C. Palanisamy v. Mrs Muthayal

JUDGMENT This Second Appeal has been directed against the judgment and decree dated

04.11.2015 passed in A.S.No.41 of 2011 passed by the Subordinate Court, Sathyamangalam confirming the decree and judgment dated 24.06.2011 made in O.S.No.107 of 2009 on the file of the District Munsif Court, Sathyamangalam.

¶2The respondents / plaintiffs filed the above suit before the District Munsif Court, Sathyamangalam for the following reliefs:

i) thjpfSf;F ghj;jpag;gl;l tHf;F brhj;Jf;fSf;F. tHf;F A,B,C,D,E,F tz;oj;jlj;ijg; bghWj;J thjpfs; tz;o tifawh Xl;oa[k;. ele;J bfhz;Lk;. fhy;eilfs; bfhz;L brd;Wk;. cgnahfg;gLj;jp bfhs;Sk; chpikia tpsk;g[if bra;Jk;

ii)o thjpfs; jhth A,B,C,D,E,Fo tzo; jj; lj;ij rkhjhd Kiwapy; cgnahfgg; LjJ; tij gpujpthjpfnsh. mtuJ Mlf; nsh. css; Pll; hhf; nsh. cwtpdhf; nsh. vtt; ifapYk; ,ila{W braa; hkypUf;Fk; bghUl;L gpujpthjpfSfF; vjpuhf xU epuej; u cWj;Jff; ll; is ghpfhuk; tH'f; pa[k; o

iii)ojhth gpsphdpy; A,B,C,D,E,Fotzo; jj; ljj; py; gpujpthjpfs; X,XIo gs[ s; pfSf;F ,ilapy; K:';fpy; jlo; gly; itjJ; flo; Vwg; Ljj; pas[ s; jiliaa[k.; jhth gpshdpy; Y,YI,o gs[ s; pfSf;F ,ilapy; gpujpthjpfs; fkg; p ntyp mikjJ; k; gj[ pajhf bjdd; kg; ps;isfs; kw;Wk; thiHff; d;Wfs; nghd;wit itjJ; k; Vwg; Ljj; pas[ s; jilfis mgg; w[ gg; Ljj; xU typa[Wj;Jf; fll; is cjj; put[ gpwgg; pj;Jk.; mtt; hW gpujpthjpfs; braa; j; jtWk; glr; jj; py; nfhhl; ;L eltofi; ffs; K:yk; nkwg; o jilfis mfww; cjj; put[ gpwgg; pf;Fkg; ofF; k; o

iv)ojhth bryt[ bjhiffs; thjpfSfF; fpilf;Fk; gofF; k; kw;Wk;

v)orK:fk; nfhhl; l; hh; mthf; SfF; crpjkha; njhd;Wk; ,ju ghpfhu';fs.; tH'f; p jPhg; g; [ bra;J. jPhg; g; hiz tH'f; ntz;Lkha; thjpfs; tzff; kha; gpuhjj; pff; pwhh;fs/; The learned District Munsif, Sathyamangalam, by judgment and decree dated

24.06.2011, decreed the suit.

¶3Not being the satisfied with the findings arrived at by the Trial Court, the appellants/ defendants preferred an appeal in A.S.No.41 of 2011 before the Subordinate Court, Sathyamangalam, praying to set aside the judgment and decree of the Trial Court. However, by judgment and decree dated 04.11.2015, the First Appellate Court, dismissed the appeal and confirmed the judgment and decree passed by the Trial Court. Being aggrieved by the judgment and decree of the Trial Court, the defendants are before this Court by way of this second appeal.

¶4For the sake of convenience, the parties are referred to, as described before the Trial Court.

¶5The averments made in the plaint, in brief, are as follows:- The plaintiffs 1 and 2 are husband and wife and the 3rd plaintiff is the younger son of the plaintiffs 1 and 2. Since the elder son of plaintiffs 1 and 2 namely one Mr. Nagarajan died, his son, viz., one Mr.N.Venkateshwaran, is arrayed as the fourth plaintiff in the suit. The plaintiffs are the absolute owners of the suit properties. The wife and daughter of the deceased Mr.Nagarajan relinquished their rights in the suit property by way of two release deeds dated 04.08.2005 in favour of the fourth plaintiff and the same were registered before the Sub-Register Office, Sathyamangalam as Documents Nos.2435 & 2436 of 2005.

