Madras High Court
Emily vs Sundaram on 11 March, 2020
S.A.(MD).No.537 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 18.03.2022
JUDGMENT PRONOUNDED ON : 01.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.(MD).No.537 of 2021
1.Emily
2.Jeganraj
3.Selvin
4.Leemarose ...Appellants/Appellants
Defendants 1 to 4
Vs
Sundaram ...Respondent/Respondent
/Plaintiff
PRAYER : Second Appeal is filed under Section 100 of
C.P.C, against the decree and judgment passed by the
Sub Court, Padmanabhapuram in A.S.No.49 of 2017 dated
11.03.2020 confirming the decree and judgment passed by
the Principal District Munsif Court, Padmanabhapuram in
O.S.No.19 of 2013 dated 14.09.2017.
For Appellants : Mr.K.P.Narayanakumar
For Respondent : Mr.R.Sreenivasan
For Mr.R.Nandakumar
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https://www.mhc.tn.gov.in/judis
S.A.(MD).No.537 of 2021
JUDGMENT
The defendants 1 to 4 are the appellants.
2.The plaintiff filed O.S.No.19 of 2013 before the District Munsif Court, Padmanabhapuram for declaration of easement right of pathway by necessity over plaint 'C' schedule property and for consequential permanent injunction restraining the defendants from causing any obstruction to the use of 'C' schedule pathway by plaintiff. The suit was decreed by the trial Court as prayed for. The defendants 1 to 4 filed A.S.No.49 of 2017 before the Sub Court, Padmanabhapuram. The learned Subordinate Judge was pleased to dismiss the appeal. As against the concurrent findings, the present second appeal has been filed by the defendants 1 to 4.
3.The plaintiff has contended that 'A' schedule property belongs to him by way of two sale deeds dated 21.08.1998 and 07.12.2006 marked as Exhibits A1 and A2. 2/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.537 of 2021 According to the plaintiff, the plaint 'B' schedule property lies just west of plaint 'A' schedule property and it belongs to the defendants. However, to the west of 'B' Schedule property lies a channel lane which runs from north to south. The plaint 'C' schedule property is a pathway having a width of 6 links and length of about 94 links which lies west to east lengthwise on the northern most portion of plaint 'B' schedule property. According to the plaintiff, the said 'C' schedule pathway connects the western channel lane and the 'A' schedule property.
4.The plaintiff has further contended that both 'A' and 'B' schedule properties were originally owned by one Sadayan and on his death, it devolved upon his three sons namely, Gnanamani, Ponnumani and Selvamani. After the death of Gnanamani, his son Thankaian sold 6 cents to Sudalaimuthu who in turn sold that 6 cents to the plaintiff under Exhibit A1 sale deed. After the death of Ponnumani, his son Rajamani sold 13.333 cents to the plaintiff under Exhibit A2 sale deed. Selvamani 3/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.537 of 2021 had conveyed 13 cents to his daughter-in-law who is the first defendant in the suit under Exhibit B1. Hence, according to the plaintiff, both 'A' and 'B' schedule properties were originally owned by a common owner and the property got fragmented due to sale. According to the plaintiff, except 'C' schedule property, there is no access to reach the western channel lane to the plaint 'A' schedule property. Hence, the plaintiff claims that the usage of plaint 'C' schedule pathway as of right as easement of necessity. According to the plaintiff, the defendants are attempting to close the plaint 'C' schedule property and they are causing obstruction to the plaintiff. Hence the present suit.
5.The defendants have filed a written statement admitting the sale deeds in favour of the plaintiff. They further contended that there is no such 'C' schedule property which is on the northern most portion of 'B' schedule property. According to the defendants, 'C' schedule property is an imaginary property. That apart, there are several trees which are more than 40 4/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.537 of 2021 years old in the 'C' schedule property. Hence, nobody can walk through the said 'C' schedule property.
6.The defendants further contended that on the south eastern side of the 'A' schedule property, an alternative pathway is available to the plaintiff to reach 'C' schedule property. Hence, the contention of the plaintiff that 'C' schedule property is a pathway and the plaintiff is having easement of necessity over the said pathway is not legally correct. Hence, he prayed for dismissal of the suit.
7.The trial Court after careful consideration of the oral and documentary evidence arrived at a finding that the plaint 'A' and 'B' schedule properties were originally owned by common ancestor and hence, when the property gets fragmented, naturally the plaintiff would be entitled to use the 'C' schedule property by way of easement by necessity. The trial Court further relied upon the Advocate Commissioner's report and plan to arrive at a finding that the plaintiff is not having 5/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.537 of 2021 any other alternative pathway to reach his 'A' schedule property. Based upon the said findings, the trial Court decreed the suit as prayed for.
8.The First Appellate Court after independent consideration of the oral and documentary evidence , concurred with the findings of the trial Court to the effect that the suit 'A' and 'B' schedule properties were originally owned by a common ancestor and hence, the easement of necessity would arise when these properties got fragmented due to sale by the co-owners. The First Appellate Court further found that all the ingredients required to constitute the easement of necessity have been fulfilled through oral and documentary evidence let in by the plaintiff and based upon the commissioner's report. The First Appellate Court further found that the defendants have failed to plead and establish that there is an alternative pathway for the plaintiff to reach his 'A' schedule property. Though the defendants had contended that 'C' schedule property is full of trees, PW1 had admitted in 6/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.537 of 2021 his deposition that it is enough for a person to go through the pathway. Based upon the said findings, the First Appellate court dismissed the appeal. As against the concurrent findings, the present second appeal has been filed by the defendants 1 to 4.
