Jeyaraman vs The Executive Officer on 8 November, 2021

[Cites 10, Cited by 0]

Madras High Court

Jeyaraman vs The Executive Officer on 8 November, 2021

2.The plaintiffs filed O.S.No.26 of 2014 before the Principal District Munsif Court, Manamadurai for mandatory injunction not to prevent the plaintiffs from using the pathway leading to Madurai-Rameshwaram National Highways from Survey Nos.222/4A1 and 222/4A2. The plaintiffs further prayed for a permanent injunction restraining the defendant from putting up any wall obstructing the access of the plaintiffs through the new bus stand at Manamadurai so as to reach the Madurai-Rameshwaram National Highways. The trial Court decreed the suit as prayed for. The defendant filed A.S.No.21 of 2020 before the Subordinate Court, Manamadurai. The learned Subordinate Judge allowed the appeal and dismissed the suit. Hence, the plaintiffs are the appellants herein.

2/18 https://www.mhc.tn.gov.in/judis S.A.(MD).No.35 of 2022

3.The plaintiffs had contended that they are the joint owners of Survey Nos.222/4A1 and 222/4A2 in Manamadurai Village, Manamadurai Taluk, Sivagangai District. According to the plaintiffs, the property located on the northern side of the above said survey numbers were utilised by them to reach Madurai- Rameshwaram National Highways which is running on the eastern side. The said property through which the plaintiffs were having access to reach the National Highways was acquired by the Government and a new bus stand was constructed. According to the plaintiffs, the defendant is attempting to put up a compound wall encompassing the bus stand.

4.The plaintiffs further contended that the plaintiffs are having easement of necessity to walk through the property located on their northern side which has now been acquired by the Government. They have been using the said acquired land as a pathway for many numbers of years. Except the said pathway, there is no other access to reach the property of the plaintiffs.

3/18 https://www.mhc.tn.gov.in/judis S.A.(MD).No.35 of 2022

5.The plaintiffs further contended that one Natarajan and Malaichamy had properties to the west of the bus stand. Their lands also had access only through the bus stand. The respondent herein has granted right of access to the survey numbers namely 222/2 and 222/3 owned by the said Natarajan and Malaichamy to reach Madurai-Rameshwaram National Highways. The plaintiffs had further contended that in the north-west corner of the bus stand, one Dr.Muthuramalingam is having residential house and hospital. For the said person and right of access has been granted by the respondent to reach Madurai-Rameshwaram National Highways. In view of the acquisition, the property of the plaintiffs have become landlocked and they do not have any access to any public road except by passing through the land acquired by the respondent for construction of the bus stand.

6.The defendant is attempting to put up a compound wall so that nobody can have access except from front side of the bus stand namely the eastern 4/18 https://www.mhc.tn.gov.in/judis S.A.(MD).No.35 of 2022 side. If the construction of the compound wall is completed, their right of easement by necessity will get affected. Hence, the plaintiff prayed for mandatory injunction not to prevent the usage of the pathway and for a permanent injunction restraining the defendant from constructing a compound wall preventing the plaintiffs from using the bus stand as an access.

7.The defendants filed a written statement contending that the construction of the new bus stand has been completed and it has been opened for public use. Before acquisition, it was an agricultural land with several bunds. The agriculturalists were walking through the bunds in the nanja lands to reach the Madurai-Rameshwaram National Highways. All the nanja lands have been acquired and the entire land has been heightened to the level of 5 feet. The defendant admitted in his written statement that a 15 feet pathway has been created for one of the adjacent owners on the western side namely Natarajan and another 15 feet pathway has been created at the northern end of 5/18 https://www.mhc.tn.gov.in/judis S.A.(MD).No.35 of 2022 the bus stand for the purpose of reaching Dr.Muthuramalingam house and hospital. According to the defendant, there is no building either in the suit schedule property or in the adjacent property and they continue to remain as agricultural property. Hence, the plaintiffs are not entitled to a similar prayer as that of the said Natarajan and Malaichamy.

8.The trial Court after considering the oral and documentary evidence, came to the conclusion that the plaintiffs are not having any access whatsoever to reach the National Highways on the eastern side. The trial Court also found that the plaintiffs' property are located just out side the south western corner of the bus stand. The defendant being a public authority is duty bound to provide a way for the plaintiffs to enter and come out of their property especially when the bunds have been erased at the time of construction of the bus stand. The trial Court also found that if a wall is constructed on the southern side of the bus stand in the east-west direction, the access of the 6/18 https://www.mhc.tn.gov.in/judis S.A.(MD).No.35 of 2022 plaintiffs would get obstructed and the plaintiffs will not be in a position to enter into their property. The trial Court also clarified that the permanent injunction is granted only relating to the way which leads to the properties of the plaintiffs and it should not be construed as an injunction granted as against the construction of a compound wall on the remaining boundaries. Thus, the trial Court proceeded to grant a prayer for mandatory injunction and for permanent injunction as against the defendant.

