Madras High Court
Balusamy vs Sengoda Gounder on 12 August, 2014
Author: S.Vimala
Bench: S.Vimala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.08.2014
CORAM:
THE HONOURABLE Mrs. JUSTICE S.VIMALA
Second Appeal No.707 of 2005
Balusamy ... Appellant/Plaintiff
-Vs-
1.Sengoda Gounder
2.Nallammal ... Respondents/defendants
Prayer: Second appeal filed under Section 100 of Civil Procedure Code against the judgement and decree, dated 31.08.2004 in A.S.No.31 of 2000 before the Subordinate Judge, Namakkal, reversing the judgment and decree, dated 26.04.1999 in O.S.No.376 of 1998 on the file of the Additional District Munsif, Namakkal.
For Appellants : M/s.S.Umamaheswari
for Mr.C.Jagadish
For Respondents : No appearance
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J U D G M E N T
Whether the partition deed, dated 25.02.1985, grants right to the members of the partition deed, only to use the pathway in respect of lands allotted under the partition deed or to use the pathway in respect of any other land belonging to the members of the partition deed, is the issue raised in this Second Appeal.
2. The plaintiff is the appellant. The plaintiff filed the suit in O.S.No.376 of 1996 praying for declaration and injunction. The declaration was with respect to the alleged right of the defendants to make use of the common pathway in respect of properties belonging to him, which were not covered in the partition deed, but in respect of properties purchased prior to the formation of the common pathway, and for consequential injunction. The said suit was decreed, as against which, the defendants filed the first appeal in A.S.No.31 of 2000. The first appeal was allowed, thereby the decree and judgment of the trial Court came to be set aside. Aggrieved over the judgment of the first appellate Court, the plaintiff has filed this second appeal.
3. The second appeal had been admitted on the following substantial questions of law, which were re-drafted during the hearing of the appeal, on which the arguments of the appellant were presented:
Re-drafted questions of law:-
1.Whether the decision relied upon by the trial court reported in 1979 (1) MLJ 423 (Karuppasamy Gounder vs. Palanisamy Gounder) applies to the facts of this case and whether the Court is justified in applying the same?
2.Whether the Lower Appellate Court should have applied the decision reported in 1979 (1) MLJ 423 (Karuppasamy Gounder vs. Palanisamy Gounder) and not 1985 (1) MLJ 36 (SC) (Ayyasamy Gounder vs. Munuswamy Gounder) ?
3.Whether the decisions of the Lower Appellate Court is contrary to the recitals in the partition deed-Ex.A1 and the sale deed-Ex.A2, regarding the rights of parties in respect of suit pathway ?
Brief Facts:-
4.The plaintiff's father and the first defendant were brothers. They divided the properties by virtue of the partition deed dated 25.02.1985. In the partition, the plaintiff's father was allotted 'B' schedule property and the first defendant was allotted 'D' schedule property. Item Nos.7 to 11 which are covered 'B' schedule and item Nos.12 to 17 which are covered in 'D' schedule were located in S.No.196. After the death of plaintiff's father, the plaintiff has been in possession and enjoyment of his share of the property.
4.1.The plaintiff's father, the first defendant and other parties who had been allotted share in R.S.No.196, joined together and they agreed to put up a cart track. According to the agreement, this cart track would join the poramboke pathway leading to Ayyampalayam. The parties who were allotted lands in R.S.No.196 will use the pathway for the enjoyment of their respective shares. The first defendant purchased the property in R.S.No.195 long prior to the partition. He never used the suit pathway in respect of R.S.No.195. As the defendants were trying to use the pathway located in R.S.Nos.196 and 196/1A4, the suit for declaration and injunction was filed by the plainitiff.
4.2.The plaint is clear that in respect of lands allotted in the partition deed, the first defendant has every right to make use of the pathway and he has no such right in respect of any other land.
4.3. The defendants filed a written statement disputing the claim of the plaintiff with the following allegations:-
1.The execution of partition deed dated 25.02.1985 is admitted;
2.The formation of the pathway in R.S.No.196 and joining the said pathway with poramboke pathway for the purpose of using the pathway as a cart track is also admitted.
