Madras High Court
Vadivel (Died) vs Rengasamy on 16 April, 2012
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 22.06.2017
Delivered on : 16.06.2020
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
SA(MD)No.1226 of 2000
Vadivel (died) .. Appellant/Respondent/Plaintiff
2.Jagadhambal
3.Manimegalai
4.Chandrasekar
5.Nagavalli
6.Amirthalingam
(appellants 2 to 6 are impleaded vide
order dated 16.04.2012 in MP(MD)Nos.
2 to 4 of 2012. .. Appellants
Vs.
1.Rengasamy
2.Selvaraj .. Respondents/Appellants/Defendants 2 & 3
Second Appeal filed under Section 100 of CPC against the
Judgment and decree dated 19.06.2000 passed in Appeal Suit No.31 of
1998 by the Sub Court, Kulithalai reversing the Judgment and decree
dated 12.01.1998 passed in Original Suit No.236 of 1996 by the District
Munsif Court, Kulithalai.
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2
For Appellants : Mr.K.Govindarajan
For Respondents : Mr.G.Vasudevan
JUDGMENT
The deceased first appellant is the plaintiff in O.S.No.236 of 1996, on the file of the learned District Munsif Court, Kulithalai. The respondents are the defendants 2 and 3 in the said suit. The first appellant filed the suit against the respondents herein for bare injunction restraining the respondents from interfering with the peaceful possession and enjoyment of the suit 'B' schedule property which is nothing but a cart track. The trial Court decreed the suit. Challenging the judgment and decree passed by the trial Court, the respondents herein/defendants 2 and 3 filed an appeal before the Sub Court, Kulithalai, in A.S.No.31 of 1998. The Subordinate Judge, Kulithalai, after hearing the arguments of both sides and upon perusing the entire records, allowed the appeal and dismissed the suit. Challenging the judgment and decree passed by the first appellate Court, the plaintiff in the suit has filed the present second appeal before this Court.
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2. The case of the first appellant/plaintiff as averred in the plaint reads as follows:
The plaintiff has encroached the suit 'A' schedule property, which is described as 'grama natham' and he has constructed a house therein. He obtained patta for the suit 'A' schedule property in Natham S.No.339/4 at Karuppathur Village during UDR scheme and was also paying house tax. The suit 'B' schedule property is a cart track. The plaintiff has been enjoying the suit 'B' schedule property for more than 50 years. The plaintiff and his neighbours are enjoying the said cart track with the knowledge of the defendants. The plaintiff does not have any other cart track except the suit 'B' schedule property/cart track to reach the suit 'A' schedule property and he is enjoying the suit 'A' schedule property for a long time. Therefore, he claimed the suit 'B' schedule property by easement of necessity and also right by prescription. Since the defendants encroached the suit 'B' schedule property and tried to put up fence, the plaintiff has filed the suit for bare injunction restraining the defendants from interfering with the possession and enjoyment of the suit 'B' schedule property viz., the cart track to reach the suit 'A' schedule property.
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3. In the written statement filed on the side of the defendants 2 and 3, it is averred as follows:
The plaintiff is not entitled to get the relief with respect to the suit 'B' schedule property. There is no cart track at all as described in the suit 'B' schedule. The suit is not maintainable without seeking a relief of declaration, when the defendants are denying the existence of cart track. There is no cart track from the point 'AB' to 'CD' as described in the schedule. The plaintiff is misleading the Court. It is false to say that the plaintiff is enjoying the suit 'B' schedule property for more than 50 years. The patta granted in favour of the plaintiff is not admitted by the defendants. It is true that there is a north-south pathway proceeding from south to north and the said pathway is used by the village people to fetch water. There is no cart track or pathway available to the plaintiff or to anybody else in or over the defendants' property. The plaintiff has a tyre cart only for the past three years. The plaintiff had never been taking his cart track from the pathway on the East. On the western side of the plaintiff's house, there is a public road viz., Krishnarayapuram Panchayat Union – Karuppathur. In between his house and Karuppathur road his http://www.judis.nic.in 5 punja land is available, and through the said land he is taking his cart. The plaintiff, for some time had been taking his cart westwards of the temple and thereafter, on the northern side of the Natham vacant site, which is also situate on the western side of the defendants' house. The plaintiff is therefore, not entitled to have any right of usage of cart track. There is no merit in the suit and the same deserves to be dismissed.
