Madras High Court
K. Pichai Mohideen vs M.K.M. Abdul Hakkim And 11 Ors. on 21 November, 1997
Equivalent citations: 1997(3)CTC461
ORDER S.M. Abdul Wahab, J.
1. These three second appeals arise out of a common judgment in A.S. No. 258 of 1993 and l3 and 14 of 1994 dated 27.3.1996 on the file of the Principal Subordinate Judge, Tiruchirappalli confirming the common judgment and decrees dated 30.9.1994 in O.S.Nos. 1967 of 1983, 1778 of 1982 and 1827 of 1983 on the file of the 1st Additional District Munsif, Tiruchirappalli.
2. In all the three suits, the relief claimed relates to pathway. In O.S.No. 1967 of 1983, the plaintiff claims the pathway running east to west from the Race Course Road, Tiruchirappalli having a width of 30' and length of 90' and 100' North to south with the same width of 30' in Survey Nos. 29/1 and 29/3. The relief in the suit is for injunction restraining the common defendant in all the three suits from interfering with the possession and enjoyment of the pathway by the plaintiff in any manner. In O.S.No. 1778 of 1992 and O.S.No. 182 of 1983 the relief claimed is for declaration and injunction relating to the western extension of the east-west pathway mentioned in the first suit measuring an extent of 174' East to West and 11' North to South. The short facts to appreciate the rival claims are as follows :-
Originally the entire property claimed by the plaintiffs and defendant including the pathway belonged to one M.K. family. In a partition deed Ex.B.3 dated 11.11.1944 M.K.M. Abdul Hakkim, the plaintiff in O.S.No. 1967 of 1983, M.K.M. Basheer and their mother Regya Bi Ammal partitioned the property belonged to the family. In the said partition, one of the brothers M.K.M. Basheer Ahamed was allotted 'C Schedule property. The dispute relates to portions of this property. Under 'C schedule, he has been given 1.45 acres in Survey No. 29/1 and Order 31 acres in Survey No. 29/3 totalling to 1.76 acres. The boundaries are on the South, the property allotted to Abdul Hakkim i.e. B Schedule on the West-race Course, Road, North Kannan Devan Bungalow, East Pudukottai Road. After the partition, under Ex.B4 Basheer Ahamed settles a portion of the property in 'C Schedule in favour of his wife Mumtaz Begum on 14.10.1964. The property settled in favour of Mumtaz Begum consists of two items.
(1) The first item measures East to West 247' - (237' on the southern side.) North to South Eastern side 189' Western side 19 bounded within the boundaries of Kannan Devan Bungalow on the North Pudukkottai Road and the portion retained by the settler on the East, the pathway to reach Race Cource road Kannan Devan Bungalow and the settled property and M.K.M. Abdul Hakkim Bungalow on the West vari and M.K.M. Abdul Hakkim's Eastern side vacant land on the South.
(2) The Second item is East to West 79' (on the North) 87' (on the South) North-South 70' on the eastern side and 23' on the West bounded and consiste of a bungalow, the right on the common pathway on the West of the bungalow form the Race Course.
3. The boundaries for the second item also is the same as for item No. l. After settlement in favour of Mumtaz Begum under Ex.B4. She sold the properties to G.Sheik Dawood on 15.10.1968 under Ex.Al. Again on 16.5.1966 she sold the remaining portion to Rahima Bibi under Ex.A3 with a sketch. Ex.A4.
4. The properties sold under Ex.A3 to Rahimabibi are also, two items. Item one measures East to West 68' on the South - 79 1/2 on the North, 'North to South 3 1/2 on the West, 50' on the East. The boundaries for this item is 11' East to West common pathway on the South, Kannan Devan Bungalow compound wall on the North, North - south pathway on the West and the second item that on the East.
5. The second item sold under the very same document measures East to West 106' on the South, 117' on the north, North to South 50' on the West and 68' East : The boundaries for this item is as follows:-
South by is East - West pathway, North by Kannan Devan bungalow, by vendor's sites on the East and the 1st item on the West.
6. After the sale in favour of Rahima Bibi, she has settled the property purchased by her in favour of her son Sheik Dawood under Ex.A5 dated 15.2.1983. The husband of the vendor under Ex.Al and Ex.A3 Basheer Ahamed belongs to M.K.M. family. Under Ex.Al Mumtaz Begum has sold away the remaining portion to Sheik Dawood, son of Rahim Bibi. The portion sold to him is immediately on the East of the second item sold under Ex.A3 to Rahima Bibi. Under Exs.Al and A3 the pathway is described as 11' wide and runs East to West upto the entire extent sold under the said document Ex.B4 also mentions the pathway for the settled property. Subsequent to the aforesaid sales, the defendant has purchased two items of properties under Ex.B7. After the purchase, he has attempted to block the pathway shown in Ex.Al, A3, A4 and B4.
