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Judgment
G. Rajasuria, J.—S.A. No. 606 of 2000 by the defendants 1 and 2 and S.A. No. 179 of 2001 by the third defendant have been filed as
against the judgment and decree dated 05.01.2000 passed in A.S. No. 89 of 1999 by the learned Principal District Judge, Virudhunagar District
at Srivilliputtur, in reversing the judgment and decree dated 29.09.1999 passed in O.S. No. 497 of 1996 by the learned Principal District Munsif,
Srivilliputtur.
The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.
Broadly but briefly, narratively but pithily, the case of the plaintiff as stood exposited from the plaint could be set out thus:
The plaintiff is the owner of the house property described in the first schedule of the plaint and adjacent to it on the west, the plaintiff is also owning
a vacant space as described in the second schedule of the plaint, measuring an extent of 6 1/2 feet from east to west and 59 1/2 feet from north to
south as per the sale deed Ex.A.8, dated 25.01.1993, executed by Valliammal, Veerachamy, Murugan, Rajalakshmi, in favour of the plaintiff.
Originally, both the schedules of property described in the plaint, belonged to Ramukonar as per Ex.A.2, the sale deed dated 20.08.1915. After
the death of Ramukonar, his wife Valliammal, his son Veerachamy, his daughter Rajalakshmi stepped into his shoes and subsequently, they
executed the sale deed Ex.A.8 in favour of the plaintiff as stated supra. While so, the first defendant along with her husband D.2, attempted to
disturb the plaintiff''s possession over the second schedule of property as though the second schedule property is a Municipal road. Hence, the
suit.
Per contra, denying and disputing, the allegations/averments in the plaint, the second defendant filed the written statement which was adopted by
the first defendant, the gist and kernel of them, would run thus:
The plaint sketch is erroneous. The second schedule property is part and parcel of a public road belonged to the Municipality. The first defendant
purchased the house bearing Door No. 52 with a vacant plot situated to the east of the said house including the first schedule of the plaint from one
Senthattikalai Pandian and his descendants who executed Ex.B.2, the sale deed dated 02.12.1994. Ex.A.2, the sale deed dated 20.08.1915, did
not cover the plaint second schedule property which in fact, belongs to the Municipality and it is part and parcel of the Municipality. Accordingly,
the defendants 1 and 2 prayed for the dismissal of the suit.
The third defendant Municipality filed the written statement, contending that the second schedule property forms part of the Municipal road,
comprised in T.S. No. 77, Block 13 Ward ""B"", Rajapalayam Town. Even before 1985, the said area was under use as public pathway and it does
not belong to any individual much less to the plaintiff.
The plaintiff filed the reply statement reiterating her stand in the plaint.
The trial Court framed the relevant issues.
During trial, the plaintiff examined himself as P.W.1 and Exs.A.1 to A.9 were marked. The second defendant examined himself as D.W.1 along
with D.W.2 and Exs.B.1 to B.13 were marked. Exs.C.1 and C.2, the Commissioner''s report and sketch were marked as Court documents.
Ultimately, the trial Court dismissed the original suit.
Challenging the same, the first appeal in A.S. No. 89 of 1999 was filed before the Principal District Judge, Virudhunagar District at
Srivilliputtur, which Court reversed the judgment and decree of the trial Court and decreed the original suit as prayed for.
Being aggrieved by and dissatisfied with, the judgment and decree of the first appellate Court, the defendants 1 and 2 filed S.A. No. 606 of
2000 and the third defendant filed S.A. No. 179 of 2001, on almost the following identical grounds:
The judgment of the first appellate Court is erroneous both on facts and law. The first appellate Court ignored the fact that T.S. No. 77 refers to
Municipal road which includes the second schedule property of the plaint, as per the Gazatte notification No. 5, dated January 29, 1985, made
after completing the Survey as per law. The electricity pole belonged to the Electricity Board, very much stand in the second schedule property,
indicating that it is part of the public road. The Advocate Commissioner''s sketch and finding were not considered by the first appellate Court in
proper perspective. The first appellate Court erred in believing the documents filed on the side of the plaintiff and simply carried away by the extent
found incorporated therein. Exs.A.2, A.3 and A.4 were not considered by the first appellate Court and it simply believed as though the plaintiff
was in possession of the second schedule property even though there is no proof to that effect. Accordingly, they prayed for setting aside the
judgment and decree of the first appellate Court and for restoring the judgment and decree of the trial Court in dismissing the original suit.
My learned Predecessors framed the following substantial questions of law:
In S.A. No. 606 of 2000:
(1) Whether the lower appellate Court has wrongly shifted the burden of proof upon the defendants?
(2) Whether the lower appellate Court has misconstrued the purport of the judgment in O.S. No. 232 of 1989 resulting in miscarriage of justice?
