Dhanappan vs Kannappa Naicker

T. Mathivanan, J.—Challenge is made in this Memorandum of Second Appeal as against the Decree and Judgment dated 26.03.1993 and made in A.S. No.72 of 1990 on the file of the learned Sub Judge, Tindivanam, reversing the Decree and Judgment dated 05.10.1990 and made in O.S. No.81 of 1985 on the file of the learned District Munsif, Ginjee.

The appellant herein is the plaintiff, whereas the respondents are the defendants in the suit.

When the appeal came up for hearing on 06.08.2014, Mr. J.R.K. Bhavanathan, learned counsel for the appellant, was present and ready to argue the case. On the other hand, despite the service of notice on the 1st respondent, he has not chosen to appear either in person or through his counsel. It is also pertinent to note here that insofar as the 2nd respondent is concerned, substituted service through paper publication was effected on 10.12.2012, and in spite of that, he has not chosen to appear before this Court. Therefore, there is no other go for this Court excepting to hear Mr. J.R.K. Bhavanathan, learned counsel for the appellant and dispose of this appeal on merits in the absence of the respondents 1 and 2.

For the sake of convenience and also for easy reference, the appellant may hereinafter be referred to as "plaintiff", whereas the respondents be referred to as the "defendants" wherever the context so require.

The plaintiff has filed the above suit as against the defendants seeking the relief of declaration to declare that the plaintiff is entitled to the suit property and for perpetual injunction as against the defendants.

The suit was originally decreed by the trial Court and in appeal preferred by the defendants, the Judgment of the trial Court was reversed and in consequent thereof, the appeal was allowed and the suit was dismissed on 26.03.1993.

Having been aggrieved by the impugned Judgment and Decree and made in A.S. No.72 of 1990 on the file of the learned Sub Judge, Tindivanam, the plaintiff has approached this Court with this Second Appeal.

This Second Appeal came to be admitted on 13.08.1993 on the following Substantial Questions of Law:-

"1. Whether the lower appellate Court was right in shifting the burden of proof on the plaintiff on the facts and circumstances of the case?

Whether the interpretation on the proper construction of Ex.A.1 to Ex.A.5 was legally sustainable?"

Conspectus of facts:

As it is seen from the averments made in the Plaint, the suit property is a lane, measuring East-West - 4 feet lying on the Western side of the plaintiff''s terraced house. It runs on the North-South direction. The defendants'' house is lying on the Western side of the suit property and therefore, it is made clear that the suit property is lying in between the houses of the plaintiff and the defendants. The plaintiff has contended that the lane lying on the Western side of his house had/has been used by him to reach his backyard as well as to have access to his cattle shed, hayrick and garbage pit. He has stated that excepting him, nobody including the defendants is having any right over the suit property.

It is also the case of the plaintiff that from 15.02.1985, the defendants have been denying the right of the plaintiff and they had also been giving out that they are entitled to the suit lane and also making arrangements to block the suit lane by putting up thorns. Hence, the plaintiff is constrained to file the suit for the relief as afore stated.

On the other hand, the defendants have denied the right of the plaintiff over the suit lane and also contended that the plaintiff had never used the four feet lane lying on the Western side of his house to use it as a lane to have access to his backyard. He had completed the construction of his house only in the year 1985 and neither he nor his predecessors had enjoyed the suit property at any point of time, before the construction was made.

The defendants have also pleaded that they are living in the said house which is lying on the Western side of the suit property along with his pangalis namely Muthusami Naicker, Muthukrishnan Naicker, Ananthai, Varadhan and Kannan. The said house is their ancestral house and that the suit property is the only way to have access to their house from the Street. There is no other way which connects the house of the defendants to the Street. Besides this, they have contended that the said house is an ancient one which is in existence for more than 150 years and therefore, they have been using the suit lane as a way to reach their house. Neither the plaintiff nor his predecessors had objected the defendants from using the suit lane.