7. The plaintiffs in all the suits have been using the pathway for a long period. There is no other pathway for the plaintiffs in O.S.Nos. 1778 of 1982 and 1872 of 1983 excepting the pathway claimed by them in those suits. For the plaintiff in O.S.No. 1967 of 1983 also, the pathway has been in use from time immemorial i.e. for reaching the backyard. As the defendant has attempted to prevent the plaintiffs and put up construction in the pathway, the suits have been filed by the plaintiffs.
8. In O.S. 1967 of 1983, the pathway is shown as schedule mentioned property. It is shown in a sketch annexed to the plaint marked as Ex.A9. In O.S.No. 1778 of 1982 the patyway is shown as 'B' schedule and it is also shown in the sketch Ex.A2. Similarly in O.S.No. 1827 of 1983 the pathway is shown as 'D' schedule and the sketch showing the same is Ex.A6. The 'D' schedule property in the said suit i.e. the pathway runs East to West upto a distance of about 85.9' and then turns southern side. The width is shown as 30' on both the sectors East - West and North - South. North - South the second sector has the length of 91'. Apart from the difference in the width there is also a difference i.e. the plaintiffs in O.S.No. 1778 of 1982 and 1827 of 1983 do not claim right in the Southern sector of the pathway.
9. The trial court after considering the evidence and documents has decreed the suit as prayed for i.e. it has granted the decree of declaration in O.S.No. 1778 of 1982 and 1827 of 1983 and injunction with reference to B and D schedule properties. As regards, O.S.No. 1967 of 1983 the trial court has granted decree of injunction alone, which is the only relief claimed in the said suit with reference to the suit property i.e. the pathway that means the decree granted for injunction in O.S.No. 1967 of 1983 therefore relates to the entire width of 30' of the pathway and not limited to 11' 'width.
10. Aggrieved by the decree and judgment, the defendant, who is the same person in all the three suits have preferred the appeal before the learned Subordinate Judge, Tiruchirappalli. The learned Appellate Judge also found that the plaintiffs were entitled to declaration and injunction as claimed by them and there was no need to interfere with the judgment and decree of the trial court. Hence, he dismissed the three appeals.
11. As against the concurrent findings of the courts, below, the defendant has preferred the three second appeals before this Court. The learned Senior Counsel Mr. S.V. Jayaraman raised the following contentions :-
1. The Declaration claimed in O.S.Nos. 1827 of 1983, 1778 of 1982 i.e. the subject matter of second appeals in 1082 and 1083 of 1996 is that the plaintiffs are the co-owners of the suit pathway, since their claims have not been proved the courts below ought to have dismissed the suits.
2. The plaintiffs claim is not based on easement i.e. easement of necessity. Their claims is only based on a grant i.e. under the sale deeds. Since the sale deeds do not grant a right in the pathway, the plaintiffs must be non-suited.
3. Exs. Al and A3 described the pathway only as boundaries. The party to the document Mumtaz Begum was not examined. Therefore, the description of the boundaries cannot be taken advantage of without the examination of the party under Ex.Al and.
12. On the other hand, the learned counsel for the respondents Mr. Hajee K.A. Mustafa and V.Ragavachari contended that the defendant has purchased the property subsequent to the purchase by the plaintiffs in O.S.No. 1778 of 1982 and 1827 of 1983. and inasmuch as the passage has been specifically mentioned in those documents, he could not have purchased the passage. They also contended that the claim for the right of the passage is by grant and not by easement. Further, they contended that the husband of the vendor under Exs. Al and A3 has been examined and he is the person connected with the document. Therefore, the contents of the document is admissible in evidence.
13. The courts below have found that as per Exs. Al, A3 the pathway has been provided to the plaintiffs in O.S.No. 1778 of 1982 and 1827 of 1983. The husband of the vendor Basheer Ahamed has been examined as PW2. He has stated that the passage to the properties conveyed under Ex.A-1 and A-3 is the suit passage and it was not sold to the defendant. Ex.A-4 is a sketch attached to Ex.A-3 and that sketch is a registered one and forms part of Ex.A-3. It contains the signature of Mumtaz Begum also. A look at Ex.A-4 clearly shows that the passage on the South of the properties conveyed under Ex.A-1 and A-3. The width is also given as 11'. The length is also provided. The length is given as 68' and 106' East - West on the South of the property conveyed under Ex.A-3.
