Madras High Court
Susai Mary vs A.V.Mariammal Philip
Author: T.Ravindran
Bench: T.Ravindran
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 05.07.2018 PRONOUNCED ON:25.07.2018 CORAM: THE HON'BLE MR.JUSTICE T.RAVINDRAN S.A.No.505 of 2005 and C.M.P.No.688 of 2013 Susai Mary ... Appellant Vs. 1.A.V.Mariammal Philip 2.A.V.Sarammal 3.A.V.Rajan 4.A.V.Susainammal 5.A.V.Mathai ... Respondents Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and Decree dated 30.12.2004 in A.S.No.33 of 2004 on the file of Subordinate Judge of Nilgris at Uthagamandalam confirming the judgment and decree dated 31.12.2003 in O.S.No.332 of 1987 on the file of District Munsif, Coonoor. For Appellant : Mr.Mr.K.N.Nataraj For Respondents : Mr.P.Sam Japa Singh ***** J U D G M E N T
Challenge in this Second Appeal is made to the judgment and decree dated 30.12.2004 passed in A.S.No.33 of 2004 on file of the Subordinate Court, Nilgiris at Udhagamandalam confirming the judgment and decree dated 31.12.2003 passed in O.S.No.332 of 1987 on the file of the District Munsif Court Coonoor.
2. The parties are referred to as per the rankings in the trial court.
3. Suit for declaration and mandatory injunction.
4. The case of the plaintiffs in brief is that the first plaintiff purchased the land property described in the plaint schedule from one Mr.Stanley Cuthbert O' Reilley of Coonoor, by way of a registered sale deed dated 17.01.1972 together with the right of way admeasuring 6 ft in width running north-south on the eastern side of the property which connect the 10ft wide pathway to reach the 15 ft wide newly formed private road leading to Mount road of Coonoor Town without any obstruction or disturbance by any one. After purchase by the plaintiffs, the second plaintiff who is the husband of the first plaintiff, put up a dwelling house in the abovesaid land property and since the date of purchase and the house construction put up therein, the plaintiffs had been using the property as above stated and while so, the first defendant, who had purchased a piece of land adjoining the right of way of the plaintiffs abovestated property, started leveling the same, with a view to put up a construction there during the second week of October 1987 and thereby encroached upon the right of way of the plaintiffs as above stated and in this connection, the plaintiffs have preferred the complaints to the Collector and the other authorities concerned and the said authorities had not taken necessary action against the defendants to prevent the illegal activities of the defendants, the defendants 2 and 3 who are the close relatives of the first defendant, proceeded with the abovesaid construction and blocked the right of way of the plaintiffs by put up revetments in the pathway and according to the plaintiffs, they had prescribed their right over the pathway on account of their continuous usage of the same and also the right of passage is required by the plaintiffs as an easement of necessity and the illegal construction put up by the defendants in the pathway hinders their right in using the same, hence, according to the plaintiffs, they had been necessitated to institute the suit against the defendants for appropriate reliefs.
5. The case of the defendants in brief is that the suit laid by the plaintiffs is not maintainable either in law or on facts. The defendants are not aware of the purchase of the property by the plaintiffs with a right of way and the defendants are denying the plaintiffs' claim of right in having purchased the property with a right of way measuring 6 ft in width on the eastern side as put forth in the plaint. The plaintiffs in particular, have not purchased any right of way in the property owned and possessed by the first defendant and the first defendant had purchased her property in the year 1969 and in the said sale deed, there is no right disclosed of any right of way in favour of the plaintiffs and hence the plaintiffs cannot claim any right of way adjoining the defendants' property on any basis either absolute right or right by way of the prescription or right by way of easement of necessity and the defendants are not aware of the alleged complaints given to the authorities by the plaintiffs and the defendants are entitled to put up the construction in the property purchased by them and the same cannot be prevented by the plaintiffs. The alleged pathway has never been in existence and there is no right of way in existence in favour of the plaintiffs in the property belonging to the first defendant. The first defendant is not putting up any illegal construction in the alleged pathway as projected by the plaintiffs and hence the plaintiffs have no cause of action to lay the suit and hence the suit is liable to be dismissed.
6.In support of the plaintiff's case, P.Ws.1 to 2 were examined. Exs.A1 to A12 were marked. On the side of the defendant, D.W.1 was examined. Ex.B1 was marked.