9.The First Appellate Court reversed the findings of the trial Court on the ground that the land that has been acquired by the Government is used for a construction of a bus stand. The bus stand area cannot be considered to be a public street. When the bus stand area cannot be construed to be a public street, the plaintiff cannot have any right of access to enter into the bus stand area to reach the National Highways in the eastern side. The First Appellate Court also found that the plaintiffs have not given the measurement of 7/18 https://www.mhc.tn.gov.in/judis S.A.(MD).No.35 of 2022 the suit pathway. Despite arriving at a finding that the defendant has not examined himself and has not produced any document, the trial Court non-suited the plaintiffs on the ground that the plaintiffs have not proved their case. Based upon the said findings, the appeal was allowed by the learned Subordinate Judge and dismissed the suit. As against the same, the present second appeal has been filed by the plaintiffs.

10.The second appeal has been admitted on the following substantial questions of law:

Whether the First Appellate Court was right in rejecting the pathway right of the plaintiffs based on the easement by necessity when the plaintiffs have no access to the suit schedule property other than the one claimed by them?

11.The learned counsel for the appellants contended that their properties are located on the south western corner just out side the bus stand area. According to the plaintiffs, they were walking through the land now acquired for the construction of the bus stand. Apart from the said pathway, there is no other 8/18 https://www.mhc.tn.gov.in/judis S.A.(MD).No.35 of 2022 access for the appellants to reach National Highways on the eastern side. He further contended that the respondent authorities have accepted the request of similarly placed persons on the north western corner and on the western side have and granted a pathway for them to reach the National Highways.

12.The learned counsel for the appellants further contended that now their properties have become landlocked and there is no access for them to reach any public road or National Highways. He further contended that the First Appellate Court has not properly appreciated the Commissioner's report and plan. He further contended that the First Appellate Court has not considered the plea of easement by necessity pleaded by the defendant. In fact in the written statement, the defendant has not disputed the fact that the plaintiffs have no other access to reach the main road.

13.The learned counsel for the appellants further relied upon the Judgment of the Hon'ble Supreme 9/18 https://www.mhc.tn.gov.in/judis S.A.(MD).No.35 of 2022 Court reported in 2005 2 SCC 164 to impress upon the Court that though a land has been acquired by the Government, the easement of necessity does not get any extinguished by way of such acquisition.

14.Per contra, the learned counsel for the respondent contended that other two parties namely Dr.Muthuramalingam and Natarajan were granted right of access through the acquired property only on the ground that buildings are existing in their property. On the other hand, the two survey numbers that are referred to in the schedule of property continue to remain as a agricultural property and hence, they cannot claim equality with the other two persons who were granted right of access through the bus stand area. He further contended that the bus stand has been constructed in the acquired land and it has been opened to the general public. The plaintiffs can have right of access only to the public street or road and they cannot make such a prayer in respect of a bus stand. Hence, he contended that the first Appellate Court has rightly dismissed the suit filed by the plaintiffs.

10/18 https://www.mhc.tn.gov.in/judis S.A.(MD).No.35 of 2022

15.I have considered the submissions made on either side.

16.The following provisions in the Land Acquisition Act, 1894 are hereby extracted for better appreciation of the legal provisions.

“Section 3(b): the expression “person interested” includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land;

5A. Hearing of objections. - (1) Any person interested in any land which has been notified under section 4, subsection (1), as being needed or likely to be needed for a public purpose or for a Company may, [within thirty days from the date of the publication of the notification], object to the acquisition of the land or of any land in the locality, as the case may be.

16. Power to take possession. - When the Collector has made an award under section 11, he may take possession of the land, which shall thereupon [vest absolutely in the [Government]], free from all encumbrances.” 11/18 https://www.mhc.tn.gov.in/judis S.A.(MD).No.35 of 2022

17.The extract of the above said provisions will clearly indicate that a person interested includes all persons claiming interest in compensation on account of the acquisition of land and even a person who is interested in easement affecting his land will be deemed to be a person interested in the land. If the easementary right of any person is affected, he has to make his objection under Section 5(A) to the District Collector in writing and after giving an opportunity of being heard, he should forward a report to the appropriate Government on the objections. Where the objections are over-ruled, appropriate Government proceeds to issue a declaration under Section 6 of the Act. The District Collector may conduct an enquiry and pass an award granting compensation for the person interested in the land. After such an award he may take possession of the land which shall vest absolutely in the Government free from any encumbrance.

