Madras High Court
S.Palanisamy (Deceased) vs S.Kaliappan on 13 June, 2018
Author: T.Ravindran
Bench: T.Ravindran
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 08.06.2018 PRONOUNCED ON : 13.06.2018 CORAM THE HONOURABLE MR.JUSTICE T.RAVINDRAN S.A.No.1514 of 2004 1. S.Palanisamy (Deceased) 2. Deivasigamani 3. Ganaprakash ... Appellants (Appellants 2 & 3 brought on record as LRs of the deceased sole appellant vide. Order of Court dated 12.04.2018 made in CMP.Nos.19929 to 19931/2016 in S.A.No.1514 of 2004) Vs. S.Kaliappan ... Respondent Prayer :- Second Appeal has been filed under Section 100 of CPC against the Judgement and Decree dated 17.10.2003 passed in A.S.No.37 of 2003 on the file of the Subordinate Court, Dharapuram, reversing the Judgment and Decree dated 19.06.2003 passed in O.S.No.358 of 2001 on the file of the District Munsiff Court, Dharapuram. For Appellants : Mr.S.Saravanan For Respondent : Mr.R.Asokan JUDGMENT
Challenge in this second appeal is made to the Judgement and Decree dated 17.10.2003 passed in A.S.No.37 of 2003 on the file of the Subordinate Court, Dharapuram, reversing the Judgment and Decree dated 19.06.2003 passed in O.S.No.358 of 2001 on the file of the District Munsiff Court, Dharapuram.
2. Parties are referred to as per their rankings in the trial Court.
3. Suit for Declaration and Permanent Injunction.
4. The case of the plaintiff, in brief, is that the suit properties belonged to the plaintiff, the defendant and their father Sadaiyappa Gounder in common and by way of a partition deed dated 22.11.1996, the abovesaid parties divided the suit properties as well as the other properties and accordingly, the land situated measuring an extent of 1.73 = cents in survey No.606 on the western side as well as the common half share in the Well and the surrounding land measuring an extent of 0.15 cents was allotted to the plaintiff and similarly, the defendant was allotted the extent measuring 1.73 = cents of land in survey No.606 on the eastern side as well as the common share in the Well and the land of 0.15 cents and accordingly, the plaintiff is entitled to the Well and the service connection fitted in the Well in equal share and in the partition, the suit pathway has been allotted in common measuring 9 feet width and 45 feet length for enabling the plaintiff to have access from his property to the Well, in which, the plaintiff is entitled to half share and the same is described as the first item and other than the suit pathway, there is no other pathway to the plaintiff for enabling him to have access the common Well and similarly, the plaintiff is also entitled to use the CD channel shown in the plaint plan for taking water from the suit Well to his other lands and the CD channel is shown as the second item in the plaint schedule and accordingly, the plaintiff has been in enjoyment of the suit pathway and the suit channel for more than 50 years and the defendant is not entitled to interfere with the usage and enjoyment of the abovesaid items of the properties by the plaintiff in any manner. While so, on account of the enmity, the defendant, with the help of his men, attempted to interfere with the plaintiff's enjoyment of the suit pathway and the suit channel unlawfully and hence, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs.
5. The case of the defendant, in brief, is that the suit laid by the plaintiff is not maintainable either in law or on facts. As alleged in the plaint, there is no pathway as described in the first item of the plaint schedule and to the north of the shares allotted to the plaintiff and the defendant, the east-west itteri is running and the same is the access for the plaintiff to the common Well and the abovesaid east-west itteri running on the northern side branches towards south up to the common Well portion and hence, there is no suit pathway described as AB in the plaint plan and the plaintiff is not entitled to claim any relief in respect of the alleged AB pathway and in the partition deed, there is a reference of only the mamool pathway and not the suit pathway as putforth by the plaintiff and the suit pathway has not been in existence and never been in the enjoyment of the plaintiff as claimed in the plaint and the suit channel is in existence and is enjoyed by the plaintiff and the defendant in common and as regards the suit channel, the defendant has not putforth any resistance and the averments contrary to the same in the plaint are all false and denied and inasmuch as there is no suit pathway as alleged in the plaint and the plaintiff is not entitled to seek the reliefs as regards the alleged pathway and hence, the suit is liable to be dismissed.
