Madras High Court
Parvathi vs Sappani Gounder on 12 January, 2012
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :12.01.2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.1025 of 1997 1.Parvathi 2.Subramaniam 3.Minor Maheswari represented by Guardian Mother Parvathi. ... Appellants/Appellants/Defendants 2 to 4 Vs. Sappani Gounder ... Respondent/Respondent/Plaintiff Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 28.01.1997 in A.S.No.186 of 1994 on the file of the Learned Subordinate Judge, Namakkal, Namakkal District, confirming the Judgment and Decree dated 31.10.1994 in O.S.No.897 of 1990 on the file of the Learned Principal District Munsif, Namakkal. For Appellants : Mr.K.Ramanraj For Respondent : Mr.R.Chakkaravarthy For M/s.R.Subramanian J U D G M E N T
The Appellants/Defendants 2 to 4 have preferred this Second Appeal as against the Judgment and Decree dated 28.01.1997 in A.S.No.186 of 1994 passed by the Learned Subordinate Judge, Namakkal, in confirming the Judgment and Decree dated 31.10.1994 in O.S.No.897 of 1990 passed by the Learned Principal District Munsif, Namakkal.
2.The Plaint Facts:
(i) In the Plaint, the Respondent/Plaintiff has averred that a Rough Plan is filed to explain the properties of respective parties. In the Rough Plain, the suit property is shown as 'P' and that the Appellants/Defendants 1 to 4 properties are mentioned as 'D, D1' and that the Defendants' house drainage water letting out portion is shown as 'X' and the rain water which falls on the roof through the property points which shown as 'X1, X2'. From 'X' point, the drainage water to proceed on the northern side, a new ditch has been constructed is shown in red colour.
(ii) The suit property and on the eastern side presently the property belonging to one Kandasamy originally have been purchased from the Respondent/Plaintiff's grandfather Sappani Gounder on 04.05.1910 and at that time, thatched houses have been in existence. After Sappani Gounder purchasing the property and his brother has sold the eastern side of the suit property and the property in possession of Kandasamy to another person and that property is in possession of Kandasamy presently.
(iii) After the Respondent/Plaintiff's grandfather's purchase, the thatched houses which have been in existence in the suit property have been removed and he enjoyed the property, by constructing a storied house. In the front and western side of the storied house, vacant space has been left out and the said vacant spaces have been utilised by the Respondent/Plaintiff's grandfather as front entry and also as lane. After the death of Respondent/Plaintiff's grandfather, the suit property has been enjoyed by the Respondent/Plaintiff's father in his Heirship capacity. After the death of Respondent/Plaintiff's father, the Respondent/Plaintiff has acquired the suit property by inheritance and has been in enjoyment of the same. The Respondent/Plaintiff has paid the House Tax. The 1st Defendant (later deceased) has purchased the property recently and has enjoyed the same. At the time of his purchase in the portion mentioned as 'D' in the Rough Plan only a tiled house has been in existence. After purchase, the 1st Defendant has newly constructed the tiled houses in D1 portion as shown in Rough Plan. The eastern side wall of Defendants' houses have been built in their boundaries itself. The Defendants or their predecessors in title at any point of time have no lands are in enjoyment of the portion of the Defendants' houses east of their wall .
(iv) The 1st Defendant, during the last month of March, has been letting out the drainage water by constructing a ditch for the purpose of letting out his houses drainage water to take out the same on the northern side of the street by putting a hole in 'X' point and has encroached upon the land of the Respondent/Plaintiff by constructing a water tank and has constructed a ditch from the tank upto the street portion. Likewise, the roof water from the houses constructed in D1 portion, to fall in the portion of the Respondent/Plaintiff in X1, X2 places, metal sheets have been placed and the water has been let out in that fashion. Inspite of the Respondent/Plaintiff preventing the same, the 1st Defendant with the help of men have completed the work.
(v) The entire land which is situated on the eastern side of the Defendants' houses wall belongs to the Respondent/Plaintiff absolutely and he is in enjoyment of the same. The Defendants have unlawfully in Respondent/Plaintiff's land constructed a ditch and in D1 portion to let out the roof rain water in Respondent/Plaintiff's land has placed metal sheets. Because of the unlawful act of the 1st Defendant, heavy damage and loss has occurred to the 1st Respondent/1st Defendant's property. Because of the falling of roof water in Respondent/Plaintiff's land and wall of the houses, damage is being caused.
