Madras High Court
Alageerappa vs Veerabadrasamy
Author: P.T. Asha
Bench: P.T. Asha
S.A.No.567 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
27.04.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.567 of 2008
Alageerappa
...Appellant
Vs
1. Veerabadrasamy
2. Jadagappa
...Respondents
PRAYER: Second Appeal filed under section 100 of the Civil Procedure
Code against the judgement and decree of the learned Principal Sub-
ordinate Judge, Gobichettipalayam, dated 8.10.2007 in A.S.No.43 of
2006 reversing the Judgment and decree of the Learned District Munsif
Court, Gobichettipalayam dated 28.09.2006 in O.S.No.21 of 2001.
For Appellant : Mr. R.T. Doraisamy
For Respondents : Mr. M .Roshan Atiq for R1
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S.A.No.567 of 2008
JUDGEMENT
The plaintiff is before this Court challenging the judgment and decree dated 8.10.2007 in A.S.No.43 of 2006 in and by the which the learned Principal Subordinate Judge, Gobichettipalayam had reversed the judgment and decree dated 28.9.2006 in O.S. No. 21 of 2001 passed by the learned District Munsif, Gobichettipalayam.
2. The parties are referred to in the same array as in the suit.
3. The plaintiff had filed O.S.No.21 of 2001 on the file of the learned District Munsif, Gobichettipalayam, seeking for a bare injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit pathway and subsequently the suit was amended to include the relief of mandatory injunction as the defendants had put up a fence, blocking the access of the plaintiff.
4. The case of the plaintiff was that under a sale deed dated 7.04.1974 he had purchased the suit schedule property along with right of way 2/13 http://www.judis.nic.in S.A.No.567 of 2008 attached to the property. The defendants, who had property adjacent to the properties of the plaintiff, had started interfering with the plaintiff's right of way which was being enjoyed from time immemorial by himself and his predecessor in title. On 29.01.2001, the first and second defendants had joined together and were putting up a stone barbed-wire fence. Since his access would be cut off, if the said fence is put up, the plaintiff had objected and requested the defendants not to put up the same. However, the request was turned down and further the Panchayat talk also failed. Therefore, the plaintiff was left with no other alternative, except to approach the Court.
5. The second defendant had filed written statement inter alia denying the title of the plaintiff's vendors to the suit property. They had also denied the fact that the plaintiff and his predecessor in title have been using the east-west pathway for taking men, materials and vehicles to carry manure and harvested crops from their lands to the main road on the eastern side and that this right of way has been granted in the sale deed dated 7.4.1974, executed in favour of the plaintiff. The defendants would categorically state that there was no such pathway in existence and the plaintiff did not have 3/13 http://www.judis.nic.in S.A.No.567 of 2008 the pathway right. They would further contend that the plaintiff has not given any detail about the pathway with its description in the suit schedule and has not even filed a plaint plan to identify the pathway.
6. He would submit that prior to the filing of the written statement, he had taken out an application for appointing an Advocate Commissioner and the Advocate Commissioner had visited the property and clearly stated that there was no cart track through the defendants' lands to reach plaintiff's land.
7. The Advocate Commissioner had submitted his reports dated 08.03.2001 and 08.06.2001. In the comprehensive report dated 08.06.2001, a plan was attached. At the southern end of the first defendant's property, there are two pathways running east-west till the eastern boundary of the second defendant's property. These pathways have been coloured blue in the Commissioner's plan, which has been marked as Ex.C.2. The Commissioner would note that these blue colour pathways were on a higher level than the lands situate to the north of the pathway, meaning thereby the property of the first and second defendants. The Commissioner has also 4/13 http://www.judis.nic.in S.A.No.567 of 2008 noted a cart track running from the western end through the plaintiff's property, then through the properties of third parties and thereafter through the property of the second defendant and finally reaching the road. The cart-track has been coloured in green in Ex.C.2 plan dated 08.06.2001, which is filed subsequent to the objections raised by the plaintiff.
8. The defendants would contend that the plaintiff had alternative cart track running through his lands from the west. The allegation that the defendants had encroached and clandestinely put up the fence was stoutly denied. The defendants would therefore seek for the dismissal of the suit.
9. Before the Trail Court, the plaintiff had examined himself as P.W.1 apart from examining Veerathappa and Basuvanna as P.W.2 and P.W.3 respectively. The second-defendant has examined himself as D.W.1 and one Sivappa as D.W.2. On the plaintiff's side Exs.A1 to A6 were marked, while the defendants had marked Exs. B1 to B4. The Advocate Commissioner's report and plan were marked as Exs.C1 and C2.
10. The learned District Munsif by judgment dated 28.09.2006 has 5/13 http://www.judis.nic.in S.A.No.567 of 2008 dismissed the suit.
The Trial Judge had framed the following issues:
1. Whether the plaintiff is entitled to the relief of bare injunction?
2. Whether the plaintiff was entitled to the relief of mandatory injunction?
3. To what reliefs the plaintiff is entitled to?
11. The learned District Munsif, taking note of the report of the Commissioner that the stone barbed wire fencing had been newly put up, as a result of which the plaintiff's access to the road on the east had been cut off, decreed the suit as prayed for. Aggrieved by the said judgment and decree, A.S.No. 43 of 2006 was filed by the second defendant.
