Madras High Court
K.Krishnamoorthy vs Nagammal on 18 November, 2014
Author: R.Mahadevan
Bench: R.Mahadevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 18.11.2014. CORAM THE HON'BLE MR.JUSTICE R.MAHADEVAN S.A.No.70 of 2007 K.Krishnamoorthy ...Appellant vs. 1. Nagammal 2. Arumugam 3. Damodaran ...Respondents Second Appeal against the judgment and decree dated 12.12.2005 in A.S.No.144 of 2005 on the file of the II Additional Sub Judge, Coimbatore, confirming the judgment and decree dated 29.10.2004 in O.S.No.1320 of 2003 on the file of the I Additional District Munsif, Coimbatore. For appellant : Mr.R.Krishnaprasad for M/s.Sarvabhauman Associates For respondents : Mr.C.R.Prasanan JUDGMENT RESERVED ON : 17.10.2014 JUDGMENT
Plaintiff, who lost his case before both the courts below is the appellant in the second appeal.
2. The plaintiff/appellant herein filed the abovesaid suit for the relief of declaration that the plaintiff is entitled to the user of the common pathway for his free engress and ingress without any hindrance whatsoever to reach ''A'' schedule property and for mandatory injunction directing the defendants to remove the unlawful obstruction of 2 feet brick wall on the west of ''B'' schedule property and situate very near to south of the ''A'' schedule property on or before a date that may be prescribed by the court and in failure thereof, to appoint an officer of the court to effect such removal at the cost of the plaintiff, which is recoverable by him from the defendants later.
3. The case of the plaintiff is as follows:-
The suit ''A'' schedule property originally belonged to the father of the plaintiff by name M.Karuppuswamy, having been purchased by him under a registered sale deed dated 03.09.1963 and eversince from the date of such purchase, the plaintiff is in possession and enjoyment of the same. The father of the plaintiff died on 24.11.1991. The adjacent land to 'A' schedule property belonged to one M.Nagappan, who is none other than the brother of the plaintiff's father. First defendant is the wife, and defendants 2 and 3 are the sons of the said Nagappan. In the land purchased by the said Nagappan, he had left a pathway for the use of the plaintiff's family to have access to their house by way of a document executed on 30.6.1988 in favour of the plaintiff's father. Even prior to such document, from the date of purchase of 'A' schedule property, the plaintiff and his family members are using the suit pathway viz., 'B' schedule property, thereby, the plaintiff and his family members have got adverse possession of ''B'' schedule property for nearly 40 years. After the death of the said Nagappan, defendants 2 and 3 put up a brick wall to an extent of about 2 feet out of 4 feet left to the plaintiff's father under the above said document dated 30.06.1988. The plaintiff had lodged a police complaint against such activity of the defendants, and was advised to approach the civil forum. The plaintiff and his family members have no other access to their house except the suit pathway. Hence, the suit has been filed for declaration and mandatory injunction.
4. The suit was resisted by the defendants/resondents herein contending as follows:-
'A' schedule property does not belong absolutely to the plaintiff alone and apart from the plaintiff, his brother Sundararaj and his mother Arayammal are joint owners of 'A' schedule property and hence, the suit filed by the plaintiff is not maintainable. Apart from the defendants, late Nagappan had left behind four daughters and hence, the suit filed, as such, against the present defendants alone is not sustainable in law. Neither the plaintiff nor his father was given any easementary right over the property of late Nagappan which now belongs to the defendants. The defendants have put up construction viz., compound wall in their property long back. Hence, the plaintiff is not entitled to the relief sought for and the suit is liable to be dismissed.
5. The Trial Judge framed the following issues:-
i) Whether the plaintiff is entitled to the relief of declaration?
ii) Whether the plaintiff is entitled to the relief of mandatory injunction?
iii) To what other relief?
6. During trial, the plaintiff examined himself as PW1 and marked 7 documents as Exs.A1 to A7, while the second defendant examined himself as DW1 and no document was marked on the side of the defendants. On analysis of the oral and documentary evidence, the Trial Court dismissed the suit. On appeal, the appellate court concurred with the finding of the Trial Court. Aggrieved against such a concurrent finding, the present second appeal has been filed by the plaintiff.