(ii) The suit properties are situated at Ariyappampalayam Village in Survey Nos.112, 113 and 114, which is described as ABCDEF in the plaint plan. The cart track is described in the plaint plan, for which, the defendants are restraining the plaintiffs from enjoyment of the said portion and therefore, the plaintiffs sought the relief of permenant injunction restraining the defendants from interfering with the plaintiffs' peaceful enjoyment in the said portion of the suit properties. In respect of ABCDEF portion as mentioned in the plaint plan, one Mr.N.Avinasilingam filed a suit against the plaintiffs 2 and 3 and the father of the fourth plaintiff along with 10 other persons before the District Munsif Court, Gobichettipalayam in O.S.No.480 of 1984. In the said suit, there was consent decree dated 19.09.1985 passed by the said Court. In the said suit, the first defendant was arrayed as the 13th defendant.

(iii) After passing of the said decree dated 19.09.1985, the plaintiff in the said suit viz., the said Mr.A.N. Avinasilingam sold his share of the property to the second defendant and from then onwards, the second respondent was in enjoyment of the said property. The 6th defendant herein was the 9th defendant in the said suit. Defendants 2,4 & 5 are the sons of the first defendant. The third defendant is wife of the second defendant. Therefore the consent decree passed in O.S.No.480 of 1984 will be binding on defendants 1 to 6 in the present suit. While so defendants 1to 6 turned down the judgment and decree passed in O.S.No.480 of 1984 and are acting against the same. Moreover, in the compromise memo filed in O.S.No.480 of 1984, it has been clearly stated that in ABCDEF portion, which is a cart track, the plaintiffs are entitled to take their men and cattle and are entitled to use the same for other purposes also. It has also been mentioned in the said decree that the plaintiffs in the said suit should not change or obliterate the said cart track and that it should be maintained as it is.

(iv) While so, the defendants herein, with an ulterior motive to grab the suit property from the plaintiffs, approached the plaintiffs to sell the suit property for meagre consideration. When the same was refused by the plaintiffs, obstructed the defendants the usage of the cart track by putting fence shown as XX1 & YY1 in the plaint plan. Hence, the plaintiffs are unable to enjoy the said cart track shown as ABCDEF in the plaint plan. Moreover, the defendants have no right to obstruct the enjoyment of the suit property by the plaintiffs. The plaintiffs are using the cart track as pathway to reach thier house since there is no other alternative pathway to reach the house of the plaintiffs. Hence, the plaintiffs were constrained to file the above suit seeking the relief of declaration, permenant injunction and mandatory injunction for removal of the obstructions made by the defendants.

¶6On the other hand, the defendants filed a written statement stating as follows:-

(i) The defendants are the owners of the land in S.F.No.249, which is adjacent to the plaintiffs' land in S.F.No.249. There is an East West cart track in S.F.No.249, which is absolutely situated in the defendants' land and the same absolutely belongs to the defendants alone and it is used to take cart and cattels in order to reach the other portion of the defendants' land. The plaintiffs have no right, title or interest over the same at any point of time. The plaintiffs never enjoyed the said suit cart track as alleged in the plaint.

(ii) The compromise decree dated 19.09.1985 passed in O.S.No.480 of 1984 on the file of the District Munsif Court, Gobichettipalayam is not binding on the defendants since they were not parties to the said compromise and therefore, the same could not be enforced against them. The compromise was entered into between the parties who had no valid title to the suit property. Hence, the plaintiff cannot claim any title based on the above said compromise decree. Even if the 1st defendant and the 6th defendant were added as parties to the suit in O.S.No.480 of 1984, they were set ex-parte and therefore, the said decree could not be enforced against them. Morever, the alleged purchase of the portion of the land from the said Mr.Avinasilingam, did not create any right to use the cart track. Though the defendants have put up a new fence in the ABCDEF portion, it would not create any right or title to the plaintiffs over the suit cart track since the defendants are entitled to put up any construction in their land. Even the sale deeds dated 03.12.1980 & 26.03.1987, through which the plaintiffs' purchased their land, do not give any right in the suit cart track. Hence, the suit filed by the plaintiffs are liable to be dismissed.

¶7Based on the above averments, theTrial Court framed necessary issues and tried the suit. On the side of the plaintiffs, PW1 (4th plaintiff) and PW2 were examined and Exs.P1 to P23 were marked. On the side of the defendants, DW1 (the 1st defendant) & DW2 were examined and Ex.D1 was marked. The Trial Court also marked the Commissioner Report and his sketch as Exs.C1 & C2.

¶8Having considered the materials placed, the Trial Court, by judgment and decree dated 24.06.2011, passed the decree in favour of the plaintiffs. In the appeal filed by the defendants, the findings arrived at by the Trial Court were confirmed by the First Appellate Court. Aggrieved by the judgment of the First Appellate Court, the defendants are before this Court with the above Second Appeal.

