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Case Number

S.A No. 1452 and C.M.P No. 15672 of 1999

Judges

A. Ramamurthi, J.

Acts

clause (4) of Section 17(2),

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Smart Summary

Structured Summary of the Court's Opinion

Factual and Procedural Background

The plaintiff filed a suit for a permanent injunction to restrain the defendant from erecting an east-west wall and a gate at the entrance of a lane that the plaintiff alleged was a common lane belonging to the family shared by the plaintiff and defendant. The plaintiff claimed a one-third right (⅓rd) and relied on registered and other documents (including documents dated 23-3-1983, 23-3-1982 and 26-4-1972). The defendant attempted to put up a wall with a gate on 25-9-1989 and threatened to put a lock on the gate.

The defendant disputed the characterization of the suit property as a common lane, contending instead that the plaintiff had only a right of passage to reach a common well (situated north-west) and relied on a Partition Deed dated 11-8-1943 (Ex. B.11) to show a restricted right of way. The trial court framed issues and decreed the suit in favour of the plaintiff. The defendant appealed (A.S. No. 108 of 1998) to the District Court, Thiruvannamalai, which reversed the trial court's decree and dismissed the suit. The plaintiff brought the present second appeal against that reversal.

Legal Issues Presented

Whether the Lower Appellate Court was correct in reversing the decree for injunction granted by the Trial Court by misconstruing Ex. B.11 (the Partition deed)?
Whether the Lower Appellate Court was correct in law in rejecting Ex. A5 as inadmissible in evidence for want of registration?
Whether the judgment and decree of the Lower Appellate Court is sustainable in law when there is a substantial defect in procedure by discussing matters extraneous and not raised in the pleadings?
Whether the Lower Appellate Court was correct in non-suiting the plaintiff on the ground that the suit property is the exclusive property of the defendant and that the plaintiff only had an easement-like right of access which had been lost?
Whether the judgment of the Lower Appellate Court that an injunction cannot be granted against a co-owner is sustainable in law?

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

Ex. B.11 (the Partition deed) was not properly considered by the lower appellate Court and, when read properly, shows that the suit property is a common lane used in common by the brothers; the defendant cannot claim exclusive right and erect a gate at the common lane entrance.
D.W.1 admitted during evidence that the suit property is a common lane, which the lower appellate Court overlooked.
Ex. A5 (a copy of a compromise decree) was wrongly held inadmissible for want of registration because the compromise decree did not create any new right in respect of the common lane; reliance placed on authorities to show a bona fide compromise decree need not always be registered.
A co-owner cannot be permitted to prejudice other co-sharers by erecting a gate that prevents ingress and egress; hence injunction should have been maintained.

Respondent's (Defendant's) Arguments

Ex. B.11 (Partition deed of 11-8-1943) predates the later documents and clearly restricts the right of passage to ingress and egress for the purpose of reaching the common well; it does not create a general common lane right.
The defendant had a legitimate reason to erect a gate at the entrance to prevent trespass by cattle and other nuisance; the defendant never prevented the plaintiff from using the passage to reach the common well.
The plaintiff never amended the plaint to seek a declaration that the property is a common lane; the burden lay on the plaintiff to prove such a right and he did not discharge it.
Ex. A5's compromise recitals were not registered and therefore cannot be acted upon to create or prove an unregistered right in immovable property.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
S. Noordeen v. Thiru. Venkita Relliar, (1996) 3 SCC 289 : AIR 1996 SC 1293	That a decree passed on compromise may attract the exception in clause (4) of Section 17(2) and may not require compulsory registration in certain circumstances.	The Court noted the principle but observed that applicability depends on facts; it did not treat Ex. A5 as determinative because the present suit property was not the subject matter of the earlier proceedings and factual conditions for the exception were not established.
Bhoop Singh v. Ram Singh Major, (1995) 5 SCC 709 : AIR 1996 SC 196	That a bona fide compromise decree, which is not a device to evade stamp duty/registration law, may not require registration; but if a decree creates right/title/interest in immovable property of value of Rs.100 or more for the first time, registration is required.	The Court acknowledged the rule and applied it contextually; it held that Ex. A5 did not, on the facts, create the sort of right requiring compulsory registration in favour of the plaintiff over the suit property.
Sherwood Educational Society v. Abid Namazie, 1997 (1) MLJ 44	That the admission of the opposite party is often the best evidence in a case.	The Court recognized the proposition but considered the admissions in their factual context (noting P.W.1's admissions about Ex. A5 and usage), and found they did not establish a right to treat the property as a common lane.
Ishwar Dass Jain (dead) v. S. Sohan Lal (dead), 2000 (1) CTC 359	Interference with findings of fact is permissible in a second appeal when material/relevant evidence was not considered or findings rest on inadmissible evidence which, if excluded, would permit an opposite conclusion.	The Court invoked this principle as a test for interference but concluded that the lower appellate Court had properly considered the evidence; no material omission or reliance on inadmissible evidence made the lower appellate conclusion warrant interference.
Rohini Prasad v. Kasturchand, (2000) 3 SCC 668 : AIR 2000 SC 1283	Where misreading of evidence by an appellate court leads to miscarriage of justice or the finding is based on no evidence (perverse), the High Court may interfere in a second appeal.	The Court considered this authority but held that the lower appellate Court had not misread evidence to such an extent; its findings were supported by the 1943 partition deed and other evidence, so interference was not warranted on that ground.