4.Based on the rival pleadings raised on either side, the trial Court has framed the following issues:
(i)Whether the plaintiff is entitled to get the relief of permanent injunction as prayed for in the plaint and
(ii)Whether the plaintiff is entitled to get any other relief?
5. In order to prove the case, on the side of the plaintiff two witnesses were examined as PWs.1 and 2 and four documents were marked as Exs.A1 to A4. On the side of the defendants, three witnesses http://www.judis.nic.in 6 were examined as DWs.1 to 3 and two documents were marked as Exs.B1 and B2. The Court documents were marked as Exs.C1 and C2.
6. The trial Court after hearing the arguments made on both sides and after contemplating the entire materials available on record has decreed the suit as prayed for. Against the Judgment and decree passed by the trial Court, the defendants had preferred an Appeal Suit in A.S.No. 31 of 1998 on the file of the Sub Court, Kulithalai. The Subordinate Judge, Kulithalai has found that the plaintiff has not proved the right of easement of necessity and also the right by prescription and the trial Court failed to consider the said legal proposition and ultimately dismissed the suit. Against the Judgment and decree passed by the first appellate Court, the present second appeal has been preferred at the instance of the plaintiff as appellant.
7. At the time of admitting the present Second Appeal, the following substantial questions of law have been formulated for consideration:
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(i) Whether the judgment and decree of the lower appellate court discarding material evidence in the shape of the report of the Advocate Commissioner is sustainable in law?
(ii) Whether the decree of the lower appellate Court which bases upon total non consideration of the evidence on record is sustainable in law?”
8. In this case, the first appellant is the plaintiff. He filed the suit for bare injunction against the respondents. He has narrated in the plaint that the suit 'A' schedule property is his house and the suit 'B' schedule property is a cart-track. He himself has admitted that he encroached the suit 'A' schedule property long back and to reach the suit 'A' schedule property, he has been using the suit 'B' schedule property / cart track for more than 50 years. At the time of filing the suit, he filed an application to appoint an Advocate Commissioner to inspect the suit properties and to file a report and plan. Accordingly, an Advocate Commissioner was appointed and he inspected the suit properties and filed his report and plan, which were marked as Exs.C1 and C2 respectively. The appellant has stated that he has encroached the suit 'A' http://www.judis.nic.in 8 schedule property very long back and he claimed that the suit 'B' schedule property is a cart track, used to reach the suit 'A' schedule property. According to the appellant, he has no other way except the suit 'B' schedule property. But the Advocate Commissioner has stated in his report that a pathway is in existence to reach the suit 'A' schedule property. The respondents have also stoutly refuted that the suit 'B' schedule property is a cart track. It is only a pathway and it is uneven. According to the respondents, it is only a lane, situate in natham and there is no cart track.
9. It is settled proposition of law that when the plaintiff is claiming right of easement of necessity and right of cart track by prescription, the plaintiff has to prove his case. If he claims right of suit 'B' schedule property by easement of necessity, he should plead and prove the same. The contention of the appellant that the suit 'B' schedule property is a cart track and except the suit 'B' schedule property, no other pathway is in existence to reach the appellant's house and for which, severance of tenements has to be proved, that means, the properties of the appellant and respondents are originally belonged to one person and http://www.judis.nic.in 9 subsequently that was divided into several persons. To reach back portion, one has to use the front portion. Without using the front portion, he cannot reach the back side portion.
10. In this case, the appellant himself has admitted that the suit 'A' schedule property is a 'grama natham' and he encroached the said property. He has also stated that for more than 50 years, he is enjoying the suit 'B' schedule property to reach the suit 'A' schedule property. But he has not produced the field map or any other document to show that the suit 'B' schedule property is in existence. Even otherwise, if he is using the cart track for more than 20 years, he should establish the said fact that he is entitled for right by prescription. Further easement of necessity and right by prescription are entirely contrary to each other. When the appellant seeks right of easement of necessity, he has to prove severance of tenements and also the fact that there is no other way to reach the appellant's house. On the other hand, if he wants to establish the right by prescription, he should establish that he is enjoying the pathway without any hindrance or objection for more than 20 years. The appellant has not proved either of the two. He himself admitted that only during UDR http://www.judis.nic.in 10 scheme, he obtained patta and started paying kist for 'A' schedule property.
