Whether boundary recitals in a settlement deed and a sale deed are sufficient to establish a pathway as a common passage?

The plaintiffs are the appellants, aggrieved by the reversal findings rendered by the first appellate Court in A.S.No.23 of 2013 on the file of the Sub Court, Pattukottai, setting aside the trial Court's decree in favour of the plaintiff in O.S.No.327 of 2004 on the file of the District Munsif, Pattukkottai.

The second appeal has been admitted by this Court on 10.11.2023 on the following substantial questions of law:

I have heard Mr.S.Meenakshi Sundaram, learned Senior Counsel for Mr.K.Guhan, learned counsel for the appellants and Mr.S.Parthasarathy, learned Senior Counsel for Mr.G.Mohan Kumar, learned counsel for the respondent in both the second appeals.

For the sake of convenience, the parties are referred to as per their rank before the trial Court.

The brief facts that are necessary for deciding the above second appeal are as hereunder: The plaintiffs filed a suit in O.S.No.327 of 2004 in a representative capacity, after obtaining leave under Order 1 Rule 8 CPC, from the trial Court. The relief sought for by the plaintiffs was to declare that the suit property absolutely belongs to Sozhiyavellalar community worshippers of Shri Kathavarayan Swamy temple and for a consequential permanent injunction and also for directing the defendant to remove the crusher stones from the suit property as well as for permanent injunction to restrain the defendant from interfering with the plaintiffs' peaceful possession and enjoyment of the suit property. According to the plaintiffs, the temple is an ancient temple, situate in the center of southern side of S.No.327/A1, bearing T.S.No.23. The temple faces east and the suit property is a passage proceeding from Arisikara Street, to reach the temple. According to the plaintiffs, the passage is in usage from time immemorial and moreover the only access to reach the temple from Arisikara Street. Further, the case of the plaintiffs is that Shri Kathavarayan Swamy temple belongs to Sozhiyavellalar community family, who are residing in Kasangulam first Lane of Pattukkottai and lands of an extent of 34 ¾ Kuzhi in old survey No.32/7 originally belonged to Chidambaram Pillai and his son Govindasamy Pillai. The brothers orally partitioned the property on 07.03.1939 and subsequently an extent of 29 Kuzhi came to be purchased by the plaintiffs under sale deed dated 13.06.1974. In the sale deed, there is a mention about the passage proceeding to Shri Kathavarayan Swamy temple by reflecting it as the southern boundary. According to the plaintiffs, the brothers, Govindasamy Pillai and son of Chidambaram Pillai, viz., Sankaran Pillai @ Chandrasekaran Pillai, retained the right of pathway to the temple. It is also the contention of the plaintiffs that the land situate on the southern side of the suit property, originally belonged to Parvathy Ammal. The defendant is the daughter of the younger sister of the said Parvathy Ammal. The said Parvathy ammal settled her property in favour of the defendant under registered settlement deed on 04.05.1973 and even in the said settlement deed, northern boundary in the settlement deed has been described as pathway to Shri Kathavarayan Swamy temple and even in the purchase deed by Parvathy Ammal herself, the northern boundary reflected is only a passage. It is therefore the contention of the plaintiffs that the defendant, having acquiesced to the existence of the passage and the passage also being one of the boundaries, the defendant had no right to encroach into the passage and put up any construction. Further, the allegation of the plaintiff is that, in blatant violation of the entitlement of the defendant, the defendant has attempted to put up construction over the passage, thereby restraining use of the pathway leading to the temple and it is under such circumstances, that the suit came to be filed.

The defendant filed a written statement contending that the plaintiffs have no right to file a suit in representative capacity, on behalf of the worshippers to Shri Kathavarayan Swamy temple and the order obtained under Order 1 Rule 8 CPC was only seeking permission to file a suit in a representative capacity for Sozhiyavellalar community people and not for worshippers of Sri Kathavarayan Swamy temple' which is the prayer in the suit. According to the defendant, the second plaintiff owns land in T.S.No.23 and also northern side property, having purchased it under sale deeds dated 01.06.1997 and 04.06.1997 and the property acquired by the second plaintiff under sale deed dated 04.06.1997 lies on the southern and western sides of the defendant's property, which is confirmed by the mention of the same in the boundary recitals of the said sale deed. The sale deed does not indicate that there is any passage, much less the suit temple passage. The revenue records were mutated in the name of the defendant and they also do not reflect the existence of any pathway. Since the plaintiffs attempted to bring changes in the Town survey, the defendant filed the suit which was however dismissed for default. The dismissal of the said suit will not in any manner affect the defendant's right, since there has been no mutation, despite dismissal of the suit filed by the defendant. According to the defendant, the cause of action for filing the suit was clearly imaginary.