(vi) The Defendants have no right to let out their drainage water or the rain water falling on roofs in the land of the Respondent/ Plaintiff. Therefore, the Respondent/Plaintiff has filed a suit praying for the relief of Declaration that the the Defendants have no right to let out their house drainage water and the roof rain water in the suit property; for the relief of permanent injunction; and for the relief of mandatory injunction in directing the Defendants to close the opening in 'X' point and also remove the metal sheets in X1 and X2 points.
3.Written Statement Pleas (filed by the 1st Defendant during his lifetime and subsequently died):
(i) The Plaint filed along with the Plan is not correct. The averments in para 5 of the Plaint made by the Respondent/Plaintiff are substantially false. Even the averments made by the Respondent/ Plaintiff in para 7 of the Plaint are false. The 1st Defendant denies the averment that after the death of the Respondent/Plaintiff' grandfather, the suit property has been inherited by the Respondent/Plaintiff as Legal Heir and that he is in enjoyment of the same. Equally, it is denied by the 1st Defendant that either himself or his predecessors have no land or in enjoyment of the land which is situated on the eastern side of his land where he has constructed wall in his boundary.
(ii) The averments in para 8 of the Plaint that the Defendant during March 1990 has put up a hole in 'X' point as shown in the Plan newly on the northern side of the road and has encroached upon the Respondent/Plaintiff's land by constructing a tank and from the tank till the street, he has constructed a ditch and draining the drainage water are all utter lie. Also, the averment made by the Respondent/Plaintiff that in 'X' and 'X1' point, metal sheets have been fixed and that the roof water is drained in Respondent/Plaintiff's land is a falsehood. The averments in para 10 and 11 of the Plaint are all false.
(iii) The real facts are that the 1st Defendant and his predecessors have put up a vacant land on the eastern side of the D series lands mentioned in the Rough Plan and in the vacant land, the Defendant is draining his house drainage water and also draining the roof water and that he is maintaining his house eastern side of wall and enjoying the same to his liking. The 1st Defendant's predecessors on the eastern side of his house has put up a vacant land and in this land, they have constructed a drainage water tank and from that tank they drained the drainage water and the drainage water to proceed on the southern and northern side, he has constructed a open ditch and drains the same on the northern side of the Raja Street and thereafter, the 1st Defendant, from one of his ancestors viz., Periyannan and others have purchased the properties for a valuable consideration as per Sale Deed-Ex.B.1 dated 21.05.1980. After purchase, immediately, the 1st Defendant has maintained the house and also extended the same and has been in enjoyment of the same by payment of costs. At the time of maintaining the house in the vacant land belonging to the 1st Defendant which is situated on his house east of their wall, he has changed the course of passage of open ditch and also renovated the already existing tank and he has put up a pipeline and through the pipeline is laying out the drainage water on the northern side of the Raja Street. Contrary to these, all other averments mentioned in the Plaint are all false.
(iv) Likewise, the 1st Defendant, in the house belonging to him on the east of their wall in one place, has placed the metal sheet for draining the rain water and through the metal sheet, the roof water is drained and on the eastern side of the vacant land belonging to the Defendant with the help of open ditch which has been put up for the purpose of draining the drainage water, the rain water has been drained through Raja Street and thus enjoying the same. Moreover, the Defendants' ancestors have in enjoyment for a long period. Through the vacant land, the 1st Defendant and his predecessors for the past 75 years are proceeding and the eastern side of their wall and the passage taking out the rain water from the ditch are maintained and also enjoyed by them inclusive of the vacant land. The 1st Defendant has filed a Commission Application to measure the lands of respective parties and to note down the physical features and for submission of Report with Scale Plan and also the Commissioner has been appointed by Court. A perusal of Commissioner's Report and Plan, will reveal the true facts.
(v) The Respondent/Plaintiff's Lawyer's Notice dated 17.09.1990, the 1st Defendant has given a reply notice. There is no cause of action for the suit. The cause of action as alleged in the Plaint is untrue.
4.The Additional Written Statement Pleas of the 2nd Defendant:
It is not correct to state that the 4th Defendant is aged 16. Presently the age of the 4th Defendant is 12. In other respects, the 1st Defendant's Written Statement is adopted.
5.Before the trial Court, in the main suit, on behalf of the Respondent/Plaintiff, witnesses P.W.1 and P.W.2 were examined and Exs.A.1 to A.4 have been marked. On the side of the Appellants/ Defendants, witnesses D.W.1 and D.W.2 have been examined and Exs.B.1 to B.6 have been marked. Ex.C.1-Commissioner's Report and Ex.C.2-Plan have been marked.
