Madras High Court
Mangayarkarasi vs Veerappan Ambalam And Ors. on 23 February, 1998
Equivalent citations: (1998)2MLJ629
JUDGMENT K. Sampath, J.
1. The plaintiff who lost before both the courts below is the appellant. She filed suit O.S.No.406 of 1980 before the District Munsif's Court, Pattukottai, for permanent injunction on the following averments:
The suit property of an extent of 12 cents in S.No.86/13 in Thuravikkadu Village with 13 coconut trees and 1 jack fruit tree, which was fenced on three sides, originally belonged to one Saroja from whom she bought it on 20.7.1997 under Ex.A-1. She was in possession eversince. The 15 cents immediately north of the suit property belonged to her late husband and she was in possession of that property also. The total extent of the suit survey number was 59 cents. The balance extent of 32 cents was in the possession of the first respondent. When she attempted to erect granite and barbed wire fencing, respondents 1 to 3 objected and wanted the suit properties to be sold to them. Since the appellant refused, the respondents got enraged and damaged the boundary stones in the suit properties. The first respondent was the father of respondents 2 and 3 and the fourth respondent was a cohort of the respondents. The respondents had no right or possession. The suit was therefore filed.
2. The first respondent filed a written statement and the same was adopted by the other respondents. In the written statement it is contended as follows : The parties to the suit did not measure the properties as per the sale deed in their favour, but they fixed the boundaries. One Raman Ambalam and Veerasamy Ambalam were in possession of the suit survey number. They sold the northern 15 cents. The western portion of the suit property was being used as cart track. It was necessary for access to Aranthangi-Pattukottai Road. After the death of Raman Ambalam, his son Veerasamy was in occupation of the suit survey number and he was using the cart track. Under Ex.B-2, dated 11.5.1968 Veerasamy sold the southern 33 1/3 cents to the first respondent. The first respondent put up a construction and was in occupation. The middle portion was sold by Veerasamy to Saroja under Ex.A-3, dated 11.7.1968. Even after the purchase by the appellant there were no bunds or fences demarcating the properties. There was no passage fixed on the southern side. The first respondent had no access to going to Aranthangi-Pattukottai Main Road. It was a case of easement of necessity. The appellant wanted the first respondent to sell the property purchased by him. As he was not willing, the present suit came to be filed to force the first respondent to come to terms. The appellant was not entitled to any relief.
3. The learned District Munsif, Pattukottai, by his judgment and decree dated 28.9.1983 dismissed the suit holding that the respondents needed the pathway as an easement of necessity and that the appellant was not entitled to the relief prayed for by her.
4. The appellant filed appeal A.S.No.51 of 1983 before the Subordinate Judge's Court, Pattukottai. She also filed I.A.No.23 of 1984 for reception of additional evidence. She attempted to show that the first respondent owned property in S.No.87/2 to the east of the suit property and therefore, there was access to the road through that property.
5. A counter was filed by the first respondent to the application for reception of additional evidence stating that the first respondent was living away from his family, that the eastern property belonged to his sister and that it was not possible to go to the main road through that property. The application for reception of additional evidence was allowed and the documents sought to be produced by the appellant were received as additional documents and they were marked as Exs.A-4 to A-6.
6. The lower appellate court on the basis of the Commissioner's Report and plan and D.W.2's evidence, found that to the west of Thangavelu's property there was 9 feet wide pathway east of D.E. line shown in the Commissioner's plan and that the said pathway must have been in use by the parties and that the respondents could not have used the eastern property as it belonged to third party. Consequently, the appeal was allowed in part and the learned Subordinate Judge granted a decree in favour of the appellant as prayed for less 9 feet passage. Aggrieved, the present Second Appeal has been filed.
7. All the time of admission the following substantial question of law was raised for consideration in the Second Appeal:
Whether notwithstanding the failure to plead a right of easement of necessity, the same can arise by inference?
8. Mr. V.K. Vijayaraghavan for Mr. S. Byravan, learned Counsel for the appellant, took me through the plaint, the documents, the report and the plan of the Commissioner and the objections to the Commissioner's report and submitted that there was an alternative pathway available to the respondents on the east of the property and when alternative pathway or access was available, the decree by the lower appellate court on the ground that it was an easement of necessity, was not sustainable. The learned Counsel also submitted that the Commissioner found an alternative access and not only that, the Commissioner found no trace of cart track in the suit plan.
9. The learned Counsel relied on the following decisions in support of his contentions:
(1) Narayana Gajapatiraju v. Janaki Ratnayyammaji A.I.R. 1930 Mad. 609; (2) Mariyayi Ammal and Ors. v. Arunachala Pandaram A.I.R. 1956 Mad. 584; (3) Kamalammal v. Chakravarthy and Ors. (1964)2 M.L.J. 241 : 77 L. W. 352; (4) Louis alias R.P. Thambi Raja and Anr. v. R. Irudayaswamy Ammani (1991)1 L.W. 557; (5) Muthu Injodikkaran Anthony v. Varied and Ors. A.I.R. 1989 NOC. 53 (Ken); (6) Margaret Ammal v. Susai Mari (1996)2 L.W. 27; (7) Fathima and Anr. v. K.S. Kadherkani (1995)2 L.W. 705; (8) Dilbagrai Punjabi v. Sharad Chandra and also (9) Sarkar's Commentaries on The Evidence Act, Volume I, Edition 14, page 331.