Court's Reasoning and Analysis

The Court proceeded by focusing on the documentary record and the limited oral testimony. The central documentary exhibit was Ex. B.11 (the Partition Deed of 11-8-1943). The Court observed that Ex. B.11, being earlier in time and produced when there was no dispute between the parties, contains clear recitals (in its schedule descriptions) that restrict any right in the suit property to a right of way for the purpose of reaching the common well. The vernacular recitals in the schedules were noted (and portions omitted in the report), but the Court construed them to mean the plaintiff's right was limited to ingress and egress for drawing water from the common well, not a general right to a common lane.

The Court contrasted Ex. B.11 with later documents relied on by the plaintiff (including the registered document of 23-3-1983 and Ex. A5, a compromise decree). It treated the 1943 partition as having superior probative value because of its timing and the circumstances of its execution, and therefore held that subsequent recitals describing the area as a common lane could not outweigh the clear terms of the 1943 deed.

On Ex. A5 (compromise decree), the Court analyzed whether those recitals could be used to prove that the suit property was left as a common lane. It noted: (a) Ex. A5 did not have the suit property as the subject matter of the earlier suit; (b) the compromise memo referred to the area as a "common pathway" (not necessarily a common lane); and (c) the defendant objected that Ex. A5 had not been registered. The Court accepted the legal propositions from cited authorities that under certain factual situations a compromise decree need not be registered, but held that the applicability of those principles turned on factual matrix. On the facts here, Ex. A5 did not establish a right to treat the property as a common lane.

The Court also examined oral testimony. P.W.1 admitted in cross-examination that Ex. A5 referenced a common pathway and that his usage had not been prevented by the defendant at the time; D.W.1 referenced the 1943 partition recital in cross. Only the plaintiff and defendant were examined as witnesses, and no other witnesses were called. The Court found the evidence and documents collectively established that the plaintiff's right was restricted to a right of way to the well and not a general common-lane right.

Recognizing the plaintiff's concern that a locked gate could prevent access, the Court modified the relief by directing that if the defendant erects a lockable gate at the entrance, the gate shall be kept open between 8:00 a.m. and 9:00 a.m. on Mondays, Wednesdays and Fridays so the plaintiff can exercise the ingress and egress to the well. Thus, while the Court upheld the lower appellate finding that the plaintiff had only a right of way to the well, it imposed a practical condition to protect that easement-like entitlement against a future locked gate.

The Court explicitly held there was no substantial question of law that would permit interference with the lower appellate Court's finding; it found the lower appellate Court had properly analyzed evidence and documents and had valid reasons for reversing the trial court.

Holding and Implications

Core Ruling: The second appeal is dismissed; the judgment and decree of the lower appellate Court (which reversed the trial Court and dismissed the plaintiff's suit) is affirmed in substance.