6.The trial Court, after analysing the entire oral and documentary evidence on record, has come to a clear conclusion that the Appellants/Defendants have no right on the eastern side of the wall of their house and accordingly, granted the relief of Declaration, Permanent Injunction and also the Mandatory Injunction and decreed the suit in favour of the Respondent/Plaintiff together with the costs.
7.Aggrieved against the Judgment and Decree of the trial Court dated 31.10.1994 in O.S.No.897 of 1990 in decreeing the suit in favour of the Respondent/Plaintiff, the Appellants 1 to 3/Defendants 2 to 4, as an aggrieved persons, have projected A.S.No.186 of 1994 on the file of the First Appellate Court viz., the Learned Subordinate Judge, Namakkal.
8.The First Appellate Court viz., the Learned Subordinate Judge, Namakkal, after contest, has dismissed the Appeal with costs by coming a conclusion that based on oral and documentary evidence tendered on both sides to the effect that the Appellants/Defendants 2 to 4 have no right on the eastern side wall of their house and has confirmed the Judgment and Decree of the trial Court.
9.Dissatisfied with the Judgment and Decree of the First Appellate Court in A.S.No.186 of 1994 dated 28.01.1997, the Appellants/Defendants 2 to 4 have projected this Second Appeal before this Court.
10.At the time of admission of the Second Appeal, this Court has framed the following Substantial Questions of Law for consideration:
1.Whether the judgments and the decrees in the suit for declaration, permanent injunction and mandatory injunction in favour of the respondent herein, the plaintiff, are valid and lawful, when the onus and the burden of proof have not been placed upon the plaintiff, who has claimed rights, but upon the defendants who are only to contest?
2.Whether above suit has to be decided on the basis of fresh issues?
11.The Contentions, Discussions, Findings on Substantial Questions of Law 1 and 2:
The Learned Counsel for the Appellants/Defendants 2 to 4 submits that the onus of proof rests on the Respondent/Plaintiff to establish his case and that the first issue framed by the trial Court whether the Appellants are entitled to suit portion east of their wall is clearly incorrect one leading to a wrong decision as regards the right of the parties.
12.The Learned Counsel for the Appellants/Defendants 2 to 4 urges before this Court that the trial Court as well as the First Appellate Court have come to a wrong conclusion that the Appellants/ Defendants 2 to 4 have no right east of their wall, without considering the measurements and physical features mentioned in Ex.B.3-Partition Deed dated 04.12.1993, of the predecessors in title of the Appellants/ Defendants 2 to 4.
13.According to the Learned Counsel for the Appellants/ Defendants 2 to 4 that as per Ex.B.1-Sale Deed dated 21.05.1980 and as per Ex.B.3-Partition Deed dated 04.12.1993, the Appellants/ Defendants 2 to 4 have proved their right, title and interest in respect of the suit property east of their wall. However, the Respondent/ Plaintiff has not established his right, title and interest in respect of the suit property east of the Appellants/Defendants' wall, but these vital aspects of the matter have not been appreciated by the trial Court as well as the First Appellate Court, which has resulted in serious miscarriage of justice.
14.Lastly, it is the contention of the Learned Counsel for the Appellants/Defendants 2 to 4 that the Appellants/Defendants 2 to 4 and their predecessors in title have exercised their right of letting out the rain and drain water through the vacant land on the east of their wall for the past 75 years, which is acceptable and a probable one, based on the facts and circumstances of the case.
15.Conversely, it is the submission of the Learned Counsel for the Respondent/Plaintiff that the trial Court as well as the First Appellate Court has scrutinised and appreciated the oral and documentary evidence adduced on both sides and has come to a definite conclusion that the Appellants/Defendants 2 to 4 have no right east of their wall and has rightly decreed the suit in entirety in favour of the Respondent/Plaintiff and dismissed the Appeal (thereby confirming the Judgment and Decree of the trial Court in the suit), which requires no interference in the hands of this Court.
16.To appreciate the factual controversy between the parties, it is useful for this Court to make a reference to the evidence of witnesses P.W.1, P.W.2, D.W.1 and D.W.2, in the interest of justice.