6. In support of the plaintiff's case, PW1 has been examined and Exs.A1 to A5 were marked. On the side of the defendant, DW1 was examined and Exs.B1 has been marked. Exs.C1 and C2 has also been marked.
7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial Court was pleased to decree the suit as prayed for. On appeal, the first appellate Court, on an appreciation of the materials placed on record, was pleased to set aside the judgment and decree of the trial Court as regards the suit pathway and to that extent, dismissed the plaintiff's suit and in other aspects, particularly, the CD Channel, the first appellate Court has concurred with the judgment and decree of the trial Court and accordingly, disposed of the first appeal. Impugning the same, the present second appeal has been preferred.
8. At the time of admission of the second appeal, the following substantial question of law was formulated for consideration:
Whether the Lower Appellate Court is correct in law in rejecting the case of the appellant on the ground that the appellant has not claimed the pathway right on the basis of easement by necessity when the right to use the suit pathway is by way of easements by grant as provided in Ex.P1?
9. It is not in dispute that the plaintiff and the defendant divided the properties comprised in survey No.606 as well as the other properties by way of a partition deed dated 22.11.1996 marked as Ex.A1 and from the same, it is seen that the plaintiff has been allotted the western 1.73 = cents in survey No.606 and the defendant had been allotted the eastern 1.73 = cents in the abovesaid survey number and it is further seen that both the plaintiff and the defendant had been allotted common share in the Well as well as the land surrounding the same measuring an extent of 0.15 cents and thus, it is found that both the plaintiff and the defendant are entitled to use the common Well for drawing water for the purpose of irrigating their respective lands allotted to them in the partition.
10. As regards the CD Channel, it is found that both the Courts have accepted the plaintiff's case and accordingly, granted the reliefs as prayed for in respect of the abovesaid claim. This second appeal is not concerned about the CD Channel.
11. According to the plaintiff, for having access to the common Well from his lands, the suit pathway marked as AB in the plaint plain has been earmarked in the partition deed marked as Ex.A1 and it is his further case that all along, since the date of partition, he has been using the abovesaid pathway to have access to the common Well and further according to the plaintiff, the existence of the suit pathway has been referred to in Ex.A1 partition deed and hence, according to the plaintiff, the defendant is not entitled to interfere with the plaintiff's right and enjoyment of the suit pathway and on the other hand, as the defendant denied the existence of the suit pathway as well as the entitlement of the plaintiff to use the same, it is stated that the plaintiff has been necessitated to lay the suit for appropriate reliefs as regards the same.
12. Per contra, it is the case of the defendant that the pathway, as claimed in the plaint, is not in existence at any point of time and the mamool pathway referred to Ex.A1 partition deed does not relate to the suit pathway and it relates to the east-west itteri running on the northern side of survey No.606 and it is only through the abovesaid east- west itteri, the plaintiff is having access to the common Well and further according to the defendant, the east-west itteri branches towards the south up to the Common well and therefore, it is contended that the plaintiff cannot seek any pathway as such in the share allotted to the defendant and hence, the plaintiff's suit as regards the pathway is to be rejected.
13. Now, according to the plaintiff, the suit pathway measuring 9 feet width and 45 feet length and it runs through the defendant's land for his access to the Common Well. On a perusal of Ex.A1 partition deed, there is no reference about the pathway left in common measuring 9 feet widh and 45 feet length to the shares as such. No doubt, there is reference about the mamool pathway in the partition deed. Now according to the defendant, the east-west itteri is running on the northern side of survey No.606 and the same is only the mamool pathway for the parties to have access to the common Well as well as the other lands and therefore, the plaintiff cannot take advantage of the reference of the mamool pathway in the partition deed as denoting the suit pathway, which is not at all in existence and hence, according to the defendant, the plaintiff's suit has been rightly disbelieved by the first appellate Court.