A reply statement was filed by the plaintiff to which an additional written statement was also filed and the parties reiterated their respective stands.

Before the trial Court, the first plaintiff examined himself as P.W. 1 and 33 documents were marked as Ex.A1 to Ex.A33. On the side of the defendant, 2 witnesses were examined as D.W.1 and D.W.2 and 45 documents were marked as Ex.B1 to Ex.B45. The preliminary report, final report and plan of the Advocate Commissioner, appointed by the trial Court, was marked as Ex.C1 to Ex.C3 respectively.

On considering the pleadings as well as the oral and documentary evidence, the trial Court refusing to grant declaratory relief, granted the relief of permanent injunction and mandatory injunction alone as prayed for by the plaintiffs.

Aggrieved by the same, the defendant filed an appeal in A.S.No. 26 of 2013 before the Sub Court, Pattukkottai. Aggrieved by the refusal to grant the relief of declaration, the plaintiffs preferred an appeal in A.S.No. 23 of 2013. Both the appeals are heard together by the Sub Court, Pattukkottai and ultimately, the appeal filed by the plaintiff came to be dismissed confirming the refusal of the declaratory decree and the appeal filed by the defendant in A.S.No.26 of 2013 was allowed and the suit in O.S.No.327of 2004 was dismissed in entirety.

As against the said common judgment, two second appeals have been filed by the plaintiffs.

Arguments of Mr.S.Meenakshi Sundaram, learned Senior Counsel for appellants: The learned Senior Counsel would state that existence of the temple is not in dispute and the suit was filed only after obtaining permission under Order 1 Rule 8 CPC and all the owners, who belong to the same community, had agreed, in principle, to set apart a strip of land measuring 10 feet in width and 73 feet in length to form an east-west pathway, thereby providing access from Arisikara Street to the temple situated on the western side. He would however state that the defendant had denied existence of the pathway and claimed that the pathway belonged to the defendant. As regards the relief sought for and the reasons for the appellate Court reversing the judgment of the trial Court with regard to the declaratory relief, the learned Senior Counsel would contend that this Court can always mould the relief and the pathway can always be declared to be belonging to the temple.

In this regard, the learned Senior Counsel has relied on the decision of the Hon'ble Supreme Court in J.Ganapatha v. M/s.N.Selvarajalou Chetty Trust rep. by its Trustees reported in 2025- INSC -395. The learned Senior Counsel invited my attention to Ex.A1 to Ex.A4 and would contend that the defendant attempted to stall the revenue officials from effecting changes in the official records and the said suit was admittedly not prosecuted by the defendant and it came to be dismissed. Further relying on Ex.A2 and Ex.A3, which are long before filing of the suit, the learned Senior Counsel would contend that there is a clear mention of the suit pathway and boundary recitals in Ex.A3 and Ex.A4 would therefore assume significance and lead to an irrefutable conclusion that the pathway always existed from time immemorial and was only for the purposes of accessing the temple from Arisikara street. He would also refer to Ex.A19, which is an unregistered pathway right confirmation deed executed in favour of the plaintiffs by one Mohan son of P.S.Govindasamy Pillai, who was infact the earliest owner of the larger extent of the land.

The learned Senior Counsel would also refer to the Advocate Commissioner's report, where there is a mention of the pathway of 10 feet width and length of 73 feet. He would further state that the trial court had therefore rightly come to the conclusion that the pathway existed and had been created only for reaching the temple and therefore, granted relief of mandatory injunction as well as permanent injunction. The learned Senior Counsel further state that when the registered document clearly mentioned the suit pathway, the trial Court ought to have granted declaratory relief as well, noticing that the plaintiffs had no personal interest and were only opposing the cause of the community as a whole. He would also take me through the evidence of the defendant and the documents filed on behalf of the defendant and contend that the defendant's had not been able to come up with any proof, establishing any right over the suit pathway. The learned Senior Counsel would therefore pray for the second appeals being allowed and the substantial question of law being answered in favour of the plaintiffs, reiterating the request for moulding the relief insofar as the relief of declaration, which was originally sought for in the plaint.

