Madras High Court
Selvathal vs V.Ramarajan on 10 April, 2019
Author: T.Ravindran
Bench: T.Ravindran
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 28.03.2019
PRONOUNCED ON : 10.04.2019
CORAM
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
S.A.Nos.2113 & 2114 of 2003
Selvathal ... Appellant in both
second appeals
Vs.
1.V.Ramarajan
2.P.Maheswari
3.P.Vidya ... Respondents in
S.A.No.2113 of 2003
1.V.Ramarajan
2.Rasathal
3.Sundarambal
4.Kanna alias Kamalambal
5.Padmavathy ... Respondents in
S.A.No.2114 of 2003
Prayer :- Second Appeals have been filed under Section 100 of the Civil
Procedure Code against the Judgement and Decree dated 30.10.2001
passed in A.S.Nos.6 & 7 of 2001 on the file of the Subordinate Court,
Dharapuram, confirming the judgment and decree dated 23.11.2000
passed in O.S.Nos.141 of 1997 & 218 of 1998 on the file of the District
Munsif Court, Dharapuram.
For Appellant : Mr.S.Saravanan
for Mr.K.S.Jeyaganeshan
For Respondent : Mr.N.Damodaran
Nos.1 in both Sas.
Other Respondents : No appearance
in both SAs. Set exparte vide order
http://www.judis.nic.in
dated 28.03.2019
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COMMON JUDGMENT
The second appeals are directed against the Judgement and Decree dated 30.10.2001 passed in A.S.Nos.6 & 7 of 2001 on the file of the Subordinate Court, Dharapuram, confirming the judgment and decree dated 23.11.2000 passed in O.S.Nos.141 of 1997 & 218 of 1998 on the file of the District Munsif Court, Dharapuram.
2.Both the second appeals have been admitted on the following substantial questions of law:
“1.Whether the lower appellate Court's judgment is vitiated due to non-
consideration of the recital in Exhibit A-2 Partition Deed dated 29.06.1961 regarding the provisions of pathway contained in the recital that 4 cubic wide north-south pathway on the western extremity of S.F.No.248 immediately adjacent from the eastern poli or boundary in S.F.No.248?
2.Whether the Courts below are correct in holding that 4 cubic wide south-
north pathway on the eastern extremity is provided in addition to already existing 3 cubic (3 muzham) with pathway contrary to Exhibits A-1, A-2 and A-4?
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3.Whether the findings of the Courts below holding that 7 cubic pathway is provided without any materials on record both documentary and oral evidence is correct?
4.Whether the judgments of the Courts below are justified in enlarging the width of the pathway for taking lorry, tractor, etc., when specific right was given for taking cattle, foot pathway for men to walk in the partition deed document, Exhibit A-1 dated 27.03.1931 and Exhibit A-2 dated 29.6.1961?
5. While the Commissioner's report and plan support the plea of the appellant that the alleged pathway was never used for taking tractor or lorry and there is no symptom of wheel mark at any point of time and belied and version of the 1st respondent, the lower appellate Court is correct in discarding the Commissioner's report and plan instead of making order for re-issue of the Commission if any doubt or omission to be clarified by the lower Appellate Court?
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6.Whether the approach of the Courts below in interpretation that the pathway is 7 cubic (7 muzham) wide pathway instead of 4 cubic (4 muzham) wide pathway without any material on record is stilted for approval?
7.Whether the lower appellate Court's finding of 7 cubic wide pathway is correct or justified when the 1st respondent inconsistent plea of claiming easement right in O.S.No.141 of 1997 whereas he is claiming easement right by document Exhibits B-1 sale deed?
8.Whether the Courts below are correct in decreeing the suit O.S.No.218 of 1998 on the basis that the plaintiff is entitled to have right to take lorry, carts and tractor in the pathway as easement of necessity, prescription and also document under Exhibit B-1 sale deed when no such right is given in Exhibits A-1 and A-2?”
