Madras High Court
Ponniya Gounder vs Rajagopal on 21 February, 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 21.02.2013 CORAM THE HONOURABLE MR. JUSTICE M. VIJAYARAGHAVAN S.A. Nos.280 and 281 of 2005 S.A. No.280 of 2005
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1. Ponniya Gounder
2. Veerammal
3. Raja .. Appellants Versus Rajagopal .. Respondent Prayer : Second Appeal filed against the judgment and decree dated 31.7.2003 in A.S. No.432 of 2002 reversing the judgement and decree dated 29.10.1998 in O.S.No.516 of 1995 on the file of the Additional District Munsif, Namakkal.
S.A.No.281 of 2005
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1. Ponniya Gounder
2. Veerammal .. Appellants Versus
1. Rajagopal
2. Savithri .. Respondents Prayer: Second Appeal filed against the judgment and decree dated 31.7.2003 in A.S. No.431 of 2002 partly reversing and partly allowing the judgment and decree dated 29.10.1998 in O.S.No.216 of 1996 on the file of Additional District Munsif, Namakkal.
For appellants (in both appeals) : Mr.D.Shiva kumar For respondents (in both appeals) : Mr.C.Jagadish COMMON JUDGEMENT These two appeals are arising out of a common Judgement and decree passed by the First Appellate Court, in A.S.No.431/2002 and A.S.No.432/2002 on 31.07.2003 in allowing these two appeals and thereby decreeing the O.S.No.516/1995 granting declaration and injunction excepting ABCD Pathway and partly setting aside the Judgement and decree passed in O.S.No.216/1996 granting the relief of declaration and injunction with regard to ABCD Pathway.
2. For better appreciation of the appeals, the pleadings of both plaintiff and defendants in re-produced here under:
The brief averments of the plaint in O.S.No.516/1995 are as follows:
The schedule mentioned property is in possession and enjoyment of the plaintiff, based on the partition deed dated 21.05.1978, as well as the release deed dated 21.09.1992. The defendants are owning agricultural land on the northern side of the plaintiff's property and they are residing therein. The plaint plan attached describes the nature and live of the mud pond as well as stone ridge etc., with measurement . The defendants' property are 2 feet higher than the level of the plaintiff's property. The attempts made by the defendants to encroach upon the property in the name of correcting the pond on 20.11.1995 was thwarted out and hence, he filed a suit for declaration and a relief of injunction with costs.
3. The brief averment of the written statement in O.S.No.516/1995 filed by D1 and adopted by D2 and D3 are as follows:
The scheduled property belongs to the plaintiff pursuant to the partition deed as well as the release deed has to be proved by the plaintiff. It is not true that the defendants are residing on the northern side of the plaintiff's property. It is also false to state that these defendants are enjoying the property upto the extent of stone ridge and mud pond and it is also equally false to state that the defendants' lands are higher in level of two feet. It is also imaginary to state that the defendants tried to encroach upon the property of the plaintiff on 20.11.1995. The property of the defendants on the northern side of the plaintiff's property belongs to them pursuant to the sale deeds dated 10.4.1972, 30.6.1976 and 29.3.1985. The defendants are enjoying the property by using the track found on the southern side of the land, as enjoyed by their predecessors in title for more than 60 years. The foot pathway having a width of 7 links on the northern side of the said path way is reaching towards the town of Paramour and this pathway was used by the defendants' men continuously from long ago. On the northern side of the seven links pathway, the defendants agricultural land are situated. Taking advantage of the mud pond in between the plaintiffs and the defendants agricultural land, the plaintiff now come forward with the suit by denying the seven links pathway. The defendant has no objection in cultivating the lands of the plaintiff excepting the seven links pathway. There is no cause of action for the suit and the suit be dismissed with costs.
4.The brief averments of the plaint in O.S.No.216/1996 are as follows:
The scheduled properties are belonging to the plaintiff under the registered Sale Deeds, dated 10.04.1992. 30.06.1976 and 28.03.1985 and they are enjoying the same. The plan attached to this plaint illustrated the plaintiff as well as the defendants' property as well as 15 links width pathway ABCD as well as seven links pathway EFGH. On the southern side of the above said two pathways, the defendants are having agricultural land. ABCD cart track is used by the plaintiff's predecessors in title for more than 60 years and the same is also used by the plaintiff. The EFGH Pathway is 1 to 1 = feet below the level of the plaintiff's land and the same is used by the plaintiff and this pathway is end with cart track towards the town of Paramour. Out of ill-will, the defendant built four ponds between the pathway. After the intervention of the panchayatars. the same obstruction was removed. Again, the defendants' attempted to prevent the plaintiff in using EFGH pathway. The plaintiff's acquire the right over this pathway under easement of necessity and also prescription. Except the pathway, no other path way is available to the plaintiff and prayed for a decree and judgment for declaration ABCD 15 links pathway as well as EFGH seven links pathway and consequent injunction with costs.
