Anumila Chowdaiah and Others vs Mundlamuri Narayana

P.S. Narayana, J.—The legal representatives of the 2nd defendant in the suit O.S. No. 65/80 on the file of Principal District Munsif, Narsaraopet preferred the present Second Appeal. The Second Appeal was dismissed for default as against respondents 2 and 3. However, it is stated that respondents 2 and 3 are not necessary parties to the Second Appeal.

The 1st respondent is the plaintiff in the suit and the 1st respondent instituted the suit O.S. No. 65/80 on the file of Principal Munsif Magistrate, Narsaraopet for the relief of specific performance of contract dated 24-2-1974 against the 1st defendant one Komera China Venkatesu and for declaration of plaintiff''s right of passage through XY together with a consequential mandatory injunction directing the removal of all obstructions from joint passage and for costs of the suit. The said China Venkatesu, though had figured as 1st appellant in A.S. No. 59/83 on the file of Principal Subordinate Judge, Narasaraopet, he had not preferred Second Appeal and he was shown as 2nd respondent in the Second Appeal against whom the Second Appeal was dismissed for default and hence as far as the relief of specific performance is concerned, the said question is not being seriously agitated by both the parties in the present Second Appeal.

In the plaint it was averred as follows:

The entire site shown as A B C D originally belonged to four brothers and others by name K. China Nagaiah, K. Peda Nagaiah, P. China Venkatesu, K. Peda Venkatesu and one M. Peddulu. They have divided the same into five plots about 30 years ago. In that partition, the 1st defendant got a plot A while Plot B fell to China Nagaiah, Plot ''C'' to Peda Nagaiah, plot D to Okkodu while plot E was taken by Peddulu. There is a main street running through the suit of these plots. To reach that street, all the sharers have jointly agreed and left a passage marked as XY for their common use for the purpose of reaching the respective plots with men and cattle. After leaving six muras width of passage all the sharers divided the remaining land. The said division had taken place about 30 years ago. China Venkatesu i.e., 1st defendant sold plot ''A'' to the plaintiff through a contract of sale dated 24-12-1974 and put the later in possession of the same. The 2nd defendant purchased plot ''B'' and the plot ''C'' devolved to 3rd defendant. Okkadu sold his plot Defendant to the 4th defendant while the share of Peddulu was purchased by the 4th defendant and the 3rd defendant got the plot of Peda Nagaiah. Defendants 2 to 4 have purchased the respective plots about 6 years ago and ever since then they are in possession and enjoyment of the same. They have kept the passage joint and the plaintiff is using A marked plot for keeping fire wood and manure heap. The plaintiff and his predecessors got the right of passage by means of agreement. The contract of sale is for valid and adequate consideration. The entire consideration was passed on the same day when the plaintiff took possession of the property. The 1st defendant agreed to execute a regular sale deed whenever demanded. The 1st defendant shifted to other village in connection with some contract works. The plaintiff got issued a registered notice through the 1st defendant calling upon the latter to execute the proper sale deed in his favour. In fact, the plaintiff was always ready to perform his part of contract. The 1st defendant being instigated by other defendants, began evading the execution of the same. Therefore, the plaintiff was constrained to file this suit for specific performance of the contract. In December 1978 the defendants attempted to block the passage marked as XY. On that the plaintiff got issued a registered notice on receipt of which the defendants have kept quiet for some time. When they have again started to cause obstruction to the passage of the plaintiff about two days prior to the suit, the plaintiff was constrained to file this suit for declaration of the plaintiff''s right of passage through XY and consequential mandatory injunction for the removal of a wall raised in between points XY and fencing at points XX1.

The 1st defendant filed a written statement averring as follows:

It is false to allege that this defendant and his brothers at the division about 30 years ago left six muras of vacant site at points X and Y as a passage to reach the bazaar. The said street is not a public street and the same is situated in a patta land belonging to the 2nd defendant M. Venkatramaiah and Ch. Venkaeswarlu have been in exclusive possession and enjoyment of the same. This defendant and his brothers used to reach their respective plots only through the Northern bazaar which is in existence now. Therefore, the plaintiff has no right of passage whatsoever in the street South to the plaint schedule plot. It is true that this defendant executed a contract of sale referred to above. But it is false to allege that this defendant has agreed to sell the entire ''A'' plot to the plaintiff which is 4 1/2 cents in extent. This defendant has got three major sons. They never agreed to sell the entire joint family pt without their consent. This defendant agreed to sell his undivided 1/4th share in plot ''A'' to the plaintiff. As this defendant and his sons are living in Rami Reddipalem the plaintiff took advantage of it and enjoyed the entire ''A'' plot. This defendant is an illiterate person and does not know the contents of the agreement which was got written by the plaintiff. Therefore, the plaintiff is not entitled to the discretionary relief as he has not come with clean hands. Therefore, this defendant prays for the dismissal of the suit with costs.