17.It is the evidence of P.W.1 (Respondent/Plaintiff) that in the suit property, there is a house and a vacant site and on the northern side, there is a house with a terraced roof and upper portion of the northern side of the first floor house, there is a vacant land and his grandfather Sappani Gounder has purchased this land through Ex.A.1-Sale Deed dated 13.05.1910 and on the western side of his house, there is a Udayar's house, which has been purchased by Palanisamy and he has filed a Rough Plan in which he has showed his portion as 'P' and he has shown the house of Palanisamy as 'D, D1' and on the eastern side of the Palanisamy house also, there is a wall on the eastern side of Palanisamy's house and the land which is situated on the eastern side of the eastern wall belongs to him and at the time of Palanisamy's purchase, the northern side of the tiled building, southern side there is a vacant land and in the vacant land, they have constructed a building with a wall and by placing metal sheet, they are letting out the water through his house and during his absence in the village pipeline has been laid in his land by Palanisamy and there is a channel on the eastern side after the pipe and they have kept cycle and after returning to his village, he enquired about the same and has given a police complaint and later has issued an Ex.A.2- Respondent/Plaintiff's Lawyer's Notice addressed to the 1st Defendant (since deceased) for which Ex.A.3 is the Reply Notice sent by the 1st Defendant's Lawyer addressed to the Respondent/Plaintiff's Lawyer and Ex.A.4 series are the House Tax Receipts paid by him and before digging a ditch and placing the metal sheet, the water has not passed through his houses and it is not correct to state that there is a land on the southern eastern side of the Defendants wall measuring 6 feet on southern side and 3 feet on the northern side.
18.P.W.1 in his cross examination, has deposed that in Ex.A.1-Sale Deed dated 13.05.1910 the south-north measurement is furnished and the 17 feet length on east-west and south-north length mentioned as 48 are correct and his grandfather has executed a Partition Deed for his three sons and he has submitted the same and in the Partition Deed his father has got his share and his grandfather has constructed a house and he and his brother have partitioned by means of a document and on east-west 26 feet in which he and his brother has equal half share and his brother has sold to one Kandasamy, and in the document he has signed as a witness and also helped his brother in selling the property and Ex.B.4-Sale Deed dated 22.12.1983.
19.Added further, it is the evidence of P.W.1 that two years have elapsed after putting up a new construction and further, four years have elapsed after digging the pipeline and from the date of his knowledge, there is a Defendants' house and on the eastern side, there are two windows and outside the window at a length of two feet, the metal sheet has been fixed by the Defendants and the same has been placed at the time of putting the pipe.
20.It is the evidence of P.W.2 that he knows the Respondent/ Plaintiff and the Defendants and that in between the Respondent/ Plaintiff and his house, there is a road and on the western side of the house of the Respondent/Plaintiff, house of 1st Defendant is situated and before that the house of the 1st Defendant has been in possession of Udayar at the time of purchase by the 1st Defendant on the northern side, there existed a tiled house and on the south, there has been a vacant land and in the vacant land, on the southern side, house has been constructed and Udayar is his relative and the house roof, house water would pass through on the western side of the wall and it will go to the Street on northern side and after purchase of the 1st Defendant, the 1st Defendant has put up a pipe on Respondent/Plaintiff's house side and also dug up a ditch and letting out the water and on the southern side roof, metal sheet has been placed and the water is let out by bring the same through the Respondent/Plaintiff's house and before that water has not been drained out in this fashion.
21.It is the evidence of P.W.2 that in the Sale Deed-Ex.B.1 dated 21.05.1980 purchased by Palanisamy, he has signed as a witness and the recitals of Sale Deed have not been read and he knows about the property transactions and it is not correct to state that he does not know about the inclusion of Eaves Dropping Right and 5 or 6 years pipe has been fixed and at that time, the Respondent/Plaintiff has been in out station.
22.D.W.1 (the 1st Appellant/2nd Defendant), in her evidence, has deposed that her husband (the 1st Defendant) has expired and that the 3rd Defendant is her son and 4th Defendant is her daughter and her house is situated on the western side of the Respondent/Plaintiff's land and her husband has purchased their house as per Ex.B.1-Sale Deed dated 21.05.1980 and at the time of purchase on the front side, it has been a tiled construction and the back portion has been a vacant site and their house is facing north and in front of the house, there is road and that the roof water has been drained on the eastern side of their tiled house and prior to their purchase, the eaves water will be drained like that and that even the drainage water will pass through the open ditch on the eastern side of the house and after their purchase, they have put up a pipe and has been draining the water and also the rain water is passing through the channel separately.