11. Ex.A1 is the patta dated 28.03.1995, standing in the name of the plaintiff. Ex.A2 is the kist receipt for the year 1996. Ex.A4 is the lease deed of the year 1936. But it does not describe any cart track. If really the appellant is enjoying the suit 'B' schedule property for more than 50 years to reach 'A' schedule property, he should have filed some documents to show that he is enjoying the property for more than 20 years. But, admittedly, he has not proved the same. According to him, he has encroached the suit 'A' schedule property and enjoying the same for more than 20 years and the suit 'B' schedule property was used by him without any hindrance of anybody, including the defendants, for more than 20 years.
12. Ex.C2 is the plan produced by the Advocate Commissioner, which shows that adjacent to the appellant's house bearing door No.9/82, other houses bearing Nos.9/83, 9/84 and 9/85 are situated but they have not filed any suit. Since the respondents were not available, they have not been given any notice and the Advocate Commissioner inspected the suit http://www.judis.nic.in 11 property in the absence of the respondents and Exs.C1 and C2 are only ex parte commission reports. Without challenging the said ex parte commission reports, the respondents have filed an application before the appellate Court to inspect the suit properties. The appellate Court dismissed the application. Based on Exs.C1 and C2, the ex parte commission reports, the trial Court decreed the suit, whereas, the first appellate Court, after going through the entire pleadings, oral and documentary evidence, has not given much weight to the ex parte commission report, and allowed the appeal and dismissed the suit.
13. It is a well settled proposition of law that the plaintiff has to plead and prove his case. His main pleading is that he encroached the suit 'A' schedule property long back and he is using the suit 'B' schedule property to reach the 'A' schedule property for more than 50 years. Exs.A1 and A2 are of the years 1995 and 1996. Further, he himself has admitted that he obtained patta only during UDR scheme and paying tax. But he has not proved that he is using the suit 'B' schedule property to reach the suit 'A' schedule property. The suit 'A' schedule property was encroached by the appellant 50 years ago. Ex.A4 (Eetu pathiram) does http://www.judis.nic.in 12 not say anything about the suit 'B' schedule property, whereas the appellant has claimed that the cart track is in existence. But no document has been filed to show that suit 'B' schedule property is a cart track. Therefore, it is the duty of the appellant to prove that he encroached the suit 'A' schedule property 50 years ago and has been using the suit 'B' schedule property for more than 50 years, or at least more than 20 years, by right by prescription. Though the trial Court failed to consider the legal position, the first appellate Court has considered the effect of ex parte commission report and also the right of the appellant to claim the right over the suit 'B' schedule property, by easement of necessity. The first appellate Court also relied upon the following decisions:
“(1)AIR 1962 Andhra Pradesh 84 [Pedda Seetharamappa and Ors. vs Pedda Appaiah]
(a)Civil P.C.(1908) O.26 R.9 10(1) and 18-
Commissioner to make local investigation – Duty of Court to issue notice – Proceedings before Commissioner behind back of defendant – Commissioner's report becomes unreliable.
http://www.judis.nic.in 13 It is not obligatory on the Court to issue notice to the defendant before the appointment under O.26 R.9 of a commissioner to make local investigation. However, it is mandatory by reason of O.26 Rule 18 on the Court after issue of the Commissioner to direct the parties to appeal before the Commissioner. Notice issued by the Commissioner, is not sufficient compliance with Rule 18 and where the local investigation is made behind the back of the defendant, no reliance can be placed on the report given by the Commissioner.
(b)Civil P.C.(1908) O.26 R.10(2) Report of Commissioner unreliable – his examination does not cure it.
Where the report of the Commissioner is founded on representations made to him or on matters brought to his notice by one party to suit alone, the report deserves to be ignored and as the Commissioner's examination as a witness is only under Rule 10(2) touching on matters in his report, when his report cannot be relied upon his evidence which is based on the report also cannot be relied upon.
1996 I.M.L.J Page 267 [Ramasami vs.
Krishnasami Alias Krishnan and others]
(a) ......
