Madras High Court
Ponnaiyan @ Ponnusami Gounder vs Karuppakkal @ Ponnayal on 18 June, 2002
Equivalent citations: AIR 2002 MADRAS 443, (2003) 1 RENCJ 6, (2002) 2 MAD LJ 659, (2003) 2 MAD LW 716, (2002) 2 RENCR 318, (2002) 4 RECCIVR 63, (2002) 4 CIVLJ 508
Author: A. Kulasekaran
Bench: A. Kulasekaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18/06/2002
CORAM
THE HONOURABLE MR. JUSTICE A. KULASEKARAN
Second Appeal No. 1564 of 1990
1. Ponnaiyan @ Ponnusami Gounder
2. Easwaramurthy
3. Muthusami
4. Subbayal ... Appellants
Versus
1. Karuppakkal @ Ponnayal
2. Thangammal @ Pappathi
3. Chinnakkal @ Angammal
4. Ammani @ Muthulakshmi ... Respondents
Second appeal Under Section 100 of CPC against the Judgment and Decree
dated 23-04-1990 passed in A.S. No. 23 of 1990 on the file of the Principal
District Judge, Periyar District at Erode, confirming the Judgment and Decree
dated 25-02-1988 passed in O.S. No. 429 of 1987 on the file of the District
Munsif Court, Sathyamangalam.
!For Appellants : Mr. T.R. Mani, Senior Counsel
^For Respondents : Mr. V.K. Muthusami, Senior Counsel
:JUDGMENT
The unsuccessful defendants, who have lost before the Courts below are appellants in this second appeal. The respondents/Plaintiffs filed a suit in O.S. No. 429 of 1997 on the file of the District Munsif, Sathiamangalam for declaration to declare the easementary right of the plaintiffs over the suit cart track and to restrain the defendants from interfering with the peaceful possession of the suit cart track by the plaintiffs. The suit was decreed as prayed for and the defendants have preferred appeal before the Principal Subordinate Judge, Erode in A.S. No. 23 of 1990, which was also dismissed. Hence, this Second appeal.
2. The case of the plaintiffs are that the properties marked in red colour in the rough sketch presented along with the plaint belonged to the plaintiffs by virtue of a settlement deed dated 11-06-1980 executed by one Rengappa Gounder, husband of the 1st plaintiff and father of the plaintiffs 2 to 4. The properties marked in blue colour in the sketch belonged to the 1st defendant; that the defendants 2 and 3 are sons of the 1st defendant and the 4th defendant is the wife of the 1st defendant. The portions marked in yellow colour referred as " ABCD" in the plan is the suit cart track, which is about 12 feet breadth had been in enjoyment of the plaintiffs and their predecessors for more than 60 years continuously, peacefully and without any interruption. Except the suit cart track, there is no other track to reach the field from Nambiyur-Arasur Road or any other common road and the plaintiffs have acquired the right of way by prescription. The 1st defendant has purchased the land both on the Northern and Southern side of the cart track. The plaintiffs have the right of easement of necessity also. Misunderstanding developed between the plaintiffs and defendants consequent to the obtaining of electricity connection by the plaintiffs to their well, with the result the defendants were attempting to obstruct the plaintiffs from using the cart track, hence the suit.
3. It is the case of the defendants that there is no such cart track as alleged by the plaintiffs. The portion of land alleged to be the suit cart track absolutely belonged to the defendants. The plaintiffs have no right whatsoever in it. The defendants have laid the suit cart track so as to reach their residential houses, kalam etc., and the suit cart track ends with the defendants house. The defendants have also erected a gate at a point marked "A" which has been in exclusive use of them. The plaintiffs never used the suit cart track to reach their land. The 'ittery' is located on the Northern side of the plaintiffs property, which is the access to the plaintiffs' properties. The averment that the plaintiffs and their predecessors in title have been using the suit cart track for more than 60 years continuously, peacefully and without any interruption is false. The defendants have also denied that the plaintiffs and their predecessors in title were in enjoyment of the suit cart track even before purchasing the lands on the Northern and Southern side of it. The Plaintiffs have attempted to obstruct the defendants from drawing water from the common well marked as W2. The defendants have filed a suit in O.S. No. 1 36 of 1986 and obtained an interim injunction in I.A. No. 233 of 1986 on 13-01-1986 against the plaintiffs, The plaintiffs have instituted this counterblast suit on vexatious grounds.
4. The trial court has framed two issues namely (i) Whether the plaintiffs are entitled to the relief of permanent injunction and declartion? and (ii) To what other relief the plaintiffs are entitled to?