10. Per contra, Mr. R. Vijayasankar for Mr. S. Thiruvengadasamy, learned Counsel for the respondents, contended that the common owner was examined as D.W.2, and he had definitely stated that the portion claimed as pathway was intended and was set apart as pathway. The Commissioner's report clearly showed that the access through the eastern property was not really there, and in the absence of an alternative mode, the respondents were entitled to the pathway as an easement of necessity. The learned Counsel also relied on the following decisions:
(1) Palaniswami Naicker v. Chinnaswami Naicker 81 L.W. 95. (2) Mohammed Asaraf and Ors. v. Kulasekaraperumal Pillai 87 L. W. 874. (3) Govindarajulu Chettiar v. V.N. Srinivasalu Naidu .
11. In Narayana Gajapatiraju v. Janaki Ratnayyammaji A.I.R. 1930 Mad. 609 dealing with Section 13(2) of the Easements Act, a Bench of this Court held as follows:
An easement of necessity being on easement without which a property cannot be used at all and not being one merely necessary to the reasonable enjoyment of the property, a plaintiff cannot claim on the ground of necessity a right of way over the land of another where, another mode of access to his property exists.
12. In Mariyayi Ammal and Ors. v. Arunachala Pandaram A.I.R. 1956 Mad. 584, it was held that to claim right of way as an easement of necessity, it must be proved that there was no other access to his property by the defendant. Convenience was not the test, but test was of absolute necessity.
13. In Kamalammal v. Chakravarthy and Ors. (1964)2 M.L.J. 241 : 77 L. W. 352, it was held that a house owner in order to repair his wall on his neighbour's side of the premises had the right to go to the other side of the wall on the land of his neighbour, the right being in the nature of a necessary easement but such and easement did not extend to going over the neighbour's roof or terrace for that purpose. Further the existence of other methods of attending to the repairs from within the property of the plaintiff himself is fatal to the claim to an easement of necessity.
14. In R. Louis alias R.P. Thambi Raja and Anr. v. R. Irudayamary Ammani (1991)1 L.W. 557, M. Srinivasan, J. as he then was, held that Section 13 of the Easements Act would come into play only in cases of necessity. In that case, the original common owner was using the open space as passage to reach the main road. It was held by the learned Judge that after the severance of the two houses, the respective owners would not have any easementary right.
15. In Mathu Injodikkaran Anthony v. Varied and Ors. it was held that existence of alternative pathway however inconvenient was sufficient to reject the claim of easement of necessity.
16. In Margaret Ammal v. Susai Mari (1996)2 L. W. 27, S.S. Subramani, J. after referring to a number of decisions, held that in case there was possibility of the party having access provided in his own property for draining water by making necessary alterations he could not claim any easement of necessity.
17. The other two decisions viz., Palanisamy Naicker (1995)2 L. W. 705 and Dilbagrai Punjabi v. Sharad Chandra are for the proposition that when there is perverse finding by the Subordinate Courts, the High Court is entitled to interfere under Section 100 of the Code of Civil Procedure.
18. In Palaniswami Naicker v. Chinnaswami Naicker 91 L. W. 95, relied on by the learned Counsel for the respondents, Ramaprasada Rao, J. as he then was relying on Section 8 of the Transfer of Property Act held that easement passed with the property and the omission of the suit pathway in the deed and of the existence of the accredited easement of way in question over the southern portion are not material circumstances so as to delimit in any way the vested right in the plaintiff.
19. In Mohammed Asaraf and Ors. v. Kulasekara Perumal Pillai 87 L.W. 874, Gokulakrishna, J. as he then was, held that, unless a different intention was expressed or necessarily implied, a transfer of property passed forthwith to the transferee all the interest which the transfer or was them capable of passing in the property and in the legal incidents thereof.
20. In Govindarajulu Chettiar v. Srinivasalu Naidu , again Gokulakrishnan, J. as he then was, held that absence of an express grant of an easement did not negative an implied grant of such easement.
21. Bearing the principles laid down by the several decisions referred to above, the whole question in the present case boils down to whether what was claimed by the respondents was an easement of necessity. The ratio of the decisions is to the effect that there must be absolute necessity. Convenience was not the test. No doubt, there need not be an expressed grant. The non-mentioning in the sale deed did not matter as long as a case for implied grant was made out. The Commissioner's Report and the plan show the lie of the land. The Commissioner has specifically mentioned about the absence of cart track in the suit property. He has also noticed that the respondents had access to the road along the eastern property. In the written statement the first respondent stated that the eastern property belonged to his sister. In his report, the Commissioner has stated that the first respondent represented that the eastern property belonged to his brother. It may have to be stressed once again that there is no trace of cart track in the suit property. The suit was filed on 30.5.1980. The Commissioner visited the property on 23 7.1980 and he reported about the lie of the land and other aspects of the suit property. The Commissioner has noticed that an access has been provided across the bothi channel on the east of the property for access to the eastern property by means of palmyrah trees. If as claimed by the respondents they had not been using that access and if they had nothing to do with the eastern property, the existence of this provision for crossing the channel for going to the eastern property had not been explained. The Commissioner has also found that the parties could go to the main road from the eastern property. As already mentioned the authorities are clear on the point that if there was alternative pathway in existence, however inconvenient it might be, still there could not be a claim as an easement of necessity.
22. The above discussion obliges me to interfere in the Second Appeal. The courts below had not considered the important aspect mentioned above, which had a direct bearing on the disputed issue and the error made by the courts below has given rise to a substantial question of law warranting interference under See. 100 of the Code of Civil Procedure. The substantial question raised is therefore answered in favour of the appellant. The Second Appeal succeeds. The judgments and decrees of the courts below are set aside and the suit will stand decreed as prayed for in entirety. There will, however, be no order as to costs.