14. It is true that there is no sketch attached to Ex.A-1. In the schedule there is a mention that 11' East to West pathway is the Southern boundary of the said property. Therefore, the existence of the pathway for the properties purchased under Ex.A-1 and A-3 cannot be disputed. The oral evidence on this aspect also is very clear. PW1, PW2 and PW4 have spoken about the existence of the pathway. They have also stated that apart from the suit pathway there was no other pathway to reach the plaintiffs' properties. In O.S. Nos. 1778 of 1982 and 1827 of 1983. PW2 who is the husband of the vendor under Exs.Al and A3 has also stated that the pathway was not sold to the defendant. He has also denied the suggestion that he is uttering falsehood with reference to the existence of 11' pathway. Another important point is that apart from the suit pathway, there is no other pathway to reach the properties of the plaintiffs, in O.S. No. 1827 of 1983. DW1 in his evidence has also admitted that from Race Course Road for his property and the plaintiffs properties the entrance is from the gate and yet he adds that he purchased under Ex.B8 the Bungalow and the passage. At another stage, he says that he did not purchase under Ex.B8 the pathway. Another admission is that from Pudukkottai Road, the plaintiffs have no access to their buildings, because for that purpose they have to enter the house of Fathimajan.
15. Similarly, he has admitted the existence of private road to reach Hakkim's house from Pudukkottai Road. He has admitted the existence of gateway on this private road to reach Hakkim's house. But he adds that a portion on the eastern side adjoining Hakkim's compound wall was purchased by him under Ex.B7. In the Commissioner's Reports and sketch i.e. in Exs.Cl to C4, the pathway the Race Course Road to the private pathway lying on the east of Hakkim's house to reach Pudukkottai Road is mentioned. In Ex.C2 the 11' passage is mentioned and it is continued from the gate near race course road on the southern side of Rahima Bibi's property to the property of the plaintiff in O.S.No. 1827 of 1983. Three separate reports and sketches are filed with reference to the suits. In Ex.A9 the pathway is shown from Race Course Road to Pudukkottai Road. In Ex.C5 the report of the commissioner there is a mention about the gate way from Pudukkottai Road shown as G3 with iron gates leading from Pudukkottai Road to reach plaintiff Hakkim's house. From the evidence, it is clear that the pathway running from Race Course Road from the gate to the main gate runs east to west. There is also a private pathway on the southern side of the defendant's house which belong to Hakkim and it has entrance from Pudukkottai Road on the eastern side. These are the aspects, which the courts below have concurrently found.
16. It is also found that apart from 11' width pathway from Race Course road, there is no other entrance or passage to the houses of the plaintiffs in O.S.No. sl778 of 1982 and 1827 of 1983.
17. The learned counsel for the appellant Mr. Jayaraman contended that the courts below have relied upon the fact that there is no other pathway and hence granted relief of the right in the pathway as of easment of necessity. When there is no pleading or evidence on the easement of necessity, the courts below ought not to have granted relief. This contention is wrong. The plaintiffs have not claimed their right as of easement of necessity. They based their claim upon the grant under Exs. A-l, A-3 and A-4.
18. In Exs. A-l, A-3 and A-4 the pathway is clearly mentioned. Ex.A4 is the clinching document. It contains the signature of Mumtaz Begum, the vendor of the defendant. The sketch also forms part of the document Ex.A-3 and it is also a registered as page No. 3 of the said document. It is not open to the vendee like the defendant to challenge the earlier documents in favour of the plaintiffs under Exs. A-l to A-4. The defendant is only a subsequent purchaser. He ought to have taken care to verify the extent available with his vendor and taken the sale deed. He has not done so. He has taken the sale deed at his own risk. He has to blame himself.
19. Under Exs.A-l there is specific grant. Apart from describing the boundary on the south as the boundary, Es.A-1 specifically mention is mentioned as 11' East to West. It is true that such words are not found under Ex.A-3. But when a property is sold showing boundary as the common pathway, the presumption is that the person who purchased the property with a boundary abutting the property is entitled to have access through the boundary namely the pathway.
20. This presumption is stronger when the pathway is stated as common to owners adjoining the pathway and not to the public at large. There are number of decisions which show that if a person owns a property adjoining a highway belonging to the Government or by the local bodies the person owning the property abutting the Highway Road is entitled to have access to the Highway from each and every point of his property. Apart from this there are decisions also directly on the point.