14. On a reading of the Commissioner's report and plan, it is found that admittedly the east-west itteri is running on the northern side of survey No.606 and it is further seen that the same branches towards the south up to the common Well. Even the plaintiff has not denied the existence of the east-west itteri. However, according to the plaintiff, the abovesaid itteri is intended only for the usage of the lands situated to the north of the itteri in survey Nos.603, 604 and 605 and not intended to be used as the common pathway for survey No.606 and hence, according to the plaintiff, the first appellate Court has erred in upholding the defence version as the east-west itteri connoting the mamool pathway as reflected in the partition deed marked as Ex.A1. In this connection, the plaintiff's counsel placed reliance upon Exs.A3 to A5. However, as rightly assessed and determined by the first appellate Court, a reading of Exs.A3 to A5 does not denote the east-west itteri is intended only as the exclusive pathway for the purpose of the Survey Nos. 603, 604 and 605 and not to the suit survey No.606. That apart, when admittedly the east-west itteri branches towards the south up to the common Well and accordingly, it is found that inasmuch as the same had been recognised as the mamool pathway by the parties from the inception, it is only the east-west itteri, which had been referred to as the mamool pathway in the partition deed. That apart, as found by the first appellate Court, the parties had been taking water from the common Well situated in survey No.606 through the common itteri by laying underneath pipelines to their respective lands on the northern side of the itteri and this would only go to show that the east-west itteri is intended to have access or be the pathway for survey No.606 as well as for the other survey numbers on the northern side and in such view of the matter, the case of the plaintiff that the east-west itteri is intended only for the exclusive enjoyment of the the survey number located on the northern side of the itteri as such cannot be countenanced.
15. As above seen, a reading of the recitals found in Exs.A1, A3 and A5 in conjunction with the other available evidence would go to show that the east -west itteri is the mamool pathway for the access to all the survey numbers situated adjacent thereto and accordingly, it is found that such being the position, and further when the said itteri also branches towards the south up to the common Well and accordingly, it is seen that the plaintiff cannot be allowed to take advantage of the reference to the mamool pathway in the partition deed as referring only to the suit pathway lying in the defendant's land. Further, as seen from the features available in the defendant's land in survey No.606 as reflected in the commissioner's report and plan, it is found that there is no mark of the existence of any pathway as such in the defendant's land as projected by the plaintiff and in such view of the matter, when it is found that the defendant has put his entire land under cultivation, the case of the plaintiff that a portion of the defendant's land is intended for the common pathway for his access to the common Well as such cannot be accepted in any manner. Thus, it is found that the first appellate Court has rightly analysed the materials placed on record in the proper perspective and found that the mamool pathway referred to in Ex.A1 pertains only the east-west itteri running on the northern side of survey No.606 and the same is the only pathway for enabling the plaintiff to have access to the common Well and not the alleged suit pathway.
16. When the parties have divided the properties belonging to them in detail under Ex.A1 partition deed and accordingly, when it is found that in Ex.A1 partition deed, there is clear reference about the CD channel as belonging to the parties in common, if really the common pathway had been earmarked for the usage of the parties to have access to the common Well in the defendant's share, a specific reference about the same would have been included in the partition deed as in the case of the CD channel. However, other than a reference to the mamool pathway, there is no mention about any pathway as such in the defendant's share measuring an extent of 9 feet width and 45 feet length and thus, it is seen that the case of the plaintiff that the common pathway had been earmarked in the defendant's share for access to the common Well as such cannot be accepted in any manner.
17. In the light of the above position, it is found that the plaintiff is not entitled to seek any right in respect of the alleged suit pathway as claimed in the plaint and further, as rightly determined by the first appellate Court, if really any pathway had been in existence or available and been in the usage of the parties as such the plaintiff at the most would be entitled only to seek easementary right in respect of the same and when it is found that the plaintiff has not claimed any such right in respect of the alleged pathway, the above aspect has also been rightly noted by the first appellate Court in the right perspective and accordingly, on that score also disbelieved the plaintiff's version and declined the reliefs sought for. In any event, when on the materials placed on record, it is found that the plaintiff has not established the existence of the suit pathway as putforth by him and when it is found that the east-west itteri is the mamool pathway to have access to the common Well, the first appellate Court is justified in negativing the plaintiff's suit as regards the first item of the plaint schedule properties i.e. AB pathway. The substantial question of law formulated in the second appeal is accordingly answered against the plaintiff and in favour of the defendant.
In conclusion, the second appeal fails and is accordingly, dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.
Index : Yes / No
Internet : Yes / No 13.06.2018
sms
To
1. The Subordinate Court, Dharapuram.
2. The District Munsiff Court, Dharapuram.
3.The Section Officer, V.R.Section, High Court, Madras.
T.RAVINDRAN, J.
sms
Pre-Delivery Judgment made
in S.A.No.1514 of 2004
13.06.2018