Jayarama Udayar vs Rajamanickam and Others

M. Karpagavinayagam, J.—Jayarama Udayar, the plaintiff is the appellant herein.

The appellant filed a suit for permanent injunction against the defendants, the respondents herein to restrain them from interfering with the suit

cart track. The trial Court decreed the suit in favour of the plaintiff/appellant. However, the lower appellate Court in the appeal filed by the

defendants/respondents, allowed the appeal and dismissed the suit filed by the plaintiff, the appellants herein. Hence, the second appeal.

The case of the plaintiff is as follows :--

The plaintiff is the owner of the lands situate in Survey Nos. 129/5, 129/6, 129/8, 130, 59/1, 59/2, 59/3. To reach the said lands, from

Vaniyanthangal village to Sithathur road, the plaintiff has to use the cart track portion marks as ''ABCD'' which starts from Sithathur road to the

plaintiffs lands and which is a poramboke and Government tharisu situate in S. No. 129/9. This cart track has been used by the plaintiff as well as

his ancestors for the past 50 years. Except the said cart track; there is no other pathway to reach his lands. On the eastern side, the defendants

have got lands in S. No. 60. In order to occupy the lands in S. No. 129/9, the defendants have been preventing the plaintiff from using the cart

track from 20-6-1987. Therefore, the plaintiff filed the suit against the defendants for permanent injunction restraining them from interfering with the

use of the cart track which is drawn as ''ABCD'', in S. No. 129/9.

The case of the defendants is as follows :--

The said portion ''ABCD'' is not a cart track. The suit property is a Government tharisu which has been in possession and enjoyment of the

defendants for long number of years. On the eastern side, there are patta lands which are in the name of the defendants. Therefore, the defendants

obtained ''B'' Memos from the Government and they have been using the suit property also. There is another pathway situate on the western side,

a poramboke land which reaches the lands of the plaintiff. Instead of using the said pathway, the plaintiff is trying to enter into the Government

tharisu which has been used by the defendants to use the same as a cart track to reach their lands situate on the southern side. Therefore, the suit is

liable to be dismissed.

After framing necessary issues, the trial Court on considering the evidence of P.Ws. 1 to 3 and Exs. A1 to A20 on behalf of the plaintiff and

D.Ws. 1 and 2 and Ex. B1 on behalf of the defendants concluded that the plaintiff would be entitled to use the cart track, namely the suit property,

as he had established that there is only one way to reach his lands. The alternate pathway pointed out by the defendants was not usable as the

same 6 feet below under the bridge, that too, surrounded by pits and bushes.

The lower appellate Court in the appeal filed by the defendants set aside the judgment and decree of the trial Court mainly on the ground that

the defendants have filed Ex. B1, the adangal for S. No. 129/9 to establish that he was in possession of S. No. 129/9 and that the defendants

obtained ''B'' Memo in respect of the said land.

The substantial questions of law raised in the Memorandum of second Appeal are as follows :--

1) Whether the lower appellate Court is right in ignoring the Commissioner''s report in Ex. C1 and C2 showing the existence of cart track in S. No.

129/1 and that being the only way to reach the plaintiff''s land?

2) Whether the lower appellate Court ought not to have held that the plaintiff has a right of way and necessity to reach his land through the

poramboke and the same is fortified by C1 and C2 and the evidence of P.Ws. 1 to 3 ?

3) Whether the lower appellate Court ought not to have seen that the defendants have failed to establish their case of alternate way through the

Oodai poramboke and even otherwise whether the evidence of D. W. 2 in accepting that the road is 6 ft higher than the Oodai poramboke would

not establish that the case as pleaded by the defendant is false and untrustworthy?

4) Whether the lower appellate Court is not in error in holding that the appellant had not paid B. Memo and therefore not in possession and should

it not have seen that penal theeravai is not collected for cart track?