9.The learned counsel for the appellants has contended that there is no reference about 'C' schedule pathway in Exhibits A1 and A2 sale deeds standing in the name of the plaintiff. He further contended that the Courts below have not properly appreciated the fact that the plaintiff is having alternative pathway to reach his 'A' schedule property. According to the learned counsel for the appellants, the Commissioner's report is a biased one and the appellant has filed an objection to the commissioner's report and the same has not been properly appreciated by the Courts below. Hence, he prayed for allowing the second appeal.
10.Per contra, the learned counsel for the respondent contended that the suit 'A' schedule 7/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.537 of 2021 property was purchased by the plaintiff under Exhibit A1 sale deed dated 21.08.1998 and Exhibit A2 sale deed dated 07.12.2006. Both the sale deeds have been obtained by the plaintiff only from the co-owners of the first defendant's ancestor. Hence, even assuming that there is no reference about 'C' schedule pathway in Exhibits A1 and A2, in view of easement right by necessity, the plaintiff is entitled to use 'C' schedule pathway to reach the channel road on the western side. He further contended that though the plaintiff has not been examined, his son who is fully conversant with the facts of the case has been examined. He further contended that the Commissioner's report fully supported the case of the plaintiff that there is no alternative pathway for the plaintiff to reach the plaint 'A' schedule property. Hence, he prayed for dismissal of the second appeal.
11.I have carefully considered the submissions made on either side.
8/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.537 of 2021
12.The suit 'A' and 'B' schedule properties were originally owned by one Sadayan which is not in dispute. After his death, the properties devolved upon his sons namely Gnanamani, Ponnumani and Selvamani. The plaintiff has purchased the share of Gnanamani and Ponnumani under Exhibits A1 and A2. Selvamani's share has been gifted by him in favour of his daughter-in-law namely the first defendant under Exhibit B1. The above said facts are not in dispute. Hence, it is evident that originally both 'A' and 'B' schedule properties were owned by a common ancestor and they got fragmented due to alienation made by the co-owners. Hence, all the ingredients for invoking the easement by necessity are available.
13.The specific case of the plaintiff is that the northern most portion of 'B' schedule property is the 'C' schedule property which is the only access to reach 'A' schedule property belonging to the plaintiff. However, according to the defendants, there is no 9/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.537 of 2021 reference about 'C' schedule property in a sale deed executed in favour of the plaintiff namely Exhibits A1 and A2. If there had been a formal partition deed among the sons of Sadayan, certainly there would have been a reference about 'C' schedule property, but alienations have been effected by two of the brothers under Exhibits A1 and A2. The other brother has chosen to gift his share in favour of his daughter-in-law. Hence, when there is no formal document of partition between the brothers, the plaintiff cannot be faulted with for non-mentioning of the 'C' schedule pathway under Exhibits A1 and A2.
14.The only defence taken by the defendant in his written statement is that the plaintiff is having alternative pathway to reach his 'A' schedule property in the north eastern side and south eastern side of 'A' schedule property. An Advocate Commissioner was appointed pending suit. In the memo of instruction, the plaintiff's counsel has requested to point out 'C' schedule property. The counsel for the defendants has 10/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.537 of 2021 also given a memo of instruction to point out the alternative pathway available for 'A' schedule property. The commissioner in his report has specifically pointed out that there is no other alternative pathway to reach the 'A' schedule property. The defendants have filed an objection to the commissioner's report by pointing out that the commissioner has not shown alternative pathway for 'A' schedule property. Though such an objection has been filed, the defendants have not chosen to examine the Advocate Commissioner to establish their objection. Moreover, the plan filed by the Advocate Commissioner does not disclose any other alternative pathway to reach 'A' schedule property other than 'C' schedule property.
15.The next defence taken by the appellants is that 'C' schedule property is an imaginary property which is full of trees and it is not possible to any one to go through the said 'C' schedule property. The plaintiff in his deposition has admitted that it is 11/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.537 of 2021 possible for a person to move though the 'C' schedule property. It is not the case of the defendants that the trees have been planted in a wall like manner so that nobody can cross over it. Hence, the contention of the appellant is not legally acceptable.
16.The trial Court as well as the Appellate Court have properly appreciated the pleadings and evidence let in on either side and arrived at a correct finding that the plaintiff is entitled to a decree for declaration that he has got a right of easement by necessity to use 'C' schedule property as pathway. The Courts below were also right in granting a decree for permanent injunction as against the defendants from obstructing the usage of the said pathway.
17.In view of the above said discussions, I do not find any illegality or perversity in the judgement and decree passed by the Courts below. There is no question of law much less a substantial question of law that arises for consideration in the present Second 12/14 https://www.mhc.tn.gov.in/judis S.A.(MD).No.537 of 2021 Appeal. The Second Appeal stands dismissed at the admission stage itself. No costs.
01.04.2022
Index : Yes / No
Internet : Yes / No
msa
To
1.The Subordinate Judge
Padmanabhapuram
2.The Principal District Munsif
Padmanabhapuram
3.The Section Officer
V.R.Section
Madurai Bench of Madras High Court
Madurai
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https://www.mhc.tn.gov.in/judis
S.A.(MD).No.537 of 2021
R.VIJAYAKUMAR,J.
msa
Pre-delivery Judgment made in
S.A.(MD).No.537 of 2021
01.04.2022
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https://www.mhc.tn.gov.in/judis