In S.A. No. 179 of 2001:
(i) Whether the lower appellate Court is correct in holding that judgment and decree in O.S. No. 232 of 1989 are erroneous even though no
appeal was filed as against the said judgment and decree and would it not the same operate as res judicata?
(ii) Whether the findings rendered by the lower appellate Court are sustainable in law when the said findings are rendered by misreading the
evidence and available facts on record?
The quintessence of the case of the plaintiff is that by virtue of Ex.A.2, the sale deed dated 20.08.1915, the plaintiff''s vendor''s propositus was
the owner of both the first and second schedule of properties as per the extent set out therein and there is no iota or shred of evidence to prove
that the suit property was dedicated as a public road and it did not vest in the Municipality.
The defendants in unison would contend that the second schedule property of the plaint had been used as a public pathway and it subsequently
got vested with the Municipality as a public road.
Axiomatic and obvious as it is, that the onus of proof is on the plaintiff to prove his case and it has to be seen as to whether the plaintiff
discharged his burden of proof. Ex.A.2, dated 20.08.1915, is an ancient document which refers to an extent of plot of 9 carpenter cole from east
to west direction and 21 1/2 feet from north to south direction, including the brick built house thereon.
Indubitably and incontrovertibly, the carpenter cole measurements as found set out in Ex.A.2 is equivalent to 24 3/4 feet from east to west and
59 1/2 feet from north to south. Apparently, the first and second schedules of the properties totally, are covered by the extents as found set out in
Ex.A.2. The said entire extent in Ex.A.2 is found envisaged in Ex.A.8, the sale deed executed by the original owners in favour of the plaintiff
herein.
It is therefore crystal clear that the extents as found mentioned in Exs.A.2 and A.8 do tally. The plaintiff by way of further buttressing and
fortifying his case, relied on Ex.A.3, the mortgage deed executed by the plaintiff''s vendors in favour of one Seethalakshmi Ammal, both the entire
property as found in Ex.A.2. Ex.A.4, is the mortgage made over deed dated 08.09.1982, executed by the said Seethalakshmi Ammal in favour of
one Balasubramanian. Wherefore, it is crystal clear that the plaintiff and her predecessors in title have exercised continuous right of ownership over
both the schedule of property and thereby demonstrated their animus domini over it. However, on the side of the defendants, absolutely there is no
iota or shred of evidence to prove that the second schedule property was dedicated by the plaintiff or his predecessors in title as a pathway and
that thereupon, handed it over to the Municipality.
The bone of contention of the third defendant Municipality is that Ex.B.6, is extract of the Survey Map, relating to the road bearing Nos. 77
and 107 and the said second schedule property is also shown as part of it. Ex.B.7, is relied on as the extract of the Town Survey Register relating
to the said S. Nos. 77 and 107.
The pertinent question arises as under what circumstances, the said second schedule of property was came to be shown as part of the public
road in Municipal records.
The learned Counsel for the third defendant placing reliance on the aforesaid Gazette notification made by the Department of Land and Survey
Records and published in the Gazette, would develop his argument that the Survey Department after complying with the procedures contemplated
as per law relating to the Land and Survey, conducted survey and published it and there was no objection for having included the said second
schedule of property as part and parcel of the road.
The learned Counsel for the defendants 1 and 2 also would adopt the arguments submitted by the third defendant on this aspect.
I am of the considered opinion that such an argument submitted on the side of the defendants is tangential for the reason that the very
notification itself would contemplate that the civil Court shall have the right to decide otherwise than what was surveyed and held by the Survey
Department. The said Government Gazette can be taken judicial notice of, as it is quite obvious as per the Indian Evidence Act.
A fortiori, de hors the survey records, Ex.B.6 and B.7 relied on by the defendants, there should be evidence to demonstrate that the suit
property was used as a public pathway. Simply because in Exs.B.6 and B.7, the second schedule property was shown as a road, there is no hard
and fast rule that it should be taken as a conclusive one.
To the risk of repetition, without being tautologous, I would like to highlight that the very notification relied on by the defendants would indicate
that the civil Court has got the jurisdiction to go into the real facts and adjudicate relating to the survey conducted.
It is pertinent to note that on the side of the defendants, D.2, Kathiresan was examined as D.W.1, and one Ravi, D.W.2, the Inspector of the
Municipality, D.3, was examined. No independent witness was examined to prove that the suit property has been used for over statutory period of
twenty years as contemplated u/s 15 of the Indian Easements Act, so as to treat it as a public pathway.
Trite the proposition of law is that continuous usage of a place as pathway for twenty years as per Section 15 of the Indian Easements Act,
would attract easement by prescription over such pathway, but absolutely here, there is no infinitesimal of mimuscle extent of evidence in that
regard. The suit itself was filed in the year 1996. Whereas the Town Survey record emerged during the year 1985.
