Madras High Court
Palaniappa Gounder (Deceased) vs / on 21 December, 2020
Author: G.Jayachandran
Bench: G. Jayachandran
S.A.Nos.1994 and 1995 of 1999
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :15.12.2020
Pronounced on :21.12.2020
Coram:
THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
S.A.Nos.1994 and 1995 of 1999
S.A.No.1994 of 1999:
1.Palaniappa Gounder (deceased)
2.P.Swaminthan @ P.Manirasu
(To amend the name of the 2nd appellant vide common order
of this Court dated 12.07.2019 made in C.M.P.No.14109 of 2018
in S.A.Nos.1994 & 1995 of 1999 (TKRJ))
3.Kalyanasundaram
(Appellants 2 and 3 brought on record
as LR's of the deceased 1st appellant vide
order of Court dated 11.01.2016 made in
C.M.P.Nos.59 to 61 of 2016 in
S.A.No.1994/1999) .. Appellants
/versus/
1.Pongianna gounder (deceased)
2.Sengoda gounder @ Sengottaian
3.Kumarasami
4.Thanga Muthu gounder
5.Krishnasami
6.Somasundaram
7.Kandasami
1/20
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S.A.Nos.1994 and 1995 of 1999
8.Ramasami
9.Chinnasami
10.Valliammal
(R10 brought on record as LR's of the
deceased R1 vide order of Court
dated 11.01.2016 made in
C.M.P.Nos.62 to 64 of 2016 in
S.A.No.1994/1999) .. Respondents
Prayer in S.A.No.1994 of 1999: Second Appeal has been filed under Section
100 of the Civil Procedure Code against the judgment and decree dated
30.06.1999 made in A.S.no.245 of 1998 on the file of the II Additional District
Court, Erode reversing the judgement and decree dated 25.11.1998, made in
O.S.No.630 of 1991 on the file of the Principal District Munsif Court(Civil Judge-
Junior Division), Erode.
For Appellant :Mrs.Chitra Sampath
Senior Counsel for
Mr.P.Kannakumar
For Respondents :Mr.V.Anand for R2 to R9
No appearance for R10
S.A.No.1995 of 1999:
1.Palaniappa gounder
2.Thulasi ammal
3.P.Swaminathan @ P.Manirasu
(To amend the name of the 3rd appellant
vide order of Court dated 12.07.2019
made in C.M.P.No.14109/2018 in
S.A.Nos.1994 & 1995 /1999 (TKRJ))
4.Kalyana Sundaram .. Appellants
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S.A.Nos.1994 and 1995 of 1999
/versus/
1.Sengottaian
2.Krishnasami
3.Thanga Muthu
4.Kandasami
5.Ramasami
6.Chinnasami .. Respondents
Prayer in S.A.No.1995 of 1999: Second Appeal has been filed under Section
100 of the Civil Procedure Code against the judgment and decree dated
30.06.1999 made in A.S.No.246 of 1998 on the file of the II Additional District
Court, Erode, reversing the judgement and decree dated 25.11.1998 made in
O.S.No.1025/1990 on the file of the Principal District Munsif Court (Civil Judge,
Junior Division), Erode.
For Appellants :Mrs.Chitra Sampath, Senior Counsel for
Mr.P.Kannakumar
For Respondents :Mr.V.Anand for R1 to R6
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COMMON JUDGMENT
(The case has been heard through video conference) The chequered journey of the present litigation between the parties in these two second appeals is capsulated as under:-
O.S.No.1025/1990 was filed by one Sengottaian and 5 others against 3/20 https://www.mhc.tn.gov.in/judis/ S.A.Nos.1994 and 1995 of 1999 Palaniappa Gounder, his wife and two sons for declaration and perpectual injunction in respect of a cart track. As per the plaint in this suit, the said cart track is in R.S.F.No.50/2 of Thindal Village and they have right to take carts, cattle and men from Erode-Perunduarai Main Road through this cart track to their land in R.S.F.No.49. The plaintiffs' land is on the R.S.F.No.49. The said land is on the immediate East of the land in possession and enjoyment of the defendants in R.S.F.No.50. Immediate West of R.S.F.50, the Erode- Perundurai Road runs North South. From the said road, the access to the plaintiffs land in S.No.49, they have to come through the cart track in S.No.50/2. The said right has been enjoyed by the plaintiffs and their predecessors-in-title for the past 100 years. Suddenly, the defendants trying to block the cart track pathway at the point, where it enters R.S.F.No.49. The suit to declare their right of easement by prescription.
