GOVINDARAJULU NAIDU Vs. ARUMUGA KONAR & OTHERS

JUDGEMENT

(1.) The present Second Appeal has been filed by the appellant/plaintiff, questioning the correctness of the Judgment and decree, dated 27.09.2005, passed by the Principal Sub Court, Villupuram, in A.S. No. 2 of 2002, whereby, the judgment and decree passed in favour of the plaintiff by the Principal District Munsif Court, Ulundurpet, in O.S. No. 88 of 2001 on 03.05.2002, was reversed. The plaintiff filed the suit in O.S. No. 88 of 2001 on the file of the Principal District Munsif Court, Ulundurpet, seeking for a decree of declaration and permanent injunction in respect of the suit property and for costs on the basis that the suit property originally belonged to the plaintiff's father by name Venkatasamy, who constructed a thatched hut in the suit property and was also paying the house tax for the same. After constructing a house in a part of the land, the rest of the portion was left open as a garden. The property was enjoyed by the plaintiffs father for nearly 30 years and thereafter, he died leaving behind his wife Kamala Ammal and the only son - the plaintiff/Govindarajulu Naidu. The plaintiff, being the only legal heir of Venkatasamy Naidu, has become the absolute owner of the suit property. The first defendant is the father of defendant Nos. 2 to 3. The defendants, whose property is on the southern side of the plaintiff's property and who purchased an extent of land measuring East West 40' and North South 30' from the father of the plaintiff on 28.11.1988 for a valid consideration of Rs. 4,800/-, are trying to trespass into the suit pathway/lane measuring about 4' in breadth. The defendants have no right whatsoever on the suit lane which is being used by the plaintiff for ingress and egress of the plaintiff's family members. Per contra, the defendants/respondents filed a written statement, stating that the suit was not maintainable for the reason that the UDR patta issued in favour of the plaintiff was not valid and true. It is further stated that, on the southern side of the plaintiff/appellant's property and in the land lying in S. No. 192, the defendants had purchased an extent of land measuring East West 40' and North South 30' from the plaintiff's father on 28.11.1988. Only after the said purchase, the defendants had constructed a hut in the suit property in a portion of the same and the rest is being enjoyed as garden. On the northern side, there is a lane left out measuring 4' in breadth. This is being maintained by the defendants for the ingress and egress of men and cattle. Though the plaintiff was originally using the northern end of the property for drainage, after the dispute between the plaintiff and the defendants, now, the plaintiff/appellant is using the disputed 4' lane for drainage purpose. Thus, the suit laid out of enmity as against the defendants is liable to be dismissed.

(2.) On these facts in issue, the matter was taken up for trial. The plaintiff/appellant produced Exs. A1 to A14 and examined PWs-1 and 2. On the side of the defendants/respondents, DWs-1 and 2 were examined and Exs. B1 to B11 were marked. By framing an issue as to whether the plaintiff/appellant was entitled to have a decree for declaration and injunction and for costs, and after analysing the evidence adduced by both sides and taking judicial note of the admission made by the defendants, who would admit that the property of the plaintiff is lying on the northern side and he is enjoying the house property and the vacant site surrounding the same, and that in respect of the property lying in S. No. 615/4, the defendants had no right or title, the trial court ultimately decreed the suit as prayed for by holding that, in the light of the clear admission of the defendants themselves, the plaintiff has to succeed. However, on appeal, the lower appellate court reversed the judgment of the trial court by observing that the dispute is only with regard to 4' lane lying between the property of the plaintiff and that of the defendants and that, in a case of this nature, an admission by a layman witness to the effect that he has no right or title in respect of the suit lane cannot be taken into consideration.

(3.) In my considered opinion, the lower appellate court has not approached the matter in issue in a proper perspective. It must be noted that the point for consideration before both the courts below was whether the 4' suit lane was properly described by definite metes and bounds in the plaint schedule. The conclusion of the lower appellate court that the plaintiff has not described the suit lane in the plaint schedule with relevant boundaries and resurvey number and that no document of title was produced in respect of the suit lane and that further, no advocate commissioner was appointed to locate and identify as to in whose possession and in whose part of the land the disputed lane lies, is absolutely baseless, for, it is trite law that an admission, being better piece of evidence, does not require any proof. The Apex Court, in Divisional Manager, United India Insurance Co. Ltd. and another v. Samir Chandra Chaudhary, 2005 4 LW 498, while dealing with evidentiary value of an admission under Section 31 of the Indian Evidence Act, 1872, while holding that admission is the best piece of evidence against the person making such admission, observed thus:-