5. The brief averments of the written statement in O.S.No.216/2005 are as follows:
This defendant never objected the use of the ABCD pathway by the plaintiff by taking the cattles, bullockcarts etc. It is false and totally denied that the plaintiffs having the right over the EFGH seven links pathway and it is nothing but imaginary one and at no point of time such pathway was in existence. The plaintiffs are attempting to encroach upon the property of the defendant and lay pathway . The suit in O.S.No.516 of 1995 had been filed by the defendant and an order of interim injunction was granted in I.A.No.916/95 and a commissioner was also appointed in I.A.No.917/1995 and inspected the suit property and also filed a report stating that there is no existence of pathway EFGH. On the northern side of pathway of FH, stone ridge is situated. In the plan filed by the plaintiff, it was shown that on the northern side of the F.H. Stone ridge, in the 'P' portion,there is one pathway which is used by the public as well as the cattle and the same was purposely suppressed by the plaintiff. The plaintiff made a false allegation about the existance of the pathway and tried to lay the pathway. The plaintiffs have no right or title over the defendants' property and there is no cause of action and the suit is to be dismissed with costs.
6. The following substantial questions of law is raised in S.A.No.280 of 2005.
" 1. Is the lower appellate court correct in law in holding that the appellants cannot claim easementary right as the suit lands do not belong to common owner, when the appellants claim their right of easement by way of transfer as contemplated under section 13 of the Indian Easements Act, 1882.
2. Is not the judgment and decree of the lower appellante court perverse for non-appreciation and miscontruction of evidence avilable as exhibits A-1 to A-3.
3. Is the lower appellante court correct in applying the judgment reported in 1997 (1) CTC page 348 Murugan Moopanar Vs.Sivaganga Mudaliar to the present case, which cannot be applied to the facts and circumstances of this case and which can be clearly distinguished from the case on hand.
4. When the recitals in exhibits A-1 to A-3 clearly establish the existence of EFGH pathway measuring 7 links, on land, showing the existence of the same for more than 20 years before the filing of the suit, is the lower appellate court correct in law in not applying its judicial mind to such a valuable piece of evidence in favour of the plaintiff.
5. Is the lower appellate court correct in law in granting a decree for declaration and permanent injunction against these appellants with regard to the entire suit property, when the existence of 'EFGH' pathway was clearly established by the appellants by both oral and documentary evidence".
7. The following substantial questions of law were in S.A.No.281 of 2012 "1. Is the lower appellate court correct in law holding that the appellants cannot claim easementary right as the suit lands do not belong to common owner, when the appellants claim their right of easement by way of transfer as contemplated under section 13 of the Indian Easements Act, 1882.
2. Is not the judgment and decree of the lower appellate court perverse for non-appreciation and misconstruction of evidence available as exhibits A-1 to A-3.
3. Is the lower appellate court correct in applying the judgment reported in 1997 (1) CTC page 348 Murugesan Moopanar Vs.Sivagnana Mudaliar to the present case.
4. When the recitals in Exhibits A-1 to A-3 clearly establish the existence of 'EFGH' pathway measuring 7 links, on land, showing the existence of the same for more than 20 years before the filing of the suit, is the lower appellate court correct in law in not applying its judicial mind to such a valuable piece of evidence in favour of the plaintiff."
8. These Second appeals were admitted and in both these appeals, separate questions of law, have been framed on the one and the same date and the same are considered in these appeals.
