Madras High Court
M/S. Kalyan Spinning Mills vs M. Chellappan
Author: P.T. Asha
Bench: P.T. Asha
S.A.No.651 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 28.09.2022
PRONOUNCED ON: 16.11.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.651 of 2020
and C.M.P.Nos.13441 of 2020 and 398 of 2021
1. M/s. Kalyan Spinning Mills,
A Parnership Firm, Peria Thottam,
Kempanaickenpalayam,
Karigoundenpalayam Post,
Pugalur, Coimbatore District,
Rep by its Partner, T.P.Chinnasamy
2. M/s. Midas Homes Ltd.,
A Company incorporated
under the Companies Act and
Having its Regional Offie at
AH 42, 5th Street, Anna Nagar,
Chennai,
Rep by its Managing Director ...Appellants
Vs
1. M. Chellappan
2. C. Devarajan
3. C. Balakrishnan
4. A.Shanmugam ... Respondents
1/26
https://www.mhc.tn.gov.in/judis
S.A.No.651 of 2020
Prayer: Second Appeal is filed under Section 100 of C.P.C against the
judgment and decree dated 24.07.2020 made in A.S.No.32 of 2018 on the
file of the III Additional District Judge, Coimbatore reversing the judgment
and the decree dated 16.11.2017 in O.S.No.382 of 2010 on the file of the
Principal Subordinate Judge, Coimbatore.
For Appellants : Ms. Chitra Sampath,Senior Counsel
for Mr.A. Thiyagarajan
For Respondents : Mr.V.Raghavachari
for Mr.N.Umapathi
JUDGEMENT
The plaintiffs in the suit O.S.No.382 of 2010 on the file of the Principal Subordinate Court, Coimbatore are the appellants before this Court.
2. The facts in brief for disposing of the above second appeal are as follows and the parties are referred to in the same litigative status as before the trial Court, namely, Subordinate Court, Coimbatore. Plaintiff's case:
2/26
https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020
3. (i) The suit was originally instituted by the first plaintiff to declare their right to access the “A” schedule property through the passage described as the plaint “B” schedule property and for an injunction restraining the defendants from interfering with this access of the plaintiff. Thereafter, it appears that the properties had been sold to the second plaintiff who had been impleaded so in the suit vide orders dated 26.08.2016 in I.A.No.672 of 2016. After the amendment, the prayer was amended to the limited extent that the declaration and injunction was in respect of the second plaintiff. It is the case of the plaintiff that on 22.11.1979, the “A” schedule property was purchased by the first plaintiff. At the time of purchase, the property, which has been described as “A” schedule property did not have any access and the property was land locked. Therefore, the first plaintiff had approached one Periyakkal, their neighbour requesting her to grant access through her property to reach the “A” schedule property. Periyakkal executed a lease agreement with the first plaintiff by leasing out the “B” schedule property measuring 7 cents 076 sq.ft in S.F.501 at Sarkar Samakulam Village, Coimbatore measuring 120 3/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 feet length and 25 feet breadth. This property what was described as the “B” schedule property in the suit schedule properties.
(ii) It is the case of the plaintiffs that the said lease agreement was registered on 23.11.1979 as document No.2030 of 1979 on the file of the S.R.O, Periyanaickenpalayam. The lease was for a period of 10 years and the lease rental was a sum of Rs.60/- per year. The above lands and its larger extent was purchased by Periyakkal in the year 1945 under a registered Sale Deed dated 01.08.1945. The said Periyakkal died on 13.10.1983 leaving behind her surviving her 2 sons, the first defendant and one Arumugam, who is the father of the fourth defendant. The defendants 2 and 3 are the sons of the first defendant. After the death of Periyakkal, on 17.11.1986, the sons of Periakkal sold the entire land barring the “B” schedule property measuring 1.11 ½ acres to one Padmavathi and others. After their purchase, Padmavathi and others had entered into two registered partition deeds on 30.06.1992 dividing the properties. It is also the case of the plaintiffs that in the Sale Deed dated 17.11.1986 in favour of 4/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 Padmavathi and Others, there is a recital about the pathway, which is being used by the plaintiffs. It is the plaintiffs' case that they have been using the pathway for over two decades without any obstruction and have prescribed title to the same. It is their case that now the defendants 1 to 4 are attempting to interfere with the plaintiffs' use and possession of the suit property. Pending the suit, the first plaintiff has sold away the property which includes the suit “B” schedule property to the second plaintiff. Therefore, the 2nd plaintiff was impleaded as the 2nd plaintiff and the relief in the suit was sought for only in respect of the 2nd plaintiff.