12/18 https://www.mhc.tn.gov.in/judis S.A.(MD).No.35 of 2022

18.Now the issue to be decided is that when the servient heritage is acquired by the Government whether the dominant heritage owner will lose his right of easement of necessity over servient heritage.

19.As per Section 16 of the Land Acquisition Act, 1894, the acquired land vests in the hands of the Government free from all encumbrances. In such a case, whether the servient heritage also vests in the hands of the Government free from easementary right of the dominant heritage is the issue that requires consideration.

20.The Hon'ble Supreme Court in a judgment reported in 2005 2 SCC 164 in paragraph No.10 has held as follows:

“10.This judgment of Collector of Bombay was a judgment by a Bench of three learned Judges of this Court. Learned counsel for the appellants drew our attention to the judgement in State of H.P rendered by a Bench of two learned Judges and contended that this judgment clearly holds that the phrase “free from all encumbrances” used in Section 13/18 https://www.mhc.tn.gov.in/judis S.A.(MD).No.35 of 2022 16 of the Act is wholly unqualified and would include in its compass every right including an easementary right which affects the land. He particularly drew our attention to para 10 of the judgement where the Court took the view: (SCC P.109) “[A]ll rights, title and interests including the easementary rights stood extinguished and all such rights, title and interests vested in the State free from all encumbrances”

12.In the peculiar facts and circumstances of the case, therefore, the distinction drawn by the High Court about non-extinguishment of the right of easement arising out of necessity appears to be justified both on principle and precedent. In any event, we do not think that the present is a fit case where it is necessary for us to go deeper into this larger issue of law for we are satisfied that the judgment of the High Court under appeal is not one which is required to be interfered with in exercise of our jurisdiction under Article 136 of the Constitution”

21.In view of the above said judgment, an acquired land vests in the hands of the Government free from all encumbrances including an easementary right. 14/18 https://www.mhc.tn.gov.in/judis S.A.(MD).No.35 of 2022 In the said judgment, the Hon'ble Supreme Court had drawn a distinction between other easements and easement by necessity. In the said judgment, the High Court has taken a view that all other easements will get extinguished when the possession is taken by the Government under Section 16 of the Act but an easement of necessity of a passage right will not get extinguished even if the land is acquired. The said proposition of law was approved by the Hon'ble Supreme Court in Paragraph No.12 of the Judgment.

22.In the present case also, the plaintiffs are claiming easement by necessity on the ground that they do not have any other alternative pathway to reach the main road after the servient heritage has been acquired by the Government. Hence, the findings of the First Appellate Court that the bus stand cannot be construed to be a public street is not legally sustainable. The said findings have been rendered without considering the plaintiffs' plea of easement by necessity. 15/18 https://www.mhc.tn.gov.in/judis S.A.(MD).No.35 of 2022

23.Other dominant heritages have been granted an access right of 15 feet width pathway to reach Madurai-Rameshwarai National Highways on the eastern side and it will be appropriate that the plaintiffs are granted 10 feet width pathway on the northern side of Survey Nos.222/4A1 and 222/4A2 in the lands acquired by the Government so as to reach the National High Ways on the eastern side.

24.In view of the above said discussion, the substantial question of law is answered in favour of the appellants. The judgment and decree of the First Appellate Court are set aside. The judgment and decree of the trial Court are restored with an observation that the width of the east-west pathway shall be 10 feet. The second appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed.




                                                                                   04.03.2022

                     Index    :           Yes / No
                     Internet :           Yes / No
                     msa

                     16/18

https://www.mhc.tn.gov.in/judis
                                                            S.A.(MD).No.35 of 2022



                     To

                     1.The Subordinate Judge
                         Manamadurai


                     2.The Principal District Munsif
                         Manamadurai


                     3.The Section Officer
                       V.R.Section
                       Madurai Bench of Madras High Court
                       Madurai




                     17/18

https://www.mhc.tn.gov.in/judis
                                                 S.A.(MD).No.35 of 2022


                                               R.VIJAYAKUMAR,J.

                                                                   msa




                                  Pre-delivery Judgment made in
                                         S.A.(MD).No.35 of 2022
                                                            and
                                       CMP(MD).No.384 of 2022




                                                       04.03.2022




                     18/18

https://www.mhc.tn.gov.in/judis

Unlock Advanced Research with PRISMAI

Madras High Court