7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the courts below were pleased to accept the plaintiffs' case and accordingly, granted the reliefs sought for by the plaintiffs. Challenging the same, the present Second Appeal has been laid.
8.At the time of admission of the second appeal the following substantial questions of law were formulated for consideration.
1.Whether the Courts below are correct in granting a decree on the basis of Ex.A1 which does not expressly grant the right of pathway in the property of the appellant herein?
2.Whether the Courts below are correct in granting a decree when the easement of necessity has not been proved in accordance with the provisions of Section 13 of the Easement Act?
9. From the pleadings set out by the parties and the evidence adduced in the matter, it is found that, the plaintiffs are seeking the reliefs claimed in the suit in respect of 6 ft pathway lying on the eastern side of their property as their exclusive property, as according to the plaintiffs, the abovesaid 6 ft pathway connects the 10 ft width pathway which in turn connects the 15 ft wide newly formed private road which in turn leads to Mount Road of Coonoor Town. According to the plaintiffs, the abovesaid right had been granted to them by their vendor by way of a registered sale deed dated 17.01.1972, which document has come to be marked as Ex.A1. It is thus found that the plaintiffs claim right over the pathway measuring 6 ft in width stated to be lying on the eastern side of their property and hence it has to be seen whether the plaintiffs are entitled to obtain the reliefs prayed for on the basis of Ex.A1. As far as the other documents projected by the plaintiffs and marked as Exs.A2 to 9, the same would not be in any manner useful to sustain the claim of right of the plaintiffs in respect of the pathway right they seek to enforce. Similarly, the documents marked as Exs.A10 to A12 are not connected with the pathway in dispute and therefore those documents also would be of no help to uphold the reliefs sought for by the plaintiffs. It is thus found that it is only Ex.A1, which could be relied upon by the plaintiffs to establish whether their vendor had granted any right in respect of the pathway measuring 6 ft width on the eastern side as put forth by them.
10. On a perusal of Ex.A1 sale deed it is found that as per the recitals contained therein, the plaintiffs had purchased 0.09 4/16 acres of land out of 11.96 5/16 acres of land in the suit survey number and to the abovesaid property on the northern side lies the land of Nagappan, on the southern side, stream, on the eastern side, 6 ft pathway and on the westerns side, the land of Siri Koshy. It is found that by way of Ex.A1, the plaintiffs had been granted only 0.09 4/16 acres of land in the suit survey number within the abovesaid specific boundaries. No doubt, the abovesaid property is stated to be lying to the west of 6 ft pathway. However, from the recitals contained in the sale deed, there is a reference that the purchaser had been granted the full right of way over the 6 ft path way which as above seen leads to 10 ft width private pathway which in turn leads to 15 ft width private road which in turn further leads to Mount Road. The plaintiffs had purchased the property comprised in Ex.A1 on 17.01.1972.
11. It is not in dispute that the first defendant had purchased the property from the vendor of the first plaintiff lying on the eastern side of the plaintiffs property and the first defendant had purchased the said property on 31.05.1969 and the abovesaid sale deed has come to be marked as Ex.B1. On a perusal of Ex.B1, it is found that the first defendant had been sold by way of the said sale deed an extent of 5 cents out of 11.96 5/16 acres of land by his vendor in the suit survey number and the boundaries of the said property is shown as north by plot No.19, south by Plot No.27, east by common lane and west by private stream. On a perusal of Ex.B1, it is found that no right has been reserved by the vendor, who had executed the said document retaining any right of pathway in the property alienated to the first defendant under the said document. As per Ex.B1, 5 cents of land purchased by the first defendant is stated to be located to the east of private stream. As above seen, the property purchased by the first plaintiff by way of Ex.A1 show that the property comprised therein is lying to the west of 