Madras High Court
S.Arulammal vs P.Renjamony on 18 February, 2011
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/02/2011 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR S.A(MD)NO.6 of 2011 1. S.Arulammal 2. C.Murugesan ...Appellants vs. 1. P.Renjamony 2. P.Ayyadurai ...Respondents. PRAYER Second Appeal filed under Section 100 of Civil Procedure Code, praying this Court to set aside the judgement and decree made in A.S.No.39 of 2009, dated 03.03.2010, on the file of the Sub-Court, Padmanabhapuram, reversing the judgment and decree made in O.S.No.53 of 2007, dated 30.06.2009, on the file of the District Munsif Court,Eraniel. !For Appellant ... M/s.C.Godwin ^ :JUDGMENT
The defendants are the appellants in the second appeal. The respondents in the second appeal filed the original suit O.S.No.53 of 2007, on the file of the learned District Munsif, Eraniel for the relief of declaration of easementary right over plaint 'B' schedule property and also for permanent injunction against the appellants/defendants restraining them from in any way interfering or preventing the plaintiffs from using the easementary right or from making any construction over the plaint 'B' schedule property so as to cause hindrance to the use of easementary right.
2. The trial court after hearing, dismissed the suit with costs by its judgment and decree, dated 30.06.2009. The same was challenged by the respondents herein/plaintiffs before the lower appellate court, namely the court of Subordinate Judge, Padmanabhapuram in A.S.No.39 of 2009. The learned first appellate Judge allowed the appeal, set aside the decree passed by the trial court and decreed the suit of the respondents herein/plaintiffs as prayed for. As against the said judgment and decree of the first appellate Judge, dated 03.03.2010, the present second appeal has been preferred by the appellants herein, who were the defendants before the trial court.
3. The respondents herein as plaintiffs filed the original suit with the following contentions:
The suit 'A' schedule properties originally belonged to Dhanuvan Nadar, paternal grand-father of the respondents/plaintiffs who purchased the same under two registered documents bearing Document Nos. 4126/1124 of Malayalam Era and document No.2966/1126 of Malayalam Era. He bequeathed the same in favour of his sons, namely the respondents herein/plaintiffs under two documents bearing document Nos.2144/95 and 2840/2004. The appellants/defendants are the owners of the adjacent property. For reaching the plaint 'A' schedule properties from channel Karai road, there exists a 4 1/2 feet wide pathway and the same is shown as Plaint 'B' schedule property. The respondents/plaintiffs have no other pathway, except the 'B' schedule property, to reach Plaint 'A' schedule properties. The said pathway has been in existence for several decades. The respondents/plaintifs and before them their predecessors-in -title have been enjoying the plaint 'B' schedule property as an access to reach plaint 'A' schedule properties. The respondents/plaintiffs have acquired prescriptive easementary right over plaint 'B' schedule property. Originally, the second defendant's house had been constructed with a compound wall leaving the plaint 'B' schedule property being the pathway leading to plaint 'A' schedule properties. Though such a compound wall had been put up 10 years prior to the filing of the suit, the first appellant/first defendant with an intention to prevent the respondents/plaintiffs from using the pathway and deny them access to their properties described in plaint 'A' schedule, demolished the said compound wall and tried to annex the 'B' schedule property. The said attempt was thwarted. Mediation with the help of elders of the village failed to yield any result. Because of the eminent threat of the access to the plaint 'A' schedule properties through 'B' schedule property being blocked, the respondents/plaintiffs had to approach the trial Court for the above said reliefs.
4. The suit was resisted by the appellants/defendants by filing separate, but almost identical written statements by the first and second appellants/first and second defendants. The contentions raised therein are as follows:
5. There is no pathway in plaint 'B' schedule property as claimed by the respondents/plaintiffs. Plaint 'B' schedule property is a part of the property belonging to the first appellant/first defendant and he is in exclusive possession and enjoyment of the same. The plaint 'B' schedule property is not being used by the respondents/plaintiffs as an access to reach plaint 'A' schedule of properties. There is a road on the western side of the defendants' property which starts from Channel Karai and reaches the village road touching the plaint 'A' schedule properties. The respondents/plaintiffs are using the said road to reach their properties described in plaint 'A' schedule and there is no necessity for them to use plaint 'B' schedule property as a pathway. The above said road was being used by the respondents/plaintiffs for about 25 years. As the second appellant/second defendant is neither the owner of the plint 'B' schedule property.It is not correct to state that a compound wall leaving plaint 'B' schedule property as a pathway was put up and the same was later on demolished. Such compound wall was not erected and hence there was no necessity to demolish the same. The second appellant/second defendant is the owner of Resurvey No.278/4 in Eraniel village and the same is in his exclusive possession and enjoyment. The plaint 'B' schedule property does not form part of the said property. It is incorrect to state that the respondents/plaintiffs are using the plaint 'B' schedule property as a pathway to reach their house in plaint 'A' schedule properties. Therefore,the plaintiffs shall not be entitled to any of the reliefs sought for by them and the suit has to be dismissed.
