Madras High Court
P.Visalatchi vs The Kumbakonam Municipality on 8 July, 2015
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:08.07.2015
CORAM:
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
S.A(MD)NO.326 of 2009
P.Visalatchi ..Appellant/Appellant/Plaintiff
vs
The Kumbakonam Municipality,
represented by its Executive Authority,
The Commissioner,
Dr.Murthy Road,
Kumbakonam Munsifi,
Kumbakonam Town ..Respondent/Respondent/Defendant
PRAYER
Second Appeal filed under Section 100 of the Civil Procedure Code
against the judgement and decree made in A.S.No.223 of 2005, dated 6.8.2008,
on the file of the Additional Subordinate Judge of Kumbakonam confirming the
judgement and decree made in O.S.No.122 of 2004, dated 14.10.2005 on the file
of the Principal District Munsif of Kumbakonam and to set aside the same.
For Appellant :M/s.M.V.Santharaman
For Respondent :M/s.K.Rajkumar
:JUDGMENT
The unsuccessful Plaintiff before the lower courts is the appellant in the Second Appeal. Notice before admission was given and the matter stands listed today for hearing the arguments and disposal of the Second Appeal on merits.
2.The appellant herein filed the suit praying for:
(1) a permanent injunction restraining the respondent herein from in any manner interfering with the peaceful enjoyment of the easementary right of passage over the suit property;
(2)a mandatory injunction directing the respondent herein/defendant not to alter the character of the suit property and maintain the same as a road and to remove the encroachment allegedly made by the respondent herein/defendant; and (3)costs.
3.The suit property has been described as follows:
''Thanjavur District, Kumbakonam Taluk and Town, Municipal Ward No.4, T.S.No.1008, situate in Kothan Other street, where the Plaintiff has a right of easment for passage or way''.
4.The appellant/Plaintiff contended that the property comprised in T.S.No.1008 was classified as road in the municipal records and it had been used as such till the date of the filing of the suit. Contending that the appellant herein/Plaintiff did have access to the sites comprised in T.S.Nos.1012 and 1014 only through the suit property and that the suit property had been used by her predecessors-in-title as passage to have ingress and egress of their property from the public street, she had prayed for the above said reliefs in the plaint.
5.The claim was resisted by Kumbakonam Municipality, the respondent herein/defendant, contending that the property through which the appellant herein/plaintiff claimed easementary right was not a street and on the other hand, it was a projection from the street forming an irregular quadilateral and that in the said property belonging to the Municipality and that the Municipality had every right to put up a construction for its own use. It was also contended that the appellant herein/plaintiff did not make herself clear as to what was the nature of right she was claiming whether easement over other man's property or right of the public to use the public street.
6.The learned trial Judge, after hearing, non-suited the appellant herein/plaintiff in respect of both the reliefs sought for in the plaint with the result the suit came to be dismissed by the trial Court by a judgement and decree made in O.S.No.122 of 2004, dated 14.10.2005. Challenging the said decree of the trial Court dismissing the suit filed by the appellant herein/Plaintiff, she preferred an appeal before the lower appellate Court, namely Sub-Court, Kumbakonam in A.S.No.223 of 2005. The learned Additional Subordinate Judge, Kumbakonam dismissed the said appeal by a judgement and decree dated 6.8.2008. It is as against the said decree of the lower appellate Court dated 06.08.2008, the present Second Appeal has been preferred.
7.The arguments advanced by Mr.M.V.Santharaman, learned counsel for the appellant and by Mr.K.Rajkumar, learned counsel for the respondent are heard. The judgements of the Courts below and the materials available on record, sent for from the Courts below are perused and taken into consideration.
8.As against the concurrent findings of the Courts below, the Second Appeal has been preferred. It is the contention of the learned counsel for the appellant that the appellant being the owner of the land abutting the public street, is entitled to have free access to the public street from every point of the border of his property abutting the public street and that obstruction even by the Municipality in respect of a segment of that stretch can be successfully resisted by the appellant herein/plaintiff. The further contention raised on behalf of the appellant herein/Plaintiff is that the entire extent comprised in T.S.No.1008 had been classified as public street and that even though there is a projection from the public street on the north of T.S.No.1014 purchased by the appellant herein/plaintiff under Ex.A1, the same should be maintained only as a street and that the respondent/Municipality would not be allowed to put up any construction over the same causing obstruction to the ingress and egress to her property from every point of inter-section of the border of his property with the street.