4. The suit “B” schedule property is described herein below:
Schedule B:-
nfhaKj;Jhh; hpoL. bghpaehaf;fd;ghisak; rg;hpoL. nfhaKj;Jhh; jhYf;fh. rh;ff; hh; rhkf;Fsk;
fpuhkk; fhiy vz;/501 vz; g{kpapd; bjd;nfhoapy; 25 mo mfyk; ePsk; 120 moa[ss ;
3000 rJuoa[ss ; ,lj;ij vd; g{kpapy; fpHnky;
ePsj;jpw;Fk; nyl;/e";rg;g ft[zl; h; kidtp 5/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 Fg;gj;jhs; g{kpf;F mjhtJ fhiy vz;/500 f;F tlf;F. rf;jp bkapd; nuhl;ow;F nkw;F. epWtdj;jhh; bjhHpy; bra;ak[ ; ,lkhd fhiy vz;/499-1rp1 fpHf;F. vd;Dila g{kpf;Fk; bjw;F ,jd; kj;jpapy; cs;s 3000 rJuo $hfhit jh';fs; tz;o thfdhjpfs;. yhhpfs; Kjyhdit ngha;tu ghijahf cgnahfg;gLj;jpf; bfhs;sntz;oaJ/ Written statement and Additional written statement:
5. The third defendant had filed a written statement, which was adopted by the defendants 1 to 4. At the outset they had contended that the suit is not maintainable, since it has been filed by a partnership firm, which is not a registered one and therefore any suit filed by an un-registered firm has to be dismissed. They had also taken out a plea that the said T.P.Chinnasamy, who was shown as the partner of the first defendant was not its partner. The execution of the lease deed by Periyakkal was denied and in the same breadth, the defendants would submit that the period of 6/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 lease had come to an end in the year 1989 itself. They would submit that there is no “B” schedule available on site. They would further contend that when the land was sold by them on 17.11.1986, the lease in respect of the said property was still subsisting, therefore, they had not executed a sale in respect of the “B” schedule property. They would further submit that the lands which were transferred to Padmavathi and others abutted the Sathi Main Road and there was no necessity to give them a pathway. The first plaintiff's lease came to an end in the year 1989. After its termination, they have not been using the said pathway. Therefore, no one has access through the “B” schedule property now. The defendants would categorically contend that the plaintiff had never enjoyed the “B” schedule property and it is neither enjoyed under necessity nor was it a common track.
6. Thereafter, the third defendant has come forward with an additional written statement, in which, they would contend that the sale in favour of the second plaintiff is hit by principle of lis pendens, as it was entered into when the suit is pending. That apart, the first plaintiff has sold 7/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 “A” schedule property along with the “B” schedule property when the “B” schedule property admittedly did not belong to them and whatever right they had was only under the lease deed. They would further contend that the “A” schedule property is the individual property of one Kalyanasundaram and the transfer of the property by way of a release cannot be valid, as the second plaintiff had no right to the suit properties and the transfer can only be done through a sale or gift. The defendants also pointed out that the plaintiffs who claimed that there was a dissolution of the firm had not let in any evidence to prove the same. Therefore, they sought for dismissal of the suit.
Trial Court:
7. The learned Subordinate Judge had framed the following issues:
"1. jhth “gp”mapll; brhj;jpd; tHpahf “V” mapll; brhj;jpw;F bry;yf;Toa ghijia bghWj;J thjp nfl;Ls;s tpsk;g[if ghpfhuk; fpilf;fj;jf;fjh> 8/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 2/ thjp nfhhpa[ss ; epue;ju cWj;jf;fl;lis ghpfhuk; fpilf;fj;jf;fjh> 3/ thjpf;F fpilf;Fk; ,ju ghphuk; vd;d>
8. The plaintiff had examined herself as P.W1 and marked Exs.A1 to A18. On the side of the defendants, the first defendant was examined as D.W1 and the fourth defendant was examined as D.W2 and Exs.B1 and B15 were marked.
9. The trial Court decreed the suit in favour of the plaintiffs. The trial Court had relied upon Exs.A12 and A14, where the suit schedule property has been described as “Nilaviayal Vandipathai”, though the revenue records in respect of the same stood in the name of the defendants. The learned Judge observed that the plaintiffs have no access to the “A” schedule property except through “B” schedule property for the past 30 years. They have been in enjoyment of the same and therefore, they had an easement of necessity. Hence, the plaintiffs are entitled to declaration. The 9/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 sale in favour of the second plaintiff pending the suit was upheld, as the Court felt that the transfer has not changed the structure and scope of the suit and further, the plaintiff had during the pendency of the suit sold the “A”schedule property as well as “B” schedule property to the second plaintiff.