Implications and direct consequences:

The plaintiff's appeal fails and is dismissed.
The finding that the plaintiff has only a right of way to reach the common well (and not a broader right in the suit property as a common lane) stands.
Practical modification: If the defendant erects a gate in the east-west direction at the entrance and locks it, the gate must be kept open between 8:00 a.m. and 9:00 a.m. on every Monday, Wednesday and Friday to permit the plaintiff's access to the well.
C.M.F No. 15672 of 1999 is dismissed. No costs were awarded.

Broader legal precedent: The Court stated that no substantial question of law arose warranting interference in the second appeal and therefore did not lay down any new principle of law beyond applying established authorities to the factual matrix; the decision's primary effect is the resolution between the parties on these facts.

Show full summary ...

N. Palani v. P. Lakshavatsalu Chettiar .

1. The plaintiff has preferred the second appeal aggrieved against the judgment and decree dated 25-8-99 made in A.S No. 108 of 1998 on the file of Principal District Court, Tiruvannamalai, reversing the judgment and decree dated 9-7-1998 made in O.S No. 981 of 1989 on the file of Additional District Munsif Court at Tiruvannamalai.

2. The case in brief is as follows:

The plaintiff filed a suit for permanent injuncion to restrain the defendant from putting up east west wall and also to put up a gate in respect of a common lane in the suit property. The suit property is a common lane belonging to the family of the plaintiff as well as the defendant. The plaintiff and his brothers have acquired ⅓rd right under a registered document dated 23-3-1983 and they used to reach the well through this way. The right of the plaintiff has been confirmed in the documents dated 23-3-1982 and 26-4-1972. The defendant attempted to put up a wall with a gate in the common lane on 25-9-1989 and he threatens to put up a lock also. The defendant has no right to put up any gate in the common lane.

3. The defendant contended that the suit property is not a common lane as claimed by the plaintiff. The defendant has the right of passage of use this lane for the purpose of reaching the common well situated on the north western side. The houses belonging to the brothers are situated on the northern side and the property measuring 3 feet east west is left in between the property of Pazhani Chettiar and Theerthagiri Chettiar. Excepting the right of way to reach the common well, there is no right for the plaintiff. This right is clearly stated in the Partition Deed dated 11-8-1943 between the defendant and his brothers. There is a specific reference that the land belongs to the defendant. Since the suit property is an open space, the cattle as well as other persons are causing nuisance. In order to prevent the trespass of the cattle and also prevent other anti-social elements from spoiling the atmosphere, the defendant attempted to put up a gate; but he never prevented either the plaintiff or other persons who have got right to reach the common well. The trial court framed 4 issues and on the basis of oral and documentary evidence, the suit was decreed. Aggrieved against this, the defendant preferred A.S No. 108 of 1998 before the District Court, Thiruvannamalai and the appeal was allowed and the judgment and decree of the trial Court were set aside and the suit was dismissed. Aggrieved against this, the plaintiff has come forward with the present second appeal.

4. The appellant/plaintiff has raised the following substantial questions of law;

1. Whether the Lower Appellate Court is correct in reversing the decree for injunction granted by the Trial Court by misconstruing Ex. B. 11 Partition deed?

2. Whether the lower appellate Court is correct in law in rejecting Ex. A5 as inadmissible in evidence for want of registration;

3. Whether the judgment and decree of the lower appellate Court is sustainable in law when there is a substantial defect in procedure in discussion matter which are extraneous and not raised in the pleadings of the respective parties?

4. Whether the lower appellate Court is correct in non-suiting the plaintiff on the ground that the suit property is the exclusive property of the defendant and the plaintiff has only a right to use the same as an easement and even that right had been lost?

5. Whether the judgment of the lower appellate Court that there is an injunction against a co-owner is sustainable in law?

5. Learned counsel for the appellant contended that Ex. B. 11 has not been properly considered by the lower appellate Court, wherein it is clearly set out that the suit property is a common lane. D.W 1 also in the course of evidence stated that the suit property is a common lane. The learned Judge has completely overlooked that no claim to suit property is made on the ground of easement. Even under Ex. B11, the brothers of the defendant have been allotted specific shares within specified boundaries and each one of them has been specifically given a share in the lane which was kept in common, and as such, the defendant cannot clear exclusive right and put up a gate at the entrance of the common lane on the south. The lower appellate court also erred in law in holding that Ex. A5 compromise decree is inadmissible for want of registration. Under Ex. A5, no new right is conferred in respect of the common lane. The lower appellate Court also erred in coming to the conclusion that no injunction can be granted against the co-owner overlooking the fact that the co-owner cannot be allowed to cause prejudice to the other co-sharers by putting a gate at the entrance of the lane.

