Madras High Court
B.Shyamkumar vs Francis George on 4 August, 2009
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.08.2009 Coram The HONOURABLE MR.JUSTICE K.K.SASIDHARAN C.R.P.(PD)No.782 of 2009 & M.P.No.1 of 2009 B.Shyamkumar : Petitioner vs. Francis George : Respondents PRAYER:- Civil Revision Petition against the judgment an decree dated 9.1.2009 in C.M.A.No.5 of 2008 by the Subordinate Court, Ponneri confirming the order dated 20.12.2007 in I.A.No.22 of 2006 in O.S.No.10 of 2006 on the file of the District Munsif-cum-Judicial Magistrate, Thiruvottiyur. For Petitioner : Mr.V.Laksmi Narayanan for Mr.R.Munuswamy For Respondent : Mr.P.Wilson Additional Advocate General for Mr.Rajnish Pathiyil ORDER
Challenge in this civil revision petition is to the judgment and decree dated 9.1.2009 in C.M.A.No.5 of 2008 on the file of the learned Subordinate Judge, Ponneri confirming the order dated 20.12.2007 in I.A.No.22 of 2006 in O.S.No.10 of 2006 on the file of the learned District Munsif-cum-Judicial Magistrate, Thiruvottiyur, whereby and whereunder the application preferred by the revision petitioner for the purpose of granting an order of interlocutory injunction during the pendency of the suit was dismissed.
The facts :-
2. The petitioner is the plaintiff in O.S.No.10 of 2006 on the file of the learned District Munsif, Thiruvottiyur.
3. The petitioner has claimed the following reliefs in the said suit.
(a) To declare that the suit "B" Schedule property is a common road meant for the use and enjoyment of it by all as road and for a consequential injunction restraining the defendant and his men, agents, servants, subordinates or any one authorised by him from in any manner encroaching or trespassing over the "B" schedule property.
(b) For permanent injunction restraining the defendant and his men, agents, servants, Subordinates or any one authorised by him from in any manner preventing or obstructing the plaintiff's free usage and enjoyment over the suit "B" schedule property.
4. The plaint filed in O.S.No.10 of 2006 would read thus:-
(a)The plaintiff is the owner of an extent of 13,404 sq.ft. of land in Survey No.459/4 part of Puzhal Village and Survey Nos.3/1 and 4/3 part of Kadirvedu Village in Ambattur Taluk.
(b) The property having an extent of 12.17 acres originally belonged to an incorporated body by name Pilot Pen Company India (Private) Limited. The said company went into liquidation pursuant to the order dated 27.10.1978 in C.P.No.11 of 1978 on the file of the High Court, Madras.
(c) As per the orders of the High Court, the property was brought for public auction. In the said auction R.Kamaraj and others came out successfully and their bids were confirmed by the High Court as per order dated 28.4.1993. The High Court also directed the Official Liquidator to execute the sale deed in respect of the said property in favour of R.Kamaraj and others. Accordingly sale deeds were executed on 21.5.1993 by the Official Liquidator in favour of Kamaraj and others as per registered document No.4045/1993 on the file of Sub Registrar, Redhills.
(d)The plaintiff has purchased an extent of 13,404 sq.ft. of land equivalent to 30.75 cents out of the property which was the subject matter of document No.4045/1993 by way of a sale deed dated 25.1.1996. The sale deed was executed by Mr.T.Devanathan and others, who are also few of the Court auction purchasers.
(e)Ever since the date of purchase, the plaintiff has been in possession and enjoyment of the property. The sale deed was executed by T.Devananthan on his behalf and other vendors on the basis of a power of attorney dated 27.10.1995 registered as document No.1254/1995 and 1255/1995 on the file of the District Registrar, Madras-North.
(f)The property taken assignment by the plaintiff is situated in the corner of G.N.T.Raod and 33 feet inner road. The plaintiff has been utilising the suit "A" Schedule property as Container Terminal Yard for storing the containers.
(g)The defendant is the owner of the property situated on the southern side of the property, which is shown as "A" Schedule in the plan attached to the plaint. There is a 33 feet road leading from G.N.T.Road passing through the eastern side of the property of the parties.
(h) The 33 feet road has been in existence for several decades and it was also shown in the sketch filed along with the court auction sale deed. The said passage was used by all the public of the locality including the plaintiff and defendant.