10. Appellate Court:
Aggrieved by the judgment and decree of the trial Court, the defendants had filed an appeal in A.S.No.32 of 2018 on the file of the III Additional District Court, Coimbatore. The learned Judge allowed the appeal and set aside the judgment and decree of the trial Court. The lower appellate Court had taken note of the fact that the second plaintiff, who is now the owner of the “A” schedule property had purchased the properties abutting the Sathi Main Road under Exs.B9 and B10. Therefore, their easement of necessity stood extinguished under Section 41 of the Easement Act. The learned judge further observed that though the “B” schedule property has been described as “Nilaviayal vandipathai”, the revenue 10/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 records in respect of the same stood in the name of the defendants. If the pathway was a public road, it would have been so described in the revenue records. The fact that the property, though described as a cart track, the revenue records stood in the name of the defendants which would only go to show that the pathway was a private pathway and not a public pathway as claimed by the plaintiffs. That apart, the only plea made by the plaintiffs was an easement of necessity. Considering the fact that the 2nd plaintiff had purchased properties in S.No.500, which abuts the Sathi Main Road, the easement of necessity stood extinguished as per the provisions of Section 41 of the Easement Act. That apart, the appellate Court had held that a tenant cannot deny the title of the land. The lease in favour of the first plaintiff stood extinguished as early as in the year 1989 even prior to the sale in favour of the second plaintiff. The first plaintiff has not only alienated the “A” schedule property, but has also conveyed the “B” schedule to the defendants which property did not belong to them. Therefore, the learned District Judge allowed the appeal and set aside the decree of the trial Court. Challenging the same, the plaintiffs have filed the above Second Appeal. 11/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 Second Appeal:
11. The second appeal has been admitted by this Court on 09.12.2020 on the following substantial questions of law:
a) Whether the lower appellate Court was right in concluding that the easement of necessity stands extinguished in view of Seciton 41 of the Indian Easements Act?
b) Whether the lower appellate Court was right in overlooking the fact that the plaintiffs have also based their claim on easement by prescription?
Submissions:
12. Ms.Chitra Sampath, learned Senior Counsel appearing on behalf of Mr.A.Thiyagarajan, learned counsel for the appellants would base her contentions on Ex.A2-Lease Deed, in and by which, the first plaintiff was granted a lease of the “B” schedule property. Thereafter, under Ex.A5-
Sale Deed dated 17.11.1986, the first defendant and his brother, 12/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 Arumugam, who is the father of the 4 th defendant had sold the entire property comprised in S.No.501 without including the “B” schedule property. The learned Senior Counsel would submit that this would clearly show that the defendants were fully aware of the fact that the property has been leased out to the plaintiff as an access to the “A” schedule property from Sathi Main Road. In fact, after the sale under Ex.A5, the properties have been subdivided and the “B” schedule property has been sub divided as S.No.501/2 and described as “Nilavial Vandipathai”, which would go to show that the property is a cart track. That apart, though the lease deed had come to an end in the year 1989, there was no hindrance to the first plaintiff's usage of the suit property, which would once again prove that the first plaintiff had a right of away through the “B” schedule property. Therefore, considering the long usage, the plaintiffs were entitled to the pathway as per the easement of prescription and easement of necessity as well. That apart, she would submit that in Ex.A17-Partition Deed between the defendants the very same pathway was shown as a boundary. The plaintiffs in their plaint have made the above pleadings in paragraphs 7 and 13/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 8 and pleaded prescription in paragraph 10. She would rely upon the judgment of this Court reported in (2020) SCC Online Mad 3552 [G. Ramasway Vs. R.Dasan (S.A(Md) No.987 of 2009) and G.Ramaswamy Vs.State of Tamil Nadu rep by its District Collector and Others (S.A(Md) No.988 of 2009), wherein the learned Judge taking into account the description of the pathway in the revenue records had recorded the finding that the pathway is a public pathway described as a Nilaviyal Pathai and the evidence of D.W1 to D.W5 were considered in this aspect for granting the permanent injunction and mandatory injunction. She would further rely upon the cross examination of D.W1, wherein he would submit that if his mother has not leased out the 7 ½ cents, there would be no access to the “A” schedule property. This property is described as “Nilaviyal Vandipathai” and measures 7 ½ cents. After the sub division, it is now comprised in S.F.No.501/2. She would also contend that under Exs.A12 to A14, the property has been described only as “Nilaviyal Vandipathai”. Ex.B4 , which is the sketch and plan has been marked by the plaintiffs not through the revenue officials but through D.W1 himself. That apart, the defendants had 14/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 knowledge about the mis-description of the “B” schedule property as Nilaviyal Vandipathai in the year 2012 itself and the objection has been raised with reference to the same.