Likewise, the 2nd defendant filed a written statement with the following allegations:

It is true that this defendant and the 4th defendant have purchased plots ''B'' and ''D'' from K. Chinna Nagaiahand Okkodu respectively and has been in possession and enjoyment of their respective plots ever since their purchase about 5 years ago. It is false to allege that the vendors of the defendant and the 4th defendant have kept a passage at XY at the time of division. Neither the plaintiff nor the vendors of the defendants has got any right of passage into the street, South of the plaint schedule plot. The said street is not a public street and it is situate in a patta land belonging to the defendants M. Venkataramaiah and Ch. Venkateswarlu. It is their exclusive property under their enjoyment. The original owners of plots A, B, C and D prior to the sale used to reach their respective plots through the Northern bazaar only and that the passage is quite in existence even till today. The allegation that the defendants have started making attempts to close the passage at XY in December 1978 are all false. It is equally false that this defendant had gathered material to raise a wall at Points X and Y. There is no cause of action for the plaintiff to file a suit. The suit is frivolous and vexatious. The allegation that the plaintiff the vendors have got prescriptive right to the alleged passage is not correct. Therefore, this defendant prays for the dismissal of the suit with costs.

On the respective pleadings of the parties, the following Issues were settled:

Whether the plaintiff is entitled to the mandatory injunction prayed for ?

Whether the plaintiff and his vendor have prescribed rights to the passage XY as shown in the plaint plan ?

Whether the plaintiff is entitled to the relief of specific performance of contract ?

To what relief ?

In the Court of first instance, PW-1 to PW-5 and DW-1 to DW-4 were examined and Exs.A-1 to A-8 and Exs.B-1 and B-2 were marked and on appreciation of both oral and documentary evidence, the suit was decreed with costs and the 1st defendant was directed to execute a regular sale deed in pursuance of Ex.A-2 in favour of the plaintiff within one month, failing which the plaintiff shall be at liberty to get it done through the process of Court. While answering Issue No. 4, as can be seen from the Judgment of the trial Court, this is the relief which had been granted. But however in paragraph-14 it was stated that the plaintiff who is entitled to seek the relief of specific performance of Ex.A-2 agreement of sale is entitled to mandatory injunction in the circumstances urged. No doubt, while granting the relief, the Judgment of the trial Court cannot be said to be happily worded. As against the said Judgment and decree, the unsuccessful defendants 1 and 2 in the suit had filed A.S. No. 59/83 on the file of Principal Subordinate Judge, Narasaraopet and inasmuch as the 2nd appellant i.e., Manukonda Subbaiah died, appellants 5 to 7 in A.S. No. 59/83 were brought on record as per the orders in I.A. No. 1390/88, dated 7-7-1989 and the Appeal also was dismissed and aggrieved by the same, the present Second Appeal is filed by the legal representatives of Manukonda Subbaiah. It is pertinent to note that Chinna Venkatesu, the 1st appellant in A.S. No. 59/83 had not preferred any Second Appeal. Hence, the only question that has to be decided is relating to the right of passage through XY shown in the plaint plan and the mandatory injunction to remove the obstructions to the joint passage XY.

Ms. Supriya, the learned Counsel appearing for the appellants had fairly submitted that she is not at all agitating relating to the main relief of specific performance and the learned Counsel further contended that in the light of the provisions of Indian Easements Act, especially Section 15 of the Act and also the report of the Commissioner and the evidence let-in on behalf of the defendants, the Courts below had totally erred in decreeing the suit as prayed for and the Courts below should have negatived the relief so far as it relates to the passage is concerned. The learned Counsel had taken me through the report of the Commissioner in detail and also the findings recorded by both the Courts below in this regard. The learned Counsel also had drawn my attention to a decision of the Division Bench of Madras High Court in NACHPARAYAN Vs. NARAYANA GUNDAN, AIR 1920 MAD 541 and had submitted that the suit must be brought within 2 years of interference and even in this view of the matter, the relief should have been negatived.

On the contrary, Sri Upendra, the learned Counsel representing the 1st respondent/plaintiff had contended that as far as Chinna Venkatesu is concerned, the Appeal was dismissed for default and hence there is no question of contending that the relief of specific performance and the Judgment and decree in relation to the said relief became final. The learned Counsel also had submitted that the Commissioner had inspected behind the back of the parties and at any rate the report of the Commissioner also does not help the case of the appellants in any way. The learned Counsel further contended that the evidence available on record clearly shows that the 1st respondent/plaintiff is entitled to the said relief also and hence in view of the concurrent findings recorded by both the Courts below and especially in the light of the fact that these are all factual aspects and no substantial question of law is involved in the Second Appeal, the Second Appeal is liable to be dismissed.

Heard both the counsel.