7. The second appeal has been admitted identifying the following question to be the substantial question of law involved in the second appeal:
"Whether both the courts below were correct in dismissing the suit, while there was a specific pleading and evidence that there is no alternative pathway and the plaintiff has to use the pathway in question by way of easement of necessity?
8. The arguments advanced by Mr.R.Krishnaprasad, learned counsel for the appellant and by Mr.C.R.Prasanan learned counsel on behalf of the respondents are heard in detail. The materials available on record are also perused.
9. The suit is one for the relief of declaration and mandatory injunction with regard to 'B' schedule property. The defndants have no serious contest against the 'A' schedule property. The dispute revolves only around the 'B' schedule property, which the plaintiff claims as a common pathway. He bases his claim for the right to use the pathway in two modes, one being long user and the other one being an unregistred partition deed dated 30.6.1988 alleged to have been executed by late Nagappan in favour of the father of the plaintiff.
10. Learned counsel for the appellant would submit that the courts below have failed to consider the long user of the pathway by the plaintiff and the fact that there is no alternative pathway to have access to his property. He further submitted that easement of necessity can be implied and there is no need for mentioning of grant of easement in the title deed and even any inconsistency in the pleadings will not stand in the way of granting easement. He relied upon the decisions in SREE SWAYAM PRAKASH ASHRAMAM AND ANOTHER v. G.ANANDAVALLY AMMA AND OTHERS ((2010) 2 SCC 689), SENGODA GOUNDER, R. & 5 OTHERS v. SENGODA GOUNDER & 5 OTHERS (1999-1-LW 422), PALANI & 7 OTHERS v. PERUMAL (1999-1-LW 427) and unreported decision in S.A.No.407 of 1998 dated 30.06.2011 in support of his contention.
11. Learned counsel for the respondents would submit that the plaintiff claims the right to use the suit ''B'' schedule pathway on one hand by long user and on the other hand claiming to be the owner of the same under an unregistered partition deed alleged to have been executed by Nagappan, which is not maintainable in law. He relied upon the decision in ARUNACHALAM PILLAI v. SORIMUTHU PILLAI ((2004) 1 MLJ 474) in support of his above contention.
12. In the said decision, learned Single Judge of this Court has observed as under:-
The plaintiff cannot be permitted to raise inconsistent pleas. To claim easement, the plaintiff must admit the title of the defendant over the property. If the plaintiff claims easementary right that must be proved by sufficient evidence by the plaintiff. When the plaintiff admits that he claimed ownership and not easement and if he fails to prove ownership, he cannot be allowed to prove easementary right. Ownership and easement are mutually exclusive. Both cannot be pleaded. Therefore, when the plaintiff claimed ownership, he gives up the plea of easementary right. Ultimately, when the plaintiff failed to prove ownership, he cannot revive the plea of easement. In such circumstances, the plaintiff is not entitled for any relief.
13. In the instant case on hand, the plaintiff has come out with two pleas, as stated above, which are mutually exclusive, and therefore, in the light of the above said decision, the plaintiff cannot be permitted to raise inconsistent pleas.
14. The learned counsel for the respondents relied upon the decision in PONNAN v. PERAMAN ((2007) 1 MLJ 546) to contend that when the right over a pathway is claimed as an easement of grant, there is no necessity to consider the availability of the alternative pathway.
15. Further,the learned counsel for the respondent relied on the following decisions:-
(i) (2000) 9 SCC 524 (Madai Lakshmi alias M.Rajalakshmi .v. P.M.Partha Kumar) and the relevant portion reads as follows:-
"Easements Act, 1882 Ss.13(f) and 15 Trial Court and lower appellate court finding that easement of necessity pleaded in respect of the pathway over appellant's land had extinguished and that respondent also failed to prove user by him of the said pathway for the statutory period of 20 years so as to enable him to claim easementary right High Court while upholding the concurrent finding that easement of necessity no longer existed, held, erred in coming to conclusion that the respondent had perfected his right of quasi-easement under S.13(f); the respondent having failed to establish his continued and uninterrupted user of the pathway for a period of 20 years."
(ii) AIR 1956 Madras 584 (Mariyayi Ammal and others .v Arunachala Pandaram). In the said decision, it was held that to claim right of way as an easement of necessity, it must be proved that there was no other access to his property by the defendant. Convenience was not the test, but test was of absolute necessity.
