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TMI Blog2010 (4) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (c) mandatory injunction directing the Defendants to remove the gate, hayricks etc., so as to enable the Plaintiff to use the 18 links broad passage to reach the canal on the south; and (d) permanent injunction restraining the Defendant from interfering with the Plaintiff's enjoyment of 'C' schedule property. 2. The Trial Court, decreed the Suit as prayed for, aggrieved by which, the Defendants preferred Appeal in A.S. No. 51 of 1994 before the Court below. Subsequently, the Second Defendant was reported dead, his Legal Representatives were brought on record as Respondents 3 to 10. The First Appellate Court, after hearing both sides, confirmed the Judgment and Decree passed by the Trial Court and dismissed the Appeal, against which, this Second Appeal has been preferred. 3. In the Second Appeal, the following substantial questions of law have been raised by the Appellants: 1. Whether the Courts below are correct in placing the burden on the Defendants to prove the case of the Plaintiff, especially when the relief sought for is one of declaration of title? 2. Had not the Courts below committed an error in law in relying upon the Commissioner's Report wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack by the Appellants/Defendants and also granted permanent injunction in respect of 'C' schedule property restraining the Defendants from interfering with the peaceful possession and enjoyment of the said property by the Plaintiff. 6. The Courts below have held that the Respondent/Plaintiff had purchased the 'A' and 'C' schedule property, on 27.11.1976 from one A.S. Palaniappan and three others for a sum of Rs. 7,000/- under Ex. A.1, subsequently, she got a Sale Deed under Ex. A.2, since Balasubramanian, the vendor under Ex. A.2 had inherited 1/2 share along with other sharers, who sold the property under Ex. A.1, from their ancestors in view of a judgment of a Civil Court. 7. As per Ex. A.2, Sale Deed, dated 17.03.1984, the Respondent/Plaintiff purchased 1526 sq. ft (3 1/2 cents) in New S. No. 356/1 in Kodumudi Village from the said sharer Balasubramanian. As the Respondent/Plaintiff came to know that the said Balasubramanian, as co-sharer got 1/2 share in the property, subsequently, the Respondent/Plaintiff paid an additional amount of Rs. 9,000/- as consideration for the said 1/2 share and the said Balasubramanian executed Sale Deed, Ex. A.2 for hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that the Courts below have not shifted the burden on the Appellants/Defendants, as alleged by them, accordingly, the substantial question No. 1 is answered in favour of the Respondent and against the Appellants herein. 9. Substantial Question of Law No. 2 : The Appellants have raised the second substantial question of law stating that the Courts below have committed error in law, relying upon the Commissioner's Report, overlooking the discrepancy in the plan submitted by the Firka Surveyor and the Municipal Surveyor, who had assisted the Commissioner during his visit. The main dispute in the Suit is with regard to the 'B' schedule property common cart track and also the alleged encroachment made by the Appellants/Defendants in the 'A' schedule of property. In the Sale Deed, Ex. A.1, the schedule of property is described by four boundaries, accordingly, the property is on the North of the property purchased by Mahaboobi, the First Appellant/First Defendant under Ex. B.1, on the East of 18 links breadth common cart track left by the vendor, south of the property purchased by one Sangili and West of Sundaram Iyer's property and the extent is stated as 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse and liable to be set aside. Learned Senior Counsel appearing for the Appellants drew the attention of this Court to the original Plaint and argued that the amendment in the Plaint was not made as per procedure known to law and on that ground also argued for allowing the Second Appeal. 13. Per contra, Mr. S.V. Jayaraman, learned Senior Counsel appearing for the Respondent/Plaintiff submitted that the concurrent finding of the Courts below, based on evidence, cannot be construed as perverse and according to him, there is no substantial question of law to be decided, as contemplated under Section 100, C.P.C. and hence, the Second Appeal is liable to be dismissed and also submitted further that the amendment of the Plaint was made properly before the Trial Court, which cannot be questioned by the Appellants in the Second Appeal. 