The learned Counsel for the plaintiff would impeach the very genuineness of Exs.B.6 and B.7 on the ground that only extracts have been relied
upon and the originals have not been produced.
Be that as it may, even assuming that during the year 1985, in such survey records, the suit property was added as part of the Municipal road,
nonetheless, it cannot be taken in the absence of clinching evidence that the ownership right of the plaintiff over the suit property got divested. My
mind is redolent with the famous maxim ""ubi jus ibi remedium"" (Where there is a right, there is a remedy). Here, the plaintiff by virtue of the
documents Exs.A.2, A.3, A.4 and A.8 which are all registered documents and out of them, A.2 is an ancient document, clearly established her
right over the suit property viz., the second schedule property of the plaint.
The defendants would claim that the suit property got merged with the adjacent smaller extent of admitted pathway of 4 feet width, but such a
contention should have been proved by the defendants by adducing evidence which they failed to do so.
Exs.B.6 and B.7 themselves are not conclusive in view of the reasons set out supra.
Hence, at this juncture, I would like to refer to the maxim ''obscurum per obscrurius''.
The defendants are under the duty to prove as to how in the survey, such second schedule property of the plaint was came to be shown as
part of the public road. It was the duty of the third defendant to adduce evidence alieunde de hors Exs.B.6 and B.7 and they cannot simply
contend that Exs.B.6 and B.7 themselves are evidence.
The Ipse Dixit of D.W.1 and D.W.2, would not constitute evidence. The defendants mainly relied on the electric pole which is found installed
in the suit property by the Electricity Board and the learned Counsel for the plaintiff would correctly explain and expound it by his convincing
argument that simply because such electric pole is there, there is no presumption that the suit property was dedicated as a public pathway.
The perusal of the judgment of the trial Court would reveal that the trial Court failed to take into consideration all these facts highlighted supra.
Top it all, it also failed to consider one other important fact.
Admittedly, Senthurpandian the vendor of the defendants 1 and 2, instituted a suit in O.S. No. 232 of 1989 in the Munsif Court, Srivilliputtur,
as against one Mariappa Thevar and Pemalaiammal and the Electricity Board, contending that the second schedule property herein including the
pathway of 4 feet existing to the west of the suit property herein belonged to him. But, in that suit, as revealed by Ex.B.4 and B.5, the judgment
and decree concerned the Court held that the second schedule property herein and the adjacent pathway, all constituted one pathway over which
the vendors of the defendants 1 and2 cannot claim exclusive right.
The incontrovertible and indubitable fact is that the first defendant purchased as per Ex.B.2 dated 21.02.1994, the suit property herein and
thereby she stepped into the shoes of Senthettikalai Pandian, the plaintiff in the said suit in O.S. No. 232 of 1989.
However, it is shocking to note that the said Senthettikalai Pandian as revealed by Ex.B.4 and B.5, lost his claim in the suit O.S. No. 232 of
1989 over the second schedule property herein. Despite that, he sold the second schedule property herein, without having any regard for the said
judgment and decree. Quite antithetical to the stand of the first defendant in Ex.B.2, and her vendor''s stand in the previous suit O.S. No. 232 of
1989, the first defendant joining hands with the third defendant, simply claimed as though the second schedule property herein is a public pathway.
The fact remains that Exs.B.4 and B.5, the judgment and decree in O.S. No. 232 of 1989 emerged during the year 1989, whereas the sale
deed in Ex.B.2 emerged thereafter in the year 1994 and it clearly proves that the said Senthettikkalai Pandian and his minor children, executed
Ex.B.2 in favour of the first defendant maliciously and illegally the suit property herein and the first defendant also simply purchased illegally the
same. This clearly exposes the prevaricative stand of the first defendant. In one breath, the defendants would contend that for a pretty long time,
the suit property viz., the second schedule property herein was used as a pathway and in another breathe, the defendants 1 and 2, would claim
absolute right of ownership over the suit property herein in favour of the first defendant based on her vendor''s alleged right of ownership over the
suit property. The first defendant''s vendor litigated over the suit property as his own property and lost his case but, the first defendant purchased
the suit property herein illegally; now the same first defendant along with other defendants would contend as though the suit property herein was a
pathway from time immemorial and if that be so, the question arises as to why the first defendant purchased such alleged public road illegally by
describing it as plot in Ex.B.2.
It is therefore clear that the defendant''s case is totally absurd. According to the defendants, the electric pole situated in the second schedule
property long before the emergence of Ex.B.2, the sale deed in favour of the first defendant, is indicative of the fact that it is a public road, if that
be so, the first defendant exposes her own malicious motive in purchasing the suit property under Ex.B.2.
This sort of prevaricative pleas clearly expose the defendants'' case and inspite of these glaring defects, the trial Court accepted the case of the
defendants, but the first appellate Court properly considered the evidence and circumstances and set aside the judgment of the trial Court and
decreed the original suit.
