municipality for laying the road, it will not improve the

case of the Appellant/plaintiff, and it will not also confer any title on the Appellant/plaintiff. Now, the Respondent/defendant/Municipality wanted

the property for laying the road for public use and when the Appellant/plaintiff has come forward with the suit, it is her bounden duty to prove that

she is the owner of the suit property and that she is entitled for declaration as sought for. It is settled law that the person who pleads, has to prove

his/her case. Further, in this case, the Appellant/plaintiff sought for a negative relief that the suit property does not belong to the

Respondent/defendant/Municipality and hence, the suit itself is not maintainable.

In the above stated circumstances, I am of the view that merely because the owner of the property, namely Karaikudi Property Development

Company Limited, has not been made as a party to the proceedings, will not also improve the case of the Appellant/plaintiff. In this case, the

Respondent-Municipality has, even though earlier sub-divided the property, subsequently, after tracing out the title, cancelled the same already

made in favour of the plaintiff, and a road is now being laid and the public are using the pathway as a road and so, I am of the view that the

Appellant/plaintiff is not entitled to get the relief, much less the negative relief. For all the above reasons, the other two substantial questions of law

are answered against the Appellant/plaintiff.

Moreover, it is settled law by the Supreme Court in a catena of decisions that the jurisdiction of the High Court in terms of Section 100 of the

CPC is very limited. The High Court can interfere with the concurrent findings of two Courts below, only if any substantial question of law arises

for its consideration. In the present case, the substantial question of law does not arise for consideration and those framed at the time of admission,

are answered against the plaintiff as noted above.

As observed by the Supreme Court in numerous decisions, the concurrent findings of fact recorded by Courts below, ordinarily are binding on

the High Court, while exercising its jurisdiction u/s 100 of CPC The findings of fact concurrently recorded by the trial court, as also by the lower

appellate court, could not be legally upset by the High Court, sitting in Second Appeal u/s 100 Code of Civil Procedure, unless it is shown that the

findings are perverse, being based on no evidence or that on the evidence on record, no reasonable person could come to that conclusion. Further,

the scope for interference with the concurrent findings of fact, while exercising jurisdiction u/s 100 Code of Civil Procedure, is very limited, and re-

appreciation of evidence is not permissible, (sic except), where the trial court and/or the first appellate court misdirected themselves in appreciating

the question of law or placed the onus on the wrong party, certainly, there is a scope for interference u/s 100 Code of Civil Procedure, that too,

only after formulating a substantial question of law.

For all the foregoing reasonings, I do not find any merits in the Second Appeal, which is liable to be dismissed.

In the result:

(a) The Second Appeal is dismissed.

(b) The judgments and decrees of both the Courts below are confirmed.

(c) No costs.

(d) C.M.P. is closed.