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K. Murugesan & Others v/s Subramani, Represented by her duly constituted Power of Attorney Agent, Vengayee

    S.A. No. 328 of 2012 & M.P. No. 1 of 2012
    Decided On, 14 December 2021
    At, High Court of Judicature at Madras
    For the Appellants: S. Vadivel Murugan, Advocate. For the Respondent: J. Prithivi, Advocate.

Judgment Text
(Prayer: Appeal is filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 08.08.2011 made in A.S.No.25 of 2011 on the file of the I Additional Sub Court, Salem, in confirming the judgment and decree dated 21.10.2010 made in O.S.No.8 of 2008 on the file of the I Additional District Munsif Court, Salem.

The defeated defendants have filed the present second appeal challenging the judgment and decree dated 08.08.2011 passed by the learned I Additional Sub Judge, Salem, in A.S.No.25 of 2011, confirming the judgment and decree dated 21.10.2010 passed by the learned I Additional District Munsif, Salem, in O.S.No.8 of 2008.

2. The respondent/plaintiff has filed the suit in O.S.No.8 of 2008 before the learned I Additional District Munsif, Salem, seeking permanent injunction restraining the appellants/defendants from interfering with the peaceful possession and enjoyment of the suit property. The suit was decreed and hence, the defendants have preferred an appeal in A.S.No.25 of 2011 and by judgment dated 08.08.2011, the learned I Additional Sub Judge, Salem, has dismissed the said appeal and confirmed the judgment passed by the learned I Additional District Munsif, Salem. Aggrieved by the same, the defendants have preferred the present second appeal before this Court.

3. Notice of motion was ordered on 07.06.2012. The respondent's counsel entered appearance.

4. This Court heard the rival submissions made by the learned counsel on either side and perused the records.

5. The claim of the respondent/plaintiff, in short, is that the suit property is a pathway in the schedule of lands comprised in Survey Nos.7 and 8 in Koothanur Village, Salem Taluk, and the same has been settled in the name of the plaintiff and his power agent is managing the same. The defendants, who are neighbouring land owners, are trying to interfere with the suit property and hence, the plaintiff has filed the above said suit.

6. The defendants have filed written statement before the trial Court stating that the properties of the plaintiff are situated in between the lands of one Palanisamy and Iyyana Gounder. The defendants and others have to pass through the pathway abetting the plaintiff's land and others land to reach their lands. The foot path coming from Kothanoor to Perumampatty take a turn on South, passes through the lands of one Palanisamy, Iyyana Gounder and others. The plaintiff's land and the defendants land goes further to the properties in Survey No.8. The defendants' properties in Survey Nos.8/21 and 8/2M are on the South and West of the Vengayee, the plaintiff's Power Agent's land. Hence, there is no problem for her to use that land. The only requirement of the defendants is that the plaintiff should not block the foot-path, in which only a Two Wheeler could come, which connects the defendants' land to Kothanoor and Perumampatty.

7 [i]. To appreciate the factual positions, the plaintiff, through his power of attorney namely, Vengayee/P.W.1, both in the pleadings and the evidence has stated that the plaintiff Subramani has executed a Power of Attorney deed to Vengayee. Vengayee's husband by name Palani Gounder married her sister namely, Laxmi also with the consent of the Power Agent-Vengayee, since no issues were born to Vengayee and Palani Gounder. Laxmi and Palani Gounder gave birth to the plaintiff/Subramani. Apart from the plaintiff/Subramani, Laxmi gave birth to a daughter by name Dhanam.

7 [ii]. The first defendant is the son of defendants 2 and 3. The fourth defendant is the wife of the first defendant. The suit property is an agricultural land pathway. Since the year 1934, the plaintiff's Power Agent-Vengayee, father-in-law and mother-in-law by name Arumuga Gounder and Chinnapillai Ammal respectively were enjoying the suit property and its possession was continued by the plaintiff's Power Agent.

7[iii]. On 07.06.2002, the plaintiff's Power Agent had executed a registered Gift Settlement Deed in favour of Subramani (Plaintiff) and placed him with the possession of the suit property. The said Settlement Deed was executed out of love and affection towards the plaintiff and it is acted upon. The plaintiff's Power Agent is maintaining the plaintiff and looking after his welfare and giving medical aid. Hence, the plaintiff is under the care and custody of his Power Agent.

