(Prayer:Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 31.03.1998 made in A.S.No.58 of 1996 on the file of the Additional Subordinate Court, Tenkasi, reversing the Judgment and decree dated 29.09.1995, made in O.S.No.70 of 1992 on the file of the District Munsif Court, Sencottai.)
1. This Second Appeal has been filed against the judgment and decree dated 31.03.1998 made in A.S.No.58 of 1996 on the file of the Additional Subordinate Court, Tenkasi, reversing the Judgment and decree dated 29.09.1995, made in O.S.No.70 of 1992 on the file of the District Munsif Court, Sencottai.
2. The appellants are the defendants, who succeeded in the Trial Court, but lost in the first appellate Court. The first respondent and one Periyanayaga Mudaliar filed a suit in O.S.No.70 of 1992 before the District Munsif Court, Sencottai, for a declaration, declaring Schedule II property as common pathway and for an injunction restraining the appellants from interfering with their usage of the said land as pathway. Subsequent to his examination as a witness, the second plaintiff viz., Periyanayaga Mudaliar died. The respondents 2 to 6/Legal Heirs of the deceased second plaintiff were brought on record as plaintiffs 3 to 7 in the suit. Pending second appeal, the first respondent/first defendant also died. The respondents 7 to 11 were brought on record as Legal Representatives of the first respondent.
3. For convenience, the parties are referred to as per their rank in the suit in O.S.No.70 of 1992.
4. Facts of the case:
(i) The father of the plaintiffs purchased various properties including the suit property from the ancestors and family members of the defendants. The second schedule property is a common pathway and both the plaintiffs and defendants are using the same as common pathway for more than 40 years. The defendants encroached the northern portion of the pathway and are interfering with possession and enjoyment of common pathway. Therefore, the plaintiffs filed the suit for the relief referred to above.
(ii) The defendants filed written statement and stated that Schedule II property is not a common pathway. It is a 'Nilaviyal Odai' (epytpay; Xil) and patta has been issued to one Kurumbala Mudaliar, the father of the defendants. The plaintiffs never used Schedule II property as pathway. The plaintiffs have pathway only on the northern and southern side of their respective properties. The plaintiffs without having any title are claiming the right over the Schedule II property as a common pathway. The defendants are in possession and enjoyment of the Schedule II property for more than 40 years and therefore, they have title over the said property.
(iii) The plaintiffs filed reply statement and denied that they are using only on the northern and southern side of their respective properties. The defendants are not in exclusive possession of Schedule II property and it is only a 'Nilaviyal Odai' (epytpay; Xil).
5. The learned District Munsif, Senkottai, framed necessary issues.
6. Before the Trial Court, the second plaintiff examined himself as P.W.1 and one Vanniyaperumal, Village Administrative Officer, was examined as P.W.2 and marked 8 documents as Exs.A.1 to A.8. On behalf of the defendants, the second defendant examined himself as D.W.1 and one Mariappan, neighbour of the defendants was examined as D.W.2 and one G.Ramamoorthy was examined as D.W.3 and five documents were marked as Exs.R.1 to R.5. The Commissioner filed his report along with the sketch. These documents were marked as Court documents i.e., Exs.C1 and C2.
7. The learned District Munsif, Senkottai, considering the pleadings, oral and documentary evidence and arguments of the learned counsel appearing for the parties, dismissed the suit.
8. Aggrieved by the judgment and decree, dated 29.09.1995, made in O.S.No.70 of 1992, the plaintiffs have filed A.S.No.58 of 1996 before the Additional Subordinate Court, Tenkasi.
9. The learned Additional Subordinate Judge, Tenkasi, framed necessary points for consideration.
10. The learned Additional Subordinate Judge considering the pleadings, oral and documentary evidence and the judgment of the Trial Court and arguments of the learned counsel appearing for the parties and Sections 76 and 77 of the Tamil Nadu Panchayats Act, allowed the appeal holding that the plaintiffs have proved that Schedule II property is a common pathway.
11. Against the said judgment and decree, dated 31.03.1998, the defendants have filed the present second appeal.
12. At the time of admitting the second appeal, this Court framed the following substantial questions of law:
(1) Whether the lower Court erred in finding that the suit lane as a public street contrary to the pleadings?
(2) Whether the lower Court was justified in observing that the boundary recitals in the document to which appellant is not a party, is conclusive?
13. The learned counsel for the appellants submitted that Exs.A.2 to A.5-sale deeds relied on by the plaintiffs are not binding on the defendants, as they are not parties to the said documents. The learned counsel for the appellants further submitted that the lower appellate Court erred in holding that the term 'gpyhj;' is road. In fact, 'gpyhj;' means 'Nilaviyal Odai'. Even otherwise, the plaintiffs have no title or right to use suit schedule property given to them in the said document. The Schedule II property is only 'Nilaviyal Odai' and patta has been issued to Kurumbala Mudaliar, the father of the defendants. The defendants are in exclusive possession and enjoyment of the property for more than 40 years.