(i)The common passage is shown as suit "B" Schedule property in the plaint. The plaintiff has shown the "A" Schedule property, which belongs to him as "ABCD" in the rough sketch and "B" Schedule property as "DEFGHJKCD".
(j)The defendant has no exclusive right or interest over the suit "B" Schedule property, being the 33 feet road. However he claims exclusive right over the road and was attempting to put up a wall across the road in the area shown as "FGKC" in the rough sketch thereby preventing the plaintiff and the other users of the road from using it.
(k)The plaintiff has got a right to use the suit "B" Schedule property for the free flow of ingress and egress from the main road. However the defendant attempted to put up a wall as well as certain obstructions which made him to file the suit for declaration as well as injunction.
5.The petitioner/plaintiff has also filed an application in I.A.No.22 of 2006 praying for an order of interlocutory injunction during the pendency of the suit. In the said application, the petitioner has detailed the reasons which made him to file the suit for protecting his right to use the passage during the pendency of the suit.
6.The respondent/defendant in his counter in I.A.No.22 of 2006 would contend thus:-
(a)The respondent had entered into an agreement with Mr.T.Devananthan and others to purchase the entire extent of 4.85 acres of land. Subsequently the property was sub divided into four plots and it was sold to various parties as his nominees.
(b) Plot No.3 was retained by him and he constructed a Large Export Garments Factory in the said plot. The document with respect to plot No.3 was executed in his favour on 25.1.1996 and it was registered as document No.283/1996 on the file of the Sub Registrar, Redhills.
(c) The respondent has entered into an agreement to assign an extent of 1.31 acres out of 4.3 acres. In order to service the plots bearing plot Nos.1,2 and 3, he had allotted 33 feet passage/road starting from GNT road up to plot No.2. At the end of plot No.2, there is a compound wall adjoining the property belonging to one M/s.Sri Seetha Venkatesh Mills Private Limited.
7.In short, it was the contention of the respondent that 33 feet passage was provided only by him and it was intended to be used only by the owners of plot Nos.1,2 and 3 and it was never intended to be a passage for the purpose of entry to the property in Plot No.4, which was sold in favour of the petitioner. Accordingly he prayed for dismissal of the interlocutory application.
8.The learned trial Judge was carried away by the fact that the petitioner was having an alternative access from G.N.T.Road and as such was of the view that he was not entitled to use the 33 feet passage. The learned trial Judge mainly considered the claim of the revision petitioner as an easement of necessity and having found that there was a clear alternative way for the petitioner, negatived the prayer for interlocutory injunction.
9.The order dated 20.12.2007 in I.A.No.22 of 2006 was taken up in appeal before the learned Subordinate Judge, Ponneri. The Appellate Court concurred with the views of the trial Judge and was of the view that the issue regarding the right claimed by the petitioner could be decided only in a full fledged trial. The Appellate Judge was also of the opinion that the petitioner has got a clear alternative way to the main road and as such, there was no prima facie case made out for the purpose of grant of an order of interlocutory injunction. Accordingly the order of the trial court was confirmed.
10.The judgment an decree dated 9.1.2009 in C.M.A.No.5 of 2008 is the subject matter in the civil revision petition.
11.During the pendency of the civil revision petition, an Advocate Commissioner was appointed to inspect the suit property and to submit a report and accordingly a report and plan was submitted by the Advocate Commissioner.
Submissions :-
12.Mr.V.Lakshmi Narayanan, learned counsel for the revision petitioner by placing reliance on the sale deed executed by the Official Liquidator as well as the sale deed in favour of the revision petitioner and the respondent contended that the 33 feet passage was earmarked as a common passage intended to be used by all the owners of respective plots. According to the learned counsel, the trial Court as well as First Appellate Court approached the issue on a wrong premise and the claim of the petitioner was mistakenly considered as a claim on the ground of easement of necessity. The learned counsel further contended that the petitioner was not claiming 33 feet passage by way of easementary right. It was the claim of the petitioner that the said passage of 33 feet was intended for the entire plot owners and as such the respondent cannot claim exclusive right in respect of the passage.