6. Learned counsel for the defendant contended that Ex. B. 11 is earlier in point of time which has come into existence in the year 1943 when there was no dispute between the parties. There is a clear recital to the effect that the passage can be used only for the purpose of having ingress and egress to reach the common well. There is no indication to show, that the suit property is a common lane for all the persons. Further more, there was necessity to put up a gate at the entrance only to prevent the trespass of the cattle and also other persons causing nuisance in the area. Learned counsel for the respondent further stated that the plaintiff was never prevented from using the passage for the purpose of reaching the common well; but it cannot be used as a matter of right to reach the other houses situated nearby.

7. Heard the learned counsel for both sides.

8. The points that arise for consideration are

1. Whether the plaintiff is entitled to the relief of permanent injunction?

2. Whether the judgment and decree passed by the lower appellate Court is proper and correct?

3. To what relief?

9. Points: The appellant/plaintiff has filed the suit against the defendant for permanent injunction that the defendant should not put up any gate in the east west direction at the entrance of the lane. Learned counsel for the plaintiff contended that the suit property is a common lane and the defendant has no right whatsoever to put up any gate. The plaintiff mainly relied upon the document dated 23-3-1983, wherein this property has been described as a common lane. It is admitted that there is a well situated on the northwestern side of the suit property. It is also not in dispute that the plaintiff has got ⅓rd right in the common well and because of this, according to the learned counsel for the plaintiff, the defendant has no exclusive right in the suit property and he cannot put up any gate to prevent the ingress and egress of the plaintiff.

10. Per contra, learned counsel for the defendant/respondent contended that the plaintiff, at best, can use this property only as a passage to reach the common well for the purpose of taking water and it is not a common lane. There was already partition on 11-8-1943 between the defendant and his brothers, wherein it is clearly stated that there is right of way only for the purpose of taking water and there is no reference about common lane as now claimed by the plaintiff. Learned counsel for the defendant further stated that there was necessity for putting up a gate at the entrance of the property only for the purpose of preventing the trespass of the cattle and other people causing nuisance in that area. Now, the plaintiff has come forward with a suit for permanent injunction only and he has not claimed any declaration that the suit property is a common lane. The burden is only on the plaintiff to prove that it is a common lane. When the right of the plaintiff has been disputed, the plaintiff ought to have amended the plaint as one for declaration to establish his right; but for reasons best known, it has not been done by the plaintiff. The evidence adduced by the parties as well as the documents only established that the suit property is not a common lane as claimed by the plaintiff.

11. Ex. B. 11 is the partition deed between the defendant and his brothers in 1943 when there was no dispute between the parties. The schedule of property has been given as A, B, C and D schedule properties. In the description of property in B schedule, it is stated as follows:

(Vernacular matter is omitted — Ed.)

Similarly in A schedule property also, it is stated as follows:

(Vernacular matter is omitted — Ed.)

Similarly in D schedule property also, it is described as follows:

(Vernacular matter is omitted — Ed.)

12. It is, therefore, clear from the aforesaid recitals in the document of 1943 that the plaintiff cannot claim any right in the property excepting to use the same as right of way to reach the common well. The document relied on by the plaintiff is only later in point of time and when the recitals in 1943 document are very clear, the reference, if any, in the subsequent document as if it is a common lane cannot be given much credence. In fact, the lower appellate Court has given valid and sound reasons to take a different view from the trial Court.