21. in Kuppakkal (died). K. Poonuswami Chetty v. Mathan Chettiar and other, 1924 (47) MLJ 477 a vacant land sold as a building site to A. In the conveyance in favour of A the parcel of land sold to him was described as bounded on its southern side by a pathway intended to be set apart by the vendor. Shortly after the sale to A, the vendor conveyed the remainder of the block including the site of the intended pathway to B, who refused to allow A a right of way over his land. A single Judge of this Court has held as early in 1924 that A was entitled to a right of way on 'B' s land along the intended pathway and that neither the vendor nor anybody claiming under him could dispute A's right of way.
22. In Annapurna Dutta v. Santosh Kumar Sett and other, AIR 1937 Cal. 661 the owner of a land sold a portion of it and the deed of conveyance and the plan annexed to it do not describe certain boundary of the portion sold as ijmali land of the vendor nor even a common passage of the vendor and his co-sharers but describes it as a common passage generally. From that a grant of the right of passage was presumed on the principle akin to estoppel and the grantor cannot derogate from this position and say that it was a passage meant for the vendor alone and not for the vendee. I agree with the opinion of the learned Judge of this Court as well as the Calcutta High Court.
23. The learned senior counsel Mr. Jayaraman contended that the boundary description containing in Ex.A-1 and A-3 are not admissible as evidence is this case. Because the party to the said document namely Mumtaz Begum was not examined. In support of this contention he cited the decision reported in V.A. Amiappa Nainar (died) and other v. V. Annamalai Chettiar (died) and Ors. 84 LW 691. In the said Bench decision it is held that the recitals as to boundaries in documents are inadmissible in evidence under Sections 11, 13(a) 32(3) and 32(7) of the Evidence Act. The only method by which recitals in document could be admitted in evidence is by examination of the executant of the document in which such recitals as to boundaries are found. There is no doubt in this principle. In this case, the husband of the executant has been examined.
Further, he has stated that his wife Mumtaz Begum is from Belgium. She does not know Tamil or English. Her mother tongue is Italy. Therefore, the competent person, who can speak about documents Exs. A-l and A-3 is PW-2 and he has explained the contents of the documents including the boundary. Therefor, the case on hand is entirely different. Hence, the said decision is not applicable to this case. Another contention raised by the Senior Counsel for the appellant is that the claim of the plaintiffs in O.S.Nos. 1778 of 1982 and 1827 of 1983 is for a declaration that the suit pathway is a common property of the plaintiffs and the defendants i.e. their claim is for ownership in the pathway. For such a relief the plaintiffs are not entitled. The trial court has granted decree in the two cases declaring that the schedule mentioned property is a common pathway. The appellate court has simply confirmed the decree. It is seen that the suit pathway has not been declared as common property that the plaintiffs and defendant as co-owners. Hence this contention of the counsel for the appellant is also untenable.
24. Yet another contention raised by the counsel for the appellant is that there is an alternative pathway to the plaintiffs and therefore, there was no necessity for granting the relief namely right to have access through the alleged pathway. From the evidence, we are not in a position to find that there is another pathway to the plaintiffs in O.S.No. 1778 of 1982 and 1827 of 1983. As we have seen above DW1 himself has admitted in his evidence that there is no other pathway to the plaintiffs to have access to their properties. In the cross examination he has admitted as follows :-
He has also stated that from Pudukkottai Road there is a way to his property through Professor Colony and not for plaintiffs.
In the light of the admission, I do not see any justification for the counsel for the appellant to raise such an argument.
25. Another argument advanced by the counsel for the appellant is that the defendant has purchased the property in 1979 and when he took the sale deed and possession of the property, the property was measured and given to him. The plaintiffs have filed the suit only 1982. If there was no other pathway, they would not have kept quite for three years. The consistent case of the plaintiff is that they are using the suit pathway since their purchase. DW1 has also admitted this fact. The Commissioner's Reports show that the suit pathway is still vacant. There is also gate at the beginning of the pathway from the Race Course Road. In these circumstances, this argument is also not tenable.
26. However, one point needs some clarification. As regards O.S.No. 1967 of 1983, the decree has been granted as prayed for. The claim is for the pathway with the measurement of 30' width east to west and north to south. From the commissioner's reports and sketches Cl and C-4 and the evidences, we are not in a position to see that the width of the pathway is 30' but 11' only. In Ex.A-9 also width of the same is 11' only. PW4 has not said about 30' width. The trial court has decreed the suit O.S.No. 1967 of 1983 granting the relief of injunction as prayed for. This cannot be sustained. The plaintiff in the said suit will be entitled only 11' width in the pathway running east to west and North to South. For the foregoing reasons, I am of the view that the judgment and decree of the courts below need not be interfered with excepting to the extent mentioned above in the decree in O.S.No. 1967 of 1983. The Second appeals, are therefore, dismissed. However, there will be no orders as to costs.