13.Mr.P.Wilson, learned Additional Advocate General appearing on behalf of the respondent would contend that there was no cause of action for filing the suit for permanent injunction. When there was no such cause of action, the petitioner was not entitled to an order of interlocutory injunction during the pendency of the suit. The learned Additional Advocate General further contended that the intention of the petitioner was only to provide a way to the adjacent plot owners, who also intends to use this 33 feet passage and as such there was no bona fides in the claim by the revision petitioner. The learned Additional Advocate General has also produced judgments in support of his contention that in a proceeding under Article 227 of the Constitution of India this Court is not entitled to interfere in the order passed by the trial Court on a pure appreciation of facts.
Analysis :-
14.The only question which arises for consideration is as to whether the 33 feet passage was earmarked for the usage of all the property owners, who have purchased respective portions out of the total extent of 4.82 acres of land by way of auction sale from the official liquidator.
15.The suit property was part of larger extent of property which originally belonged to M/s.Pilot Pen Company India (Privat) Limited. There was a winding up proceeding in C.P.No.11 of 1978 before this Court and as per order dated 27.10.1978, the entire assets of the said company was ordered to be sold in public auction. Accordingly the official liquidator conducted public auction and in the said auction, the property having an extent of 4.83 acres was purchased by T.Devananthan and others and as per order dated 28th April, 1993, this Court directed the official liquidator to execute the sale deed in favour of the purchasers. Accordingly a sale deed was executed in favour of T.Devanathan and others on 21.5.1993.
16.In schedule "H", the western boundary of the property was shown as common passage. There was also a note appended to the schedule of property which reads thus:-
"A blue print is annexed to this deed of sale in which the property hereby sold and described in schedule B to H hereinabove are shown delineated in Red colour and the common passage of 36 cents to which the purchaser and nominees 1 to 7 gave a common right for their ingress and egress is in yellow colour."
17.While registering the property, the official liquidator has also annexed a plan and the said plan was stated to be part of the document. In the said plan also 33 feet passage was shown as a common passage for the property in schedule "B" to "H". The extent of the common passage was shown as 36 cents.
18.The co-nominees, who had purchased the property, executed a power of attorney in favour of T.Devanathan as per document dated 27th October,1995 authorising him to deal with the property. In the said power of attorney, the property allotted to T.K.Thiruvengadam was shown as Schedule "C" and in the said schedule western boundary was shown as "B" Schedule property and common passage. Scheudle "D" which was in the name of R.Mannu Pillai also shows the eastern boundary as common passage. Schedule "F", which was in the name of G.Mohan shows the western boundary as common passage.
19.The petitioner has purchased an area of 13,404 sq.ft. of land in survey No.49/4 of Puzhal Village corresponding to Survey Nos.3/1 and 4/3 of Kadirvedu Village. The eastern boundary of the property is shown in the sale deed as 33 feet road.
20.The respondent has purchased an area of 18,048 sq.ft of land in Survey No.49/4 of Puzhal Village corresponding to Survey Nos.3/1 and 4/3 of Kadirvedu Village and in his document the eastern boundary was shown as 33 feet common passage.
21.The Advocate Commissioner appointed by this Court inspected the property on 9.6.2009 and inspection was conducted in the presence of both the parties and their respective counsel.
22.The learned Advocate Commissioner found that 33 feet pathway was situated on the south of the Madras-Nellore National Highway. The plot owned by the petitioner was marked as plot No.4 in the rough plan submitted by the Advocate Commissioner. Plot No.3 is stated to be the property owned by the respondent. The main gate for the property in Plot No.4 is situated in the corner of the Madras-Nellore National Highway, which is also called as GNT Road. The main gate of the factory building in plot No.3 is abutting 33 feet pathway. The Commissioner found that there was a small gate in plot No.3. Plot No.2 is a vacant site. On the other side of the passage there are three plots namely 1A, 1B and 1C. There is an opening in plot No.4 on the south west for 33 feet pathway with a shutter.
23.The details as shown in the schedule to the documents executed by the Official Liquidator in favour of the purchasers as well as subsequent documents including the document executed in favour of petitioner and the respondent shows that 33 feet pathway was kept as a common pathway.
24.The learned trial Judge as well as the Appellate Judge proceeded on the basis that the claim was on the ground of easement of necessity. However there was no pleading anywhere in the plaint or in the affidavit filed in support of the application for interlocutory injunction that the claim put up by the revision petitioner was one of easement of necessity. The consistent case of the revision petitioner was to the effect that the 33 feet passage was intended to be a common passage for all the plot owners and as such it was not permissible for the respondent to set up an independent right in respect of the said pathway.