12. The Appellate Court reversed the said judgment on the ground that there was no easement by necessity as the plaintiff had an alternative pathway running from the west to northwards. The Appellate Court observed that the plaintiff has not filed any document to show that he was 6/13 http://www.judis.nic.in S.A.No.567 of 2008 entitled to the right of pathway through the defendants' property to his property and therefore allowed the appeal, setting aside the judgment and decree of the Trial Court.
13. Challenging the said judgment and decree, the appellant has filed the above Second Appeal.
14. The following substantial questions of law were raised by orders of this Court dated 13.08.2010.
1. Whether the second defendant is entitled to question the validity of the amendment order dated 17.12.2002 made in I.A.No.559 of 2001 before the appellate court, without challenging the order in the appropriate time?
2. Whether the lower appellate court is correct in holding that the plaintiff is not entitled for injunction and mandatory injunction without considering the commissioner's report that there is a pathway in existence on the southern side of 7/13 http://www.judis.nic.in S.A.No.567 of 2008 survey numbers, 671/5, 4, 3 and 2?
3) Whether the lower appellate Court is correct in dismissing the suit without considering the fact that in Exhibit A.1 and Exhibit A.4 the pathway right is clearly mentioned and the same was not denied by the second defendant?
15. The counsels have made their submissions.
16. Mr. R.T. Doraisamy, the learned counsel for the appellant would submit that Ex.A1 Sale deed talks about the pathway and this, coupled with the Commissioner's report, shows the existence of a pathway in the south and the newly constructed fence would go a long way to prove the plaintiff's case. He would submit that the appellate court was not correct in reversing the judgment and decree of the Trial Court.
17. Per contra, Mr. M. Roshan Atiq, learned counsel appearing for the first respondent would submit that the plaintiff is not in a position to show where the pathway was situated. Even Ex.A1 does not describe the pathway. 8/13 http://www.judis.nic.in S.A.No.567 of 2008 Therefore, he would contend that this factor has been taken note of by the appellate Court and no exception can be taken to the same. He would submit that the appellant seeks to have his right established on the ground of easement by necessity as well as by express grant namely the sale deed dated 7.4.1974. However, the same has not been established. The plaintiff has to succeed on the strength of an existing right and without proving the same, the plaintiff cannot seek to have a non-existent right established now.
18. Heard the counsel and perused the papers.
19. The suit schedule property is described as follows:
"jw;nghJ nfhgpbrl;oghsak; hp& jhstho rg;hp&/ jhstho gQ;rhaj;J a{dpad; vy;iyf;Fl;gl;l jhstho fpuhkk;
giHa f/r/25 g[/v/8/55 ,jpy; nkw;F
g[/V/2/14 up/rh;nt go f/r/671/2 g[/bcwf;
0/94/0 ,jw;F brf;nge;jp (fpHf;F)
briddQ;rg;gh g{o (nkw;F) g[l;lk;khs;
g{kp (bjw;F) khija;ad; g{kp (tlf;F)
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S.A.No.567 of 2008
g[l;L khjk;khs; g{kp i& g{kpf;F f/r/25
bek;gh; fhiy i& g{kpf;F bghJtha;
elkhLk; ghj;jpaq;fs; rfpjk;. "
20. From a perusal of the above schedule of property, the same does not give any clarity as to whether there is a pathway in the property and if so where the same is situated. The suit schedule is nothing but an extract of the schedule given in Ex.A1 sale deed, under which the plaintiff has purchased the property. Therefore, the plaintiff is not able to establish the first ground namely the existence of the pathway. A reading of Ex.A1 would show that the plaintiff's vendor had got it under a settlement deed dated 28.05.1939. However, that settlement deed has not been produced. The Commissioner's report would show that there is a cart track running from the western side through the plaintiff's property. At the north end, it proceeds further northwards. Therefore, the plaintiff cannot plead easement by necessity as there is a well defined cart track available within the plaintiff's property itself.
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21. As regards the plea of easement of grant, the plaintiff would be entitled to all, that has been sold to him. The sale deed does not describe the pathway in the suit property. In fact, in the suit property it is only stated that the plaintiff would be entitled to the common pathway rights in the lands without defining the location of the pathway or the pathway. There is a pathway on the southern side of the plaintiff's lands which is evident from the reading of the Commissioner's report. Without the plaintiff identifying the location of the pathway through documentary evidence, he cannot seek to have his right established on the basis of a Commissioner's report. Even in the plaint pleadings, the plaintiff has not described the pathway and its usage.
22. In the above circumstances, the questions of law are answered against the plaintiff and the Second appeal stands dismissed. No costs.
27.04.2021 mrn Index : Yes/No Speaking order/non-speaking order 11/13 http://www.judis.nic.in S.A.No.567 of 2008 To,
1. The Principal Sub-ordinate Judge, Gobichettipalayam,
2. The District Munsif Court, Gobichettipalayam 12/13 http://www.judis.nic.in S.A.No.567 of 2008 P.T.ASHA, J., mrn S.A.No.567 of 2008 27.04.2021 13/13 http://www.judis.nic.in