6 ft pathway. As rightly putforth by the defendants' counsel when the property belonging to the plaintiffs and the first defendant are lying adjacent to each another i.e., the property belonging to the plaintiffs lying on the western side and the property belonging to the first defendant on the eastern side and if really any pathway had existed in between the abovesaid two properties, the vendor while alienating the property to the first defendant by way of Ex.B1 would have recited that the property comprised in Ex.B1 lies to the east of 6 ft pathway. Ex.B1 reads that the property described therein lies to the east of private stream. As above noted, the vendor had not retained any right of way over the property alienated to the first defendant under Ex.B1. Similarly, as no pathway had been in existence on the western side of the 5 cents, alienated to the first defendant under Ex.B1 and only a private stream had been in existence, accordingly, while executing Ex.B1 in the year 1969, the property comprised therein is shown to be lying to the east of private stream and not lying to the east of 6 ft pathway. While so, it does not stand reason as to how the same vendor while alienating the property to the first plaintiff by way of Ex.A1 in the year 1972 could show that the property comprised there is lying to the west of 6 ft path. If really 6 ft path had been in existence from time immemorial in between the properties comprised in Ex.A1 and Ex.B1 respectively, definitely the same would have been mentioned by the vendor while alienating the property by way of Ex.B1 and on the other hand, as no such 6 ft pathway had been in existence at that point of time and only private stream had been in existence at that stage, accordingly, described the property comprised in Ex.B1 as situated to the east of private stream. In such view of the matter, it is for the plaintiffs, who had come forward with the suit to establish as to whether there is any pathway in existence on the east of the property purchased by them under Ex.A1. Merely from the recitals contained in Ex.A1 that the plaintiffs had been granted the right over 6 ft pathway for reaching the connecting passage/road as above stated leading to Mount Road, it cannot be inferred that the plaintiffs have as a matter of right, absolute right or any other right over the alleged 6 ft pathway. When according to the defendants, no such pathway is in existence in between the properties purchased by the plaintiffs under Ex.A1 and the property purchased by the first defendant under Ex.B1, the abovesaid version of the first defendant is found to be more probable as abve discussed, considering the boundary recitals contained in Ex.B1 and Ex.A1, particularly when both the parties had purchased their respective properties from the same vendor. The plaintiffs having come forward with the suit, has to establish that the 6 ft pathway had been in existence in between the two properties right from the beginning as projected by them and when the same had been stiffly resisted by the defendants, the best person who could speak about the same would be the plaintiffs' vendor. However, the plaintiffs have not chosen to examine their vendor and that apart the plaintiffs have not placed any material as such to hold that if really any 6 ft pathway is in existence on the eastern side of the property acquired by them by way of Ex.A1. In this connection, as above noted other than Ex.A1, the other documents projected by the plaintiffs would be of no use to establish the existence of the 6 ft pathway and thereby the entitlement of the plaintiffs to use the alleged 6 ft pathway.
12. In so far as the evidence of P.W.2, the auditor, is concerned no doubt, he has tendered evidence that the plaintiffs have the right to have access on the 6 ft pathway lying on the eastern side of the property and according to P.W.2, he had temporarily granted the plaintiffs to have access on the western side of his property to reach the main road and it is found that the Courts below had totally based reliance upon the evidence of P.W.2 for accepting the plaintiffs' case. However, merely from the oral evidence of P.W.2, when it is found that the P.W.2 is not in any manner associated with the sale deed marked as Ex.A1 or the sale deed marked as Ex.B1, it is found that on his oral testimony, we cannot grant any declarative right in favour of the plaintiffs as regards the pathway in dispute.