The learned Counsel for the defendants placing reliance on Exs.B.4 and B.5, would submit that the said judgment and decree in O.S. No. 232
of 1989 is having binding effect on the plaintiff in the suit, even though the plaintiff is not eo nominee party in the previous proceedings and also
forgetting for a moment that the first defendant herself had not adhered to Exs.B.4 and B.5 and purchased the suit property by flouting Exs.B.4 and
B.5.
On the side of the defendants, the decision in Tirumala Tirupati Devasthanams v. K.M. Krishnaiah reported in 1998-2-L.W.310, has been
cited, in support of the proposition that Exs.B.4 and B.5 are binding on the plaintiff.
The said finding was given by the Honourable Apex Court relating to a different set of facts as the title of Tirumala Tirupati Devasthanam was
upheld in the facts as found set out in paragraph No. 3 therein. A mere perusal of paragraph No. 3 in conjunction with paragraph No. 9 extracted
above, would clearly demonstrate that here the facts are entirely different. In the previous suit, there was no prayer for declaration that the suit
property herein as a public pathway. But, in the previous suit, the first defendant''s vendor, claimed as though he was the absolute owner of the suit
property herein and that suit was dismissed with the finding that it was a pathway. In that suit, neither the plaintiff nor the plaintiff''s vendor was a
party. Hence, in such a case, the judgment and decree Exs.B.4 and B.5 are having no binding effect on the plaintiff.
The learned Counsel for the first defendant also cited the decision of this Court in Karur Municipality through its Commissioner, Karur v.
Gousunnissa Bibi and Ors. reported in 2007 (1) TNCJ 591 . A mere perusal of it, would highlight that it is not applicable to the facts and
circumstances of this case for the reason that in the cited decision, the finding was to the effect that a particular area was used as pathway for over
thirty years and subsequently, the Municipality declared it as a public road. In that context alone, this Court passed such a judgment. Whereas my
discussions supra would spotlight and indicate that it is the contention of the first defendant herein and her predecessor-in-title that the second
schedule property concerned herein happened to be their personal property and subsequently, the first defendant turned turtle and having a volte
face took up the plea as though it is a public pathway. In such a case, the cited decision of this Court is not applicable to the facts and
circumstances of this case.
The defendants would try to argue placing reliance on Ex.B.8, the show cause notice issued by the Municipality to the plaintiff calling upon him
to remove the coconut saplings; Ex.B.9, the reply given by the plaintiff and Ex.B.10, the final order issued by the Municipality. I am of the opinion
that in the wake of the clinching evidence available in favour of the plaintiff and the evidence speaking ill of the stand of the defendants, Exs.B.8,
B.9 and B.10 are all not germane for adjudicating this case at hand.
Exs.B.8, B.9 and B.10 are all relating to recent developments which are having no probative force of their own in the wake of clinching
evidence available on the side of the plaintiff, but the evidence adduced by the defendants themselves expose the defendants'' prevaricative and
illegal stands. I therefore could countenance that the judgment and decree of the first appellate Court are sustainable.
Accordingly, in S.A. No. 179 of 2001, the substantial question of law No. (i) is decided to the effect that the first appellate Court no doubt, in
page No. 9 of its printed judgment, would refer to the judgment and decree in O.S. No. 232 of 1989 and expressed its opinion that the judgment
was erroneous; and the learned Judge while dealing with the matter, expressed his view. However, my above discussion would indicate that the
said adjudication in O.S. No. 232 of 1989 is having no binding effect on the plaintiff in this case. The substantial question of law No. (ii) is decided
to the effect that the lower appellate Court was right in not adhering to the judgment and decree passed in O.S. No. 232 of 1989 as it cannot
operate as res judicata as against the plaintiff in this suit. The first appellate Court has not misread any evidence and its judgment is not perverse.
Both the substantial questions of law are decided in favour of the plaintiff and as against the defendants.
In S.A. No. 606 of 2000, the substantial question of law No. (i) is decided to the effect that the first appellate Court has correctly analysed the
evidence. The substantial question of law No. (ii) is decided to the effect that the first appellate Court correctly held that the judgment and decree
in O.S. No. 232 of 1989 is not binding on the plaintiff herein. I could see no perversity or illegality of any glaring nature so as to intervene by
invoking Section 100 of the Code of Civil Procedure, whereunder a catena of decisions of the Honourable Apex Court are that if at all any case is
made by the appellants in second appeal based on substantial questions of law, no interference is warranted with the decision of the lower Court.
In the result, both the second appeals are dismissed, confirming the judgment and decree dated 05.01.2000 passed in A.S. No. 89 of 1999 by
the learned Principal District Judge, Virudhunagar District at Srivilliputtur. No costs.