3.Considering the scope of the issues involved in these second appeals between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.
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4.For the sake of convenience, the parties are referred to as per their rankings in the trial Court.
5.The appellant is the plaintiff in O.S.No.141 of 1997 and 5 th defendant in O.S.No.218 of 1998. The first respondent is the first defendant in O.S.No.141 of 1997 and the plaintiff in O.S.No.218 of 1998.
6.The dispute between the parties is only as regards the pathway. In fact, the dispute is only as regards width of the pathway as such, therefore, it is found that the dispute between the parties as regards the pathway in dispute involves only the appreciation of the facts and not on any question of law as sought to be made out by the appellant.
7.From the materials placed on record, it is found that five sharers, whose names are also not necessary to be divulged entered into a partition deed dated 27.03.1939 marked as Ex.A1 and in the abovesaid partition deed, it is found that out of the extent of 19.86 acres in S.F.No.248, 9.93 acres on the southern side of the same had been allotted to Kuppanna Gouner, which is also shown as one of the items of the B schedule in the abovesaid partition deed. The abovesaid facts are not in dispute.
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8.On a perusal of the said partition deed, there is a clear recital that under the said partition deed, 3 muzham pathway has been provided to all the sharers on the eastern side of S.F.No.248 mainly for the purpose of gaining access to their respective properties. Accordingly, it is found that Kuppanna Gounder, who had been allotted an extent of 9.93 acres on the southern side in S.F.No.248 was also having and exercising the right of pathway on the eastern side with a width of 3 Muzham. It is not in dispute that Kuppannan Gounder's two sons namely, Kuppusamy Gounder and Nachimuthu Gounder had partitioned the properties by way of a partition deed dated 29.06.1961 marked as Ex.A2 and on a perusal of Ex.A2 partition deed, it is found that Nachimuthu Gounder was allotted 7.73 acres on the northern side in S.F.No.248 and Kuppusamy Gounder was allotted 2 acres on the southern side and even the above facts are not in dispute.
9.As could be seen from the recitals contained in Ex.A2 partition deed, since Kuppusamy was allotted 2 acres lying on the southern side, accordingly, there are clear recitals contained in Ex.A2 partition deed that 4 muzham pathway should be granted on the eastern side of 2.48 i.e. 4 muzham pathway should be earmarked on the eastern side in the share allotted to Nachimuthu Gounder and therefore, on a combined reading of Exs.A1 & A2, it is evident that as rightly determined by the Courts below, http://www.judis.nic.in 7 in toto, Kuppusamy is entitled to use 7 muzham pathway for gaining access to his lands. It is also not in dispute that after the demise of Nachimuthu Gounder, his wife and daughters had divided the properties by way of a partition deed dated 06.01.1997 and it is found that the plaintiff was allotted the eastern share in S.F.No.248 under the said partition deed. The partition deed Ex.A2 provides the right of way to Kuppusamy in respect of 4 muzham pathway on the eastern side, north- south in the share allotted to Nachimuth Gounder as abovenoted. Therefore, in toto, when the 7 muzham pathway had been in existence right from the day of Ex.A2 partition deed, as rightly putforth by the defendants, the successor in interest of Kuppusamy would be entitled to exercise the said right for gaining access to the lands involved in the abovesaid partition deeds. The first defendant's father Velusamy had purchased 1.94 acres from Kuppusamy in S.F.No.248 under Ex.B1 and therefore, as the purchaser, it is evident that, as determined by the Courts below, he would also be entitled to exercise the usage of pathway to the extent of 7 muzham as earmarked under the partition deeds Exs.A1 & A2 and accordingly, it is found that the first defendant with a view to exercise the said right and contending that the plaintiff and others without any authority had been endeavouring to resist his usage to the abovesaid pathway, accordingly, it is found that the first defendant has laid the suit against the plaintiff and others in O.S.No.218 of 1998. The plaintiff has preferred the suit in O.S.No.141 of 1997 as regards the http://www.judis.nic.in 8 pathway claiming the reliefs with a view to restrict the usage of the first defendant in respect of the pathway and accordingly, prayed for appropriate reliefs.