Arguments of Mr.S.Parthasarathy, learned Senior Counsel for the respondents: Mr.S.Parthasarathy, would firstly invite my attention to the specific prayer sought for in the plaint, seeking an absolute right prayed for by the plaintiffs. He would contend that in the absence of any evidence to show that pathway belonged to the worshippers, mere obtaining permission under Order 1 Rule 8 CPC would not lis pendens with the burden of proof that was upon the plaintiffs to establish that they were entitled to the declaratory relief. He would further state that the plaintiffs have not been able to even establish that the suit property belonged to Sozhiyavellalar community and in this regard, he would take me through Ex.B5 and Ex.B7 which indicate that the property was belonging to Thevar community and not Sozhiyavellalar community. He would also state that the revenue records do not indicate existence of any temple, much less a pathway leading to the temple. He would further state that the subject suit property is the absolute property of the defendant, he having purchased it for valuable sale consideration. He would point out that, for the first time, vide Ex.B8, in the year 1997, the pathway had been introduced and the plaintiffs had miserably failed to establish title to the suit pathway. He would also contend that in such circumstances, the burden can never stand shifted to the defendant and mere description of one of the boundaries as pathway will not confer title on the plaintiffs. Inviting my attention to the findings of the first appellate Court, the learned Senior Counsel would state that insofar as the declaratory relief, both the Courts have concurrently found, on facts, that the plaintiffs are not entitled to the relief prayed for and such conclusions not being perverse, he would state that under Section 100 of the Code of Civil Procedure, this Court cannot interfere with such concurrent findings arrived at by Courts of facts, even if another view is possible. The learned Senior Counsel would refer to written statement filed by the second plaintiff in an earlier civil proceeding, where a claim was only in respect of easement over the suit property, but, strangely, suppressing material facts, the present suit had been filed, seeking declaration of title to the suit pathway and the same has not been explained by the plaintiffs. The learned Senior Counsel would further state that even going by Exs.A3 and A4, and taking into account the extents that have been dealt with in the said documents, it supports the conclusion reached by the Court that it is not possible for the passage measuring 730 sq.ft to have been in existence, especially in the absence of even FMB records, classifying the suit land as pathway. Referring to Ex.B20, the learned Senior Counsel would state that the first appellate Court has rightly reversed even the decree for mandatory injunction and permanent injunction and the same does not call for interference in second appeal.

The learned Senior Counsel has relied on the following decisions: (i) Judgment of this Court in Mahalingam v. A.S.Narayanaswamy Iyer, reported in 1996-1-LW-443; (i) Judgment of this Court in Ponnusamy v. Annamalai Chettiar , reported in 1999-M.L.J(Supp.)456; (iii) Judgment of this Court in Meenakshisundaram v. Gopalarathna Mudaliar, reported in 2000-1-LW-264; (iv) Judgment of this Court in Arunachalam Pillai v. Sorimuthu Pillai, reported in AIR-2004-Madas-185; (v) Judgment of the Hon'ble Supreme Court in Padhiyar Prahladji Chenaji (deceased) v. Maniben Jagmalbhai (deceased), reported in 2022-12-SCC-128; (vi) J.Ganapatha v. M/s.N.Selvarajalou Chetty Trust rep. by its Trustees, reported in 2025-INSC -395. Analysis:

I have carefully considered the submissions advanced by the learned Senior Counsel on either side.

The only substantial question of law that arise for consideration in the light of the question of law at the time of admission is as to whether the boundary recitals in Ex.A3 and Ex.A4 settlement deed and sale deed respectively would be sufficient to establish the existence of the suit pathway as a common passage for the benefit of all the adjoining landowners.

Admittedly, the plaintiffs had sought for a declaratory relief, claiming absolute right over the suit pathway. The plaintiffs are before the Court representing the worshippers of Shri Kathavarayan Swamy temple. No doubt, an order has been obtained Order 1 Rule 8 CPC, permitting the plaintiffs to institute the suit in a representative capacity. This alone, in my considered opinion, does not dispense with evidence to be adduced on the side of the plaintiff to establish that the suit pathway is a common pathway, entitling the worshippers of the temple to use the same. As rightly pointed out by Mr.S.Parthasarathy, learned Senior Counsel, it is incumbent on the plaintiffs to establish that the pathway belonged to the worshippers of the temple. There is absolutely no evidence adduced in this regard. Reliance is strongly placed on the boundary recitals in Ex.A3 and Ex.A4, which no doubt mention that there is a pathway leading to Shri Kathavarayan Swamy temple. However, it is settled law that boundary recitals will not confer title on a person claiming title, who independently has to plead and also prove his title in respect of which a declaration is sought for. Excepting the boundary recitals, the plaintiffs have been unable to produce any satisfactory evidence to show that the pathway is a common pathway. On the other hand, the defendants have produced oral and documentary evidence, including the sale deed including the land, which is now claimed as a pathway, patta mutated only in the defendant's name and the FMB which also does not disclose any pathway existing in the suit property.