(b) .....
(c) ......
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(d) Civil Procedure Code (V of 1908) O.26 Rules
9 and 18. Ex parte order for appointment of Commissioner to inspect property in dispute and to report as to the nature of the property. Report of Commissioner – Evidentiary value.
The Commissioner visited the property without notice to the defendants. It is an ex parte commission. Though the defendants wanted a second visit, for one reason or other, it did not take place, and, on the basis of the first visit alone, the Commissioner filed the Report. What is the evidenciary value of such report? Even though the court is competent to issue ex parte Commission, the evidentiary value of the report filed in pursuance of such Commission is very little. The Commissioner has not been examined in this case to prove the result of his inspection. Being an ex parte Commission, the court must be reluctant or must be to cautious to accept the same. The provisions of Order 26, Rule 18, C.P.C., have not been followed and, therefore, much reliance cannot be placed on the same.” (2)Smt.Usarani Das V. Bhaktahari Mohanty and others (A)Easements Act (5 of 1882) Sec. 13 Easement of necessity – What constitutes – Division of single tenement into separate tenements necessary.
http://www.judis.nic.in 15 Easement of necessity according to Section 13 of the Indian Easements Act arises only where by a transfer, bequest or partition, a single tenement is divided into distinct and separate tenements and any of the separate tenements is so situated that it cannot be used at all without enjoying an easement over the other such tenement or tenements.
The mere fact that the servient and dominant tenements belong to a common owner does not give rise to an easement of necessity. It must be established that both the tenements had constituted a single unit and after the severance, the situation of a dominant tenement became such that it cannot be used at all without the easement claimed in the suit over the servient tenement. Where none of those elements have been pleaded or proved no easement of necessity can be claimed.
(3)AIR 1999 Kerala Page No.409 [Unnikrishnan V. Ponnu Ammal and others] Specific Relief Act (47 of 1963) Ss.38, 34 – Suit for injunction – Injunction sought to protect easement by prescription or to prevent obstruction to easement by prescription – cannot be said to be not maintainable unless there is also prayer for declaration of right.
http://www.judis.nic.in 16 Easement Act (5 of 1882) S.35 A suit for injunction to protect a right by prescription or to prevent interference with a right by prescription, really implies the seeking of a relief of declaration of the right as well. Thus in every adjudication in a suit for injunction based on a claim of right by prescription, what is involved is an adjudication of the right claimed by the plaintiff and on his establishing the right the grant or refusal of injunction on well accepted principles relating to the grant of a decree for injunction.
Once nuisance is established, the owner of the dominant tenement would be entitled to the relief of injunction in terms of the Specific Relief Act and Section 35 of the Easements Act. There is no warrant for reading into Section 38 of the Specific Relief Act or Section 35 of the Easements Act, a requirement that in a suit by the dominant owner he must also seek the relief of a declaration of his right by| prescription. Thus it cannot be said that a suit for injunction to protect an easement by prescription or to prevent an obstruction to an easement by prescription is not maintainable unless there is also a prayer for declaration of the right. But that is not to say that a plaintiff in such a suit has not the burden to establish his right by prescription. Only by establishing his right by prescription and by getting http://www.judis.nic.in 17 it recognised by the Court can the plaintiff get the relief of injunction for protection of that right. Therefore in every such suit for an injunction restraining interference with an easement by prescription, there is an obligation in the plaintiff to get an issue framed on the right by prescription claimed by him and to seek an adjudication on that issue so as to entitle him to relief of injunction on his establishing his right. The fact that the claim for a formal declaration of right by prescription is not needed, does not absolve the plaintiff of his obligation to prove the right and the Court would not be in a position to grant relief to the plaintiff unless and until it enters a clear finding on the relevant issue that the plaintiff has established a right by prescription. In other words what is needed is only an establishment of the right by prescription in the Court as a prelude to get a decree for injunction prohibitory or mandatory.”