¶9When the Second Appeal came up for admission before this Court on

02.08.2016, this Court formulated the following substantial questions of law:- " i) Whether the decrees and judgments of the courts below are legally sustainable in as much as that they have failed to note that the compromise decree passed in O.S.No.480 of 1984 on the file of the District Munsif Court, Gobichettipalayam is not binding on the appellants as they were not parties to the compromise and the same cannot be enforced against these defendants?

ii) Whether the decrees and judgments of the courts below are legally sustainable in as much as that they have failed to note that the respondents have not based their suit making any claim of title or easement of necessity over the suit cart track?

iii) Whether the decrees and judgments of the courts below are legally sustainable in as much as they have not properly considered the Exs.A2 to A6 and also Ex.A7 the Sale Deeds in favour of the respondents which are not giving any right or title over the suit cart track? "

¶10Heard both sides and perused the materials available on record.

¶11The learned counsel appearing for the appellants / defendants contended that the Courts below erroneously held that the compromise decree passed in O.S.No.480 of 1984 is not binding on the appellants and that, the property mentioned in O.S.No.480 of 1984 is different from the property mentioned in the present suit and that the cart track mentioned in the present suit is not situated in the property belonged to the said Mr.Avinasilingam, who was the plaintiff in O.S.No.480 of 1984. The learned counsel further contended that the Courts below failed to note that the respondents never enjoyed the suit cart track, that they have not made any claim of title or easement of necessity over the suit cart track and that the Courts below had not properly considered the sale deeds dated 03.12.1980 and 26.03.1987, through which, the respondents purchased their land which did not give and right or title over the suit cart track.

¶12The learned counsel for the appellants would submit that as per the description of the property in Ex.B1 Sale Deed, the first defendant and his wife purchased 7 acres of land including the disputed cart track. His further contention is that the Advocates Commissioner's Report and plan would reveal that the said 7 acres of land is owned by the first defendant and his wife. The compromise decree dated

19.09.1985 passed in O.S.No.480 of 1984 could not be enforced against the defendants, since the same was entered into between the parties, who had no title over the suit property. He would further submit that though the 1st defendant and 6th defendant were added as parties in the said suit, they were set ex-parte and therefore, it is not binding on them and that the other defendants herein were not added as parties to the said suit. Therefore the plaintiffs are not entitled to a decree in the present suit pursuant to the compromise decree passed in O.S.No.480 of 1984.

¶13On the other hand, the learned counsel appearing for the respondents/plaintiffs would submit that the said compromise decree in O.S.No.480 of 1984 should be acted upon for the reason that the said compromise was entered into between the vendor of the second defendant, viz., the said Mr. Avinasilingam, who was the plaintiff in O.S.No.480 of 1984. Moreover, for the reasons best known to the defendants, the said Sale Deed executed by the said Mr.Avinasilingam, and the second defendant was not marked at the time of Trial, which would show that with an ulterior motive, the said Sale Deed in favour of the second defendant in respect of the their property was not marked by the defendants. The second defendant is none other than the son of the first defendant. Even in written statement filed by the defendants, it was not demonstrated that the sale deed was entered into between the plaintiff in O.S.No.480 of 1984 and the second defendant. Further, the 1st and 6th defendants in this suit were added as 13th and 9th defendants in O.S.No.480 of 1984. Though they remained ex-parte, unless the decree passed against them is set aside, the decree is still in force and enforceable against the defendants. Therefore, the said compromise decree is binding upon of the defendants who are closely related to the first defendant. Hence, the present Second Appeal is liable to be dismissed.

¶14This Court has carefully considered the submission on either side.

¶15It is not in dispute that both the plaintiffs and defendants are owning lands adjacent to the disputed portion. The claim of the plaintiffs is that pursuant to the decree passed in O.S.No.480 of 1984, the plaintiffs are entitled to ABCDEF portion as mentioned in the plaint plan. It is the case of the plaintiffs that the said Mr.Avinasilingam filed a suit in O.S.No. 480 of 1984 on the file of the District Munsif Court, Gobichetteipalayam against plaintiffs 1 to 3, the father of the 4th plaintiff, viz., Mr.Nagarajan and 10 others with regard to the suit ABCDEF cart track, in which, on

19.09.1985, there was a compromise decree passed in the said suit. In the said suit, the first defendant herein was added as 13th defendant and after the said compromise decree passed in O.S.No.480 of 1984, the 2nd defendant herein had purchased the suit property from the said Mr.Avinasilingam and he has been in enjoyment of the same. The 6th defendant in this suit was added as the 9th defendant in O.S.No.480 of 1984. Therefore the compromise decree passed in O.S.No.480 of 1984 is binding on the defendants. However, now, the defendants are acting contrary to the decree passed in O.S.No.480 of 1984 in spite of specific mentioning in the compromise memo with reference to the cart track.