13. Per contra, Mr.V.Raghavachari, learned counsel appearing for Mr.N.Umapathi, learned counsel for respondents 1 to 4 would submit that the plaintiffs have come to Court with a case of easement of necessity. After Exs.B9 and B10 this right stood extinguished, since the properties purchased under Exs.B9 and B10 abut Sathi Main Road thereby proving that the plaintiff has an alternate pathway to reach the pathway through the property purchased by him in S.No.500. Once the necessity is extinguished the plaintiffs cannot claim a right of way thereupon the "B" schedule property In support of the above arguments, the learned counsel would rely upon the judgments reported in 2012 5 LW 649 [Natesa Gounder Vs Raja Gounder and Others], 2009 (3) CTC 442 [ Arangasamy Vs. Valarmathy and Another and (2001) 3 MLJ 168 [D. Sreenivasa Mudaliar Charity, represented by its Managing Trustee, Saradambal Vs.Dhanasekaran and 15/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 Others]. He would submit that the lease had come to an end in the year 1989. The plaintiff has entered into possession in his capacity as a lessee. After the termination of the lease at best he is a tenant by holding over. Therefore, there was no question of easement of prescription. Once the defendants have been able to establish an alternate pathway, the plaintiffs cannot insist upon the right of easement of necessity. He would therefore seek to have the second appeal dismissed.
Discussions:
14. A perusal of the plaint would indicate that the plaintiffs' seek a right to the "B" schedule property
(i) by way of a grant:
"The plaintiff submits that since the said Periyakkal wanted to give plaint "B" schedule property to plaintiff to access it's land, she entered into a Lease Agreement dated 21.11.1979 with plaintiff, registered as Doc. No. 2030/1979 at SRO, Periyanaickenpalayam, Coimbatore on 23.11.1979, whereby it was agreed to 16/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 pay by plaintiff a sum of Rs. 60/- per year as lease amount and the said Lease was for a period of 10 years."
(ii) By way of anEasement by prescription:
Thus, the right of lease as per Lease Agreement dated 21.11.1979 also came to an end to 1 ^ (st) defendant and his brother Late. Arumugam. Thus, the plaintiff has been using the plaint "B" schedule property as on date namely for the past more than 30 years without any hindrance or disturbance by any one. The plaintiff also submits that since the 1st defendant and his brother Arumugam had no legal right over the said passage, they did not at all intend to renew the Lease for the reason that the said plaint "B" schedule passage was under common usage by purchasers of 1.11% acres also. Hence, the plaint "B" schedule property became a cart track and used by all and thereby it became a common passage. The 1 st defendant and his brother Arumugam had also waived their right of lease since the said passage was open usage by all purchasers.
17/26
https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020
(iii) By Necessity:
"Without prejudice the above, even presuming for a moment that the defendants have any right over the "B" schedule property, the plaintiff is entitled to use the plaint "B" schedule property under easement by necessity and thereby, the defendants can not at all have any legal right to disturb plaintiff's right in accessing plaint "A" schedule property through said passage."
From the above contentions, it is clear that the plaintiffs have themselves given up their right to claim an easement by grant, since they have stated that the grant had come to an end, as it was only for a period of 10 years from 21.11.1979. The plaintiffs have thereafter pleaded an easement of prescription by contending that the "B" schedule property has been left as a common passage for purchasers of the lands in S.No.501/1, namely, Padmavathy and others.
15. It is the plaintiffs' case that under the Sale Deed executed in 18/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 favour of Padmavathi and others, the right of passage in the 25 feet pathway has been granted to the purchasers. The document under which the property has been alienated to the said Padmavathi and Others is Ex.A5. The property that has been conveyed under this deed is herein below translated from the Vernacular as follows:-
"Coimbatore Registration District,
Periyanaickenpalayam Sub Registration District,
Coimbatore Taluk within Sarkar Samakulam Panchayat, Sarkar Samakulam Village"
Bounded on the :
East by : Kovai Main Road
South by : 25 feet wide
East-West Cart Track
North by : Lands in S.No.502
West by : Lands in S.No.499
Within these boundaries an extent of 1 acre 11 1/2 cents of Punjai lands together with usufructs and mamool cart track rights.