As can be seen from the material available on record, all the aspects which had been decided by both the Courts below are factual aspects. The plaintiff in the suit had purchased a plot from the 1st defendant under agreement of sale dated 24-2-1974 and prayed for the relief of specific performance and also declaration of his right over XY passage and a consequential mandatory injunction directing the removal of all obstructions raised in the passage by the defendants. The 1st defendant admitted execution of the said agreement of sale, but had taken a plea that his sons have also got a share in the property and the contract of sale will hold good in respect of 1/4th share only. Further a specific stand was taken relating to XY passage that the passage in question is in the patta land of 2nd defendant and it is being enjoyed by the 2nd defendant and the other defendants for their exclusive use and neither the plaintiff nor his vendor has any right over the said passage. PW-1 had deposed about the execution of the agreement of sale and the extent of the site sold under the said agreement of sale Ex.A-2. Ex.A-1 is the plaint plan. The vendor under Ex.A-2 has got three major sons on the date of Ex.A-2 and the 1st defendant as DW-1 had admitted that his three sons are residing at Ramireddipalem since more than 20 years and it is three miles away from Arepally. No doubt, Ex.A-2 was executed by the 1st defendant alone in favour of the plaintiff. It is an admitted case that there was no partition in between the joint family the 1st defendant has been acting as the manager of the family. As already stated supra, as far as the relief of specific performance is concerned, the Judgment and decree became final. Even the admissions made by DW-1 would clearly go to show that the 1st defendant agreed to sell the said property under Ex.A-2 with the knowledge of his sons only. The recitals in Ex.A-2 speak for themselves and the entire extent of 4 1/2 cents was delivered to the 1st respondent in this Appeal i.e., plaintiff in the suit. DW-1 further stated that the suit site and other adjacent site were purchased originally by his father from one Manikonda Kotaiah, the grand father of the 2nd defendant and after the death of his father, this witness and his brothers have divided the site. The 2nd defendant as DW-1 admitted that his grand father sold site covered by ABCDE to one Mutyalu, the father of the 1st defendant and his grand father Kotaiah sold the entire site covered by ABCDE shown in the plaint plan to the father of the 1st defendant. The 1st defendant and his three brothers Chinnaiah, Peda Nagaiah and Peda Venkateswarlu and one Peddulu got divided the site purchased by Mutyalu into five plots about 30 years ago. In the said partition the 1st defendant got plot ''A'' while plot ''B'' fell to China Nagaiah, plot ''C'' to Peda Nagaiah, Plot ''D'' to Okkodu and while plot ''E'' was given to Peddulu. ''D'' marked plot was purchased by the 4th defendant and ''B'' marked plot about 7 or 8 years ago from the original allottees. C marked plot devolved on 3rd defendant from Peda Nagaiah. Likewise, ''A'' marked plot was purchased by plaintiff in 1974 under Ex.A-2 against of sale and ''E'' marked plot was purchased by the 4th defendant from Peddulu. All these facts had been dealt with in detail by both the courts below. On the North of ''A'' plot the plaintiff has got his site in which a hayrick and a kottam are situated and on the West of C D plots there is Muppalla Donka while there is a street on the South of C, B, E plots. The parties are at dispute even relating to the existence of a passage marked as XY between DC and AB plots running from North to South joining Southern street at Point X. The 1st respondent/plaintiff is claiming a right of passage through XY passage basing on Ex.A-2 agreement and there is a recital to that effect in Ex.A-2. In Ex.A-2 it was clearly recited that the plaintiff was given a right of passage jointly left by the 1st defendant and his brothers for their joint use. In fact, even in the evidence of DW-1 when it was suggested to DW-1 relating to this passage, he had not denied the existence of the passage as such, but he had explained stating that the width of the passage is something less. Hence, the fact remains that the passage is in existence. Apart from this evidence, on appreciation of the other evidence available on record, both the Courts had concurrently recorded the finding relating to the existence of the passage and also the right of the plaintiff to utilize the said passage and consequently granted the relief relating to the passage also and for the removal of the obstructions, if any for the peaceful possession and enjoyment of the said passage. Thus, these are concurrent findings of fact recorded by both the Courts below and no doubt Ms. Supriya, the learned Counsel for the appellant had made an attempt to show that the right of easement cannot be claimed at all inasmuch as the ingredients of Section 15 of the Indian Easements Act had not been satisfied. In the light of the concurrent findings which all relate to the factual aspects recorded by both the Courts below, I do not think that there is any substance and I do not find any substantial question of law also involved since it is purely on appreciation of evidence. In the light of the limitations placed u/s 100 C.P.C. in case of concurrent findings recorded by both the Courts below, I am not inclined to interfere with the said findings and hence the findings recorded by both the Courts below are affirmed and the Second Appeal being devoid of merits, the same is dismissed. But however, this Court makes no order as to costs.