2.O.S.No.630/1991 was filed by Palaniappa Gounder against one Pongianna Gounder and 8 others. The plaintiffs in O.S.1025/1990 are made all defendants in this suit. This suit is for permanent injunction for restraining the defendants from interfering the peaceful possession and enjoyment of the 'ABCD' marked portion of the property in R.S.F.No. 50/2 of Tindal Village. As per the plaint in this suit, 4/20 https://www.mhc.tn.gov.in/judis/ S.A.Nos.1994 and 1995 of 1999 the plaintiff is the absolute owner of the suit property in R.S.F.No. 50/2. The suit property and the adjoining property on the western side in S.F.No.50/4 was purchased by the plaintiff’s father in the year 1941. On the East of the suit property is the compound wall of the third party. The Western side of the plaintiff's property touch the Erode-Perundurai Road. On the further south, the plaintiff's house is under construction. To sell his land in S.No.50/4 as house sites, he has left the suit property as cart track to reach his southern side portion. The said cart track portion is marked as 'ABCD' in the rough plan filed along with the plaint. The defendants got no right in the said cart track. For their land in R.S.F.No.49, they have easy access from the southern side of their land through Sakthi Nagar. To avoid circuitous route and to have access to Perundurai Road from North, which will enhance the price of the plots promoted, the defendants on 30/04/1991 attempt to make a cart track to link their land with ‘CD’ marked portion. The said attempt was thwarted.
3.After trial, a common judgment in these two suits was delivered on 24/03/1997. The suit in O.S.No.1025/1990 was allowed and the suit in O.S.No.630/1991 was dismissed. The said common judgment was challenged 5/20 https://www.mhc.tn.gov.in/judis/ S.A.Nos.1994 and 1995 of 1999 before the Sub-Court, Erode in A.S. Nos.182/1997 and 183 of 1997 respectively. The appellate Court remanded the suits back for re-trial. Accordingly, the trial Court conducted re-trial and received additional documents, examined additional witnesses and rendered its common judgment on 25/11/1998 wherein the declaration suit in O.S.No.1025/1990 was dismissed. The permanent injunction suit in O.S.No.630/1991 was allowed.
4.Aggrieved by the common judgment of the trial Court, the plaintiffs in O.S.No.1025/1990 and who were the defendants in O.S.No.630/1991 filed A.S.No.245/1998 and A.S.No.246/1998 before the II Additional District Court, Erode. The first appellant Court reversed the trial Court judgments and allowed both the appeals. As a result, the suit for declaration of the easmentary right of cart track pathway in S.No.50/2 to the immediate eastern side land owner of S.No.49 was granted. The suit for injunction filed claiming exclusive right in S.No.50/2 was dismissed.
5.The appellants herein are the defendants in O.S.No.1025/1990 and plaintiff in O.S.No.630/1991. The second appeal in S.A.No.1994/1999 is against 6/20 https://www.mhc.tn.gov.in/judis/ S.A.Nos.1994 and 1995 of 1999 A.S.No.245/1998 reversing the decree of injunction passed in O.S.630/1991. The second Appeal in S.A.No.1995/1999 is against A.S.No.246/1998 reversing the dismissal of the declaration relief in O.S.No.1025/1990.
6.At the time of admission, this Court formulated the following Substantial Questions of Law common to both the appeals:-
1.Without any pleadings on the side of the defendants, whether the trial Court could have granted the relief of easement of necessity?
2.Whether there are no conveyance document to establish the right of easement by prescription?
3.Whether Ex.A-5 document is admissible in evidence ?
