SELLAPPA GOUNDAR Vs. NATESAN

JUDGEMENT

(1.) THE above Second Appeal has been filed by the plaintiffs 1 to 5 in O.S. No. 1050 of 1979 on the file of the Court of District Munsif, Rasipuram, who succeeded before the learned trial Judge but lost before the First Appellate Court in A.S. No. 138 of 1982, wherein, the learned Subordinate Judge, Namakkal, chose to allow the appeal filed by the defendants and dismissed the suit.

(2.) THE suit O.S. 1050 of 1979 was filed for a declaration that the plaintiffs are entitled to the suit cart track ABCD and said to be running in S. No. 90/2 and 90/4 described in item 1 and for permanent injunction and also to declare the plaintiffs' right to the user of the foot path described as item 2 and for permanent injunction in that regard. THE case of the plaintiffs was that they are residents of Kalkattanoor and Madiampatti village in Rasipuram Taluk and the defendants are also the residents of Kalkattanoor and Madiampatti village and the suit properties are situated in Madiampatti village. THE plaintiffs 2 and 3 are said to be the owners of the land in S. No. 91/7 and co-owners along with the defendants in respect of S. No. 91/1, 91/8 and 91/6 of Madiampatti village. THE plaintiffs claim that they have other properties adjoining the said properties on the western side of the S. No. 91 and Government channel, and other plaintiffs' properties are situated on the western side of the channel. Defendants 1 and 2 are stated to be brothers owning lands in S. No. 91/3, 90/2, 90/4 and other properties. Plaintiffs 1 to 4 are said to be having lands on the eastern side of S. No. 90/4. It is stated that Poolanguttai Eri is situated on the north and northwest of S. No. 90/4, that the plaintiffs own land jointly in S. No. 90/1 as shown in the rough plan and that a plan marked Itteri runs along ABC in S. No. 90/2 and runs in S. No. 90/4 along CD and enters Poolanguttai Eri, and that in the said Eri, there are pathways proceeding to the Kalkattanoor, Vennanthur, Mallasamudram, Mamundi and other places. It is also the case of the plaintiffs that the Itteri along ABCD is a cart track in existence from timeimmemorial and the plaintiffs and others are enjoying the same to reach Eri and other places from the said Eri and to go to their lands on the western side of the Government channel and also to go to S. No. 90/1 and the width of the cart track is about 8 cubits and that such right was claimed to have been enjoyed without let or hindrance, openly and peacefully to the knowledge of the defendants over five decades for taking men, cattle and carts and that they have therefore perfected title also for a right over ABCD by prescription. THE plaintiffs complaining of interference with such enjoyment of rights by the defendants have filed the suit for the reliefs noticed supra.

(3.) I have carefully considered the submissions of the learned counsel appearing on either side. The learned counsel appearing on either side invited my attention to the relevant portions of the judgments of the courts below in support of their respective stands and also invited my attention further to the document, marked as Ex. A1, the certified copy of the Field Measurement Book pertaining to Field Number 90 of Madiampatti village and also the report and the plan of the Commissioner. For appreciating the stand taken by the learned counsel appearing on either side, the relevancy as also the efficacy of Ex.A1, it would be necessary to advert to the relevant guidelines contained in the "Tamil Nadu Survey Manual of Departmental Rules", which particularly indicate the manner of preparation of the Field Maps. In paragraph 18 of Chapter VI, it is stated that all roads, cart-tracks and channels shown as porambokes in the revenue accounts and those which are included in the ryotwari holdings and which exceed 2 0 links (4 metres) in width should be demarcated as separate Survey Fields if half a chain (10 metres) or over in width. At the same time, the officer in charge of the Survey Party is given the discretion to survey such cart track or a channel as a sub division in order to secure well shaped Survey Fields. It is also stated that the former should be surveyed as sub divisions when they are less than 50 links (10 metres) and the latter over 20 links (4 metres) and less than 50 links (10 metres) in width. Such of those included in the ryotwari holdings which do not exceed 20 links (4 metres) in width and those included in large waste blocks which are not to be surveyed in detail, should not, except in special case to be determined by the Revenue Officer, be sub-divided, but marked as "details". Similarly, in paragraph 7 of Chapter VII, it is stated that the position of all important topographical details, such as village sites, public buildings, channels, streams, tanks, wells, cart-tracks, footpaths, etc., whether separately marked or not as Survey Fields or sub-divisions, should be fixed by measurement and only those footpaths which lead from one village to another village or from one hamlet to another hamlet should be regarded as important. From the above information disclosed in the Manual, it could be gathered that in respect of ryotwari holdings, the roads, cart-tracks, channels, if any, existing, which do not exceed 20 links (4 metres) in width need not be sub divided and that it can be marked as "details". The Field Map for Field Number 90 marked as Ex.A1 contains no doubt, what in the Survey parlance used to be referred to as "details". The plaintiffs, if at all, could claim any rights on the basis of documents, particularly, Ex.A1, their rights have to be confined to only that portion of the Field Number 90, which, contains the "details" marked in the plan itself. Merely because the other pathway is in continuation thereof in the patta lands of the defendants and i s found on state of ground, from that alone, the plaintiffs cannot claim as a matter of right any right of user to the other portion also, as rightly contended by the respondents. May be, that such portion or part of the parthway in continuation has been cared out for the use of the respective land owners or for other when so permitted by the owners of the lands in which the pathway exists. From that alone, the plaintiffs cannot claim any absolute right unless it has been substantiated to be 4 right by way of easement of necessity or an acquisition of any easement by prescription. So far as the case on hand is concerned, the learned First Appellate Judge elaborately considered all the materials and has come to a categorical finding that the plaintiffs had an alternative approach or pathway which alone they were found to have been using and the acquisition of any easement by prescription has also been not made out. The learned trial Judge, in my view, has chosen to recognise a right in the plaintiffs as claimed by them merely on certain observations made by the Commissioner in his report, which itself in my view, cannot justify any positive and clear cut conclusion in proof of the rights of the plaintiffs as claimed by them. On a consideration of the materials on record, particularly, in the teeth of the directly opposite conclusions arrived at by the learned Judges in the courts below, I find that both the learned trial Judge and learned First Appellate Judge have gone on two unwarranted and unjustified extremes, in that, whereas the learned trial Judge has chosen to recognise the" rights even beyond point of C upto XY, the learned First Appellate Judge has chosen to totally ignore even the "detail" marked in the plan Ex.A1 to completely deny the rights claimed by the plaintiffs. Hence, it becomes necessary for me to consider the materials on record, and viewed thus, on the materials placed on record the plaintiffs could be held to have substantiated their claim only for the ABC cart-track, which alone is found justified and substantiated by Ex. A1. In other respects the claim of the plaintiffs could not have been held proved by any concrete materials or legally acceptable evidence. Consequently, the judgments and decrees of the courts below are liable to be modified, in that, the judgment of the learned First Appellate Judge has to be set aside and rights granted under the judgment and decree of the learned trial Judge has to be confined and limited to only ABC cart-track and in other respects the suit has to be and is hereby dismissed. To the above extent, the Second Appeal is partly allowed. No costs.