Arputha Mary vs Maria Arputham

A.C. Arumugaperumal Adityan, J.—Heard the learned Counsel appearing for the appellant as well as the learned Counsel appearing for the respondent and considered their respective submissions.

The Suit is for permanent injunction in respect of Plot-A in the rough sketch attached to the plaint, which is earmarked as A, B, C & D.

The short facts of the plaint sans irrelevant particulars are as follows:

The plaintiff is the absolute owner of 14-1/2 cents of land comprised in R.S. No. 12/7 of Eraniel Village, which he had purchased under Document No. 631 dated 01.03.1994 of Eraniel Sub-Register''s Office from one Karia Sebastian and Giregori. In the plaint schedule property there is one coconut tree, aged about 30 years and one jack fruit tree, aged about 40 years. The defendant is having some land on the western side adjacent to the plaint schedule property. On 19.06.1994, the defendant and her husband Pankiraj and their men attempted to encroach into the plaint schedule property and attempted to cut the said coconut tree standing on the northern side of the plaint rough sketch as A, B, C & D. The plaintiff has successfully stopped the defendant and her men from encroaching into the plaint schedule property by making bund on 19.06.1994. Again on 23.06.1994 and on 24.06.1994 also the defendant and their men attempted to encroach into the plaint schedule property and attempted to cut the said coconut tree and also attempted to construct a bund shown in the plan as ''A B''. If the defendant encroaches the plaint schedule property, the plaintiff will be put to irreparable loss and great hardship. Hence, the suit.

The defendant in his written statement would contend that Plots A & B shown in the plaint plan originally belong to Maria Sebastian, the father of Gregory and Maria Louis. Maria Sebastian gifted ''A'' plot to his son Gregory excluding a pathway having a width of six lings for the entire northern side of the ''A'' plot. So, Gregory got right title and possession excluding the pathway portion in Plot ''A''. The pathway is granted through the northern side of the ''A'' Plot under a document by the original owner Maria Sebastian. The pathway is provided through the northern portion of ''A'' Plot by the original doner. The sale deed in favour of the plaintiff was executed by the Gregory. ''A'' Plot is described against the property description in the gift deed dated 30.08.1991. The vendor of the plaintiff has no right to execute the sale deed for the entire ''A'' Plot including the pathway provided under the gift deed. So, the plaintiff''s sale deed regarding the pathway portion is invalid. Maria Sebastian gifted ''B'' Plot to Maria Louis with the right of way through a Plot. Maria Louis sold ''B'' plot with the right of way through a plot in the plan appended to the plaint to the defendant on 02.09.1992. The coconut tree comes within the pathway portion provided under the gift deed in favour of Gregori. The plaintiff''s vendor Gregori demanded Rs. 200/- for the coconut tree and the value of the coconut tree was settled as Rs. 100/- and the plaintiff''s vendor Gregori received Rs. 100/- and stood as attestor in the sale deed dated 02.09.1992. From the date of the said sale deed, the defendant is using the pathway through the northern portion of ''A'' plot to reach ''B'' scheduled property from the land on the east. Prior to that the defendant''s vendor was using the said pathway from the date of gift deed. Before the execution of sale deed on 02.09.1992, the six lings pathway provided in the gift deed through the northern portion of ''A'' schedule property was measured by the original owner Maria Sebastian and his sons Gregori and Maria Louis and demarcating stones were planted. So, the pathway provided or imposed in the gift deed dated 02.09.1992 is excluded from ''A'' scheduled plot. The defendant has no necessity to encroach into the pathway portion. From 02.09.1992 the pathway portion is in the possession of defendant and she is using the same to reach her plot on the west from the lane on the east. On 01.03.1994 or subsequent to 02.09.1992, the vendor of the plaintiff had no possession over the pathway portion. So, the vendor of the plaintiff is incompetent to surrender the pathway portion to the plaintiff under the sale deed dated 01.03.1994. There is a clear mud fence through the southern boundary of the six lings pathway portion lying separated from the rest of ''A'' plot. After taking the sale deed on 01.03.1994, the plaintiff''s husband tried to plug coconut from the coconut tree standing in the pathway portion. So, this defendant prevented the unlawful act of the plaintiff''s husband stating that her vendor Gregori sold the coconut tree to the defendant on 02.09.1992 for Rs. 100/- and attested the sale deed in her favour. The plaintiff has no cause of action. The suit is liable to be dismissed with costs.