7.The learned Senior Counsel for the appellants submitted that the cart track situated in R.S.F.No.50/2 absolutely belongs to the appellants. For access to the house site owners in R.S.F.No.50/4, they have left the cart track in R.S.F.No.50/2. The respondents never enjoyed the said cart track at any point of time. The respondents, who have their property in R.S.F.No.49 have access from Sakthi Nagar. The suit filed as if the respondents have easementary right over the suit 7/20 https://www.mhc.tn.gov.in/judis/ S.A.Nos.1994 and 1995 of 1999 cart track by prescription. Later, during the trial, they claim easementary right of necessity. Neither prescription nor necessity proved by the respondents. In the sale deed Ex.A-4, dated 02/03/1968 the respondents purchased property on the East of the appellants land. In the recital of the said sale deed, there is no specific mention about the existence of cart track as the Northern boundary of the property sold or any right prescribed to the purchaser under Ex.A4 to use the cart track to reach their land. The usual pathway (khK:y; tHp jlk;)) found in the recital of Ex.A-4 does not refer the suit cart track located in R.S.F.No.50/2. The vendor of the respondents, who was examined as PW-2, does not support the case of the plaintiff regarding any easementary right of passage by prescription under the sale deed Ex.A-4. Ex.A-5 document purported to be the true copy of the statement given by Elayangounder (the father of the plaintiff and grand-father of the present appellants) on 22/08/1941 to the then Revenue Inspector in respect of the disputed cart track is not an admissible document in evidence and was marked with objection. The same was heavily relied by the lower appellate Court to reverse the well considered judgment of the trial Court.
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8.Per contra the learned counsel appearing for the respondents submitted that, the land in R.S.F.No.49 and R.S.F.No.50 and near by lands originally comprised under S.F.No.76 in Thindal Village held by one family. Later, on partition among the family members and sub-division during resurvey, the western portion of R.S.F.No.76 was assigned R.S.F.No.50 and the eastern portion was assigned R.S.F.No.49. The Erode – Peundurai Road, which is running North – South is the western boundary of R.S.F.No.50. To have access to the land in R.S.F.No.49 the itteri (path way) running West – East on the Northern boundary of R.S.F.No. 49 is the only access. This itteri starts from the Erode – Perundurai Road on the West, passing through the land in R.S.No.50 and reached R.S.F.No. 49 on its eastern extreme. The said itteri was used by them as cart track and during the re-settlement survey, the cart track has been recorded as pathway (epytpay; ghij). The western portion of the cart track running through the land of the appellants is sub-divided and shown as R.S.F.No.50/2 and the portion of the cart track running through the land of the respondents shown as R.S.F.No.49/2. Immediately after Elaya gounder purchased land in S.No.50, the dispute arose between him and Muthu Gounder regarding the use of the said cart track. The Revenue Department conducted enquiry and in the said enquiry, Elaya Gounder 9/20 https://www.mhc.tn.gov.in/judis/ S.A.Nos.1994 and 1995 of 1999 has admitted the existence of the cart track in S.No.76 used by Muthu Gounder to reach his land. Ex.A-5 is the true copy of the statement of Elaya Gounder recorded by the Revenue Inspector on 22/08/1941. As a public document, the secondary evidence is admissible in evidence under Section 77 and 78 of the Indian Evidence Act. Being the statement of a dead person and 30 years old document, the lower appellate Court has examined Ex.A-5 and appreciated the same to arrive at the right conclusion. Further, through the Field Maps Ex.A-1 and Ex.A-2 of the respective lands in R.S.F.No.49 and R.S.F.No.50 and the survey and re-settlement register Ex.A-3, the respondents have proved the existence of cart track in R.S.F.No.50/2 and 49/2. Therefore, the judgment of the first appellate Court need to be confirmed.
9.As a rebuttal, the learned Senior Counsel for the appellants submitted that, if really the cart track extends beyond R.S.F.No.50/2 and runs through R.S.F.No.49/2, the prayer in the suit ought to have been to declare the entire stretch in R.S.F.No.50/2 and R.S.F.No.49/2 as cart track. Further, the witness PW-3, who introduced Ex.A-5 had not said anything about the custody of the said document and explained the content of the document to co-relate with the present 10/20 https://www.mhc.tn.gov.in/judis/ S.A.Nos.1994 and 1995 of 1999 cart track, which is the subject matter of the dispute. Therefore, the substantial questions of law to be answered in the favour of the appellants.
10.Heard the learned counsels on either side. Records perused.
11.The subject matter of the suit property was once within old.S.F.No.76 and later, subdivided and given different re-survey number. The case of the appellants as found in their written statement filed in O.S.No.1025 of 1990 and their plaint in O.S.No.630 of 1991 is that, the pathway found in R.S.F.No.50/2 is the cart track created by them for the convenience of the house site holders, who have purchased the land in S.No.50/4. According to the appellants, there was no existing cart track and what is found in the field was newly formed by them.