16. Thereafter, the property purchased under Ex.A5 has been partitioned amongst the vendors under Ex.A17- Partition Deed. Nowhere in 19/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 the partition deed have the sharers claimed any right of access in the "B" schedule property. On the contrary, each of the schedule of suit properties shows a direct access to Sathy Main Road. Therefore, the contention of the plaintiffs that this pathway has also been used by the said Padmavathi and Others appears to be an incorrect statement. The plaintiffs' have obtained a right of access to the "B" schedule property only under Ex-A2-Lease Deed. The Deed clearly states that the grant was only for a period of 10 years. Therefore, the easement acquired by grant is controlled by the terms of the Agreement. The lease had come to an end on 20.11.1989. The plaintiffs have thereafter pleaded a right to the suit property primarily on the basis of an easement of necessity. Once an easement of necessity is pleaded, then under Section 41 of the Indian Easements Act, 1882, the same would get extinguished, when the necessity comes to an end. In the instant case, the second plaintiff has purchased the properties comprised in S.No.500 under 2 Sale Deeds-Exs.B9 and B10 dated 04.04.2012. The western boundary of the 2 sale deeds is the property that had been purchased by the second plaintiff from the first plaintiff under Ex.A7 dated 23.12.2010. Therefore, 20/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 the second plaintiff, who is the owner of the lands both in S.No.499 as well as S.No.500, has an access to the main road through the lands in S.No.500 and therefore, the necessity to use the "B" schedule property had come to an end.
17. Therefore, it is clearly evident that with the purchase of the property by the second plaintiff under Exs.B9 and B10, the necessity to use the "B" schedule property as an access has to cease to exist and as per the terms of Section 41 of the Indian Easements Act, the right had been extinguished. The plaintiffs had obtained a right to the "B" schedule property only on the basis of a lease deed. Therefore, having entered possession as a lessee, they do not have any right to question title of the defendants to the suit "B" schedule property. The easement by grant has also come to an end. The revenue records, which have been produced clearly shows that the suit schedule property stood in the name of the defendants. The description as a pathway is only incidental, since the same is not being used by the said Padmavathy and Others, the purchasers of the 21/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 property from the defendants.
18. They have also pleaded easement by prescription. A perusal of the pleadings extracted in paragraph 14(ii) supra would show the astute drafting. The plaintiff would state that they enjoy an easement of prescription for the following reason;
(a) The purchasers viz., Padmavathy and others were in common usage of the “B” schedule property;
(b) Lease not renewed because “B” schedule property was being enjoyed as a common passage and the defendants have waived their right over the same. In the judgment cited by the respondents reported in 2012-5-LW 649 [Natesa Gounder Vs. Raja Gounder and Others], the Bench was considering whether the concept of "easement of necessity by implied grant"
is applicable to the facts and circumstances of the case. After extracting various judgements, the learned Judge had quoted the judgement of the Hon'ble Supreme Court reported in (2010) 1 CTC 455 = 2010-2 L.W 140 [Sree Swayam Prakash Ashramam and another Vs.G.Anandavally Amma 22/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 and Others] and contended that "Implied grant and the concept easement by prescription are quite antithetical to each other. If a person is having an implied grant in his favour, then the question of prescription would not arise" Therefore, the contention of the appellants that they have right of easement by prescription also fails since they have pleaded an express grant in the form of Ex.A2-Lease Deed. Further, once they had obtained a right to use the pathway through the lease deed their use after the expiry of the period will not convert into an easement by prescription. Explanation I to Section 15 provides as follows:-
“Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.” The plaintiffs having obtained a right of way under Ex.A2-Lease Deed and the period under the said deed having come to an end the plaintiffs cannot 23/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 plead an easement by prescription.
19. The plaintiffs who claim of an easement also through prescription should also fail on account of the fact that in Exs.9 and 10, under which the second plaintiff had purchased the properties to the south of the “B” schedule, the northern boundary has not been described as 25 feet pathway. Therefore, the contention of the plaintiffs that they have been using the "B" schedule property stands disproved. Consequently, the questions of law are answered against the plaintiffs. The second appeal is therefore dismissed and the judgement and decree of the Appellate Court stands confirmed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
16.11.2022 Index : Yes/No Speaking order/non-speaking order srn 24/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 To
1. The III Additional District Judge, Coimbatore
2. The Principal Subordinate Judge, Coimbatore.
3. The Section Officer, V.R.Section, High Court, Madras. 25/26 https://www.mhc.tn.gov.in/judis S.A.No.651 of 2020 P.T.ASHA, J., srn S.A.No.651 of 2020 16.11.2022 26/26 https://www.mhc.tn.gov.in/judis