10.In the light of the abovesaid admitted facts and in particular, when Exs.A1 & A2 partition deeds had clearly provided for 3 muzham and 4 muzham pathways for the sharers to gain access to their respective properties and the pathway abovenoted are only earmarked for serving their agricultural needs, in such view of the matter, though in Ex.A1 partition deed, the 3 muzham was earmarked only for taking cattle etc., however, when the pathway under Exs.A1 & A2 are earmarked and intended only for the sharers to carry on their agricultural operations in the various shares allotted to them and accordingly, the width of the pathway also further extended to 4 muzham under Ex.A2 partition deed, in such view of the matter, the Courts below are totally justified in holding that the first defendant is entitled to take cart, tractor, lorry, etc., through the said pathway for the purpose of carrying out his agricultural activities and merely because, no specific mention has been made in the above partition deeds about taking of carts, lorries, tractors, etc., that by itself would not in any manner hinder the first defendant in taking the same through the pathway above pointed out and as rightly pointed out by the Courts below merely because the advocate commissioner, who had inspected the properties, had not noted the signs of wheel marks in http://www.judis.nic.in 9 the pathway, that alone would not disentitle the first defendant from taking the lorries, carts, tractors in the abovesaid pathway and as abovenoted, when the pathway had been earmarked for the purpose of engaging in the agricultural activities. When the first defendant's father had admittedly acquired the property from Kuppusamy under Ex.B1 sale traction and when there is a reference about the entitlement of the first defendant's father to use the pathway already in existence and when the pathway as abovenoted i.e. 3 muzham pathway and 4 muzham pathway had been specifically earmarked under Exs.A1 & A2 partition deeds, in such view of the matter, the Courts below are found to be totally justified in granting the relief of easementary right as determined by them in favour of the first defendant for enabling him to use 7 muzham pathway in S.F.No.248 and the determination of the Courts below that the first defendant is entitled to take carts, lorries, tractors etc., as well as the cattle etc., through the said pathway and he is not liable to be disturbed by the plaintiff and others in any manner do not warrant interference in any manner and accordingly, the Courts below are found to have rightly decreed the suit laid by the first defendant in O.S.No.218 of 1998 and accordingly, negatived the reliefs prayed for by the plaintiff in O.S.No.141 of 1997.
11.When the right of easement had been granted to the sharers under Exs.A1 & A2, accordingly, the sharers and their successor in http://www.judis.nic.in 10 interest are entitled to exercise the said easementary right by way of grant and also by way of necessity and since they had been using the said right even prior from 1939 and accordingly, the pathway of 3 muzham had been earmarked under Ex.A1 and the pathway of 4 muzham had been earmarked under Ex.A2 and therefore, it is also noted that they had been exercising the said right continuously beyond the statutory period and prescribed the same as per law. Thus, the Courts below are found to have analysed the materials placed on record, in such view of the matter, on a correct appreciation of the same both factually as well as legally, and rightly determined the issues involved in the matter in favour of the first defendant and against the plaintiff.
12.In the light of the above discussions, in my considered opinion, no substantial question of law is found to be involved in the second appeals. Be that as it may, the substantial questions of law formulated in the second appeals are accordingly answered in favour of the first defendant and against the plaintiff.
For the reasons aforestated, both the second appeals fail and accordingly, are dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.
Index : Yes / No
Internet : Yes / No 10.04.2019
sms
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To
1.The Subordinate Court, Dharapuram.
2.The District Munsif Court, Dharapuram.
3.The Section Officer, V.R.Section, High Court, Madras. http://www.judis.nic.in 12 T.RAVINDRAN, J.
sms Pre-Delivery Judgment made in S.A.Nos.2113 & 2114 of 2003 10.04.2019 http://www.judis.nic.in