5. Before the trial court, the plaintiffs have marked Exs. A1 to A5 and the plaintiffs examined D4 as PW1, Marappan as PW2 and Rengappa Gounder as PW3. The defendants have marked Exs. B1 to B10 and examined the first defendant as DW1 and Kuppanna Gounder as DW2. The Trial Court has appointed an Advocate Commissioner, whose report and plan were marked as Exs. C1 dated 24-04-1987 and C2, rough sketch dated 24-04-1987.
6. Under Ex. A1, executed by the husband of the 1st plaintiff and father of the plaintiffs 2 and 4, the plaintiffs have acquired their property, which is coloured in red. The land coloured in Blue in Ex. C1 belonged to the defendants. The suit cart track is coloured in yellow in the rough sketch annexed along with the plaint as well as Ex. C1. The trial court, relying on Exs. C1 and C2 and Ex. A1, A4 and A5 has come to the conclusion that the suit cart track was in use by both the plaintiffs and the defendants. Relying on Ex.A2, sale deed executed by Chinnammal and others in favour of Karuppa Gounder, the trial court has come to the conclusion that there was a common cart track. The trial court pointed out that in Ex.A3, partition deed executed between Karuppa Gounder and his two sons, the suit cart track was referred to. The trial court decreed the suit on the ground of easement of necessity. The lower appellate court confirmed the findings of the trial court and dismissed the appeal preferred by the defendants on the ground that the plaintiffs have established easement of necessity and also acquired right of easement of prescription.
7. At the time of admission, the following substantial questions of law were framed as arisen for consideration:-
1. When it is admitted by the plaintiffs that an alternative cart track exists, whether it can be said that they have satisfied the tests laid down under Section 13 of the Indian Easements Act, for grant of a decree on the ground of absolute necessity?
2. Whether the plaintiffs have proved that they cannot use their property absolutely except by the suit cart track, when it is admitted by PW1 and PW2 that there is an alternative cart track to reach their property?
3. Whether the judgment of the lower appellate court is vitiated in that it has given a finding that the plaintiffs have acquired a right of easement by prescription also, when the plaintiffs have not prayed for such a finding by filing any cross objections to the defendants' appeal?
4. Whether the judgments of the Courts below are vitiated in that it has granted a decree of easement of necessity on the sole ground that the admitted alternative cart track cannot be conveniently used?
5. Whether a decree on the ground of easement of necessity can be granted when there is no evidence that such easement is needed absolutely for enjoyment of the plaintiff property?
8. Mr. T.R. Mani, learned counsel appearing for the appellants argued that when admittedly an alternative cart track is available on the Northern side of the property, the courts below, granting a decree on the ground of easement of necessity is absolutely illegal and improper; that the plaintiffs have not produced any evidence to justify that they have acquired the easementary right of prescription; that the courts below erred in granting a decree for easement of necessity on the sole ground that alternative cart track cannot be used conveniently; that the courts below erred in granting a decree for easement of necessity and prescription in the absence of evidence that such easement is needed for enjoyment of the plaintiffs property; that the First Appellate Court, in the absence of cross appeal has erroneously given a finding that the plaintiffs have acquired easement of prescription when no evidence, whatsoever has been let in by the plaintiffs; that the claim of easement of prescription and necessity pleaded by the plaintiffs is inconsistent as such the decree passed by the courts below are liable to be set aside.
9. Mr. V.K. Muthusami, learned Senior counsel appearing for the respondents argued that the plaintiffs have produced substantial valid evidence to show that they and their predecessors in title have been using the cart track in common with the defendants for over 60 years; that there is no other cart track, except the suit cart track as such the decree granted by the courts below on the ground of easement of necessity was justified; that Exs. A1 to A5 and Exs. C1 and C2 prove beyond reasonable doubt that the plaintiffs have been enjoying the suit cart track continuously without any interruption; that the oral evidence let in by the plaintiffs have proved their claim of easement of necessity and acquisition of right of easement by prescription; that the itteri was never been used by the plaintiffs, besides it was unfit as such it cannot be considered as an alternative cart track; that this court under Section 100 of C.P.C. cannot interfere with the concurrent findings of the courts below and prayed for dismissal of the second appeal.