9. It is submitted by the learned counsel for the appellants that though the respondents have fairly conceded and also allowed the ABCD pathway decreed by the Court below as final, the main issue involved in this appeal is only relating to EFGH pathway running from the agricultural land of the respondent, used by the appellant herein as easement of necessity. It is also further fairly conceded by the learned counsel for the appellant that the schedule property belonging to the appellants, as well as the respondents not vest with the common owner and by the fair admission of the respondents herein before the trial Court about the existence of EFGH pathway and the very use of the same by the appellant herein shall squarely attrack the provisions of the law contained in Easement Act under Section 13. No doubt, the respondent Rajagopal while examined as D.W.1 before the trial Court in his cross examination very fairly admitted that EFGH Pathway was laid 2 = years before the filing of the suit and used by the plaintiff. No doubt there is also pleadings on the side on the respondent before the trial Court that the defendants are making attempts to encroach upon the property of the respondents and tried to interfere with the possession and enjoyment of the same. It is not disputed that in a suit earlier filed by the respondent in O.S.No.516/1995, the Commissioner was appointed and twice he visited the suit property and filed a report with plan and the same are marked as Ex.C1 to Ex.C4 respectively and in the later suit filed by the appellant herein in O.S.No.216/1996 a separate Advocate Commissioner was appointed and he also inspected the suit property twice and filed report with plan separately and the same are marked as Exs.C1 to C4 respectively. In the report filed by the Advocate Commissioner in the suit, filed by the respondent, no where the Advocate Commissioner has stated about the existence of EFGH pathway in his report as well as the plan which are marked as Exs.C1 to C4 respectively. In the report filed by the Advocate Commissioner in O.S.No.216/1996 the Commissioner in his report viz.,Exs.C1 and C3 has stated that EFGH Pathway is found and the same was formed newly and moreover the Advocate Commissioner in his report also categorically stated that the North South pond were destroyed in four places i.e. m and its north south length would be 3 feet and the sand found at EFGH is a new one. This report of the Commissioner more specifically Ex.C1 was signed by the Commissioner on 16.02.1996 and no doubt the Commissioner has not mentioned about the actual age of the pathway laid. It is also verified and found from the oral deposition of D.W.1 with the trial Court record that this evidence of D.W.1 was recorded on 09.09.1998 and hence the mere above admission of this witness in the cross examination that EFGH pathway was laid and used by the plaintiff 2 = years before filing of the suit shall not confer any right over the EFGH pathway as contended by the learned counsel for the appellant. The attempts made by the learned counsel for the appellant coupled with the above evidence of existence of EFGH pathway by D.W.1 with the provisions contained under the Easement Act 1882, i.e. Section 13(b) shall squarely apply to the case on hand and thereby Easement of necessity of EFGH pathway as admitted by D.W.1 shall not be denied, shall not have no relevancy . Moreover, the learned counsel for the appellant also draw the attention of this Court with special reference to the provisions of the Section 13(b) of Easement Act and as well as the illustration B to substantiate his claim that EFGH pathway is the only pathway and it is the easement of necessity for the better enjoyment of the properties of the appellants herein. As already pointed out above, as squarely admitted by the appellants herein that the property in question is not purchased from the common owner and hence claiming the easement of necessity by invoking the above provisions of law under Section 13(b) of Easement Act as well as illustration B which are reproduced as hereunder:
"13.Easements of necessity and quasi-easements-Where one person transfers or bequeaths immovable property to another:
(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 legathee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement; "
Illustration (b): A, the owner of two fields, sells one to B, and retains the other. The field retained was, at the date of the sale, used for agricultural purposes only, and is inaccessible except by passing over the filed sold to B. A is entitled to a right of way, for agricultural purposes only, over B's field to the field retained."
shall not have no relevancy.
10. The learned counsel for the respondent submitted that the appellants herein is totally relying upon the sale deed Ex.A1 to A3 to claim right of pathway over EFGH in the land of the respondent herein. But, absolutely there is no recital in the said registered documents conferring such right to the appellant herein and even if such rights have been granted, the respondents as well as respondents predecessors in title are not parties to the document and hence the appellant cannot claim on any account the right of pathway over the property of the respondents herein. As rightly pointed out by the learned counsel for the respondents a careful perusal of Exs.A1 to A3 did not disclose anything about the iota of right of pathway running through the survey No.135/1A, which is exclusively belonging to the respondent herein. Hence, the attempt made by the learned counsel for the appellant that the Sale Deeds Exs.A1 to A3 have conferred right of Pathway over the respondents property also fails. Moreover, the learned counsel for the respondents submitted that the easement of necessity cannot be granted merely on the ground of convenience and advantage but solely on the ground of absolute necessity and cited the Judgment of the Division Bench of this Court in a case in Chellam Iyer and another Versus J.Ranganathan and 3 others reported in 2009 (1) CTC at page 753, as well as the judgement of this Court in Murugesa Moopanar Versus Sivagnana Mudaliar reported in 1997 (I) CTC 348.