On the above pleadings, the learned trial Jude has framed four issues for trial. Before the trial Judge, the father of the Plaintiff was examined as P.W.1. On the side of the Plaintiff Exs.A.1 to A.3 were marked. Exs.B.1 to B.3 were marked on the side of the defendant. A Commissioner was appointed to note-down the physical features of the plaint schedule property and filed Ex.C.1-report and Ex.C.2-Plan.

After going through the evidence both oral and documentary, the learned trial Judge has decreed the suit excluding six lings pathway on the northern side of the plaint schedule property. Aggrieved by the findings of the learned trial Judge, the plaintiff has preferred A.S. No. 81 of 1994 before the Court of Subordinate Judge, Padmanabhapuram. The learned First Appellate Judge, after taking into consideration the submissions made by the learned Counsel on both sides and after scanning the evidence, has modified the decree of the learned trial Judge holding that in the six lings pathway on the north of the plaint schedule property both the plaintiff and the defendant are having equal right of enjoyment and has further held that in the coconut tree standing in the said pathway also both the plaintiff and the defendant are having equal right of enjoyment, which necessitated the defendant to prefer this Second Appeal.

The following substantial question of law is involved in the Second Appeal for consideration: Whether the judgment and decree of the First Appellate Court is perverse on account of its failure to consider the pleadings of the parties in their proper perspective?

Substantial Question of Law:

According to the learned Counsel for the appellant/defendant, both the Courts below have failed to grand a decree which was not asked for in the plaint. The learned Counsel had further drawn the attention of this Court to the property scheduled to the plaint where there is no mention about any coconut tree. Even though, the plaintiff has asked for a relief of permanent injunction in respect of the entire 14-1/2 lings on the north of the plaint schedule property, both the Courts below have restricted the relief only in respect of six lings on the north holding that both the plaintiff and the defendant are entitled to use six lings pathway on the north to have access to Plot "B" as shown in the rough sketch attached to the plaint, in Ex.C.2, Plan, also. The relevant documents to be referred to are Ex.B1 sale deed, executed by Maria Sebastian, in favour of one of his son Maria Louis, under which, S.No.12/7 Plot ''B'' to Ex.C.2 (rough sketch) was conveyed except six lings pathway on the north. In respect of the Plot mentioned as '' A '' to Ex.C2 (rough sketch) the same Maria Sebastian had executed Ex.B2 - settlement deed in favour of his other son by name Gregory, wherein also the said Maria Sebastian had conveyed ''A'' plot referred to in Ex.C.2 - Plan leaving six lings pathway on the north. So neither the plaintiff nor the defendant can claim any exclusive right in respect of six lings pathway situate on the north of both ''A'' and ''B'' plots. The plaintiff had purchased Plot ''A'' referred to in Ex.C2 under Ex.A1 - sale deed from Gregory, the settlee under Ex.B2. But there is no mention about Ex.A.1 under which there is no reference to this six lings pathway on the north, which was settled in favour of the settlee Gregory under Ex.B2 by his father Maria Sebastian. That is why both the Courts below have held that the plaintiff cannot ask for the relief of permanent injunction in respect of the entire 14-1/2 cents scheduled to the plaint. But he will be entitled to an order of injunction only in respect of the property excluding this six lings path way which is situated on the north of the property sold under Ex.A1. Ex.B3 is the sale deed in favour of the defendant executed by both Maria Louis as well as his father Maria Sebastian. But there is a specific reference in Ex.B3- sale deed in respect of the six lings pathway on the north of plot ''A'' to Ex.C.2. But, the only grievance of the appellant is that the learned first appellate Judge misconstruing a reference in Ex.B.3 as to the payment of Rs. 100/- for the usage of the pathway, had come to a conclusion that in the coconut tree standing in the pathways also both the plaintiff and the defendant are having equal right. But there is no direction given in the judgment of the learned first appellate Judge with regard to the mode of enjoyment of the said coconut tree. So, as per the documents Exs.B1, B2, B3 and A1, the plaintiff is not entitled to any exclusive right in respect of six lings pathway which is situated north of Plot ''A'' referred to Ex.C.2, Plan. But as far as the coconut tree is concerned, the plaintiff has to enjoy the same only for the first year and in the alternative year the defendant shall enjoy. So with this modification, the appeal is liable to be dismissed.

In fine, the appeal is dismissed confirming the judgment of the learned first appellate Judge in A.S. No. 84/1997 on the file of Court of Subordinate Judge, Padmanabhapuram, but with the following modification. The Coconut tree standing in the six lings pathway is to be enjoyed by the plaintiff and the defendant in alternative years commencing from January 2009. The plaintiff has to enjoy first. No costs.