10. The learned counsel for the appellants relied on the following decisions in support of his case.
i) 1997 (I) CTC 348 (Murugesa Moopanar Vs. Sivagnana Mudaliar) wherein in Para-14, it was held thus:-
"14. In both the written statement filed by defendants, there is no pleading of easement of necessity. What they pleaded was that for the last 30 or 40 years, they and their predecessors have been enjoying the right of way and they are also making use of the same. We may note that the Courts below have concurrently held that the appellants or their predecessors have no prescriptive right of easement. That means, the claim put forward by them, namely, that they have been in enjoyment of the pathway in question for the last 30 or 40 years, is not true. Of course, in paragraph 3 of the original written statement, they have stated that they have no other way to enter their property. That by itself is not sufficient to acquire the easement of necessity. The appellants must have alleged and proved that their property as well as the plaintiff's property belonged to a common owner, and by virtue of division, dis-position or transfer, the common ownership has been divided into various tenements, and consequently, they are entitled to a right of easement. Absolutely, there is no pleading in that regard. Even when the second defendant was examined as DW1, no such case was put forward. Of course, learned counsel for the appellants submitted on the basis of oral evidence that the common ancestor was the same. I do not think that that contention could be accepted. In fact, the courts below have also come to the conclusion that such a contention is without any basis."
In this case, a learned Single Judge of this Court held that absence of alternative way in other property and use of such way for 30 to 4 0 years by itself is not sufficient to prove easement of necessity. No easement of necessity would be acquired by mere fact that there is no other way to enter the property, person claiming easement of necessity must alleged and prove the same and easement of necessity gets extinguished when necessity come to an end. Necessity would be absolute necessity and not convenient necessity.
ii) 2001-3-Law Weekly-78 (Ramaswamy Naicker Vs. M.Kandaswamy Gounder and others) wherein in Para-11 it was held thus:-
"11. ...It is pertinent to state that the entire sub division in S.No.180 did not belong to a common person originally so as to presume about the existence of a cart track and allow the same to use it by all the persons, now the claim of the plaintiff is based upon the recitals only in his document and it will not be binding on the defendants. The lands belonging to the other persons are also situate on the cast of the land of the first defendant. The plaintiff cannot lay a claim about the cart track based upon the recitals in the document and at the same time, claim as easement of necessity also. The Plaintiff himself had purchased the property in the year 1970 and the suit was filed in the year 1983 and as such, it cannot be concluded that this was used for more than 20 years to claim the easementary right."
In this case, a learned Single Judge of this Court held that plaintiff cannot lay claim about cart track based upon the recitals in the document and at the same time also claiming as easement of necessity also.
iii) AIR (29) 1942 Privy Council 64 (Lala Hem Chand Vs. Lala Pearey Lal and others) wherein in Page No.66, it was held thus:-
"It will be observed that important facts forming the basis of the case as presented to the lower courts for decision viz., that Lala Janaki Das purchased the suit property from the funds of the estate of Babu Sri Ram of which he was an executor under his will, that the defendant claimed that he was adopted by the widow of Peari Lal – a claim disputed by the plaintiffs but important to the defendant, as he based his title to the property on it-were disclosed with connected facts only in the course of evidence, and had not been mentioned in the pleadings by either party; nor had any issues been raised regarding them. Their Lordships desire to observe that though the case has been decided on all the points which arose on the evidence led by the parties, the procedure adopted by the trial court of allowing the parties to adduce evidence on points not raised in the pleadings or issues was irregular and should not have been allowed without amending the pleadings and raising the necessary issues."
In this case, the Privy Council has held that though the case has been decided on all the points which arose on the evidence led by the parties, the procedure adopted by the trial court of allowing the parties to adduce evidence on both points not raised in pleadings or issues was irregular and should not have been allowed without amending the pleadings and raising issues.
iv) A.I.R. (33) 1946 Privy Council 59 (Jagdish Narain Vs. Nawab Said Ahmed Khan) wherein in Page No.61 it was held thus:-
"...Their Lordships are quite unable to agree with the High Court in this view. The plaintiffs were suing inejectment, and they could only succeed on the strength of their own life. There was no obligation upon the defendants to plead possible defects in the plaintiffs' title which might manifest themselves when the title was disclosed. It was sufficient that in the written statements the defendants denied the plaintiffs' title and under this plea they could avail themselves of any defect which such title disclosed.
"...But it must be remembered that though lapse of time may have prejudiced the chances of the plaintiffs in proving their case, it may well also have prejudiced the defendants in resisting the claim, and the lapse of time is certainly not due to any default on the part of the defendants or their predecessors. The respondents are not so free from criticism. The son of Mohammadi Begum made no effort to support his claim during the 12 years in which he survived her, and his son did nothing during the 29 years in which he susvived his father, and the plaintiffs themselves did nothing until the expiration of nearly 12 years from the date when their alleged title accrued. Their Lordships see nothing in the circumstances of the case which would justify drawing any inference which might relieve the respondents of any part of the burden of proving their title."