23.The evidence of D.W.1 is also to the effect that on the northern side of the house on east-west side, the measurement is 22 feet without boundary and the eaves dropping right is 1 = feet and on the southern side portion 21 feet and the eaves dropping right is 1 = feet on the eastern and western side, south-north, the measurement is 72 feet and on the eastern side of the wall on the northern side at a measurement of 3 feet and on the southern side at a measurement of approximately at 6 feet a wall has been constructed and that old cycle, wall maintenance has been done and the rain water, drainage water are not drained in Respondent/Plaintiff's land and Ex.B.2 is the Patta in the name of her husband's house and it is not correct to state that the eastern side wall is the eastern side boundary and on the eastern side of the wall by placing the metal sheet water has been drained by them and in one place alone, the water has been drained out ancestrally.
24.D.W.1, in her evidence, has also deposed that before the Commissioner they have shown all the documents and at the time of purchase of the building adjacent to the wall on the eastern side there has been a ditch and in the said ditch pipeline has been laid by them after their purchase of the house and in the document, it is not written that the rain water has passed through and in the document what is the measurement of 'Eaves Dropping Right' has not been made mention of and on the southern side of the vacant land even in the year 1980 they have constructed a building on the roof of the building is slanting on the northern side and further that in Ex.B.3-Partition Deed dated 04.12.1993 it is not written that on the eastern side of the portion right has been given for draining the water.
25.D.W.2, in his evidence, has deposed that after purchase made by the 1st Defendant (Palanisamy), water has been drained through pipe and the rain water is passing through on the upper side and to the east of wall of 3 feet on the northern side and 5 feet on the southern side and at the time, when the 1st Defendant (Palanisamy) has purchased the property on the south of the house there existed only one ditch and afterwards, the 1st Defendant has dug a ditch and laid the pipe and on the southern side, 5 feet ground water is passing through the pipe and he has not seen the ancestral documents and in that place, the 1st Defendant is placing the articles and the 5 feet terrace on the western side of the house on the upper portion has been closed and the Respondent/Plaintiff's house water is separately passing through and he does know that water has been let out through eastern side of his house.
26.It is to be borne in mind that the 'Possession of open sites' goes naturally with the possession for the property to which they adjoin as per decision in Mohamed Saheb V. Tilokchand, AIR 1922 Bom 243.
27.It cannot be gainsaid that an owner of a house is presumed to be the owner of the open space in front of it as per decision Parmar Gogji V. Parmar Ganesh, AIR 1968 Gujrat 287. The extent of prescriptive right to water is determined by the accustomed user of the right as per decision Venkanna V. Ramakrishna Ranga Rao, AIR 1931 PC 427.
28.At this juncture, this Court aptly recalls the decision in State of Indore V. Visheshwar Bhattacharya and another, AIR 1934 Allahabad 1054 wherein it is held as follows:
"As the owner of the soil is the owner of the space above it and as there can be no ownership without property, it follows that the space above the land is property. It is immovable property. Hence a person gets good his title by being in adverse possession for over 12 years: 29 Mad 511, Rel. On; 1922 Bom 83; 1932 Bom 224; 37 Bom 491 and 1914 Bom 243, Ref."
29.This Court aptly cites the following decisions:
(a)In Dahyabhai Vanmalidas Shah V. Hiralal Umedram Shah, AIR 1936 Bombay 3, it is laid down as follows:
"If a projection be an integral part of the building to which it is attached so that its removal will injure the building, a title is obtained by adverse possession of twelve years to the column of air below it; in other words, the owner of the land over which it projects has no right to remove it. If, on the other hand, the projection is not an integral part of the building, but is intended for the preservation or safety of the building, e.g., 'pankh' or roof then the person who has made it can obtain an easement only."
(b)In Bala bin Keshavbava and another V. Maharu Valad Nagu Patil and others, 20 Bom. 788, it is held hereunder:
"A right to have water carried away over the adjoining land does not give its owner any power to prevent the erection of buildings on the adjoining ground so long as the arrangements necessary to the preservation of his right are made.
An easement of light to a window only gives a right to have buildings that obstruct it removed so as to allow the access of sufficient light to the window."