6. Based on the above said pleadings, the learned trial Judge framed necessary issues, based on which the parties went for trial. In the trial five witnesses were examined as P.Ws 1 to 6 and 10 documents were marked as Ex.A1 to Ex.A10 on the respondents herein/plaintiffs, whereas three witnesses were examined as D.W.1 to D.W.3 and three documents were marked as Ex.B1 to Ex.B3 on the side of the appellants/defendants. The Advocate Commissioner appointed by the trial court was examined as C.W.1 and his reports and plan were marked as Ex.C1 to Ex.C3.
7. At the conclusion of trial, the learned trial Judge considered the evidence in the light of the arguments advanced on either side and came to the conclusion that the plaintiffs had got an alternative pathway to reach the plaint 'A" schedule properties and hence, they were not entitled to easement of necessity over plaint 'B' schedule property. Based on the said finding, the trial court has non-suited the respondents herein/plaintiffs to the reliefs sought for by them in the plaint and accordingly dismissed the suit, by its judgement and decree dated 30.06.2009.
8. The learned first appellate Judge on reappreciation of evidence and reconsideration of the issues of both fact and law, came to the conclusion that the existence of an alternative pathway to reach plaint 'B' schedule properties has not been established; that the respondents herein/plaintiffs were able to prove that they had prescriptive easementary right over the plaint 'A' schedule property to reach their properties described in plaint 'A' schedule and that they were entitled to the reliefs of declaration as well as permanent injunction as prayed for. Accoringly, the learned first appellate court allowed the appeal, set aside the decree passed by the trial court and decreed the suit as prayed for in respect of both reliefs.
9. The said judgment of the learned first appellate Judge and the decree drawn on the basis of the said judgement in A.S.No.39 of 2009, on the file of the Subordinate Court, Padmanabhapuram is the subject-matter of challenge in the second appeal.
10. The arguments advanced by Mr.C.Godwin, learned counsel for the appellants/defendants were heard. The copies of the judgments and decrees passed by the courts below and copies of other records produced in the form of typed- set of papers were also taken into consideration.
11. The first appellate court, namely, the Subordinate Court, Padmanabhapuram happened to be the final court of appeal on facts. The present second appeal has been filed questioning the correctness of the judgment and decree of the first appellate court. Of course, it is a reversing judgment which is challenged in the second appeal. Whether it is a reversing judgment or a concurrent judgment, it is immaterial, as the High Court's power to interfere with the first appellate court's judgment and decree is confined to cases involving substantial questions of law. Section 100 of Civil Procedure Code is to the effect that an appeal against the appellate decree of a court which is subordinate to the High Court shall lie to the High Court only on a substantial question of law. Unless, the appellants/defendants are able to show that the appeal involves a substantial question of law, no interference can be made with the judgment and decree of the first appellate court.
12. In this case, the property of the plaintiffs/respondents which is described as plaint 'A' schedule property lies on the north of the defendants property. In fact, the Commissioner's plan marked as Ex.C2 gives a vivid picture of the topography of the area showing the position of the properties of the plaintiffs and defendants and also the existing and proposed roads. The properties of the appellants/defendants are abutting the east-west canal road. The plaint 'A' schedule properties of the respondents/plaintiffs are located on the north eastern corner of the defendants property. 4 1/2 ft., wide pathway branching from the said channel road which touches the plaint 'A' schedule propertyis also shown in Ex.C2.