In this case, the privy Council has held that where the plaintiff sues in ejectment, he can succeed on the strength of his own title. There is no obligation upon the defendant to plead possible defects in the plaintiff's title which might manifest themselves when the title was disclosed. It is sufficient that in the written statement the defendant denies the plaintiff's title and under this plea he could avail himself of any defects which such title disclose.
v) I.L.R. (1997) 3 MADRAS 1425 (Nanjammal and Others Vs. Marappa Gounder and another) wherein in Para-9 it was held thus:-
"9. According to me, all these questions of law could be considered together. Ex.A2 is the sale deed in favour of the original plaintiff, which has been executed by PW2. The property having an extent of 2 acres 933/4 cents is conveyed to the deceased plaintiff as per Ex.A2 . The ownership and possession over the said land is not disputed by the respondent. In fact, the lower appellate court has recorded the statement of the counsel that they are not claiming any right over the land purchased by the original plaintiff. The dispute is only with regard to the right of the plaintiff along the suit cart track, which, according to him, is having a width of 10 feet. It starts from the Panchayat Board Road in the and goes upto the southern extremity of the plaintiff's land. According to the plaintiff, the above cart track is in existence and it was being used by him and his predecessors atleast for 40 years prior to the institution of the suit. In this connection, we have already extracted the claim of the plaintiff over the cart track. He claims easement both by prescription and necessity. The very claim by prescription and necessity is inconsistent. The sale deed was obtained in 1970 and the suit was filed in 1975. Plaintiff will have to prove that himself and his predecessors were enjoying the pathway atleast 20 years before the institution of the suit. Absolutely no evidence has been let in that regard. The only person who speaks about the cart track is PW2, the vendor. I will come to the evidence of PW3 later. According to me, the document executed by PW2 itself is an answer against the suit claim.
In this case, a learned Single Judge of this Court held that a very claim by easement of prescription and necessity is inconsistent. When a claim is made on the basis of prescription, it must be as of right when there are other ways of ingress and exit, easement of necessity cannot be claimed.
vi) 1998-2-L.W.-147 (Mangayarkarasi Vs. Veerappan Ambalam and Others) wherein in Para-21 it was held thus:-
"21. Bearing the principles laid down by the several decisions referred to above, the whole question in the present case boils down to whether what was claimed by the respondents was an easement of necessity. The ratio of the decisions is to the effect that there must be absolute necessity. Convenience was not the test. No doubt, there need not be an expressed grant. The non-mentioning in the sale did not matter as long as a case for implied grant was made out. The Commissioner's Report and the plan show the lie of the land. The Commissioner has specifically mentioned about the absence of cart track in the suit property. He has also noticed that the respondents had access to the road along the eastern property...."
A learned Single Judge of this Court has held in the above judgment that if there was alternative footpath in existence, however inconvenient it might be, still there could not be a claim as an easement of necessity.
vii) 1998-1-L.W.-654 (Sellappa Gounder and 4 Others Vs. Natesan and 2 Others) wherein in Para-7, it was held thus:-
"7. ...... For appreciating the stand taken by the learned counsel appearing on either side, the relevancy as also the efficacy of Ex.A1, it would be necessary to advert to the relevant guidelines contained in the 'Tamil Nadu Survey Manual of Departmental Rules' which particularly indicate the manner of preparation of the Field Maps. In paragraph 18 of Chapter VI, it is stated that all roads, cart-tracks and channels shown as porambokes in the revenue accounts and those which are included in the ryotwari holdings and which exceeds 20 links (4 meters) in width should be demarcated as Separate Survey Fields if half a chain (10 meters) or over in width. At the same time, the officer in charge of the Survey Party is given the discretion of survey such cart track or a channel as a sub division in order to secure well shaped Survey Fields. It is also stated that the former should be surveyed as sub divisions when they are less than 50 links (10 meters) and the latter over 20 links (4 meters) and less than 50 links (10 meters) in width. Such of those included in the ryotwari holdings which do not exceed 20 links (4 meters) in width and those included in large waste blocks which are not to be surveyed in detail, should not except in special case to be determined by the Revenue Officer, be subdivided but marked as "details". Similarly, in Paragraph 7 of Chapter VII, it is stated that the position of all important topographical details, such as village sites, public buildings, channels, streams, tanks, wells, cart tracks, footpaths etc., whether separately marked or not as Survey Fields or sub-divisions, should be fixed by measurement and only those should be fixed by measurement and only those footpaths which lead from one village to another village or from one hamlet to another hamlet should be regarded as important. From the above information disclosed in the Manual, it could be gathered that in respect of ryotwari holdings, the roads, cart-tracks, channels, if any, existing, which do not exceed 20 links (4 meters) in width need not be sub divided and that it can be marked as 'details'. The Field Map for Field Number 90 marked as Ex.A1 contains no doubt, what in the Survey parlance used to be referred to as 'details'. The plaintiffs, if at all, could claim any rights on the basis of documents, particularly, Ex.A1 their rights have to be continued to only that portion of the Field Number 90, which contains the 'details' marked in the plan itself. Merely because the other pathway is in continuation thereof in the patta lands of the defendants a nd it is found on state of ground, from that alone, the plaintiffs cannot claim as a matter of right any right of user to the other portion also, as rightly contended by the respondents......"