(c)In Varrey Tulasamma V. Nandula Buchiramaiah, AIR (36) 1949 Madras 826 at page 827, in paragraph 4 and 5, it is held as follows:
"4.On appeal by the plaintiff, the learned Subordinate Judge reversed the decision of the District Munsif and granted a mandatory injunction directing the removal of the eaves but refused to grant a permanent injunction asked for by the plaintiff. The decision of the learned Judge was based upon a distinction drawn by the Bombay High Court in Dehyabhai V. Hiralal, A.I.R. (23) 1936 Bom. 3: (160 I.C. 62) between the view of this Court and the view obtaining in that Court that in such cases the right could be acquired only by prescriptive easement and not ownership by adverse possession. The decision in Ratnavelu Mudaliar V. Kolandavelu Pillai, 29 Mad. 511: (16 M.L.J. 281) is a decision of a Bench of this Court and it was the plain duty of the Subordinate Judge to have followed the decision of this Court in preference to the decisions of other Courts. There is absolutely no justification for the learned Judge to have disobeyed the rule laid down for the guidance of the Subordinate Courts that they are bound by decisions of this Court. Applying the principle of the decision in Ratnavelu Mudaliar V. Kolandavelu Pillai, 29 Mad. 511: (16 M.L.J. 281), which has been followed in this Court ever since, the only conclusion that is possible in the present case is that the defendant had acquired a right to project the eaves by possession for a period of more than 12 years and that the plaintiff is not entitled to the mandatory injunction.
5.As regards the permanent injunction asked for, the trial Court refused to grant it to the plaintiff even though the defendant was not able to prove user for a period of 20 years and this view of the District Munsif was upheld even by the learned Subordinate Judge. I see no reason to interfere with the discretion exercised by the Courts below in refusing to grant the permanent injunction. The right was exercised by the defendant for over 16 years till the date of suit and nearly four years have elapsed since the institution of the suit. I do not think that in the circumstances this is a fit case in which the defendant should be restrained by the grant of a permanent injunction."
(d)In Mt. Jaraoo V. Sri Nath Byas, AIR (36) 1949 Allahabad 308, it is held thus:
"Point of acquisition of title by adverse possession not taken in lower Courts cannot be taken for the first time in second appeal.
The case of the plaintiff in lower Courts was confined to the question whether a certain construction had stood in the place for more than 20 years so as to have given birth to a right of easement in favour of the plaintiff. The Courts came to the finding that no such period of more than 20 years had been established. Alternative claim of acquisition of title by adverse possession by reason of the construction having stood in its site for more than 12 years was neither raised before nor touched by the lower Courts:
Held that the alternative claim could not be allowed in second appeal: A.I.R. (21) 1934 All. 1054 and 29 Mad. 511, Disting."
30.The Advocate Commissioner, in his Ex.C.1-Report, has stated that in Ex.C.2-Plan, he has marked the portion of the Respondent/ Plaintiff as 'P' and as described portion of the Appellants/Defendants as 'D' and 'X' is the portion shown as the drainage water tank which goes through the house of Appellants/Defendants after getting stagnated and under the ground pipes have been laid and the said pipe is shown in yellow colour and in the Street, panchayat drainage is joining and from the tank till panchayat drainage portion, it is closed with cement and over and above that old cycles are stationed there. Further, the Commissioner in Ex.C.1-Report has also stated that the rain water passing portion is mentioned in green colour in the Plan and two sides of the passage has been constructed with stones measuring the breadth of approximately half a feet and they have been connected with the panchayat ditch through the pipes laid and in the lane shown in the Plan, the Defendants' wall has been shown in improper and in an old fashion and that adjoining the 'X' tanks there has been a tiled house and on the eastern side of south-north wall of the Respondent/ Plaintiff's property inverted stones have been put up.
31.Ex.A.1 is the Sale Deed dated 13.05.1910 executed by one Ammaiyappa Gounder to and in favour of the Respondent/Plaintiff. In respect of the thatched house mentioned in the schedule of the document wherein it is mentioned as 'inclusive of right of pathway etc'. In Ex.A.2-Respondent/Plaintiff's Lawyer's Notice addressed the 1st Defendant (since deceased), it is, among other things, mentioned that the 1st Defendant ignoring the objections raised by the Respondent/ Plaintiff 1 year ago has constructed a tank in the vacant land belonging to the Respondent/Plaintiff and also has drained the drainage water from the said tank, by constructing a ditch and bringing the said water through the Raja Street situated on the northern side and further in the Respondent/Plaintiff's land, the 1st Defendant has no right to construct a tank and the ditch and also to let out the drainage water and as such, the 1st Defendant has indulged in unlawful acts of trespass and moreover, the roof water of the newly constructed tiled house of the 1st Defendant, in two place the 1st Defendant has placed the metal sheet and causing damage to the vacant land of the Respondent/Plaintiff house and also to the wall of his house.