14.In the absence of any documentary evidence and merely relying upon the report of the ex parte commission, the trial Court has decreed the suit. First of all, it is the duty of the plaintiff to prove that he is using the suit 'B' schedule property as a cart track to reach the suit 'A' schedule property for more than 20 years. But he has not established the same by producing any document. Further, he has not established that http://www.judis.nic.in 18 except the suit 'B' schedule, no other cart track is available. Though the respondents have stated that there is an alternative cart track available, it is for the plaintiff to prove that except 'B' schedule property no other cart track is available. The plaintiff cannot take advantage of the loopholes left by the defendants. Merely because the respondents/defendants have not proved that there is alternative pathway, it does not mean that the appellant/plaintiff is entitled for the relief, especially when the defendants have denied that the suit 'B' schedule property is not a cart track and the plaintiff has not asked for the relief of declaration. This Court also finds that the report filed by the Advocate Commissioner is only an ex parte commission report and he has stated in his report that he has not given notice to the appellants. Based on the ex parte commission report, the trial Court has erroneously decreed the suit. But the first appellate Court has rightly appreciated the entire evidence with legal position.
15. As already stated, the plaintiff has to plead and prove his case and he cannot take advantage of the loophole left by the defendants. Further, it is a settled position of law that because the defendants have failed to prove and establish their defence, the plaintiff is automatically http://www.judis.nic.in 19 entitled for the relief as claimed by him. On a careful reading of the plaint, it is seen that the appellant herein has claimed that the suit 'B' schedule property is a cart track and 'A' schedule property is a house site and he himself admitted that it is situate at natham village and he encroached the property long back and has been using the 'B' schedule property as a cart track to reach the 'A' schedule property. But the respondents have stated that it is not a cart track and it is only a lane in between two houses to drain the rain water from the roof and for doing the repair work. According to the respondents, to do white washing also, both the house owners have to leave 3 to 5 feet space for the said purpose. But the said fact is stoutly denied by the appellant, stating that the 'B' schedule property is a cart track and he is using the same for more than 20 years. Therefore, once the defendants denied the right of use, it is for the plaintiff to establish that for more than the prescribed period, he is using the 'B' schedule property as a cart track. Though the Advocate Commissioner has stated that some tyre marks were available in the 'B' schedule property, the respondents/ defendants have stated that only for the past three years, the appellant is having tyre cart and the suit 'B' schedule property has never been used as a cart track for more than the http://www.judis.nic.in 20 prescribed period. Even, the Advocate Commissioner has also stated different measurement in different places in the suit 'B' schedule property. Further, the Advocate Commissioner has not summoned the revenue officials like Village Administrative Officer or Surveyor before inspecting the suit 'B' schedule property and the appellant has also failed either to summon the Surveyor or Village Administrative Officer to produce field map showing that there is a cart track. Therefore, even the documents produced on the side of the appellant do not show that there is a cart track as stated by him in the plaint. Further, as per the Commissioner's report, adjacent to the appellant's house bearing door No. 9/82, there are other houses bearing door Nos.9/83, 9/84 and 9/85 are also situated. But they have not filed any suit or impleaded as parties. Even otherwise, they have not been examined as witnesses to prove that the appellant is enjoying the cart track for more than 20 years and they are also enjoying the same along with the appellant to reach their houses and they do not have any other way except the 'B' schedule property. Therefore, it is the duty of the appellant to establish his case as pleaded by him in the plaint by adducing oral and documentary evidence. http://www.judis.nic.in 21
16. Though the trial Court believed the ex parte commission report and allowed the suit, the first appellate Court re-appreciated the entire evidence and discarded the said evidence, and considering the pleadings of the parties, both oral and documentary evidence, found that the appellant has not established his right as claimed by him, either easement of necessity or the right by prescription. Since the first appellate Court is a fact finding Court based on the available materials on record, the first appellate Court has given such finding. Considering the facts and circumstances of the case and the material evidence available on record, this Court does not find any merit in the second appeal and the same is liable to be dismissed. The substantial questions of law framed are answered accordingly.
17. In fine, this Second Appeal is dismissed. No costs. The Judgment and decree passed in Appeal Suit No.31 of 1998, by the Sub Court, Kulithalai are confirmed.
16.06.2020 Index:Yes/No Internet:Yes/No mj http://www.judis.nic.in 22 P.VELMURUGAN, J.
mj To
1.The Sub Court, Kulithalai
2.The District Munsif Court, Kulithalai Pre delivery judgment made in SA(MD)No.1226 of 2000 16.06.2020 http://www.judis.nic.in