RASEL MUTHIRIAR Vs. THIRUCHIRAPPALLI MUNICIPALITY

JUDGEMENT

(1.) PLAINTIFF is the appellant in the above second appeal, He filed O.S. No. 1033 of 1978 before the Sub Court, Thiruchirappalli for declaration and permanent injunction. The allegations in the plaint are as follows: The plaintiff is the absolute and exclusive owner of the suit property. It was purchased under a registered sale deed dated 15.2.1994 under Ex.A-1. The plaintiff obtained a release deed in respect thereof from his brothers under a registered release deed dated 1.6.1961 Ex.A-2. Thus the plaintiff and prior to him, his predecessors- in-title have been in exclusive possession and enjoyment of "A" Schedule property for more than the statutory period. "A" Schedule property is called "Kubera Bavanam". It contains a lodging house in the upstairs and a row of 12 shops in the ground floor. "A" schedule property includes a right acquired by prescriptive exclusive enjoyment over the pathway in the "B" Schedule property leading to the upstairs of "A" schedule property. The same is situate in T.S. No.2486, The plaintiff and prior to him, his predecessors- in-title have been paying the Municipal tax for the "A" Schedule property numbering 13 assessments. There is a betel stall in Door No.557 in T.S. No.2487 facing east of the "B" Schedule property. The "B" Schedule property has always been treated and enjoyed as an integral part of the "A" schedule property and it is necessary for access to reach the upstairs and the betal stall "B" schedule property is not an independent property. The plaintiff and his predecessors- in-title have been in possession and enjoyment of this property for a long time and they have prescribed title by adverse possession. The defendant has no manner of right or title to the suit property. The defendant called for tenders for the construction of book stall in "B" Schedule property. The defendant has no right to do so. Hence, he filed the present suit for declaration that the plaintiff is entitled to the suit "B" schedule property and for permanent injunction.

(2.) IN the written statement filed by Thiruchirappalli Municipality, it is contended in the following manner: It is true that the plaintiff is the owner of the premises called "Kubera Bavanam" in the "A" Schedule property. But "A" Schedule property docs not include any right in the "B" Schedule property. The "B" Schedule property is not a path-way as alleged in the plaint. The survey number in the "B" Schedule property is only T.S. No.2486 and not T.S. No.2487. Survey No.2486 is a vacant site and is Government Poramboke vested with Municipality. Hence, the B" Schedule property is not used access to the upstairs portion. The plaintiff has paid encroachment fee to the defendant for the enjoyment of this vacant site. The defendant has assessed property tax only to this small stall, which has been put by the plaintiff on the eastern wall of the Betal shop. The plaintiff has also occupied this vacant site in the "B" Schedule property and put up temporary sunshade. For this occupation, the defendant has collected encroachment fees. As such, the plaintiff cannot claim exclusive right over the "B" Schedule property. More over the plaintiff never used this vacant site for the access either to Kubera Bhavan nor to the Jewellery shop as contended. Since the occupation by the plaintiff over the vacant site is temporary, the defendant thought fit to construct a small book stall and to lease out the book stall in order to increase the source of income of the Municipality. Since the vacant site is in the road margin, the Municipality has got every right to lease out this property. With these averments, the Municipality prayed for dismissal of the suit.

(3.) AGAINST the Judgment and decree of the Sub Court, Thiruchirappalli, the defendant has preferred an appeal in A.S. No. 13 of 1981 before the District Court, Thiruchirappalli. Before the lower appellate court, though a petition was filed for amendment and the court has also allowed the plaintiff's request, at the time of argument, the plaintiff's counsel filed a memo giving up the alternative prayer for declaration of his right for easement by prescription. Thus, the claim for easement by prescription is given up and the plaintiff has confined his right only to the title to the "B" Schedule property in the suit. The lower appellate court considered both oral and documentary evidence in detail. It relied upon Ex.A-23, dated 18.3.1973 notice issued by Assistant Director of Survey and Records to the plaintiff. It also relied upon the evidence of D.W.I, who was working as Town Surveyor under the defendant Municipality. He deposed that the "B" Schedule property has been described as Government Poramboke in the relevant records and D.W.2 is working as Revenue Inspector under the said Municipality. He also deposed that the defendant is the owner of the "B" Schedule property and the plaintiff has no title over the same. By relying upon Ex.A-20 to A-23 and Exs.B-1 to B-3, the lower appellate court observed that the plaintiff failed to prove his case that he has got title to the "B" Schedule property, nor it can be said that the plaintiff has got perfected title to the "B" Schedule property by adverse possession. As far as easementary right, inasmuch as the plaintiff himself has given up, the lower appellate court found it not necessary to go into that question. In the above manner, as discussed above, the lower appellate court, viz., the District Judge, Thiruchirappalli, by Judgment and decree dated 4.11.1982, allowed the appeal and set aside the judgment and decree of the trial court and dismissed the suit.