In this case, it was held that in a suit for declaration of the plaintiff's title to the user of the suit cart track and for footpath, injunction etc., guidelines contained in the manual of the Department Rules are relevant.
11. The learned counsel appearing for the respondents relied on the following decisions in support of his case:-
i) AIR 1972 MADRAS – 307 (K. Govindarajulu Chettiar Vs. V.N. Srinivasalu Naidu) wherein in Para-8 it was held thus:-
"8. From all these documents, Thiru. D. Ramaswami Iyengar stated, it is clear that there is an implied grant of easement over the 30-ft road. He cited Ratanchand Chordia v. Kasim Khaleel, 1964-I Mad LJ 293 = (AIR 1964 Mad 209), wherein a Bench of this Court has laid down the principles on which an implied grant can be inferred. The question whether a grant can be implied or not would only arise in a case where there is no express grant. To say the least the contention that the absence of an express grant would negative an implied grant is quite untenable. It is from attendant circumstances and other documentary evidence that an implied grant has to be inferred. It is a pity that the lower appellate court has not bestowed its attention before it disposed of the appeal, on the aspect of spelling out an implied grant, which is recognised by law."
In this case, it was held, following the decision in AIR 1964 Madras 209 that absence of express grant for an easement does not negative an implied grant of such easement. The question whether a grant can be implied or not would only arise where there is no express grant. It is from the attendant circumstances an d other documentary evidence that an implied grant has to be inferred.
ii) AIR 1989 KERALA 308 (Leela vs. Ambujakshy and Others) wherein in Para No.9 it was held thus:-
"9. The right cannot be claimed as a quasi easement under S.13
(b), (d) or (f) of the Easements Act also. The other clauses of S.13 deal with easements of necessity while these three clauses concern quasi easements. Like easements of necessity, quasi easements also arise only on severance of tenemants, testamentory or inter vivos. It can arise in cases of partition also. The transferor, transferee, testator, legatee or parties to partition could get such rights. Quasi easement is an accommodation as it existed during the common ownership. That must not only be necessary for the enjoyment of the transferred, retained or severed portion, but also must be apparent and continuous during the common ownership till the transfer, bequest or severance. The quasi easement is only to the extent it was enjoyed when the transfer, bequest or partition took effect. An apparent easement is one which could be perceived. Continuous easement is one which is or may be continued without the act of man. Unless it is also apparent and continuous, quasi easement cannot be claimed simply because it may be necessary for enjoyment. These two conditions viz., apparent and continuous are not necessary for an easement of necessity. What is required is only that it must be necessary for the enjoyment. But in cases of easements of necessity the necessity must be absolute in the sense that without it the property could not be enjoyed in any way or any state much less in the way or state in which it was enjoyed before. So also, as soon as the necessity ceases the easement of necessity also gets extinguished. But in the case of a quasi easement, the necessity is not absolute, but only qualified. It is available even in cases where the property is otherwise enjoyable. The only condition is that without the easement it is not otherwise enjoyable in the way in which it was enjoyed till the severance."
In this case, it was held that quasi easement is only to the extent it was enjoyed when the transfer, bequest or partition took effect. An apparent easement is one which could be perceived. Continuous easement is one which is or may be continued without the act of man. Unless it is also apparent and continuous, quasi easement cannot be claimed simply because it may be necessary for enjoyment.
iii) AIR 1992 CALCUTTA 302 (Alo Rani Banerjee & Others Vs. Smt. Malati Roy) wherein in Para-8 it was held thus:-
"8. ..... Even though there was no express grant or dedication, as soon as the defendant acted on the said representation by purchasing or taking lease of the plots for consideration the grant implicit in the representation came in existence. In the instant case, we have already seen that the disputed strip of land has been described as a new road in the documents and the evidence shows that there was specific representation by the vendor that the said strip of land was set apart as the common passage of the prospective buyers including the plaintiff and as a matter of fact the said passage was shown in a sketch map which the defendant is withholding. It must, therefore, he held that there was representation of grant of user of the disputed road even though there was no express grant or dedication. As soon as the plaintiffs acted on the said representation by purchasing the suit plots for consideration the grant implicit in the representation came into existence and the defendant claiming through the original vendor is, therefore, estopped from challenging the implied grant of user of the disputed strip of land."