25.There was no mention in the title deed of the petitioner or that of the respondent granting them an exclusive right to use the pathway. The respondent has taken up the contention that the 33 feet passage was provided by him at the time of dividing the property. However there is no material to prove the said contention. In fact, a perusal of the sale deed executed by the Official Liquidator clearly shows that even before the execution of the said document, the property was sub divided into various portions and this 33 feet passage was provided as a common passage. Therefore it cannot be contended that the 33 feet passage was only for the use of the owners of the property in plot NOs.1A, 1B, 1C as well as 2 and 3.
26.The common passage in this matter is akin to that of property earmarked as open reservation or for providing amenities while approving the lay out. In case in the approved lay out, a particular portion was earmarked for community purposes, the said portion has to be maintained as such, and all the plot owners would be at liberty to use the common area. None of the plot owners would be entitled to claim independent right in respect of such common area. The property is common to all the plot owners.
27.The learned trial Judge and the First Appellate Judge made no efforts to look into the issue as to whether the easement was one acquired by grant. In case the easement was one acquired by grant, there was no question of consideration of the plea of easement of necessity. Therefore the trial Court as well as First Appellate Court proceeded on a wrong footing as if the claim of the petitioner was one regarding easement of necessity.
The law :-
28.In Hero Vinoth (Minor) v. Seshammal,(2006) 5 SCC 545, the Supreme Court considered the concept of easement by grant vis-a-vis easement of necessity and indicated the legal position thus:-
"28.The question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not by anything else. Easement of necessity and quasi-easement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Anyhow the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant in this case that it was to continue only until such time as the necessity was absolute; in fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognised and the servient tenement will be recognised and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Section 13 nor is it extinguished by the statutory provision under Section 41 of the Act which is applicable only to easement of necessity arising under Section 13.
29. An easement by grant does not get extinguished under Section 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognised in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case."
29.The learned Additional Advocate General placed reliance on the judgments of the Supreme Court in Labhkuwar Bhagwani Shaha v. Janardhan Mahadeo Kalan, (1982) 3 SCC 514; Shamshad Ahmad v. Tilak Raj Bajaj,(2008) 9 SCC 1; India Pipe Fitting Co. v. Fakruddin M.A. Baker, (1977) 4 SCC 587; Bathutmal Raichand Oswal v. Laxmibai R. Tarta, (1975) 1 SCC 858 and Essen Deinki v. Rajiv Kumar,(2002) 8 SCC 400 in support of his contention that a concurrent finding of fact whether relating to jurisdictional error or otherwise of Lower Court was not open to interference by the High Court in a revision under Article 227 of the Constitution of India.
30.There is no second opinion that the jurisdiction under Article 227 is not for the purpose of correcting a mere question of fact. The jurisdiction cannot be exercised as an appellate jurisdiction to set right all kinds of errors committed by the Subordinate Courts. However when the trial court misconstrued a document and arrived at a perverse conclusion, it would be open to this court to correct such errors, as it would amount to jurisdictional error.
31.In Hero Vinoth (Minor) v. Seshammal,(2006) 5 SCC 545, while considering the jurisdiction of the High Court under Section 100 of the Code of Civil Procedure, the Supreme Court would observe thus:-
"16. It is now well settled that an inference of fact from a document is a question of fact. But the legal effect of the terms or a term of a document is a question of law. Construction of a document involving the application of a principle of law, is a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law while interpreting a document, it is open to interference under Section 100 CPC. If a document creating an easement by grant is construed as an easement of necessity thereby materially affecting the decision in the case, certainly it gives rise to a substantial question of law."
32.The Honourable Supreme Court in Seema Arshad Zaheer v. Municipal Corpn. of Greater Mumbai,(2006) 5 SCC 282, cited supra considered the term "arbitrary, capricious and perverse" with reference to a proceeding under Order 39 Rule 1 of the Code of Civil Procedure and observed thus:
"32. Where the lower court acts arbitrarily, capriciously or perversely in the exercise of its discretion, the appellate court will interfere. Exercise of discretion by granting a temporary injunction when there is no material, or refusing to grant a temporary injunction by ignoring the relevant documents produced, are instances of action which are termed as arbitrary, capricious or perverse."