13. Resurvey No.278/2 and 278/6 which are shown to be items 1 and 2 of the plaint 'A' schedule properties. In item No.1 of 'A' schedule properties, there is a house bearing D.No.4/59. Item No.2 contains a house bearing D.No.4/60. Item No.2 of plaint 'A' scehdule property lies on the north-eastern corner of the defendants property. Item No.1 of the plaint 'A' schedule properties lies on the north of the defendants property. No road is proved to run touching any one of the said properties. Plaint 'B' schedule property is shown to be a 4 1/2 feet wide pathway leading to the junction point of the first and second items of the plaint 'A' schedule properties and the defendants properties. The suit pathway described as 'B" schedule property runs on the eastern side of the first defendant's property.
14. It is the case of the respondents/plaintiffs that the said pathway was in existence for several decades and the same was used as an access to reach the plaint 'A' schedule properties. It is also the case of the respondents/plaintiffs that except the plaint 'B' schedule property, there is no other access to reach their house situated in Item No.1 and 2 of the plaint 'A' schedule properties. That is the reason why they have claimed not only easement of necessity, but also easement by prescribtion. Of course to sustain the claim of easement of necessity, the person making such claim should show that there was unity of title regarding the servient tenament and dominent tenament at some point of time and such unified(undivided) property did have the facility and that because of the division, the right of access from the road to the dominent tenament was cut off.
15. In this case, there is lack of necessary pleading as to how the respondents/plaintiffs claim easement of necessity over the property of defendants. Even though they have pleaded that except the plaint 'B' schedule property, there is no other access to reach their houses situated in item Nos.1 and 2 of plaint 'A' schedule properties. The pleading of the appellants/defendants is equally not enough insofar as they have not stated anything about the respondents'/plaintiffs' right to claim easement by way of necessity in the absence of any other access. On the other hand, they have chosen to contend that there exists a north-south road running on the west of the defendants' property which touches the property of one Sivaraman which lies on the west of the first item of the 'A' schedule properties and also the property of one Krishnamumar which lies on the north of the first item of the plaint 'A' schedule properties. It is also the contention of the appellants/defendants that the said Krishnakumar is the brother of the plaintiffs and through his property the plaintiffs have got a passage which lies east-west to reach their properties in item Nos. 1 and 2 of Plaint 'A' schedule properties. In short, the defense plea of the appellants/defendants happens to be that there is an alternative passage and hence, the respondents/plaintiffs cannot claim right of passage over the plaint 'B' schedule propertiesby way of easement of necessity. A clear understanding of the plea made by the respondents/plaintiffs will show that they have taken a stand that they are entitled to claim a right of passage over plaint 'B' schedule properties as an easement of necessity, they have also averred in clear terms that the said easement was enjoyed by them for more than the period of limitation and that in the said process they have acquired prescribtive easementary right over the plaint 'B' schedule properties.
16. The trial court misdirected itself in embarking upon a roving enquiry as to whether there is any alternative passage to the suit 'A' schedule properties rather than considering the plea of the respondents/plaintiffs that they have acquired prescribtive easement over the plaint 'B' schedule properties. Even the finding of the trial court that there is an alternative approach to reach plaint 'A' schedule properties from the channel road has been found to be incorrect by the lower appellate court on appreciation of evidence. Whether there is alternative passage from the channel road to reach plaint 'A' schedule properties is nothing but a fact in issue. The said factual issue, on the appreciation of evidence, was decided by the lower appellate court, the final court of appeal against the appellants herein/defendants. The learned lower appellate Judge after referring to the evidence both oral and documentary adduced on both sides and also the Commissioner's Report and plan marked as Ex.C1 to Ex.C3, has rendered a clear finding that even though a road has been formed on the west of the property of the appellants/defendants which touches the property of the above said Krishnakumar which lies on the north of the first item of plaint 'A' schedule properties and Sivaraman's property, there is nothing to show that any well beaten passage or pathway is found on the southern boundary of the said Krishnakumar's property so as to provide an alternative access to the plaint 'A' schedule properties. It should also be noticed that the north-south road which runs on the west of the defendants property, Sivaraman's property and Krishnakumar's property is a new road and the Commissioner himself and plan has referred to the same in his report as proposed road. The said finding of the lower appellate court that alternative approach to the plaint 'A' schedule properties from the channel road suggested by the appellants/defendants has not been proved to be in existence, is based on proper reappreciation of evidence and the same cannot be termed either infirm or defective much less perverse. The finding, being one on a question of fact, cannot be disturbed in a second appeal unless it is proved to be perverse in which case alone such a question of fact will acquire the character of a substantial question of law. The finding of the lower appellate court that the alternative passage pleaded by the appellants/defendants deserves no interference and the same has got to be confirmed.