13. As rightly put forth by the defendants' counsel, the plaintiffs having come forward with the suit for the reliefs of declaration and mandatory injunction, particularly, in the light of the defence projected by the first defendant that no right of pathway had been granted to the plaintiffs by their vendor under Ex.A1 in respect of the property acquired by the first defendant by way of Ex.B1 and when Ex.B1 also does not recite any such right having been reserved by the vendor and when it is found that the vendor had not properly described the properties correctly, when the vendor had mentioned the property under Ex.B1 as lying to the east of private stream, the same vendor has described the property purchased by the plaintiffs under Ex.A1 as lying to the west of 6 ft pathway, and when it is found that there is no clear proof as to whether the 6 ft pathway lies in between the properties belonging to the plaintiffs and the first defendant or the private stream alone lies in between the properties belonging to the plaintiffs and the first defendant, therefore the best person to speak about the same would be the vendor and if he is not available, his legal representatives who would be competent witnesses in the fitness of things. If no such person is available, as rightly argued, the plaintiffs having come forward with the suit should have taken out a commission by way of survey examination to measure the properties to identify and localize/legalize the pathway in dispute as to whether it lies on the ground and whether the same is the only access to the plaintiffs for reaching the connecting roads as put forth by them or as described in Ex.A1 sale deed and when no such endeavor had been made by the plaintiffs, as rightly argued, merely from Ex.A1, we cannot hold that the plaintiffs had been granted the absolute right over the 6 ft pathway lying to the east of the property acquired by them under Ex.A1. Though the plaintiffs had claimed absolute right as regards the 6 ft pathway described as lying to the east of the property acquired by them under Ex.A1, however when the 6 ft pathway is only shown as the eastern boundary of the property acquired under Ex.A1, it does not stand to reason as to how the plaintiffs would be entitled to claim exclusive right over the said pathway as projected by them. With reference to the above position, no proper explanation is forthcoming on the part of the plaintiffs. Merely because the 6 ft pathway is shown as the eastern boundary of the property described in Ex.A1, it cannot be considered that the plaintiff had acquired the property inclusive of the 6 ft pathway and thereby enjoying the absolute right over the same. When as per Ex.B1, the first defendant's property is separated from the property purchased by the plaintiffs under Ex.A1 only by way a private stream and not by any 6 ft pathway, as rightly apprehended by the first defendant, the plaintiffs taking advantage of the recitals contained in Ex.A1, cannot be allowed to lay any claim of right of pathway over the property acquired by the first defendant under Ex.B1. It is the specific case of the first defendant that she had put up the revetment on the western end of her property i.e., on the eastern side of the private stream and not put up any illegal construction as projected by the plaintiffs. Even with reference to the nature of the construction alleged to have been put up by the first defendant in the property, as to whether such construction had been put up in any pathway or the stream portion or within the boundary to which the plaintiffs are entitled, the best evidence that could have been projected in the matter would only be the Commissioner's report and plan by way of survey examination and the plaintiffs having failed to make any endeavor with reference to the same, it is found that for the reasons aforestated, merely on the basis of Ex.A1 alone, we cannot uphold the plaintiffs' case. As above pointed out, when both the parties claim right to their respective properties from their vendors and when the vendor while alienating the properties to them had not properly described while giving the description of the properties conveyed and when it is not made clear as to whether the 6 ft pathway lies in between their properties or only the private stream lies in between their properties and when it is further noted that to the south of the property purchased by the plaintiffs, the stream is running and when as per Ex.B1, a common lane is only lying to the east of the property i.e., east of 5 cents acquired by the first defendant under Ex.B1 and the common lane is not shown to be lying to the west of 5 cents purchased by the first defendant under Ex.B1, the Courts below seem to have linked the common land lying the east of 5 cents as denoting the lane portion projected by the plaintiffs in the suit and thereby proceeded to uphold the plaintiffs' case. In this connection, as above noted, the Courts below had also placed reliance upon the oral testimony of P.W.2, a neighboring land owner and when admittedly P.W.2 is no way connected with the properties belonging to the plaintiffs and the first defendant, it is found that on the basis of the oral testimony of P.W.2 we cannot rely upon the plaintiffs' case.
14. Inasmuch as the plaintiffs are unable to establish as to what kind of right they had been conveyed under Ex.A1 in respect of the alleged 6 ft pathway, it is found that the plaintiffs have also claimed right over the said 6 ft pathway by way of prescription on account of long usage and enjoyment. However, when with reference to their case of long usage and enjoyment of the alleged 6 ft pathway is not buttressed by acceptable materials and when the very existence of 6 ft pathway is in dispute, as above discussed, it is found that the right of prescription claimed by the plaintiffs in respect of the alleged 6 ft pathway cannot be sustained.
15. As above noted, the plaintiffs had also claimed right of easement by necessity in respect of the 6 ft pathway for having approach to the main road. By claiming such right, it is found that the plaintiffs have admitted the title of the defendants in respect of the alleged pathway. However, when it is found that, as seen from the evidence of P.W2 the plaintiff is having other access to reach the main road, the claim of the plaintiffs to the alleged pathway right on the ground of easement of necessity also falls to the ground.
16. C.M.P.No.688 of 2013Petition filed under Order 41 Rule 27 of Code of Civil Procedure.
The petitioner/appellant has preferred the abovesaid petition to mark certain documents as additional evidence in support of her case. However, the additional evidence sought to be projected by her are all found to have emanated much after the institution of the suit. In such view of the matter, as rightly put forth, the projected documents would be of no use to sustain the petitioner/appellant's case. The documents are also not shown to be relevant to the issues between the parties and also found to be not useful in adjudicating the controversy between the parties as regards the the alleged pathway. In such view of the matter, in my considered opinion, the projected documents need not be entertained as additional evidence. Accordingly, the petition deserves rejection.
