Madras High Court
Gopalakrishnan vs C.Asokan on 10 November, 2009
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10/11/2009 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA(MD)No.500 of 2009 Gopalakrishnan .. Appellant/Plaintiff Vs C.Asokan .. Respondent/Defendant Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 19.03.2008 passed in Appeal Suit No.32 of 2007 by the Sub Court, Pattukottai confirming the Judgment and decree dated 20.11.2003 passed in Original Suit No.64 of 2000 by the District Munsif cum Judicial Magistrate Court, Orathanadu. !For Appellant ... Mr.V.Chandrasekar ^For Respondent ... Mr.A.Arun Prasad :JUDGMENT
The unsuccessful and undaunted plaintiff as appellant in the present second appeal has challenged the concurrent Judgments and decrees passed in Original Suit No.64 of 2000 by the District Munsif cum Judicial Magistrate Court, Orathanadu and in Appeal Suit No.32 of 2007 by the Sub Court, Pattukottai.
2. The present suit has been instituted for declaring that the plaintiff is having easmentary right over the suit pathway which is in existence in RS.No.52C/16B2 and also for passing permanent and mandatory injunctions, wherein, the present respondent has been shown as defendant.
3. It is averred in the plaint that the plaintiff is the absolute owner of the land comprised in old RS.No.52C/14, new RS.No.52C/7B3. The plaintiff has constructed a house in the said survey number. In front of the house of the plaintiff, a pathway is in existence, running north south and subsequently towards east and running east-west and joined on main road. The pathway in dispute has been described as 'ABCD' in the plaint plan and the same is in existence from time immemorial. The said pathway commences from the main road at point 'AB' and joined on the main road at point 'CD'. The said pathway is nothing but a public pathway which is in existence from time immemorial. The house owners on either side are using the same. The house of the defendant is situate on the southern side of the suit pathway and the defendant is the owner of RS.No.52C-16. The father of the defendant by name Chandrakasa Pullavarayar has prevented the occupiers on either side of the suit pathway from using the same in the year 1973 and the dispute has been referred to village panchayat and subsequently a Muchalika has come into existence. In the year 1992, Natham survey has been conducted. During Natham survey, the suit pathway has been detailed in Field Measurement Book as public pathway. In Natham survey, land of the plaintiff has been sub divided as 52C-7B3 and 52C-7B4. The land of the defendant has been sub divided as 52C-16B1, 16B2 and 16B3. Now the defendant has made attempt to prevent the plaintiff and others from using the suit pathway and also tried to put up construction in RS.No.52C-16B2 and the disputed area has been shown as 'MNOP' in the plaint plan. The plaintiff has given a complaint to the Sub Inspector of Police, Orathanad. But no fruitful action has come out. The plaintiff is having easmentary right over the suit pathway. Under the said circumstances the present suit has been instituted for the reliefs sought for in the plaint.
4. In the written statement filed on the side of the defendant it is averred that the house of the plaintiff is situate in RS.No.52C/7B3. There is no pathway from the house of the plaintiff across RS.No.52C/16 as stated in the plaint. It is false to say that the pathway in question starts from point 'AB' and joints the road at point 'CD'. The alleged pathway is nothing but patta land of the defendant and the same is in exclusive possession and enjoyment of the defendant. Neither the defendant nor his father permitted anybody to use the same as pathway. No natham survey has been conducted in the year 1992 as alleged in the plaint. It is false to contend that the suit pathway has been detailed in revenue records as pathway. There is no demarcation on ground to identify the alleged sub division. The plaintiff is not having any right over the land of the defendant. It is false to say that the plaintiff is having easmentary right over the alleged suit pathway. There is no merit in the suit and the same deserves dismissal.
5. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after evaluating both the oral and documentary evidence has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiff as appellant has preferred Appeal Suit No.32 of 2007 on the file of the first appellate Court.
6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal, whereby and whereunder confirmed the Judgment and decree passed by the first appellate Court. Against the concurrent Judgments, the present second appeal has been preferred at the instance of the plaintiff as appellant.
7. As agreed by the learned counsel appearing for both sides, the present second appeal is disposed of on merits at the stage of admission.
8. On the side of the appellant/plaintiff, the following substantial questions of law have been raised for consideration:
(i) Whether the Courts below are right in dismissing the suit in respect of public right of way over the public pathway incorporated in the revenue records on the ground that there exists an alternative pathway?
(ii) Whether the 1st appellate Court is right in rejecting the report of the Commissioner and the surveyor even after it was specifically pointed out that the respondent has encroached upon public way by putting up construction?
(iii) Whether the Judgment and decree of the 1st appellate Court could be sustained in view of the fact that the respondent has caused obstruction in the public way thereby causing inconvenience to the public which clearly amounts to actionable nuisance?
9. The sum and substance of the case of the plaintiff is that the house of the plaintiff is situate in new RS.No.52C/7B3 and in front of the house of the plaintiff, a pathway is in existence and the same has been shown as 'ABCD' in the plaint plan and it starts at point 'AB' and ends at point 'CD'. During the year, 1992, Natham survey has been conducted, wherein the suit pathway has been detailed in Field Measurement Book as public pathway and now the defendant has put up construction at point 'MNOP' and further the plaintiff is having easmentary right over the suit pathway. Under the said circumstances, the present suit has been instituted for the reliefs sought for therein.