In this case, it was held that a disputed strip of land has been described as new road in the document and the evidence shows that there was specific representation by the vendor that the said strip of land was set apart with common passage of the prospective buyers including the plaintiff and as a matter of fact the said passage was shown in a sketch map which the defendant is withholding. It was therefore held that there was a representation for grant of user to the disputed road even though there was no express grant or dedication. The court held that as soon as the defendant acted on the said representation by purchasing or taking lease of the plots for consideration the grant implicit in the representation came in existence and the defendant claiming through the original vendor is therefore estopped from challenging the implied grant of the user of the disputed strip of land.
v) 1999-1-L.W.-427 (Palani and 7 Others Vs. Perumal) wherein in Para-7 it was held thus:-
"7. It is true that no party may be allowed to put forth inconsistent pleas which would be in fact, a principle consistent from the moral angle. But the law permits alternate pleas to be put forth where two parallel legal rights are available to the party. For instance, the plaintiff may be entitled to pray for title to the property by virtue of a sale obtained by him, bona fide and for valid consideration and incidentally he may have also continued to be possession of the suit property over the statutory, period, holding the property in his own right, asserting title in himself and in such a case there are two legal rights available to him, and there is nothing wrong either legally or morally to plead both the rights. An individual might have acquired easement by prescription within the parameters of Section 15 of the Easements Act and also simultaneously an easement of necessity within Section 13 of the said Act or otherwise. In this case also, neither legally nor morally there is anything wrong in the party raising both the pleas. In fact in the very judgment relied on by learned counsel for the appellants,Ramaprasada Rao, J as he then was has upheld two easementary rights namely, (i) easement of necessity and ( ii) easement by prescription."
In this case, it was held that law permits alternative plea to be put forth where two parallel legal rights are available.
vi) (1999) 1 Supreme Court Cases 141 (Ram Narain Arora Vs. Asha Rani and Others) wherein in Para 11 it was held thus:
"11. There cannot be a pedantic or a dogmatic approach in the matter of analysis of pleadings or of the evidence adduced thereto. It is no doubt true that if the pleadings are clearly set out, it would be easy for the court to decide the matter. But if the pleadings are lacking or vague and if both parties have understood what was the case pleaded and put forth with reference to requirement of law and placed such material before the court, neither party is prejudiced. If we analyse from this angle, we do not think that the High Court was not justified in interfering with the order made by the Rent Controller."
In this case, the apex Court held that non-disclosure by landlord about his having another accommodation would not be fatal to the eviction proceedings if both the parties understood the case and placed material before the Court and case of neither party was prejudiced. When findings of fact rendered on a wrong premise of law can be interfered with by the high court. In such a circumstance, the high court was justified in re-examining the matter and taking a different view. It was also held by the Apex Court that defect or vague pleadings are not fatal if both the parties understood what the case pleaded was and accordingly placed material before the Court and neither party was prejudiced.
vii) 1999 (II) CTC – 468 (Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar) wherein in Para-5 it was held thus:-
"5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncement made by the apex court, or was based upon inadmissible evidence or arrived at without evidence."
The Honourable Supreme Court has held that High Court cannot investigate the grounds on which the findings were arrived at by the lower court; rejection or acceptance of witness by lower court after giving satisfactory reasons cannot be interfered in second appeal; where two inferences are possible, one drawn by lower appellate court will bind the high court.
viii) (2001) 3 Supreme Court Cases 179 (Santosh Hazari Vs. Purushottam Tiwari (deceased) by Lrs.) wherein in Para-12 it was held thus:-
"12. The phrase "substantial question of law", as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means – of having substance, essential, real of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code of Article 133 (1) (a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not be necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta, the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties.