17. In the light of the above discussions , it is found that inasmuch as the plaintiffs are not sure as to what is the nature of their right which they seek to enforce in respect of the alleged pathway, they had projected the inconsistent pleas with reference to the same and as put forth by the defendants' counsel when the plaintiffs had not been granted any right in the property belonging to the first defendant by their vendor and further when the plaintiffs have failed to establish the existence of the pathway and localise the same by surveying the properties of the parties concerned by taking out a commission, it is found that the Courts below are not justified in granting the reliefs sought for by the plaintiffs in respect of the alleged pathway.
18. In the light of the above discussions, the Courts below had erred in granting the reliefs in favour of the plaintiffs based on Ex.A1 when it is found that the said document does not grant any right of pathway in the property acquired by the first defendant under Ex.B1. Similarly, the plaintiffs cannot be also granted any easementary right by way of necessity in respect of the alleged suit pathway as the ingredients of Section 13 of the Easement Act are not justified and moreso, when it is found that the plaintiffs have other access to reach the main road from their property. Merely because the plaintiffs had presented objections to the authorities concerned with reference to the construction put up by the defendants in their property, it cannot be construed that the plaintiffs have taken timely action against the defendants. When it is found that the plaintiffs have miserably failed to establish that any such pathway is in existence on ground on the eastern side of their property and any right as such had been legally granted to them by their vendor by way of Ex.A1, in such view of the matter, merely from the recitals found in Ex.A1, it cannot held that the vendor had granted the pathway right to the plaintiffs in respect of the property acquired by the first defendant under Ex.B1. Merely because the plan annexed to Ex.A1 also denotes the 6 ft pathway, it cannot be considered that the plaintiff as a matter of right is entitled to 6 ft pathway and as above noted the 6 ft pathway is only shown as the eastern boundary of the plaintiffs property and in such view of the matter, the claim of the plaintiffs that they have absolute right over the 6 ft pathway without establishing the existence and the right of usage of the same and also the conferment of any such right over the same under Ex.A1 by placing acceptable materials i.e., by examining their vendor or by taking out a commission etc., as above discussed and when no such right had been granted to the plaintiffs in respect of the property acquired by the first defendant under Ex.B1, it is found that the Courts below had erred in accepting the plaintiffs' case without there being any acceptable and reliable material to sustain the same. The substantial questions of law formulated in the second appeal are accordingly answered against the plaintiffs and in favour of the first defendant.
19. The learned counsel for the first defendant in support of his contentions, placed reliance upon the decisions reported in
1.AIR 1999 MAD 377 [Sadhurajan Vs. Sriramulu Naidu and others]
2.AIR 1987 MAD 102 [Elumalai Chetty Vs. Naina Mudali and others]
3.AIR 2006 SC 2234 [ Hero Vinoth (Minor) Vs. Seshammal]
4.AIR 2007 SC 2306 [P.Chandrasekharan & Others Vs. S.Kanakarajan & Others]
5.AIR 2004 MAD 185 [Arunachalam Pillai and another Vs. Sorimuthu Pillai] The principles of law outlined in the abovesaid decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand.
20.In conclusion, the judgment and decree dated 30.12.2004 passed in A.S.No.33 of 2004 on the file of the Subordinate Court, Nilgiris at Udhagamandalam confirming the judgment and decree dated 31.12.2003 passed in O.S.No.332 of 1987 on the file of the District Munsif Court Coonoor are set aside. Resultantly, the suit laid by the plaintiffs in O.S.No.332 of 1987 is dismissed with costs. Accordingly, the second appeal is allowed with costs. C.M.P.No.688 of 2013 is dismissed. Consequently, connected miscellaneous petition, if any, is closed.
25.07.2018 mfa Index:yes Internet:yes To
1. The Subordinate Judge of Nilgris at Uthagamandalam.
2.The District Munsif, Coonoor.
Copy to The Section Officer, VR Section, High Court.
T.RAVINDRAN, J.
mfa Pre-delivery judgment made in S.A.No. 505 of 2005 25.07.2018