Apart from this, the defendants have also contended that their ancestors used to drain sewerage and eaves through their suit property and the roof of their house projects to an extent of 2 feet over the suit property. Since the suit property is necessary for the enjoyment of the defendants'' house, the plaintiff cannot claim that he is exclusively entitled to the suit lane.

Based on the pleadings of the parties to the suit, the trial Court has formulated as nearly as eight Issues and in order to substantiate their respective cases, both the plaintiff and the defendants were directed to face the trial and accordingly, the plaintiff had examined himself as PW1. During the course of his examination, Ex.A.1 to Ex.A.5 were marked. On the other hand, the 1st defendant had examined himself as DW1 and one more witness was examined as DW2. During the course of their examination, Ex.B.1 alone was marked. Besides this, the Commissioner''s Report and Plan were marked as Ex.C.1 and Ex.C.2, respectively.

As afore stated in the opening paragraphs, on appreciation of the evidences available on record, the trial Court had at the first instance decreed the suit on 05.10.1990, as prayed for with costs.

Having been aggrieved by the impugned Judgement and Decree dated 05.10.1990, the defendants have preferred an appeal in A.S. No.72 of 1990 on the file of the learned Sub Judge, Tindivanam. After hearing both sides, the learned First Appellate Court had proceeded to allow the appeal, by setting aside the Judgment and Decree of the trial Court. Impugning the correctness of the Judgment and Decree of the lower appellate Court, the plaintiff has approached this Court with this Second Appeal.

Heard Mr. J.R.K. Bhavanathan, learned counsel for the appellant.

As observed in the foregoing paragraphs, two Substantial Questions of Law have been formulated by this Court, when the appeal was admitted on 13.08.1993. The first one would be "Whether the lower appellate Court was right in shifting the burden of proof on the plaintiff on the facts and circumstances of the case? and the second one would be "Whether the interpretation on the proper construction of Ex.A.1 to Ex.A.5 was legally sustainable?"

As adumbrated supra, the plaintiff has filed the suit in O.S.No.81 of 1985 on the file of the learned District Munsif, Gingee, for declaration as well as for perpetual injunction. Having been brought the suit claiming the relief of declaration, it is for the plaintiff to substantiate his claim through acceptable legal evidence.

As observed in Shantaben Sharma v. Tulsidas Sharma, 1980 GLR 887 (DB) (High Court of Gujarat), the discharging the onus in each case depends upon its own peculiar facts and there cannot be any pre-determined notions as to which party has to discharge onus in particular manner or at particular point of time or at which stage of the proceedings in a particular case. It is for the Courts to consider when can the onus be considered as shifted and the Courts will decide the question after taking into consideration the facts pleaded before it and the evidence adduced before it.

It is settled principle of law that where the plaintiff asks for a declaratory Decree, he/she must prove his/her title, it cannot take advantage of the weakness of the defendants. This proposition of law has been laid down in Moran Mar Basselios Catholicos and another v. Most Rev. Mar Poulose Athanasius and others, AIR 1954 S.C. 526.

Insofar as the present suit is concerned, this Court finds that the provision of Section 34 of the Specific Relief Act, 1963, would be more applicable as the present suit has been filed for the declaratory relief.

Chapter - VI of the Specific Relief Act deals with declaration decrees. Section 34 contemplates discretion of Court as to declaration of status or right. It envisages as under:

"Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."

In the present suit, the plaintiff has sought the relief of declaration as well as for perpetual injunction. As contemplated under Section 34 of the Specific Relief Act, the relief is discretionary in nature and cannot be claimed as a right. Court should consider the ends of justice while exercising discretionary power. Justice is a hall-mark and cannot be administered in vacuum. In Ramesh Chand v. Anil Panjwani, AIR 2003 SC 2508 : 2003 (4) JT (SC) 450 : 2003 (3) Mad LJ 26, the Apex Court has observed that the pros and cons of a case must be weighed by the Court before granting or refusing declaration or injunction and exercise discretion with circumspection to further the ends of justice.

The plaintiff in order to prove his case has produced 5 documents on his side and the defendants have marked only one document under Ex.B.1.