In this case, the apex Court has held that when dealing with the case under Section 100 of CPC, the respondent is within his right to show that question formulated by high court is not involved in this case. The high court is not bound to confine itself to deal only with the question initially framed by it. The High Court may hear the appeal on any other such question so long as it is satisfied that the case involves the question and record its reasons for such satisfaction. The Supreme Court also define substantial question of law means having substance, essential, real, of sound worth, important or considerable and such question need not be, however, be one of general importance. It is further held that substantial question of law to be substantial and the question of law must be debatable, one which has not been settled earlier by statute or binding precedent and must have a material appearing on the outcome of the case. Such substantial questions must have foundation in the pleadings and should emerge from sustainable findings of fact reached by the Court of facts and further an answer of such questions must be necessary for a just and proper decision of the case. A completely new point raised before High Court for the first time would not be a question involved in the case, unless it went to the root of the matter.
12. In the plaint it is stated that the suit cart track was used by the plaintiffs and their predecessors for more than 60 years continuously, peacefully and without interruption and that the plaintiffs have no other cart track to reach their field from the Nambiyur-Arasur Road or any other common road except the said cart track. The above allegations are denied in the written statement. It is the case of the defendants that there is no such cart track as alleged in the plaint; that the portion of land alleged to be the suit cart track in between 124/1, third parties land in west and 125/1 absolutely belonged to the defendants; that the cart track ends with the defendants house. Beyond that it does not proceed towards east to reach the plaintiffs land which is comprised in SF No. 124/2; that the defendants have also put up a gate at point "A" long ago which is used by the defendants; that on the Northern side of the plaintiffs land is an itteri, which is the access to the plaintiffs' property all along and that the plaintiffs have never used the cart track.
13. The 3rd plaintiff examined herself as PW1 and deposed that they and their predecessors in title have been using the cart track for about 60 or 70 years. In the cross-examination, it is admitted by PW1 that on the Northern side of their property, a strip of poromboke land to a width of 20 feet running East to West, however stated which is not cart track. She has further stated that she was not aware in Ex.A1 the said strip of poromboke land was mentioned as common cart track.
14. PW2 in his cross-examination admitted that the strip of poromboke land to a width of 12 feet which is uneven. The said cart track was not mentioned in the documents marked by the plaintiffs except Ex. A1. In Ex.A1 also it is mentioned in the schedule that "khK:y; tz;oj;jl ghj;jpak; rfpjKk;" which means the right over the usual cart track. However, no further details about the location, length and width of the cart track were mentioned in that.
15. The first plaintiff is the wife of Rengappa Gounder, Plaintiffs 2, 3 and 4 are daughters of Rengappa Gounder. Rengappa Gounder executed Ex.A1 in favour of the plaintiffs. Admittedly, in Ex.A2, nothing was mentioned about the suit cart track. In Ex. A3 also, there is no details furnished relating to the suit cart track. Though in Ex.A4 the suit cart track was shown leading from Main Road to common well, but not extended upto the plaintiffs land namely point "C" and "D" mentioned in the rough sketch annexed with the plaint. Similarly, in Ex.A5, though the suit cart track and the gate were mentioned, nothing was stated about the common use by the plaintiffs and the defendants.
16. Except Ex.A1, the other exhibits do not speak anything about the suit cart track or the use of the same by the plaintiffs. In Ex.C1, the Advocate Commissioner's report, it is stated that "from the main gate, a cart track leads to the defendants house". It is also stated in the said report that "the cart track bend slightly to the North, next to the cobber gas waste storage pit". It is also further stated that "there is a cart track which runs from "koppu" to the plaintiffs house as shown in my rough plan".
17. On a perusal of Exs. C1 and C2, one can easily come to the conclusion that the suit cart track ended in defendants house and another bit of cart track starting from the Eastern side of the cobber gas pit leading to plaintiffs house. It is also mentioned in the report of the advocate commissioner that "next to the Northern border of the plaintiffs and defendants field, I have noted a cart track which is a common cart track ..... the Northern border of the defendants field is also covered by live fence. In the Northern live fence, I have noted that the fence was cut and removed at the Western end of the Northern fence of the plaintiffs as shown in my rough plan. I have also noted the mark of cart wheel inside the field". It is evident from Exs. C1 and C2 that the suit cart track ended in defendants house and not extended thereafter. The wheel marks and removal of live fence mentioned in the said report would prove that the plaintiffs used the 'itteri' as an access to the property. The documents marked by the plaintiffs and Exs. C1 and C2 not supported the case of the plaintiffs.
18. The plaintiffs have pleaded easement of necessity by contending that except the suit track, no other cart track to reach their field from Nambiyur – Arasur Road.