12.The case of the respondents is that, the itteri mentioned in their sale deed Ex.A4 dated 02.03.1968 runs east-west on the north of their land, is the cart track. For more than 100 years the itteri is used by them and their predecessor in title. The existence of the itteri running east-west finds place in their document and also in the document of the appellants.
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13.Further, relying upon Exs.A1, A2 and A3, which are the revenue documents, like field maps and re-settlement register, the learned counsel appearing for the respondents submitted that it has been established by the respondents that there is a cart track running east west on the north of the appellants and the respondents land. Seeing FM sketch Exs.A1 and A2, the plaint averment in O.S.No.1025/1990 stating that the land owner of S.F.No.49/1 have a right of easement by prescription to use the cart track in S.No.50/2 gains significance.
14.Referring the evidence of PW-1, where he has stated that he has no other access to his land, except the suit cart track, it is contended that the first appellate Court had granted the relief of use of cart track, based on the easement of necessity, contrary to the plea of easement by prescription. It is pertinent to note that the suit property, which was originally an agricultural land enjoyed by one family has been later sold to the third parties. As urbanisation progressed the topography and use of the property has changed. The pathway itteri and (khK:y; tHp eilghij) referred in the documents of the year 1941 and 1968 to have access to their respective agricultural lands had as public pathway (epytpay; ghij) as the 12/20 https://www.mhc.tn.gov.in/judis/ S.A.Nos.1994 and 1995 of 1999 character and nature of the land changed. The rustic servitudes enjoyed by the dominant land owner has converted into urban servitudes. Once the agricultural land has been converted into the housing sites, the topography had changed. However the right of easement for access which has been prescribed for generation cannot be obliterated suddenly. As the topography change the right to access change accordingly. This is the natural phenomena in any society. Whether ancient or modern. The right of passage along the pathway(itteri) to reach the land of respondents in S.No.50 is referred in their sale deed Ex.A4. Whether that pathway has enlarged into the cart track and after plotting out the lands, can it be used as a common access road (epytpay; ghij) to all the lands, beyond the land of appellants in S.F.No.50 is now put to question.
15.From the evidence, it is found that Erode-Perundurai Road, which is the Main Road, runs north-south abutting the road on the eastern side, the land of the appellants is located. In which he has established his industry in a portion of the land and in the rest of the lands in S.F.No.50/4 he has plotted out housing sites. The respondents herein, who have land further east of the appellants' land has also plotted out his property.
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16.Assuming that, the cart track in S.F.No.50 was created newly by the appellants for their own purpose, then the field maps sketch prepared by the Revenue Department marked as Exs.A1 and A2 will not show epytpay; ghij running west to east commencing from S.F.No.50 passing through S.F.Nos.49 and
48. It is also pertinent to note that the said epytpay; ghij is a common pathway. It runs between S.F.No.47 on the northern side and S.F.Nos.50,49 and 48 on the southern side. It does not stop with S.F.No.50/2 alone. It is also equally important to note that, if the said cart track was newly created by the appellants, the necessity of sub dividing their land in S.F.No.50 as S.No.50/1 and S.No.50/2 would not have arisen and the same has not been explained by the appellants.
17.In his suit for injunction filed in O.S.No.630 of 1991, the appellants recognises the sub division and the pathway located in S.No.50/2. The contention that it is their exclusive property and none have right of passage is falsified from the recital in Ex.A4 and the field maps sketch maintained by the Revenue Department. The right of easement is based on principle of co-existence between the neighbours casting upon right and obligation on each other for meaningful 14/20 https://www.mhc.tn.gov.in/judis/ S.A.Nos.1994 and 1995 of 1999 enjoyment of the respective property. The origin of the easement is ancient as that of the property. The servitudes changes as the topography of the lands gets modified. The plaintiffs in O.S.No.1025/1990 have pleaded and proved their right of easement, based on prescription. In addition, the witness to the plaintiffs has spoken about the easement of necessity also. The alternate access stated in their written statement of the appellants, which lie on the southern portion of the respondents' land passing through one Sakthi Nagar has taken note by the lower appellate Court and also referred about the easement of necessity. It does not mean that the lower appellate Court has granted the relief based only on the easement of necessity.