This Court has also perused all these documents. The plaintiff in his cross examination has deposed that originally, the suit property was belonged to one Chidambara Naicker. But, he has fairly admitted that no documentary evidence is available to substantiate this fact. No record is available to show the exact extent which is owned by Chidambara Naicker. He has also stated that the sons of Chidambara Naicker namely, Athimoola Naiker, Dhanappan, Santhappan and Parasuram have partitioned the properties. To prove this fact also, no documentary evidence has been produced by the plaintiff.

On perusal of the Commissioner''s Report and Plan, the Commissioner has stated that the suit lane is lying in between the houses of the plaintiff as well as the defendants. The plaintiff''s house is lying on the Eastern side of the lane. The defendants'' house is lying on the Western side of the lane. According to him, the defendants'' house is an ancient house and on the other hand, the plaintiff''s house was constructed only in the year 1985, as admitted by the plaintiff. According to the Commissioner''s Report and Plan, under Ex.C.1 and Ex.C.2, the suit lane measures North-South - 110 Feet and East-West - 4 Feet and 3 inches. He would further state that no trace is available to show that the lane is running up to backyard of the plaintiff''s house. On visualising the Plan under Ex.C.2, this Court is able to find that the suit lane runs straight to the garbage pit of the defendants and as stated by the Commissioner, the roof of defendants house projects, an extent of 2 feet over the suit property and this Court is also found that as it appears form the Commissioner''s Plan, the plaintiff could not have access to his backyard through the lane. As it appears form Ex.C.2-Plan, the measurement of the defendants'' property is East-West - 43 feet and 6 inches, whereas the measurement of the front portion of the plaintiff''s house is 24 feet and 3 inches and the vacant site lying on the eastern side of plaintiff''s house also measures 24 feet and 3 inches. If these two measurements are calculated, it comes to 48 feet and 6 inches. As admitted by the defendants, the other shares are Munusami Naicker, Muthukrishana Naicker, Ananthai, Santhappan and Kannappan Naicker and they are also residing in the same house. Therefore, it is obvious that the house site of the defendants measures 43 feet and 6 inches. As afore stated, the measurement of the plaintiff''s house site as well as the vacant site lying on the Eastern side of the plaintiff''s house are in total comes to an extent of 48 feet and 6 inches, whereas the defendants'' house site on the front portion measures East-West - 43 feet and 6 inches and if the East-West measurement of the lane is included with the measurement of the defendant''s property, it comes to 47 feet and 9 inches. Therefore, it can easily be presumed, based on the Commissioner''s Report and the Plan that as rightly contended by the defendants, in their Written Statement as well as in their evidence, the suit lane is the only way available to have access to the defendants'' house from the Street and there is no other way to connect their house from the Street. As rightly pointed out by the Commissioner, the defendants'' house appears to be an ancient one and therefore, they have been using the suit lane to have access to their house and backyard and the defendants both DW1 and DW2 have also stated that no iota evidence is available to show that the plaintiff has been using the suit lane to have access to his backyard to take the cattle and also to have access to his garbage pit and hayrick.

The argument advanced by Mr. J.R.K. Bhavanathan, leaned counsel for the appellant that the trial Court could not have come to the conclusion that the plaintiff had not established his case, is not discernible. When no sufficient evidence is available on the part of the plaintiff, it cannot be heard to say that he has established his claim that he is entitled to the suit property. Therefore, as observed in the opening paragraphs having been brought the suit for the relief of declaration, it is for the plaintiff to substantiate his claim and therefore, the burden cannot be shifted on the defendants. Therefore, the interpretation of the lower appellate Court on the proper construction of Ex.A.1 to Ex.A.5 is legally sustainable and accordingly, Substantial Questions of Law 1 and 2 are answered as against the plaintiff and in favour of the defendants.

In the result, the Second Appeal is dismissed and the Decree and Judgment dated 26.03.1993 and made in A.S.No.72 of 1990 on the file of learned Sub Judge, Tindivanam, are confirmed. However, there will be no order as to costs. Connected Civil Miscellaneous Petition is closed.