19. Now, we look into what is easement of necessity:-
An easement of necessity is an easement without which a property cannot be used at all, and not one merely necessary to the reasonable enjoyment of the property. As observed by Sir Arnold White, Kt., C.J., and Davis, J., in Krishnamaraza Vs. Marraju reported in I.L.R. 28 Madras 495 :
15 M.L.J. 255 "If 'A" has a means of access to his property without going over B's land, 'A' cannot claim a right of way over B's land under Sec.13 of Easement Act, on the ground that it is the most convenient means of access."
20. It is therefore, while considering the question of easement of necessity, convenience is not the test to absolute necessity. As I have pointed above, there is a cart track on the Northern side of the plaintiffs property which is being used by them and the same is evident from Exs. C1 and C2. The Plaintiffs cannot claim that they are entitled to use the suit cart track, which is lying on the defendants property so as to cause hardship to the defendants. The Plaintiffs have suppressed the fact that a cart track is located on the Northern side of their property. Hence, the plaintiffs are not entitled to the relief on the ground of easement of necessity also. Hence, the substantial questions of law No. 1, 2, 4 and 5 are answered in favour of the defendants/appellants.
21. The 3rd Substantial question of law is that whether the judgment of the lower appellate court is vitiated in that it has given a finding that the plaintiffs have acquired a right of easement by prescription also, when the plaintiffs have not prayed for such a finding by filing any cross objections to the defendants' appeal? Ex.A1 dated 11-06-1980 is the only document refers to common pathway, which according to the defendants is not the suit cart track but only "itteri". The said document was executed none other than the husband of the 1 st plaintiff in favour of all the plaintiffs. As rightly pointed out by the learned Senior counsel for the appellants, Ex.A1 does not refers to the suit cart track but only "itteri". The suit was filed on 24 -01-1986. The plaintiffs have to prove that they and their predecessors in title are enjoying the path way atleast 20 years before the institution of the suit, but no satisfactory evidence has been let in in this regard. The lower appellate court, misconstruing the oral and documentary evidence has given a wrong finding that the plaintiffs have acquired right of easement by prescription also.
22. The Rules for the acquirements of right of an easement are rules of positive prescription. When a person exercise a right of easement for certain item, he becomes entitled to it. We can infer from Section 15 of the Easements Act that the condition under which such an easement could be acquired by prescription. The said acquisition of right of easement by prescription is as follows. A person claims prescription should prove to have continued for a period of 20 years upto a time within two years next before the institution of the suit where the claim is contested. There must be a peaceable and open enjoyment by the person claiming title thereto as an easement and as of right, without interruption, and for 20 years. While deciding a right of user for a path way or a cart track, the court would have to consider there has been an actual enjoyment of the right; that the enjoyment has been open; that the enjoyment has been peaceable; that the enjoyment as of right; that it has been enjoyment as an easement; that it has been enjoyed without interruption and it has been enjoyed for 20 years.
23. In this case, the plaintiffs have not satisfied the said ingredients. Hence, the lower appellate court is totally wrong in giving a finding that the plaintiffs have acquired a right of prescription. Moreover, no cross appeal was filed by the plaintiffs seeking for the said relief.
24. The learned senior counsel appearing for the respondents canvassed that this Court, as a second appellate court cannot interfere with the concurrent findings of the court below; that in a case wherefrom a given set of circumstances two interferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal; that the High Court cannot substitute its opinion of the first appellate Court. The learned senior counsel appearing for the appellant advanced arguments that the conclusion drawn by the courts below were perverse, erroneous and contrary to the mandatory provisions of law and as such the High court shall interfere.
25. No doubt, interference with the concurrent findings of the courts below by the High Court under Section 100 of C.P.C. must be avoided unless warranted by compelling reasons. In a case where the finding is recorded without any legal evidence on record or misreading of evidence or suffers from any legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse the High Court can set aside the findings and take a different view.
26. In this case, the trial court has erroneously found that there is no other alternative cart track available to the plaintiffs, ignoring the advocate commissioner's report and also admission by PW1 and PW2 in their cross-examination. The lower appellate court found that there is alternative cart track located on the Northern side of the plaintiffs property, but it was uneven, water-logging and unfit for use. When alternative pathway is admittedly available to the plaintiffs, however inconvenient it may be, there cannot be a claim on the ground of easement of necessity. The trial court has given a finding on the erroneous ground of easement of necessity whereas the first appellate court while confirming it went one step forward and given a finding that the plaintiffs have also acquired easement of prescription, in the absence of cross appeal by the plaintiffs. The findings of the courts below is perverse and not based on any material record. Hence, the 3rd substantial question of law is answered against the respondents/plaintiffs.
In the result, the decree and judgment passed by the courts below are set aside and the second appeal is allowed. No costs.
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