17. We have seen that the finding of the lower appellate court regarding the existence of an alternative passage to reach the plaint 'A' schedule properties from the channel road through the north-south road running on the west of the properties of defendants, Sivaraman and Krishnakumar, appellants/defendants and in favour of the respondents/plaintiffs is neither defective nor infirm. In addition to the same, as pointed out supra, since the claim of easement over plaint 'B' schedule property made by the respondents/plaintiffs is one of prescribtive easement even if it is assumed that there exists an alternative approach to the plaint 'A' schedule properties, the same shall not be enough to defeat the claim of the respondents'/plaintiffs' prescribtive right of easement over the plaint 'B' schedule properties. It is a small stretch of land on the eastern extremity of the defendants' property, having 4 1/2 feet width, running north-south that connects the east-west channel road running on the south to the appellants'/defendants' properties and the properties of the respondents/plaintiffs described as items 1 and 2 of the suit 'A' schedule properties. Electric poles have been planted in such area. There are also visible marks to show that the said area claimed to be the passage was left vacant by the defendants for the use of the plaintiffs as an access to the plaint 'A' schedule properties.
18. Clear pleadings have been made to the effect that the old compound wall had been put up on the western border of plaint 'B' schedule property leaving it as a passage to be used by the plaintiffs as an unhinded to reach their properties described in plaint 'A' schedule and that recently before the filing of the suit, the appellants'/defendants' had demolished the said compound wall and tried to enclose the suit 'B' schedule property by a fresh compound wall and to prevent the plaintiffs from having a passage to access the channel road from Plaint 'A' schedule properties. The Commissioner has found the foundations of the demolished compound wall that runs along the western border of the plaint 'B' schedule property. If at all, there was no necessity for the plaintiffs to use plaint 'B' schedule property as an access to plaint 'A' schedule properties, the appellants/defendants would not left a space to a width of 4 1/2 feet on the eastern border of their property and put up a compound wall on the western border of the said 4 1/2 feet wide stretch of land. The same will show that the said portion was being used by the respondents/plaintiffs as an access to reach the channel road from their houses in plaint 'A' schedule properties. Clear evidence has also been adduced on the side of the respondents/plaintiffs that they have been using plaint 'B' schedule property as the only access to reach the channel road from their properties described in plaint "A' Schedulefor more than seven decades and that by such long unhinded usage, they have acquired prescribtive right of easement over plaint 'B' schedule property.
19. In view of the fact that the newly formed running north-south road on the west of the defendants' property which also touches the property of Krishnakumar that lies on the north of the first item of the plaint 'A' schedule properties and the said Krishnakumar happened to be the brother of the respondents/plaintiffs,the appellants/defendants seem have thought it fit to deny the right of passage through plaint 'B' schedule property on the premise that they could get a passage right from their brother Krishnakumar's property to reach plaint 'A' schedule properties. Only with such an object in mind, the defendants seem to have demolished the old compound wall with intention of enclosing plaint 'B' schedule properties along with the other area of their property so as to deny access to plaint 'A' shedule properties through plaint 'B' schedule property.
20. The lower appellate court has arrived at a correct conclusion that the plaintiffs were using plaint 'B' schedule property as the only access to reach their properties described in Plaint 'A' schedule; that they have also proved to have acquired prescriptive easementary right over plaint 'B' schedule property and that they have also proved that they are entitled to a declaration of their easementary right over the plaint 'B' schedule properties to reach the plaint 'A' schedule properties and for a consequential injunction not to prevent them from using such right. There is no defect or infirmity much less perversity in the finding of the lower appellate court warranting interference with the same in exercise of this Court's power to entertain a second appeal under Section 100 of Civil Procedure Code. No substantial question of law is proved to have involved in the second appeal. There is no merit in the second appeal and the same deserves to be dismissed at the stage of admission itself, even without notice to other side and to the lower court.
21. In the result,the second Appeal is dismissed. There is no order as to costs.
vsn To
1. The Sub-Judge, Padmanabhapuram.
2. The District Munsif, Eraniel.