In such circumstances, I do not see how the plaintiffs have established their claim to the declaratory relief that the suit pathway absolutely belonged to the worshippers of Shri Kathavarayan Swamy temple. In fact, even in the second plaintiff's sale deeds, it is only the name of the defendant's husband that is mentioned in the boundary recitals in the sale deed and there is no mention about the passage leading to the temple. The trial Court unfortunately was mislead by the fact that the order in I.A.No.672 of 2024 permitting the plaintiffs to file a suit for in representative capacity was not challenged and the suit filed by the defendant in O.S.No.152 of 2004 had also dismissed and in such circumstances, the plaintiffs were entitled to file the suit under representative capacity. Further, the trial Court, while rightly holding that the revenue records and patta are not documents of title, erred in giving weightage to boundary recitals to come to the conclusion that the defendant is bound to leave the passage for the use and enjoyment of the devotees, coming to the temple.

The trial Court having come to the conclusion that the plaintiffs are not entitled to the declaratory relief as prayed for, ought not to have granted relief of injunction which can only be at best a consequential relief supporting the relief of declaration. Unless the plaintiffs are able to establish their entitlement to the main and substantial relief of declaration, the plaintiffs request for consequential reliefs ought not to have been favourably considered by the trial Court. The first appellate Court had rightly disallowed the said reliefs of mandatory injunction and permanent injunction and set aside the erroneous findings of the trial Court, clearly finding that when the plaintiffs had not established the very entitlement to the declaratory relief that the suit pathway belonged to the worshippers of Shri Kathavarayan Swamy temple, the question of granting the consequential relief of permanent injunction and mandatory injunction cannot and does not arise.

The Hon'ble Supreme Court in J.Ganaptha's case, no doubt held that the Court is entitled to modify or shape a relief sought by a party, based upon the circumstance of a case and facts established. The context in which the said judgment was rendered was entirely based on the factual matrix of the said case. The Hon'ble Supreme Court held that though the Courts are empowered to mould the relief, having regard to the facts and circumstances of the case, the subsequent events and to shorten litigation, such power must be exercised to do complete justice between the parties. At the same time, the Hon'ble Supreme Court has cautioned that, under the guise of moulding relief, the Court should not grant a relief that takes the aggrieved party by surprise and held that the relief can be moulded only by way of an exception and not as a matter of course. In the facts and circumstances of the present case, I am unable to apply the said decision, when there is absolutely no iota of evidence on the side of the plaintiffs to establish the alleged right over the suit pathway. As already discussed hereinabove and at the risk of repetition, except placing reliance on the boundary recitals, there is no independent or acceptable evidence for granting the relief of declaration in favour of the plaintiffs.

This Court in Mahalingam's case, the Court, applying the maxim “falsa demonstratio non nocet,” held that where the property is clearly identified by its survey number and the extent specified therein manifests the clear intention of the testator to bequeath the entire survey number, any erroneous or inaccurate description of the boundaries cannot be given any undue importance and such a mistaken description of the boundaries is liable to be ignored, as it does not affect the identity of the property or the intention of the testator.

In Ponnusamy's case, this Court held that a recital regarding the boundary in a sale deed cannot be relied upon, much less to uphold title.

In Arunachalam Pillai's case, this Court again held that when the plaintiffs claimed ownership of a pathway and did not adduce any evidence to prove such ownership, the plaintiffs cannot turn around and subsequently claim a right of easement over the pathway. This decision is pressed into service by the learned Senior Counsel, since the second plaintiff has claimed an easement right over the suit pathway and it amounts to an acknowledgment of the defendant's right over the said pathway.

Lastly, the Hon'ble Supreme Court in Padhiyar Prahladji Chenaji's case, held that when a suit where declaration and other reliefs are sought for, along with further relief of injunction and the suit is held to be not maintainable, then no relief can be granted. The ratio in this case is squarely applicable to the facts of the present case.

Both the Courts have concurrently found that the plaintiffs have not established their title and having denied the larger relief of declaration, the trial Court erred in granting the relief of mandatory injunction, which was rightly set aside by the First Appellate Court.

In such view of the matter, I do not find any illegality of perversity in the findings of the first appellate Court and warranting interference under Section 100 of the Code of Civil Procedure. The substantial question of law is answered against the plaintiffs/ appellants.

In fine, these second appeals are dismissed. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed. 17.07.2026