32.A reading of Ex.A.3-Reply Notice dated 02.10.1990 issued by the 1st Defendant's Lawyer addressed to the Respondent/Plaintiff's Lawyer, it is mentioned that the 1st Defendant has purchased the southern side of the house at Raja Street and the vacant sites by means of Sale Deed dated 21.05.1980 from late Velayutha Udayar's wife Chellammal and has been in enjoyment and as per Partition Deed of Velayutha Udayar, in the year 1943 the entire properties enjoyed by him, has been purchased by the 1st Defendant and the vacant land situated on the eastern side wall of the 1st Defendant house belongs to him etc.
33.Indeed, this Court quotes the under mentioned decisions to prevent an aberration of justice and to promote substantial cause of justice:
(a)In Margaret Ammal V. Susai Mari, 1996-2-L.W. 27, this Court has held as follows:
"As laid down in 1969-I-MLJ 435 where plaintiff can have access provided in his own property by making necessary alterations, there cannot be an easement of necessity over a property belonging to another. Even though that is a right of way, the same principle applied, for here also, plaintiff seeks only easement of necessity for free flow of water. From the Commissioner's Report, it is clear that the plaintiff wants to drain any water that she makes use of through the ditch provided by the Corporation. Plaintiff has no case that the same cannot be used. In fact, connection has been provided by the Corporation and water could be taken through the drainage. Necessary outlet has only to be provided by the plaintiff for the said purpose. If by necessary adjustment in plaintiff's house, water could be taken through Corporation ditch, the necessity also will cause.
At the time when Ex.A-3 was executed, that was necessary, for, at that time, there was no drainage system available. On that date, such a provision was absolutely necessary for the proper enjoyment of the plaintiff's predecessor's property. In view of the documentary evidence in this case, it has to be held that originally there was an absolute necessity to provide for the free flow of drain and rain water through the 'dhoni' situate on the eastern side of the passage of the defendant's building. But, how far that right remained on the date of suit is a matter to be decided,and whether the obstruction caused by the defendant is liable to be removed, or whether the plaintiff has got a cause of action on the date of suit.
Even though there was easement of necessity earlier, that ceased to exist in view of the alternative drainage arrangements available to the plaintiff."
(b)In Saraswathi and another V. S.Ganapathy and another, (2001) 3 M.L.J. 13 (S.C.) at page 14, it is held as follows:
"On the appellant's property abetting the 1st respondent's property, there is a small triangular room. Water from the roof of that room used to flow into the open ground in Survey No.7/229. Earlier, the 2nd respondent was the owner of both Survey No.7/232 as well as Survey No.7/229. Therefore, water from the roof of a room in his possession and ownership used to flow into open space belonging to him. In such a case there was no question of any easementary rights. The 1st respondent then sold Survey No.7/232 to the appellants on 27.2.1973 and Survey No.7/229 to the 1st respondent on 30.04.1973. The sale to both the parties is within a period of 2 months. No easementary rights could have been acquired by the appellants within this period of two months. As the 1st respondent had purchased the property he was entitled to construct on his own property.
No person can have a right to have water from his property flow onto the land of his neighbor. No such easementary right can be claimed in law. All that the appellants can claim is to see that water from the roof of his house is allowed to flow, on to his own land.
So far as the question of light and air is concerned, it cannot be denied that the concerned traingular room is only a small lumber room. If that be so, then there is no question of blockage of light and air."
(c)In Jabamani V. K.Mani Chettiar, (2002) 2 M.L.J. 743, at page 744, it is held as follows:
"Easement is a right enjoyed by the owner of a land for the beneficial enjoyment of which he exercised that right upon another person's land. To acquire the easement of access such a right should have been enjoyed without interruption for 20 years. The plaintiff has therefore to prove such uninterrupted use for 20 years.
To acquire easement by prescription, the user during the statutory period should have been with the animus of enjoying the easement as such in the land of another, and there must be consciousness and acceptance that the title in the land vests with the other and the plaintiff cannot assert title in the land in himself that would militate against the very acquisition thereof."