33.In Kishore Kumar Khaitan v. Praveen Kumar Singh, 2006(2) SCALE 304 = (2006) 3 SCC 312) the Supreme Court indicated the extent of jurisdiction under Article 227 of the Constitution of India thus:
"13.The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction."
(Emphasis supplied)
34.The Supreme Court in Surya Dev Rai v. Ram Chander Rai,(2003) 6 SCC 675, considered the nature of jurisdiction under Article 227 of the Constitution of India with reference to the decided cases and held thus :
"22.Article 227 of the Constitution confers on every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any court or tribunal constituted by or under any law relating to the armed forces. Without prejudice to the generality of such power the High Court has been conferred with certain specific powers by clauses (2) and (3) of Article 227 with which we are not concerned hereat. It is well settled that the power of superintendence so conferred on the High Court is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles therein. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar.
25. Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, maybe, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well.
35.In SHAMA PRASHANT RAJE v. GANPATRAO (2000(7) SCC 523) the Honourable Supreme Court observed that in case the Subordinate Tribunal had committed a meanifest error by misconstruing certain documents or the High Court comes to the conclusion that on the materials placed before the court, it was not possible for a reasonable man to come to the conclusion arrived at by the inferior Tribunal or the inferior Tribunal had taken into consideration certain relevant materials or has taken into consideration certain materials which are not admissible, then the High Court would be fully justified in interfering with the finding of the inferior Tribunal.
36.The documents exhibited on the side of the revision petitioner which are all admitted documents, shows atleast prima facie that the claim made by the petitioner was one of easement acquired by grant. A conjoint reading of the sale deed executed by the Official Liquidator in favour of the predecessor-in-interest of the petitioner and the respondent as well as subsequent documents clearly shows that the 33 feet passage was intended to be used only as a common passage and nobody much less the petitioner or the respondent got a exclusive right to use the pathway to the detriment of the other plot owners.
37.Therefore I am of the view that both the trial court as well as First Appellate Court committed jurisdictional error by ignoring the documents as well as by misconstruing the documents and arrived at a perverse conclusion. Accordingly the judgment and decree dated 9.1.2009 in C.M.A.No.5 of 2008 is set aside.
38.The grievance of the respondent was mainly on account of the alleged intention of the revision petitioner to permit the owners of the adjacent plots situated outside the property which was the subject matter of the sale deed executed by the Official Liquidator, to use the 33 feet passage. According to the respondent, the owner of the property on the southern end where the 33 feet passage comes to an end was not having proper way and as such the intention of the revision petitioner was only to allow him to use this 33 feet passage. However the learned counsel for the revision petitioner submitted that the said apprehension has no factual basis and it was never the intention of the petitioner to permit any of the outsiders to use the 33 feet passage as it was exclusively for the purpose of usage of the owners of the plot in 1A, 1B, 1C, 2,3 and 4.
39.The learned counsel for the petitioner as well as learned Additional Advocate General filed a memo without prejudice, indicating their actual requirement during the pendency of the suit. On a careful consideration of the said memo, I am of the view that usage of 33 feet passage has to be regulated in the interest of both the parties during the pendency of the suit.
The disposal :-
40. Accordingly the following directions are issued.
(1) The 33 feet passage shall be used only as the common passage for the owners of the property in plot Nos.1A,1B,1C,2,3 and 4.
(2) Since the 33 feet passage is a common pathway none of the plot owners including the petitioner and the respondent are entitled to put up any kind of construction.
(3) The Advocate Commissioner has noted that there is a small opening in plot No.4 towards the passage with a shutter. There should be no attempt on the part of the revision petitioner to widen the said opening.
(4) The common passage is only for the purpose of ingress and egress for the respective plot owners. It should not be used as a parking place.
(5)The petitioner and the respondent are restrained from causing hindrance or obstruction for the free usage of the 33 feet passage.
41.I have considered the documents as well as pleadings only for the purpose of arriving at a prima facie conclusion as to whether the petitioner has made out a case for using the 33 feet passage as a common passage and as to whether his claim was one of easement of necessity or easement acquired by grant.
42.Therefore while deciding the suit, the learned trial Judge has to consider the issues independently without in any way being influenced by the observation as contained in the present order.
43.The civil revision petition is allowed with the above observation. No costs.
Tr/ To The Subordinate Court, Ponneri