M. Nagammal vs M. Sundarambal

K. Kalyanasundaram, J.—Aggrieved over the Judgment passed by the learned Principal Sub Judge, Madurai in A.S. No. 138 of 2001, the present appeal is filed.

For convenience, the parties are referred as per their litigate status in the Suit.

The appellant is the defendant in O.S. No. 318 of 1995. The respondent filed the suit for declaration and permanent injunction. The case of the plaintiff is that the suit property originally belonged to one Venkatasamy Gounder and through a sale deed, dated 21.09.1978, the plaintiff purchased the property and thereafter, she constructed a house and residing there; that on eastern side of the property, there is a public lane, at the width of 10 feet and on the southern side also there is a public road at the width of 13 feet and the plaintiff has been using the lane. But, the defendant has attempted to encroach on the 10 feet public road, while constructing a compound wall. The defendant has refused to hear the request of the plaintiff, not to encroach on the public road, hence, the present suit.

Resisting the claim of the plaintiff, the defendant filed written statement disputing the averments made in the plaint and she also further contended that the plaintiff has attempted to encroach on the public road and when it was questioned by the defendant, the plaintiff has instituted the suit.

To substantiate the case, the plaintiff has examined two witnesses, P.Ws.1 and 2 and marked Exs. A1 and A2 and on the side of the defendant, she examined herself as D.W.1 and marked Exs. B1 and B2. The report of the Commissioner and the plan were produced and marked as Exs. C1 and C2.

The trial Court has framed necessary issues, after considering the evidence eventually dismissed the suit. Aggrieved by the Judgment and Decree, the plaintiff filed an appeal in A.S. No. 138 of 2001, before the Sub Court, Madurai. The learned appellate Judge allowed the appeal and decreed the suit. Aggrieved by the reversal judgment, the defendant has filed the present appeal.

The Second Appeal was admitted on the following Substantial Question of Law:-

"While there is a dispute with regard to the border of two owners of different properties, will the failure to get the properties measured by a Surveyor, have a vital bearing on the issue of possession."

Heard Mr. M. Thirunavukkarasu, learned counsel for the appellant and Mr. AR.L. Sundaresan, learned Senior Counsel for Mr. AL. Gandhimathi, learned counsel for the respondent.

The learned counsel for the appellant submitted that originally the plaintiff has filed the suit for permanent injunction and subsequently, amended the suit including the prayer of declaration, but he has not paid separate court fee for the relief; that the lane in 10 feet north-south pathway and 12 feet east-west public road are belonging to the Panchayat, which is meant for the use of general public and therefore, the plaintiff cannot claim exclusive possession and enjoyment of the road; that the plaintiff has admitted in his evidence that the defendant has not interfered with his possession and enjoyment of the property and therefore, the plaintiff is not entitled for decree of permanent injunction.

It is further contended by the learned counsel for the appellant that Ex. C1, report of the Advocate Commissioner would show that the plaintiff has encroached on the eastern 10 feet pathway and the septic tank constructed by the defendant was not causing any disturbance to the plaintiff nor to the public and therefore, the judgment of the lower appellate Court is liable to be set aside be this Court. It is further submitted that the lower appellate Court having found that the plaintiff has encroached at 10 feet pathway, ought not to have been directed the defendant to file a separate suit to remove the encroachment; that the lower appellate Court further having found that the 10 feet pathway and 12 feet road belonging to the Panchayat, ought not to have decreed the suit for declaration.

Per contra, Mr. AR.L. Sundaresan, learned Senior Counsel appearing for the respondent made submission in support of the judgment of the lower appellate Court.

It is not in dispute that the plaintiff is owner of the Plot No. 40 situated in S.F. No. 405/2 of Thirupalai Group, Naganakulam Village and the plaintiff herself admitted the 10 feet north-south pathway and 12 feet east-west public road are belonging to the Panchayat and the general public are entitled to use the lane and the public pathway.

The report of the Commissioner shows that the defendant had constructed a septic tank encroaching one feet on the north-south pathway and the report also shows that the septic tank does not cause any hindrance/obstruction to the enjoyment of the plaintiff or the general public. The defendant has not disputed the title of the plaintiff over the Plot No. 40 and the building constructed therein. Even P.W.1 himself admits that the defendant has not interfered with the enjoyment of the house constructed in Plot No. 40. P.W.1 has not produced any evidence to prove that construction of septic tank by the defendant causes inconvenience to him.

In view of the admission made by P.W.1 and my findings supra, the Second Appeal is partly allowed. The plaintiff is entitled for declaration of her title over the property in Plot No. 40. 10 feet pathway and 12 feet road are declared as public road. Both the plaintiff and the defendant are entitled to use the Road without causing any interference to others. The construction of the septic tank by the defendant is not causing any hindrance to the plaintiff''s right over the enjoyment of the public road. However, in future the parties shall not put up any construction in the public road. No costs. Consequently, connected miscellaneous petition is closed.