18.As discussed earlier, the pathway (tHp jlk;) was existing, even before the appellants and the defendants purchased the property. The easement of way has been specifically mentioned in Ex.A4. The extent of the easement doubted also not sustainable. The appellants herein are estopped to say there is no common pathway exist since the extent and measurement of pathway epytpay; ghij to have access to Erode-Perundurai Road is mentioned in Exs.A1 to A3. Not only for the use and enjoyment of the respondents herein, who had sold to the third parties his 15/20 https://www.mhc.tn.gov.in/judis/ S.A.Nos.1994 and 1995 of 1999 property plotting out as the house sites, now the subject pathway shown as epytpay; ghij common pathway in the field maps sketch, necessarily, the access for the residents and the land owners, who are not party before the Court. Being an unapproved layout, the access through the pathway in S.F.No.50/2 can not be blocked by any means.
19.At this juncture, it is appropriate to refer the observation of the Calcutta HighCourt in Annapurna Dutta v. Santosh Kumar Sett & Ors., [AIR 1937 Cal.661] where a similar issue came up, the Calcutta High Court held that, “There could be no implied grant where the easements are not continuous and non apparent. Now, a right of way is neither continuous nor always an apparent easement, and hence would not ordinarily come under the rule. Exception is no doubt made in certain cases, where there is a 'formed road' existing over one part of the tenement for the apparent use of another portion or there is 'some permanence in the adaptation of the tenement' from which continuity may be inferred, but barring these exceptions, an ordinary right of way would not pass on severance unless language is used by the grantor to create a fresh easement.” 16/20 https://www.mhc.tn.gov.in/judis/ S.A.Nos.1994 and 1995 of 1999
20.The contention of the learned Senior Counsel appearing for the appellants that the respondents have property other than the land in S.F.No.49 and that land have access from the site is no answer to deprive the right of easement through the itteri, now turned into a cart track joining S.F.No.49 and Erode- Perundurai Road. It is incorrect to canvass that there is no document to establish the right of easement by prescription, when Ex.A4 sale deed clearly mentions about mamool pathway.
21.As far as the document in Ex.A5 is concerned, no doubt, it is 30 years old document and it is certified as true copy. But the content of the document and the custody of the document have not been properly explained by PW-3. Therefore, though Ex.A5 is the document admissible in evidence, it is not helpful to decide the case, anything said by the lower appellate Court, based on Ex.A5 may not be of much credit worthy. Dehors of that, the respondents herein is entitled for declaration as he prayed in O.S.No.1025 of 1990 regarding the esementary right to enjoy the cart track running along east west in S.No.50/2. It is to be added that beyond S.F.No.50/2, the cart track mentioned in Exs.A1 and A2 running along S.No.49/2 should also be open to access for the owners of the land 17/20 https://www.mhc.tn.gov.in/judis/ S.A.Nos.1994 and 1995 of 1999 in S.F.No.49 and other survey numbers, as per the field maps Exs.A1 and A2. As a result, the Substantial Questions of Law framed are answered as below:
(i)The Courts below has granted the relief of easement by prescription. Only incidently gone into the question of easement of necessity. In this case, the respondents have proved both easement of necessity as well as easement of prescription. Hence, there is no error in the conclusion of the Courts below.
(2)Ex.A4-sale deed and Exs.A1 to A3 Revenue Documents indicates that there is a epytpay; ghij, running along east west touching Perunduri-Erode Main Road. It passes in S.F.Nos.49/2 and 50/2. While so, the title document Ex.A4 of the year 1968 indicates the right of easement enjoyed by the vendor of the respondents and the same devolved upon the respondents.
(3) Being a certified copy of the document Ex.A5 is admissible in evidence but for want of proof of his content co-relating it with the suit property, the said document is of very less evidentiary value to appreciate the facts in hand.
Accordingly, the Substantial Questions of Law framed are answered in negative against the appellants.
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22. In the result, these second appeals are dismissed. No order as to costs.
21.12.2020 Index:yes ari To:
1.II Additional District Court, Erode.
2.The Principal District Munsif Court, (Civil Judge, Junior Division), Erode.
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https://www.mhc.tn.gov.in/judis/ S.A.Nos.1994 and 1995 of 1999 Dr.G.Jayachandran,J.
ari Pre-delivery judgment made in S.A.Nos.1994 and 1995 of 1999 21.12.2020 20/20 https://www.mhc.tn.gov.in/judis/