10. In the written statement filed on the side of the defendant, it has been clinchingly contended that there is no pathway as alleged in the plaint and the alleged pathway is nothing but patta land of the defendant and no natham survey has been conducted and further the plaintiff is not having any easmentary right over the disputed portion and therefore, the plaintiff is liable to be non suited.
11. As elucidated earlier, the Courts below have concurrently rejected the case of the plaintiff and therefore, the only point that has now winched to the fore in the present second appeal is as to whether the concurrent Judgments passed by the Courts below are perfectly correct or the same require interference.
12. The learned counsel appearing for the appellant/plaintiff has strenuously contended that the house of the plaintiff is situate in new RS.No.52C/7B3 and in front of the house of the plaintiff, a pathway is in existence and the same has been described as 'ABCD' in the plaint plan and it starts at point 'AB' and ends at 'CD'. The property of the defendant is comprised in old RS.No.52C/16, new RS.No.52C/16B2 and the defendant has obstructed the plaintiff in using the suit pathway and at point 'MNOP' he has put up construction and since the plaintiff is having easmentary right over the suit pathway and since the defendant has put up construction at point 'MNOP', the present suit has been instituted for the reliefs sought for in the plaint and further in revenue records, the suit pathway has been shown as detailed and the Courts below without considering the existence of the suit pathway as well as construction put up by the defendant, have erroneously non suited the plaintiff and therefore, the concurrent Judgments passed by the Courts below are liable to be interfered with.
13. In order to repudiate the argument advanced by the learned counsel appearing for the appellant/plaintiff, the learned counsel appearing for the respondent/defendant has laconically contended that the property of the defendant is comprised in new RS.No.52C/16B2 and no pathway is in existence as alleged on the side of the plaintiff and the alleged pathway is nothing but patta land of the defendant and the Courts below after considering all the contentions raised on either side have rightly rejected the claim of the plaintiff and therefore, the concurrent Judgments passed by the Courts below are not liable to be interfered with.
14. Before considering the rival submissions made by either counsel, it has become shunless to perorate the question of law involved in the present suit.
15. In fact, this Court has closely perused the entire averments made in the plaint. Through out the plaint, it has been specifically stated that the plaintiff is having easmentary right over the alleged suit pathway.
16. Section 4 of the Indian Easements Act deals with meaning of easement and the same reads as follows:
4.'Easement' defined:- An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.
Dominant and servient heritages and owners:- The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.
Explanation:- In the first and second clauses of this section, the expression 'land' includes also things permanently attached to the earth; the expression 'beneficial enjoyment' includes also possible convenience, remote advantage and even a mere amenity; and the expression 'to do something' includes removal and appropriation by the dominant heritage, of any part of the soil of the servient heritage or anything growing or subsisting thereon.
17. The essential ingredients of easement can be summed up as follows:
(i) Existence of a dominant and servient tenement
(ii) Right of easement is for the beneficial enjoyment of the dominant tenement
(iii) Dominant and servient owners are different persons
(iv) Easement must accommodate dominant tenement
(v) Right should entitle the dominant owner to do and continue to do something or to prevent and continue to prevent something being done in or upon or in respect of servient tenement
(vi) Something must be of a certain or well defined character and be capable of forming the subject matter of a grant.
18. With these legal backdrops the Court has to look into the right of easement claimed by the plaintiff in respect of the suit pathway.
19. The specific case of the plaintiff is that the suit pathway is in existence from time immemorial and the same has been described as 'ABCD' in the plaint plan and it starts at point 'AB' and ends at 'CD'. The specific case of the defendant is that there is no pathway as alleged in the plaint and the suit pathway is nothing but patta land of the defendant.
20. It is an admitted fact that in the appellate Court an Advocate Commissioner has been appointed and he inspected the alleged suit pathway and its surrounding properties. In fact, this Court has closely perused the entire report of the Commissioner as well as plans which have been marked as Exs.C1 to C3. In Ex.C1, the Commissioner's report at paragraph-2 it has been clearly stated that the suit pathway is in existence in Survey Nos.52C-12D, 52C/7B4, 52C-14A/2, 52C/16D1 and further in paragraph-3 of Ex.C1, it is stated that the defendant has encroached the pathway which runs through S.No.52C/16B2. In Ex.C3, surveyor sketch, it has been clearly stated that a pathway is in existence in Survey Nos.52C-12D, 12D, 7B4, 14A2, 16D1, 20A1gh, 20B, 23B. Further it has been stated that in Survey No.52C-16B2 a house as well as fence are in existence. In fact, the Advocate Commissioner has found out the existence of suit pathway with reference to revenue records and also with the assistance of surveyor and ultimately found that in all the survey numbers mentioned supra, the suit pathway is in existence. In the red marked portion, the defendant has encroached and put up construction. The red marked portion is in the midst of the suit pathway. Further, it is made clear that suit pathway has been separately detailed and patta lands have been separately shown. Therefore, from Exs.C1 to C3, the Court can easily discern that the suit pathway is a public pathway and as stated on the side of the plaintiff, it starts at point 'AB' in the plaint plan and ends at point 'CD'. Therefore, it is quite clear that the contention of the defendant that the portion of disputed pathway is the patta land of the defendant is totally incorrect.