5) Whether the order of the lower appellate Court in A. No. 451/87 and dt. 25-2-1992 is not even otherwise illegal, incompetent and without

jurisdiction and in any event liable to be set aside?

On the strength of these questions of law, the learned counsel appearing for the appellant would mainly contend that the finding of the lower

Court with reference to Ex. B1 which is of no relevance and its decision that Ex. B1 proves the possession of the defendants and the ultimate

dismissal of the suit by the lower appellate Court is not well founded, particularly when Ex. B1 does not disclose the occupation of the lands by the

defendants in the entire survey number.

On the other hand, the learned counsel for the respondents would submit in support of the reasonings given by the lower appellate Court.

I have carefully considered the submissions made by the counsel on either side.

At the outset, 1 shall mention that the approach of the lower appellate Court giving a finding without discussion of the materials in two

paragraphs is quite unwarranted.

The question which arises for consideration is as to whether the plaintiff has been using the suit property, namely ''ABCD'' as a cart track to

reach his lands for about 50 years and whether there is any other alternative pathway to reach his lands.

In my view, the trial Court had considered the said question in detail and discussed the evidence of both P.Ws. 1 to 3 and D.Ws. 1 and 2 in

the light of the documents filed by the respective parties and correctly come to the conclusion that the suit property, namely cart track, is the only

pathway for the plaintiff to reach his lands and alternative pathway as projected by the defendants is not at all usable.

Without going into the above aspect, the lower appellate Court in a slipshod manner state that the plaintiff has not proved usage of the cart

track, as he has not obtained ''B'' Memo like the ''B'' Memo in respect of S. No. 129/9 obtained by the defendants. This reasoning. In my view, is

quite perverse.

The ''B'' Memo or Adangal Ex. B1 does not disclose the occupation of the defendants in the entire survey number. On the other hand, it is the

case of the plaintiff that in S, No. 129/9 the plaintiff has been using only ''ABCD'' portion, i.e. 320 links length from south to north and 20 links

breadth from east to west. Therefore, Ex. B1 would not help in any way to solve the dispute which arises for consideration in the present suit.

The specific finding given by the trial Court with reference to the fact that there is no alternative pathway is on the basis of the evidence of

P.Ws. 1 to 3 which is clearly supported by the Advocate Commissioners report and plan marked as Exs. C1 and C2. It is specifically stated in the

said report that there is a cart track marked as ''ABCD'' in the plan. The relevant portion is as follows :--

It is also admitted by D.W. 2 that in the portion pointed out as an alternative pathway there are pits and bushes, which is situate under the bridge

and in rainy season the said pathway cannot be used.

Under those circumstances, I do not ""ind any defect in the reasonings given by the trial Court. On the other hand, the lower appellate Court

without considering the question aforementioned ,dismissed the suit merely on the ground that plaintiff has not produced the ''B'' Memo in his

favour. This is due to utter lack of attention to be given to the point in issue that arises for consideration in the suit.

Furthermore, the lower appellate Court has not discussed the materials and not even framed the points for determination. The duty of the lower

appellate Court is not only to go into the reasonings given by the trial Court but also to analyse the materials such as oral and documentary

evidence in its own way, as the same is the final Court of fact.

As indicated above, the dismissal of the suit by the lower appellate Court is mainly on the basis of Ex. B1 which is not at all a relevant

document. Moreover, Ex. B1 does not show the extent of occupation. On going through the judgment of the lower appellate Court, it is clear that

it has neither discussed the materials available on record nor gone into the reasonings given by the trial Court in order to decide whether those

reasonings are correct or not.

Under those circumstances, I am of the view that the finding given by the lower appellate Court is perverse and the same is liable to be set

aside and accordingly it is set aside.

In the result, the second appeal is allowed. The judgment and decree passed by the lower appellate Court are set aside and the judgment and

decree of the trial Court are restored. No costs. Consequently C.M.P. No. 3728 of 1998 is closed.