14. The following decisions were cited by the learned Senior Counsel, to enlighten this Court on the legal aspects: 1. Kashmir Singh v. Harnam Singh, AIR 2008 SC 1749; 2. Siviseshamuthu v. Gopalakrishna, AIR 1963 Mad 147; 3. P.K.A.B. Coo.p Society v. Govt. of Palestine, AIR (35) PC 207; 4. Jagdish Narain v. Ahmed Khan, AIR 1946 PC 59; 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 571 on the south was purchased by the First Appellant/D1 under Ex. B.1 on 27.08.1976 and its southern boundary is a North-South canal. Subsequently, on 27.11.1976, the Respondent/Plaintiff purchased the schedule 'A' and 'C of the suit property, an extent of 7 cents, under Ex. A.1, in S. No. 571, which is admittedly on the North of the First Appellant's property. In Ex. A.1, Sale Deed, four boundaries are given by the same vendors as North of the property purchased by Mehaboob Bibiammal, the First Appellant/Dl, south of the property of one Sangili, West of Sundaram Iyer's property and East of 18 links width of cart track left by the vendors. In the Sale Deed, Ex. A.1, the vendors have specifically stated that the Respondent/Plaintiff has been given right in the 18 links breadth common north-south cart track left by the vendors. Even in Ex. B.1, Sale Deed, the First Appellant/Dl was given right in the North-South cart track. The common cart track runs up to the East-West channel on the south, hence, the western boundary of the property sold under Ex. B.1 to the First Appellant/Dl is stated as the North-South cart track. 18. As per Ex. B.1, 12 cents in S. No. 57 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ystal clear that a wrong description of the property is given in the subsequent Sale Deed, Ex. B.2, that was executed in the year 1982. However, the Appellant/Dl is not entitled to claim exclusive right to the common cart track, by virtue of the Sale Deed, Ex. B.2. 21. In Kashmir Singh v. Hamam Singh, AIR 2008 SC 1749, the Hon'ble Supreme Court has held as follows: The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly cast the burden of proof. 'Decision based on no evidence', not only means cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. It has been made clear that the paramount overall consideration being the need for striking judicious balance between the indispensable obligation to do justice at all stages and im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries of the property in Ex. B.1, First Defendant's Sale Deed is also not in dispute, however, under Ex. B.2, in the year 1982, the vendors therein have described the property sold under the deed, Ex. B.2, contrary to the earlier Sale Deeds, Ex. A.1 and Ex. B.1 executed by them in the year 1976. The incorrect averments made in Ex. B.2, in the year 1982 with regard to the southern portion of North-South 18 links common cart track left by the vendors is not binding on the Respondent/Plaintiff as found by the Courts below. Having specifically stated the 18 links North-South common cart track in Exs. A.1 and B.1, as western boundary and provided right in the common of cart track to both the First Appellant under Ex. B.1 and Respondent, under Ex. A.1 in the year 1976, the vendors have no subsisting right to sell the southern portion of the cart track in favour of the First Appellant in the year 1982 under Ex. B.2. Similarly, the improper an incorrect averments made in Ex. B.2 will not make the cart track right given to the First Appellant/Dl under Ex. A.1, as an absolute right, detrimental to the cart track right given to the Respondent/Plaintiff and others. 27. In the grounds of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst Defendant and others in the year 1976 has to be construed only as a fraudulent misrepresentation. 30. In the aforesaid facts and circumstances, I am of the considered view that the Courts below have not shifted any burden on the Appellants/ Defendants to prove the case of the Plaintiff and further, the Respondent/ Plaintiff has established her title to the property conveyed under Ex. A.1. As per Ex. A.1, Sale Deed, the Respondent/Plaintiff is the absolute owner of the 7 cents of land purchased by her from the common vendors. As a reasonable person, to avoid dispute, she has also paid subsequently consideration for the undivided half share to the other co-sharer. 'A' and 'C' schedule properties are covered by Ex. A.1 Sale Deed, which is not in dispute. Similarly, the cart track right given in the 'B' schedule property cannot be denied by the subsequent document, Ex. B.2, as the same is not legally sustainable. There is no error or infirmity in the concurrent finding of the Courts below, so as to hold that the Courts below have overlooked any discrepancies in the plan submitted by the Firka Surveyor and the Municipal Surveyor, who had assisted the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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