14. In support of his submissions, the learned counsel for the appellant relied on the judgment of this Court reported AIR 1972 Madras 154 [V.A.Amiappa Nainar (died) and others Vs. N.Annamalai Chettiar (died) and others] and submitted that Exs.A.2 to A.5 are not binding on the defendants. The relevant paragraph of the said judgment reads as follows:
13. On a consideration of the aforesaid decisions, we hold that the decision of the Division Bench of this Court in 1914 Mad WN 779 = (AIR 1915 Mad 746) is in accordance with preponderance of authorities in various High Courts that recitals as to boundaries in documents not inter partes are inadmissible in evidence under Sections 11, 13(a), 32(3) and 32(7). As pointed out by Wadsworth, J. in AIR 1940 Mad 450, the only method by which recitals in a document not inter partes could be admitted in evidence is by examination of the executant of the document in which such recitals as to boundaries are found. In this view we hold that judgment of Ramaswami. J. in AIR 1956 Mad 226 is wrongly decided. The result is that Exs.A.2 to A.6 in the present case are inadmissible in evidence.
15. Per contra, the learned counsel for the respondents/plaintiffs submitted that Exs.A.2 to A.5 were executed by the ancestors of the defendants. The learned counsel for the respondents referred to deposition of D.Ws.1 and 2, wherein it is admitted that Exs.A.2 to A.5 were executed by the ancestors and family members of the defendants. Therefore, the judgment relied on by the learned counsel for the appellants is not applicable to the facts of the case.
16. The learned counsel for the respondents/plaintiffs also submitted that all the four properties are purchased from the family members of the appellants/defendants and that was admitted by D.W.1 in the deposition. Now, he cannot contend that it is not inter party document. All the documents relating to the year 1946. Originally, Schedule II property was 'Nilaviyal Odai' and subsequently, it became as pathway, being used by all the public. It is not correct to state that the defendants are in possession and enjoyment of the suit property for more than 40 years and they have not produced any evidence to substantiate their claim. The Advocate Commissioner, who inspected the property filed his report and sketch, which were marked as Exs.C.1 and C.2. He has stated that Schedule II property is a pathway and some obstructions are made in a portion of the property. There is no classification as patta pathway in the revenue records. There will be either public pathway or private pathway. D.W.2, the Village Administrative Officer stated that it is not correct to state that the defendants got patta and are enjoying the same. D.W.2 also stated that 'B' Memo was issued after filing of the suit and prayed for dismissal of the second appeal.
17. I have carefully perused all the materials available on record and the judgment and decree of the Courts below and considered the arguments advanced by the learned counsel appearing for the parties.
18. From Exs.A2 to A5, Sale deeds, deposition of D.W.1 and evidence of D.W.2, it is seen that the suit schedule properties are the properties sold by the ancestors and family members of the defendants to the ancestors of the plaintiffs. In the sale deed, one of the boundaries is mentioned as 'gpyhj;' in Exs.A.2 to A.4 and in Ex.A.5 one of the boundaries is mentioned as ''street''. Even though, the defendants are not admitting the recitals in the sale deed, they have admitted that their ancestors and the family members only sold the properties including the suit property and executed Exs.A.1 to A.5. The defendants have not produced title deeds to show that the suit property is their exclusive properties. The claim of the defendants is that patta has been issued to their father. In view of the recitals in Exs.A.2 to A.5 and deposition of P.W.2/V.A.O and Exs.A.7 and A.8, the claim of the defendants that patta has been issued is not correct. From Exs.A.7 and A.8, it is seen that proceedings have been initiated by concerned Tashildar with regard to suit property. The said notice has been issued to the defendants. The lower appellate Court has taken note of the fact that the defendants did not object to marking of Exs.A.2 to A.5 and did not mention that Schedule II property as street in the sale deeds. The plaintiffs have filed suit for declaration that the suit II Schedule property as common path way and injunction. Based on the pleadings and evidence, the lower appellate Court has granted decree.
19. Taking into consideration of proceedings of the Tahsildar, the Commissioner's report and Schedule II property is being mentioned as 'Nilaviyal Odai' in the revenue records, the lower appellate Court has allowed the appeal. The learned Additional Subordinate Judge, Senkottai, has not committed any error in coming to the said conclusion warranting interference by this Court. In the circumstances, the substantial questions of law are answered against the appellants.
20. In the result, the second appeal is dismissed, confirming the judgment and decree of the lower appellate Court, dated 31.03.1998 made in A.S.No.58 of 1996 and setting aside the judgment and decree of the Trial Court, dated 29.09.2015, made in O.S.No.70 of 1992. No costs.