7 [iv]. The suit property relies Survey Nos.7 and 8 and Survey No.7/6-F is the pathway. Survey No.8 comprised the following Sub Divisions namely 8/1-A, 8/1-B, 8/1-C and 8/2-A which are the suit properties. The suit relates to the pathway viz., (Survey No.7/6-F) belonging to the plaintiff.

8. As stated supra, the defendants claimed that the plaintiff should not block the pathway in which he could use the two wheeler to connect the defendants' land to Koothanur panchayat road.

9. Before the trial Court, on the side of the plaintiff, Power Agent of the plaintiff viz., Vengayee was examined as PW.1 and one Palanichamy and Kathirvel were examined as P.Ws.2 and 3 and Ex.A.1 to Ex.A.23 were marked.

10. Exs.A.1 to A.5 are the title deeds as to the derivative title of the plaintiff while Exs.A.6 to A.9 are the revenue records, patta, chitta and settlement registers and the sketch connected therewith. The police complaint and photographs are the other documents. On the side of the defendants, two witnesses were examined as D.W.1 and D.W.2 and 8 documents were marked as Ex.B.1 to Ex.B.8.

11. In view of the dispute as to the usage of the pathway situated in the plaintiff's land, an Advocate Commissioner was appointed and the Advocate Commissioner has inspected the suit property and filed his report and the same was marked as Ex.C.1 and the Sketch was marked as Ex.C.2. P.W.2-Palanichamy marked the document Ex.B.9, which is the joint patta and Ex.B.19, xerox copy of Rough Sketch. In connection thereto, P.W.3-Kathirvel, who is the Village Administrative Officer, had deposed as follows:-


12. From the oral evidence of the revenue witness-P.W.3 coupled with Exs.C.1 and C.2, both the Courts below have concurrently comes to the conclusion that the subject matter of the lis viz., suit pathway in Survey No.7/6-F belongs to the plaintiff and that pathway is for the joint pattathar only and the alternate road leading to the defendants' area is described in the second paragraph extracted supra.

13. Exs.A.20 and 21 are the village map. Based upon the very same village map, the Advocate Commissioner has inspected the suit property and marked his report under Ex.C.1 and also marked sketch under Ex.C.2, which goes to show that there is an alternate pathway and if the defendants uses this pathway, they have to travel 534 meters to reach their lands from the main panchayat road and the alleged alternate pathway is also same distance, as could be seen from the Advocate Commissioner's report. At this juncture, it is pertinent to note that D.W.1, in the witness box, has categorically admitted that the suit land is a patta land belongs to the plaintiff and there is no recitals in his document to show the usage of suit land, which is situated in patta land assumes significance. The trial Court has accordingly rendered a factual finding and it has been properly re-appreciated by the Lower Appellate Court.

14. The sole contention that was raised by the learned counsel for the appellants/defendants is that there was no alternate pathway. However, based upon the oral evidence of P.W.3-Village Administrative Officer coupled with the documentary evidence Ex.A.20 and Ex.A.21 and Exs.C.1 and C.2, both the Courts below have concurrently held that even going by both the roads viz., using the pathway in the plaintiff's land or going in the alternate way both are equally 534 meters. Besides, the defendants are not the co-owners of the suit property. The revenue witness P.W.3 has categorically stated that the pathway is meant for the joint pattathar only viz., co-owners of the plaintiff only. The appellants/defendants are not, admittedly, the co-owners. It is not the plea of the appellants/defendants in the written statement that they were in possession and enjoyment

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of the suit property and hence, the concurrent findings rendered by both the Courts below do not suffer from any irregularity or illegality warranting interference at this appellate stage. I find no substantial questions of law involved in this second appeal. The order passed by the Lower Appellate Court is well considered and well merited which does not warrant any interference by this Court. Accordingly, the Second Appeal is devoid of merits and the same is liable to be dismissed. 15. In the result, [i] The Second Appeal is dismissed and the judgment and decree dated 08.08.2011 passed by the learned I Additional Sub Judge, Salem, in A.S.No.25 of 2011, confirming the judgment and decree dated 21.10.2010 passed by the learned I Additional District Munsif, Salem, in O.S.No.8 of 2008, are confirmed. The connected miscellaneous petition is closed.[ii] However, there shall be no order as to costs.