13. Learned counsel for the plaintiff also relied upon Ex. A5 relating to the copy of the compromise decree in C.S No. 203 of 1966 on the file of District Munsif Court, Tiruvannamalai. This document had been made use of by the plaintiff in order to show that the suit property has been left as a common lane belonging to all the parties and, as such, the Court can come to the conclusion that the suit property is a common lane. It is necessary to state that the present suit property was not the subject matter of the proceedings in the earlier suit. Simply because in the compromise memo, this property has been described as a common pathway, it cannot be concluded that it was treated as a common lane by all the parties concerned. Learned counsel for the defendant also raised an objection that the compromise recitals in Ex. A5 have not been registered and, as such, it cannot be accepted and acted upon. For this, learned counsel for the plaintiff relied on S. Noordeen v. Thiru. Venkita Relliar, (1996) 3 SCC 289 : AIR 1996 SC 1293 for the proposition that a decree, though passed on compromise attracts exception engrafted in clause (4) of Section 17(2), and that decree is not required to be compulsorily registered. Reliance is also placed upon Bhoop Singh v. Ram Singh Major, (1995) 5 SCC 709 : AIR 1996 SC 196 that the compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration in a converse situation, it would require registration. If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs. 100/- or upwards in favour of any party to the suit, the decree or order would require registration. Reliance is also placed upon another decision of this Court in Sherwood Educational Society v. Abid Namazie, 1997 (1) MLJ 44, that it is settled law that the best evidence in a case is the admission of the opposite party. There is no dispute about these propositions but the applicability of the same depends upon the facts and circumstances in each case.

14. Learned counsel for the plaintiff/appellant also relied on Ishwar Dass Jain (dead) v. S. Sohan Lal (dead), 2000 (1) CTC 359 that there can be interference with findings of fact is permissible when material or relevant evidence is not considered which, if considered would have led to opposite conclusion. Such interference is also permitted when findings of fact had been arrived at by placing reliance on inadmissible evidence which if it was omitted, opposite conclusion was possible.

15. In either of these situations substantial question of law would arise for consideration and interference with findings of fact is permissible. Learned counsel also relied on the decision reported in Rohini Prasad v. Kasturchand, (2000) 3 SCC 668 : (AIR 2000 SC 1283) that where misreading of evidence by appellate Court would lead to miscarriage of justice or its finding is based on no evidence and thus perverse, held, High Court would be justified in interfering in second appeal.

16. P.W 1 in the course of cross examination admitted that in Ex. A5, there is reference about common pathway and not as common lane. He also admitted that his usage has not been prevented by the defendant; but if and when a gate is put up, there is a possibility for preventing his enjoyment. D.W 1 in the course of cross examination stated about the recitals given in the partition deed of the year 1943. The plaintiff and the defendant have been respectively examined as P.W 1 and D.W 1 and apart from that, no other witness was examined. The documents now relied on by the plaintiff are of recent origin and the recitals contrary to the recitals in the year 1943 document, cannot be given much weight. The entire property has been divided in the partition of the year 1943 under 4 schedules, the description of property has been given, wherein the parties have left the suit property for the purpose of their convenient enjoyment. As the plaintiff has got ⅓rd right in the common well, he was given the right to use the pathway only for the exclusive purpose and by this he cannot claim right in the suit property itself. Learned Counsel for the plaintiff further stated that if and when the defendant puts up a gate at the entrance of the pathway, then it will not be possible for the plaintiff to enter into the pathway for the purpose of going to the well. I am of the view that there is some force in the contention of the plaintiff. If and when gate is put up and as the plaintiff is entitled to use the property for the purpose of ingress and egress to the common well, the gate should be kept open at least for a particular hour in a day, so that the plaintiff can make use of the same. If no such condition is given and if the defendant puts up a gate with lock, then it cannot be enjoyed by the plaintiff and, as such, I am of the view that the order passed by the lower appellate Court can be suitably modified under the given circumstances. It is made clear that the lower appellate Court has properly analysed the evidence as well as the documents and rightly came to the conclusion that the suit property is not a common lane and the plaintiff has got only a right of way to reach the common well. There is no substantial question of law to interfere with the finding of the lower appellate Court. Hence, the points are answered accordingly.

17. For the reasons stated above, the second appeal fails and is dismissed. However, if and when the defendant put up a gate in the east-west direction at the entrance of the suit property and if the gate is locked, it should be kept open between 8.00 a.m and 9.00 a.m on every Mondays, Wednesdays and Fridays. Consequently, C.M.F No. 15672 of 1999 is also dismissed. No costs.

18. Appeal dismissed.

N. Palani v. P. Lakshavatsalu Chettiar .

Structured Summary of the Court's Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

Respondent's (Defendant's) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

N. Palani v. P. Lakshavatsalu Chettiar .

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