21. The present suit has been instituted mainly to declare that the plaintiff is having easmentary right over the suit pathway. It has already been pointed out that the suit pathway is a public pathway, in which neither the plaintiff nor the defendant is having any proprietary interest, except using the same. It is a settled principle of law that for claiming easementary right, there must be a dominant as well as servient heritage or in other words, there must be a dominant owner as well as servient owner. In the instant case, as noted down earlier, the suit pathway is a public pathway, in which everybody is having right of usage and nobody can claim any independent proprietary interest. Since the suit pathway is a public pathway and since nobody can claim any proprietary interest over the same, question of dominant and servient heritage as well as dominant owner as well as servient owner does not arise in the present case. Since dominant as well as servient heritage are not in existence, question of claiming easementary right does not arise. In fact, through out the plaint, it has been clearly stated that during natham survey the suit property has been detailed as public pathway and the same has been encrusted in Ex.C3. Therefore, it is quite clear that the plaintiff himself has clearly admitted in his plaint that the suit pathway is a public pathway. But unfortunately, he claimed right of easment. Under the said circumstances, there is no dubitation in coming to a conclusion that the present suit has been filed purely on the basis of misconception of fact and the frame of suit itself is totally erroneous and since the frame of suit itself is totally erroneous, the same is liable to be thrown out.
22. Even assuming without conceding that the disputed suit pathway runs through the patta land of the defendant, the Court has to look into as to whether the plaintiff is having easmentary right over the suit pathway.
23. At this juncture, the learned counsel appearing for the respondent/defendant has befittingly drawn the attention of the Court to the following decisions:
(a) The first and foremost decision is reported in (2001) 2 MLJ 314 (G.Kesavan Vs. Ranga Reddy and another), wherein this Court has held that when once alternative pathway is available, the plaintiff alone cannot claim the alleged pathway under easementary right. According to the plaintiff, not only himself but also other persons are using the pathway, but they were not made parties to the suit and the suit was also not filed in a representative capacity. Plaintiffs also failed to establish that they were using the pathway for more than 20 years. Lower Court's decree dismissing the suit of the plaintiff cannot be interfered with.
(b) The second decision is reported in 1998 - 2- L.W.147, (Mangayarkarasi V. Veerappan Ambalam & Others), wherein also this Court has held that when alternative pathway or access is available to defendants, however inconvenient it may be, there cannot be a claim on the ground of easement of necessity.
24. In the instant case, the house of the plaintiff is situate in RS.No.52C/7b3. In front of the house of the plaintiff, a part of the suit pathway is in existence and it goes towards north and joints in the east-west main road. Therefore, it is quite clear that the plaintiff is having alternative pathway so as to have ingress and egress to his house. On that score also the entire case of the plaintiff is liable to be thrown out.
25. Before, parting with this second appeal a duty is cast upon the Court to make the following observations:
The Advocate Commissioner has inspected the alleged suit pathway with reference to revenue records and also with the aidance of surveyor and after making thorough inspection, he has clearly stated in his report that in Survey Nos.52C-12D, 12D, 7B4, 14A2, 16D1, 20A1gh, 20B, 23B the suit pathway is in existence. Further he has categorically stated that the defendant has encroached a portion of suit pathway which situates in Survey No.52C-16B2. Therefore, it is quite clear that the defendant has high-handedly encroached a portion of the suit pathway. The suit pathway has been classified as a public pathway for the benefits and enjoyment of general public. Since the suit pathway has been classified as a public pathway and since a portion of it, has been encroached by the defendant as stated by the Advocate Commissioner, this court is of the view to direct the concerned District Collector to take appropriate action so as to remove the encroachment alleged to have been made by the defendant in the suit pathway.
26. It has already been discussed in detail that the frame of suit itself is erroneous and therefore, the argument advanced by the learned counsel appearing for the appellant/plaintiff is sans merit and the present second appeal deserves dismissal at the stage of admission.
27. In fine, this second appeal deserves dismissal and accordingly is dismissed without cost at the stage of admission. The Judgment and decree passed in Original Suit No.64 of 2000 by the District Munsif cum Judicial Magistrate Court, Orathanadu, uphled in Appeal Suit No.32 of 2007 by the Sub Court, Pattukottai are confirmed. However, the District Collector, Thanjavur is strictly directed to take proper steps for removal of encroachment alleged to have been made by the defendant in the suit pathway. The Registry is directed to send a copy of Judgment to the District Collector, Thanjavur for taking necessary action.
mj To
1.The Sub Court, Pattukottai
2.The District Munsif cum Judicial Magistrate Court, Orathanadu
3.The District Collector, Thanjavur