11. As agreed upon before the first appellate Court to consider Ex.C4-Sketch produced by the Commissioner appointed in O.S.No.216/1996 clearly reveals that the appellant and the respondents properties are very adjacent lands and through out the stretch of land no body's land interfere and also as seen from the commissioner report there is also pathway beyond the stone ridge on the northern side of this stone ridge, pathway is leading to East and end with Peramavur pathway and hence there is a well defined alternative pathway and there is no absolute necessity to have another pathway for the convenience and advantage of the appellants herein. Moreover, in the reported Judgement first cited above, a Division Bench of this Court has held as hereunder:
"11.According to the learned Senior Counsel appearing for the appellant, the easement by necessity is a tangible right which has to be decided by a competent Court of law as would rise in a separate cause of action and such a right could not be decided in a Suit filed by the plaintiffs seeking for an injunction. No doubt the claim of the defendants 1 and 2 as to a right of easement by necessity has to be decided by a competent Court and only after such declaration by a competent Court the defendants 1 and 2 can exercise such a right. The judgment cited by the learned Senior counsel for the appellants reported in Sheo Nath and others V. Mughla, AIR 1938 Lahore 800, would recite the following principles:
"An easement of necessity is not to be granted merely on the ground of convenience and advantage, but solely on the ground of absolute necessity. Where there are other ways for ingress and exit, an easement of necessity cannot be claimed merely on the ground that such ways are inconvenient"
Thus it is clear that the said right of easement by necessity cannot be considered or granted merely on the ground of convenience and advantage but soley on the ground of absolute necessity. We could see through the Commissioner's report and sketch as well as the Sketch produced by the plaintiffs that there was a small gate through which the defendants 1 and 2 were accessing into the common pathway leading to Dr.Ranga Road all these days. The proposed convenience of defendants 1 and 2 may be greater as per the wish of defendants 1 and 2. Such a convenience of a party cannot be the criterian to decide the easement by necessity as per the aforesaid principle and it is not a forum to decide the easement of necessity in a suit filed by the plaintiffs on a different cause of action. More over, the undeclared easement of necessity cannot be used a s weapon to defend against the right of the plaintiffs and defendants 6 to 9."
12. Moreover, in the other reported judgement of this Court, 2nd cited this Court has held as hereunder:
"13. Section 13 of the Indian Easements Act deals with easement of necessity. An easement of necessity can arise only when there is a cessation of common ownership. It arises where both the servant and dominant tenement were in common ownership and by disposition, there was disintegration of the tenements. It is also well settled that easement of necessity arises only where by a transfer, bequest or partition, a single tenement is divided into two or more tenements and any of those is to be situated that it cannot be enjoyed at all without certain privilege on another such tenement. "
16. The necessity contemplated under Section 13 of Easements Act is the absolute necessity, and not convenient necessity. "
13. With due respect after following the Division Bench Judgment of this Court, as well as in agree with the 2nd cited Judgement of this Court, this Court hold that the respondents herein shall not claim easement of necessity on the ground of convenience and advantage.
14.Eventhough, it is the consistent case of the appellants that the EFGH pathway have been acquired under prescription it is fairly conceded by the learned counsel for the appellants that before the trial Court the acquisition of Easementary right by prescription has been given up and the same had also reflected in the plaint through endorsement dated 12.08.1998. Such is the case and stand taken by the appellant before the trial Court, that the case of the appellants, the mere existence of EFGH Pathway for morethan 20 years as per Exhibits marked as Ex.A1 to A3 and the relevant substantial question of law raised herein shall not arise. As rightly pointed about above, absolutely there is no iota of recital contained in Exs.A1 to A3 about the existence of EFGH pathway running on the land belonging to the respondents herein and the right to use it. Moreover, on record absolutely there is no evidence both oral and documentary to substantiate such claim made ignoring the endorsement effected by the learned counsel for the appellants before the trial Court.
15.For the reasoning stated above, nothing warranted by this Court to interfere to the Judgement and decree passed by the First Appellate Court after decreeing the suit in part filed by the respective parties. Therefore, the substantial questions of law raised by this Court in both the appeals are answered as against the appellants and in favour of the respondents.
In the result, both the appeals are dismissed. Considering the nature of the claim involved the parties are directed to bear their own costs.
arr To
1. The Additional District Munsif, Namakkal.
2. The Principal District Judge Namakkal