34.In the present case, the Partition Deed of Velayutha Udayar viz., Ex.B.3 dated 04.12.1993 plays an important role, in the considered opinion of this Court. At this stage, this Court pertinently points out that in Ex.B.3-Partition Deed dated 04.12.1993 between Periyannan Udayar's sons Velayutha Udayar and Solaimuthu Udayar in 'A' schedule property, there is no reference about the 'Eaves water dropping right in a Land'. However, in Ex.B.1-Sale Deed dated 21.05.1980 in favour of the 1st Defendant executed by the Velayutha Udayar's wife Chellammal and his son Periyannan in the schedule of the property, there is a reference to the 'Eaves dropping right in a Land'. Even in D.W.1 (1st Appellant/2nd Defendant - wife of deceased 1st Defendant), in her evidence, has stated that in Ex.B.1-Sale Deed dated 21.05.1980 there is no mention about the extent/measurement of eaves dropping and also in the document, it is not mentioned about the passed flow of rain water.
35.In the present case before us, the deceased 1st Defendant has purchased the property through Ex.B.1-Sale Deed dated 21.05.1980. However, the Respondent/Plaintiff has filed the suit O.S.No.897 of 1990 on the file of the Learned Principal District Munsif, Namakkal on 26.11.1990. Moreover, the Respondent/Plaintiff has purchased the suit property as per Ex.A.1-Sale Deed as early as on 13.05.1910.
36.As a matter of fact, in Ex.B.3-Partition Deed in the 'A' schedule property detail, it is mentioned that on the western side of the boundary in northern half 36 feet there is a full right of the wall and upto the Street to raise wall and on the northern side of the wall in entirety, on the western side of the boundary, this party has a right to construct a terrace and another terrace building in 36 feet of wall to his independent liking etc.
37.Inasmuch as in Ex.B.3-Partition Deed dated 04.12.1993, there is no recital to the inclusiveness of Eaves Dropping Right Land, then, this Court is of the considered opinion that the deceased 1st Defendant's wife viz., the 1st Appellant/2nd Defendant cannot be conferred with the right of 'Eaves Dropping' (notwithstanding the fact that in Ex.B.1-Sale Deed of the 1st Defendant dated 21.05.1980 there is a mention of inclusiveness of eaves dropping right in a land).
38.It cannot be gainsaid that D.W.1 (1st Appellant/2nd Defendant) in her evidence, has deposed that the roof of the house purchased by them is situated on the south and north side and initially they have drained the drainage water inside their house. Indeed, the 1st Defendant and the 2nd Defendant in the Written Statement/Additional Written Statement have not spelt out about the extent of vacant land they possess situated on east of their wall on the eastern side of the portion.
39.As far as the present case is concerned, the Appellants/ Defendants 2 to 4 have not proved to the subjective satisfaction of this Court that they possess a vacant land on east of their wall on the eastern side of the portion and moreover, the 1st Appellant (2nd Defendant), in her evidence as D.W.1, has clearly deposed before the trial Court that the roof of the property purchased by them through Sale Deed is situated on south-north side and originally they have drained the drainage water inside their house and all these cumulatively would go to show that on the eastern side of Defendants wall, neither the Defendants nor their ancestors at any point of time possessed any land or in enjoyment of the same and that the Appellants/Defendants 2 to 4 have no right to construct a ditch and to let out the roof rain water in 'D1' portion by placing the metal sheet for the purpose of letting out the water in the land of the Respondent/ Plaintiff and as such, the Respondent/Plaintiff is entitled to the relief of Declaration, Permanent Injunction and Mandatory Injunction as prayed for by him in the Plaint, in the considered opinion of this Court.
40.In fact, as per Order XIV of Civil Procedure Code, a Court of Law is to frame necessary issues on the basis of pleadings [arising out of material facts and questions of law] projected by the parties. In the present case, the trial Court has omitted to answer the Additional Issue No.1 framed on 24.08.1994 'whether the age of minor Mageshwari is 16 years as alleged by the Plaintiff in the suit is correct?' and the said omission is not fatal, affecting the merits of the case. Viewed in that perspective, the Judgment and Decree of the trial Court as well as the First Appellate Court in Appeal are not to be interfered with because this Court does not find any material irregularity and patent illegality. Accordingly, the Substantial Questions of Law 1 & 2 are answered against the Appellants/Defendants and resultantly, the Second Appeal fails.
41.In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. The Judgment and Decree of the First Appellate Court dated 28.01.1997 in A.S.No.186 of 1994 as well as the Judgment and Decree of the trial Court dated 31.10.1994 in O.S.No.897 of 1990 are affirmed by this Court for the reasons assigned in this Appeal.
12.01.2012 Index : Yes Internet : Yes sgl To
1.The Subordinate Judge, Namakkal.
2.The Principal District Munsif, Namakkal.
M.VENUGOPAL, J.
Sgl JUDGMENT IN S.A.No.1025 of 1997 12.01.2012