¶16The plaintiffs have extracted para 2 and 3 of the Compromise memo filed in O.S.No.480 of 1984 and the same are extracted herein: - " m/t/480/84y; xj;jpirt[ kDtp;d; 2tJ ghuhtpy; bjspthf fPH;fz;lthW Twg;gl;Ls;sJ

',j;Jld; jhf;fy; bra;Js;s tiuglj;jpy; A,B,C,D,E,F tz;oj; jlj;ij cgathjpfs; tz;o tifawh Xl;or; bry;yt[k;. fhy;eilfs;. Ml;fs; ele;J bry;yt[k; cgnahfg;gLj;jpf;bfhs;s ntz;oaJ ' vd;W Fwpg;ghf fhzg;gl;Ls;sJ/ mnj nghy xj;jpirt[ kD 3tJ ghuhtpy; fPH;fz;lthW bjspthff; Twg;gl;Ls;sJ :- " tiuglj;jpy; ABCDEF vd;W fhl;lg;gl;Ls;s tz;oj; jlj;ij cgathjpfs; ahUk; khw;wnth. mHpf;fnth TlhJ/ " tz;og;ghijia cgathjpfs; midtUk; mt;tg;nghJ brg;gdpl;L ey;y epiyapy; itj;Jf; bfhs;s ntz;oaJ/"

¶17While so, the defendants put up a bamboo barricade in XXI portion as shown in the plaint plan and iron fence in Y, Y1 portion. The defendants also planted Coconut and Banana Trees in the cart track, thereby, obstructing the plaintiffs from enjoying 'ABCDEF' cart track, for which, the defendants had no right or title as per the compromise decree passed in O.S.No.480 of 1984. Therefore, the contention of the defendants, that the compromise decree passed in O.S.No.480 of 1984 is not binding on them as the same was entered into between the parties, who had no valid title over the suit property is unsustainable. The learned counsel for the appellants would further contention is that as per Ex.B1 Sale Deed, the defendants are entitled to get 7 acres of land in the suit property includes the disputed cart track.

¶18Admittedly there is a compromise decree passed in O.S.No.480 of 1984, in which, the plaintiffs 1 to 3 and the father of the 4th plaintiff and defendants 1 and 6 were added as parties. The defendants have not denied that the second defendant purchased the property from the plaintiff in O.S.No.480 of 1984 viz., the said Mr.Avinasilingam, who is a party to the said compromise decree. In the said suit, the first defendant and the sixth defendant were set ex-parte. However, they failed to challenge the decree passed in the above suit. Therefore, the decree in O.S.No.480 of 1984 would be binding on all the defendants though the defendants, through Ex.B1, claimed that they are entitled to 7 acres of land pursuant to the decree passed in O.S.No.480 of 1984. The defendants cannot deny the plaintiffs' right in using the disputed cart track and the same cannot be obstructed by the defendants. Therefore, the findings arrived at by the Courts below, do not warrant intereference, which are based upon factual and legal aspects. Therefore, I am of the considered opinion that no substantial question of law arrises for consideration in this appeal.

¶19In view of the above discussions, the Second Appeal is dismissed. The Judgments and decrees of the Trial Court and the First Appellate Court are hereby confirmed. No costs. .01.2024 Index : Yes/No Speaking order/Non speaking order adl/vsn To

¶1The learned Subordinate Judge, Sathyamangalam,

¶2The learned District Munsif of Sathyamangalam.

MRS.JUSTICEK.GOVINDARAJAN THILAKAVADI, J.

adl/vsn

Pre-Deliver Order in S.A.No.586 of 2016

.01.2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved On : 21.12.2023 Delivered on : .1.2024 CORAM : THE HON'BLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI S.A.No.586 of 2016 1. C.Palanisamy 2. Elango 3. Prabha 4. Arulanandham 5. Uthayakumar 6. Raju .. Appellants Vs. A.K.Patchagounder (deceased) 1. Mrs.Muthayal 2. Easwaran 3. N.Venkateshwaran ... Respondents Prayer: This Second Appeal is filed under Section 100 of the CPC against the Judgment and decree dated 04.11.2015 made in A.S.No.41 of 2011 on the file of the learned Subordinate Judge, Sathyamangalam, confirming the decree and Judgment dated 24.06.2011 made in O.S.No.107 of 2009 on the file of the learned District Munsif of Sathyamangalam. For Appellants : Mr.S.Mukunth Senior Counsel for Mr.R.Sivakumar For Respondent Nos.1 to 3 : Mr.S.Kaithamalai Kumaran