(iii) (2005) 2 MLJ 208 (Sarasu .v. Karuppa Gounder and others) and the relevant portions are as under:-
"Easement Act (V of 1882), Secs. 13 and 15 Evidence Act (1 of 1872), Secs.101 to 103 Suit for declaration and injunction Dispute regarding a pathway Exclusive right claimed by the plaintiffs No evidence to prove that the plaintiffs exclusive easementary right over the pathway On the contrary defendant disproving the case of the plaintiffs First Appellate Court is not justified in granting decree Impugned judgment set aside."
(iv) (2006) 1 MLJ 240 (Ponnan alias Palaniappan and another .v. Chinna Gounder (died) and others) and the relevant paragraphs are as follows:-
"12. In fact, there is a factual finding that there is no cart track. In Exs.B-1 and B-2, nowhere the existence of pathway is mentioned. The lower appellate Court clearly found in paragraph 11 that the defendants failed to prove the existence of pathway. The said finding is a factual finding based on evidence and therefore the same cannot be treated as perverse finding. Since the appellants/ defendants have failed to prove easementary right and easemen t by necessity as pleaded by them, and as there is an alternative pathway available for them. The claim of the appellants/defendants is not sustainable as Section 13 of the Indian Easements Act, 1882, contemplates the proof of necessity, without which the land cannot be enjoyed. The said section reads thus, "Section 13 - Easements of necessity and quasi easements.- Where one person transfers or bequeaths immovable property to another - (a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or lessee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement;
(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. Where a partition is made of the joint property of several persons,--
(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entried to such easement; or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless the different intention is expressed or necessarily implied, be entitled to such easement.
The easements mentioned in this section clauses (a), (c) and (e) are called easements of necessity.
Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee."
Further according to section 15 of the Act, a person claiming the right must establish the same and prove that it is enjoyed peacefully, openly and without interruption for the prescribed period prior to two years of filing of the suit. The said aspects are not proved by the appellants/defendants as held by the Courts below. Therefore, there is no legal right for the appellants to sustain the Second Appeal. "
(v) (2008) 17 SCC 491 (Bachhaj Nahar .v. Nilima Mandal and another) and the relevant portions are extracted hereunder:-
18. A perusal of the plaint clearly shows that entire case of the plaintiffs was that they were the owners of the suit property and that the first defendant had encroached upon it. The plaintiffs had not pleaded, even as an alternative case, that they were entitled to an easementary right of passage over the schedule property. The facts to be pleaded and proved for establishing title are different from the facts that are to be pleaded and proved for making out an easementary right. A suit for declaration of title and possession relates to the existence and establishment of natural rights which inhere in a person by virtue of his ownership of a property. On the other hand, a suit for enforcement of an easementary right, relates to a right possessed by a dominant owner/occupier over a property not his own, having the effect of restricting the natural rights of the owner/occupier of such property.
19. Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right of drainage, right to a water course etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right.
20. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and defendant's servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used. We may also note that the pleadings necessary for establishing a right of passage is different from a right of drainage or right to support of a roof or right to water course. We have referred to these aspects only to show that a court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence.
16. On perusal of the materials available on record, it is found that plaintiff has not come out with a single plea of easement of necessity, instead, he has pleaded long user and ownership also. Therefore, in three modes, he claims the right to use the ''B'' schedule property which is not maintainable in law as rightly pointed out by the learned counsel for the respondents, after referring the decisions cited supra. Therefore, the finding of the courts below rejecting the claim of the plainiff cannot be found fault with and they do not warrant any interference. The substantial question of law is answered against the plaintiff/appellant herein.
17. In the result, the second appeal fails and the same is dismissed. No order as to costs.
18.11.2014.
Index: Yes/No. Internet: Yes/No. Ssk/mra To
1. II Additional Sub Judge, Coimbatore.
2. I Additional District Munsif, Coimbatore.
3. The Section Officer, V.R. Section, High Court, Madras.
R.MAHADEVAN, J.
Ssk/mra P.D.JUDGMENT IN S.A.No.70 of 2007 Delivered on 18.11.2014.