BAGYALAKSHMIAMMA Vs. DHANALAKSHMIAMMAL

JUDGEMENT

(1.) THE unsuccessful plaintiff in O. S. No. 710 of 1975, additional District Munsiff's Court, Salem, is the appellant in this second appeal. THE suit was instituted by the appellant in a representative capacity respresenting the residents of Kurumbar Street , Salem . Her case is that the property delineated as'g F E M K H'in the plaintiff plan Ex. A. 1 and described in the schedule A to the plaintiff, belongs to her by virtue of a settlement deed dated 10. 4. 1957 executed by Marappa naicker in her favour and marked as Exa. 5. According to the appellant, the east west measurement of the property is 24-1/2 feet, while, the north south measurement is 44 feet, and the property consists of a house and site as well. THE further case of the appellant is that the portion marked A B C D M E F G in ex. A. 1 is known as Kurumbar Street Lane and belongs to the 4th respondent in the second appeal. THE appellant put forth the case that the 1st respondent encroached upon a portion of the Municipal lane immediately to the north of the house of the appellant measuring about 5 feet north to south and 24 feet east to west, as indicated in Exa. l. In or about July, 1972, according to the appellant, when she was away in Bangalore, the 1st respondent, her daughter -the 2nd respondent and her son-in-law- the 3rd respondent, encroached upon the site marked as L E M K belonging to the appellant on the eastern side of the property, constructed a storied building and also put up a drainage from the first floor to drain water over the eastern wall of the house of the appellant. THE respondents, according: to the appellant, also constructed an almyrah and imbedded a doorframe on the eastern wall of her house. THE appellant filed the suit for a declaration that the portion marked as E F O N measuring 5'x 24'in Exa. 1 north of her house, is a municipal lane. Yet another declaration was also prayed for by the appelant with reference to the portion marked as L E M K measuring 12'x 3'situate on the north eastern portion of her property. Since, according to the appellant, respondents 1 to 3 put up a compound wall along O N and put up a latrine on the north-eastern portion and had also further constructed a building encroaching upon her property, marked a L E M K and put up a construction after fixing a door-frame on the eastern wall and also allowed the drainage water to drain above her eastern wall, the appellant also prayed for a mandatory direction directing respondents 1 to 3 to remove the unauthorised constructions in the portions E F o N and L E M K indicated in the plan, Exa. l. THE 4th respondent was impleaded, as according to the appellant, the portion E F O N formed part of the municipal lane and the 4th respondent had omitted to take steps to remove the encroachment and restore the municipal lane to its original condition.

(2.) RESPONDENTS 1 to 3 resisted the suit on the ground that the property marked as E F O N in Exa. l belongs absolutely to the 1st respondent by virtue of a settlement deed executed in her favour by one rajagopal Naicker and marked as Ex. B. l. According to the respondent, the lane to the north of the house of the appellant is not a municipal lane and that the portion north of O N was set apart as private pathway for use by the predecessors-in-title of the 1st respondent. With reference to the portion marked L E M K, they took the stand that it belonged exclusively to the 1st respondent by virtue of a settlement deed, Ex. B. l, dated 21. 7. 1960 and that the appellant had no manner of right whatever over the property. RESPONDENTS 1 to 3 further claimed that the compound wall along O N in the portion marked as E F On had been put up on the property belonging to them and the construction of a latrine did not in any manner affect either the hygiene or cause any inconvenience. The construction put up in the portion LEMK did not rest on the eastern E L wall of the appellant; but two pillars had been erected with an almyrah in between and the drain does not rest on the eastern wall of the appellant' house. The further case of respondent 1 to 3 is that even the lane is a blind lane ending with the house of one Anandhayee Ammal and serves the houses of the appellant, respondents, Vishnukanthan Chetty and A. K. B. Chetty. The 4th respondent contended that the encroachment by the 1st respondent in the portion e F O N by construction of a compound wall and latrine was booked in the name of the 3rd respondent and action had been taken against him. Further, 4th respondent stated that he had no objection for the grant of the reliefs sought for by the appellant.

(3.) THE next question is whether the proceedings culminating in Exs. A. 10 and A. 11 would made any difference to the ownership of the disputed property the 1st respondent Ex. A. 10 is a copy of the Town Survey plan of the suit property. Exa. 11 is a copy of the revenue map for block No. 7 of Ward K of salem Town. None connected with the plan, Exa. 10, has been examined though it is certified to be a true extract by the Town Surveyor, Salem East. D. W. 4 also frankly confessed that he was not present at the time when the survey was made and that he does not know whether notice was issued prior to the survey, the attention of this Court has not been drawn to any evidence to show that notice prior to the town survey under Ex. A. 10 was given to any one, out of respondents 1 to 3. In the absence, therefore, of notice having been given to the party affected by the adverse survey, showing the private property of the 1st respondent, as municipal lane, the order passed culminating in Ex. A. 10, cannot be said to be correctly passed under S. 13 of the Surveys and Boundaries Act and binding on the 1st respondent, vide Kandaswamy Nadar's case (1952)1 m. L. J. 84. In view of this, there is no question of the 1st respondent being bound by that survey and obliged to institute a suit to set aside the order of the Survey Officer.