9.On the other hand, it is the contention of the respondent Municipality that though the street is comprised in T.S.No.1008, the entire portion comprised in T.S.No.1008 is not a street and that especially the projection eastwards on the north of T.S.No.1014 was never treated and maintained as a street. In this regard, it is pertinent to note that the appellant herein/Plaintiff purchased the property comprised in T.S.No.1014 under a sale deed dated 09.03.1998, a certified copy of which has been marked as Ex.A1. The suit itself had been filed on 24.11.1997. It is quite obvious that the purchase under Ex.A1 came to be made only after the institution of the suit. Even then, the appellant herein/Plaintiff based her claim on her claim that she was the owner of the property comprised in S.No.1014, in addition to T.S.No.1012 which had been purchased under a sale deed dated 23.04.1995, a certified copy of which had been marked as Ex.A3. Subsequent to the purchase of the property comprised in T.S.No.1012, the appellant herein/Plaintiff purchased the property comprised in T.S.No.1011/C which is abutting the T.S.No.l012 on its west and the western boundary of T.S.No.1011/C purchased under the sale deed dated 23.08.1995 is the sreet. The certified copy of the said deed has been marked as Ex.A2. A perusal of Ex.A2 and Ex.A3 will make it clear that the appellant herein/Plaintiff purchased a land-locked portion comprised in T.S.No.1012 under the original of Ex.A3 and thereafter, he purchased the property comprised in T.S.No.1011/C under the original of Ex.A2, which lies in between the north-south street and the property comprised in T.S.No.1012. The same will make it clear that the purchase itself was made for the purpose of having an access to the street from T.S.No.1012. Subsequent to the filing of the suit, the property comprised in T.S.No.1014 came to be purchased by the appellant herein/Plaintiff under the original of Ex.A1. The property thus purchased under the original of Ex.A1 very much abuts the north-south street and it lies on the eastern border of the street. However, noticing that there was a vacant site in between T.S.Nos.1011 and 1014 which is in the shape of irregular quadilateral, the appellant herein/Plaintiff seems to have got an intention of annexing it with her property and the same is the reason why she has come forward with the suit claiming that she has got a right of easement over the said property.
10.From the plaint pleadings, it is quite obvious that the appellant herein/plaintiff has not claimed the said property to be a public street over which she could exercise a right of public to use it. On the other hand, a specific plea to the effect that the appellant herein/Plaintiff did not have any access other than the access through the said portion as an easement came to be made. The plaint plea came to be constructed in a nebulous manner. If at all, the claim is a right of easement, the plaintiff should have come forward with a plea as to who is the owner of the property and against whom she claims easementary right. Again, she should have stated as to what type of easement is claimed. In the absence of any specific plea, the type of easement claimed could be culled out from the recitals found in the plaint. The very fact that the appellant herein/Plaintiff has chosen to aver that there is no other access to reach her property comprised in T.S.Nos.1014 and 1012 will make it clear that the appellant herein/plaintiff wanted to claim easment over the disputed stretch of land only as an easement of necessity. As pointed out supra, the Plaintiff has got access through her own property in T.S.No.1011 and also through T.S.No.1014 direct to the street. As the property comprised in T.S.No.1012 is abutting T.S.No.1011 on its east, she cannot say that she has got no other access from T.S.No.1012. Therefore the claim made by the appellant herein/Plaintiff that she has got an easementary right over the disputed stretch of land comprised in part of T.S.No.1008 is bound to be rejected as untenable.
11.However, the learned counsel for the appellant herein/Plaintiff relying on a stray sentence in the written statement filed by the respondent herein/defendant Municipality admitting that the street is in T.S.No.1008, made an attempt to contend that the projected portion is also a street and that the respondent Municipality should be prevented from putting up any construction obstructing ingress and egress to her property through that space. The said contention is quite unacceptable in the light of the recitals found in Ex.A1, under the original of which the property comprised in T.S.No.1014 came to be purchased by the appellant herein/plaintiff. The property purchased therein, has been shown into two parts - western part and eastern part. The western part is the property parallel to the projection eastwards from the street in T.S.No.1008. Referring to the same, as the northern boundary of the first item purchased under the said sale deed, it was described only as a site (Sthalam) comprised in T.S.No.1008. It is in contrast with the western boundary which makes a specific mention of the street. The said recital itself will show that the property which was shown as northern boundary of the first item in Ex.A1 was not treated and was not used as a street. Therefore this Court is not in a position to find any reason to interfere with the concurrent findings of the Courts below that the property which lies on the north of the first item purchased under Ex.A1 is not a street.
12.The appellant herein/plaintiff seems to have made a clever pleading by providing a describtion of property, which is so ambiguous. It simply states the suit property to be comprised in T.S.No.1008 situate in Kothan Other Street, Municipal Ward No.4, Kumbakonam Town. The describtion itself will suggest that the property over which the appellant herein/plaintiff claims easementary right is not a street and it is a site situate in the particular area. When easementary right is sought to be claimed in respect of such a property, the property should have been defined with specific boundaries and the Course of easment should also have been indicated with necessary particulars like the breadth and length of the space over which easment is claimed. The Commissioner's report and plan and Ex.B8, the Survey Plan shall make it clear that the portion lying on the north of the western part of T.S.No.1014 is not a street and it is a site adjoining the street. The appellant herein/Plaintiff seems to have made an attempt to stir the water and fish out of the troubled water. The Courts below have realised the same and non-suited the appellant herein/Plaintiff for the reliefs sought for by her.
13.This Court is not in a position to find any defect or infirmity in the judgement of the trial Court dismissing the suit and in the judgement of the lower appellate Court confirming the decree of the trial Court dismissing the appeal. This Court is not in a position to find any substantial question of law that has arisen for consideration in this Second Appeal. There is no merit in the Second Appeal and the Second Appeal deserves to be dismissed.
14.In the result, the Second Appeal is dismissed. However, there shall be no order as to costs.
To
1.The Additional Subordinate Judge, Kumbakonam.
2.The Principal District Munsif, Kumbakonam..