3.The first defendant has purchased property in R.S.No.195 on 06.12.1971, i.e., long prior to the partition on 25.02.1985. But, it is not correct to say that the right of way has not been assigned for this land.
4.The partition deed, dated 25.02.1985, grants right to the members of the partition deed not only to use the pathway in respect of lands allotted under the partition, but also to other properties.
5.The trial Court framed the following four issues:-
1.Whether the contention of the plaintiff that, the suit pathway described as ABC cannot be used in respect of land in R.S.No.195 belonging to the first defendant is correct ?
2.Whether the contention that the first defendant did not use the ABC pathway is right ?
3.Whether the plaintiff is entitled to declaration and injunction ?
4.To what other relief is the plaintiff entitled to ?
6.On the side of the plaintiff, the partition deed dated 25.02.1985 and the sale deed dated 06.12.1971 have been filed as Exs.A1 and A2, while the plaintiff was being examined as P.W.1.
6.1. The learned Additional District Munsif decreed the suit, holding that among the co-owners the right to enjoy the common pathway would be available only to the land earmarked for the common pathway and not in respect of any other land. This was so held, relying upon the decision reported in 1979 (1) MLJ 423 (referred to supra).
6.2. While reversing the judgment, the first appellate Court relied upon the decision reported in 1985 (1) MLJ 36 (referred to supra) and held that the right of co-ownership pre-supposes a bundle of rights and a co-owner is entitled to use the property to his maximum advantage, but of course without causing any prejudice or detriment to the co-owner.
6.3. Out of these two propositions, which proposition is correct and would be applicable to the facts of this case, is the issue raised in the Second Appeal.
7. It is the contention of the appellant / plaintiff that the decision of the first appellate Court is contrary to the recitals under Exs.A1 and A2 and also against the settled principles of law. It is the specific case of the appellant that the first appellate Court should have placed reliance upon the decision reported in 1979 (2) MLJ 423 (referred to supra) and ought not to have relied upon the decision reported in 1985 (1) MLJ 36 (referred to supra) and the ratio in the said decision, will not be applicable to the facts of this case.
7.1. Before considering this contention, it is necessary to look into the admitted facts as well as the law relating to pathway.
7.2. The following are the admitted facts:
1.The relationship between the parties is an admitted fact, i.e., the plaintiff's father and the first defendant are brothers;
2.There had been a partition between the plaintiff's father and the first defendant along with other brothers, as per Ex.A1 partition deed;
3.The first defendant has purchased property as per Ex.A2 sale deed in which the right of way to reach R.S.No.195 has been indicated in the sale deed itself;
4.The persons who are entitled to use the suit pathway as well as the lands in respect of which that right can be exercised has been clearly stated in Ex.A1.
7.3. From the admitted facts and the claim made by both sides, what is to be decided is whether the right to use the pathway in R.S.No.196 is available only to the properties covered under the partition deed dated 25.02.1985 or it is available in respect of other lands also. In order to decide this issue, it is necessary to look into the law relating co-owners' right to use the common pathway.
7.4. The plaintiff is not claiming any easmentary right to use the pathway. The claim of a dominant owner to go over another's land for certain purposes or generally, is a right which can be acquired as an easement either, (a) by virtue of prescription (Section 15 of Easement Act) or (b) by custom (Section 18 of Easement Act) or (c) by express grant or a grant arising by implication of law or by statute. Rights arising by implication of law may either be easement of necessity or quasi easements (Section 13 of the Easement Act).
7.5. The distinct classes of right of way are (1) private rights having their origin in grant or prescription; (2) rights belonging to certain classes of persons, certain portion of public, which originates in custom; and (3) there are public rights which exist for the benefit of subject of the States, which is ordinarily by way of dedication (ILR 15 Calcutta FB 460, Chunnilal vs. Kishen Sahu). Thus, all easements have their origin in some sort of grant by the servient owner.
7.6. The essential conditions of the acquisition of prescriptive right of way under Section 15 of the Easement Act is, (a) that the right of way should continue to be enjoyed as an easement for a continuous period of twenty years; (b) it should be taken to be a period ending within two years next before the institution of the suit; and (c) twenty years period of enjoyment ending within the two years before the institution of the suit.
7.7. It is not the case of the first defendant that he has acquired right of easement by prescription. It is his specific case that the right to use the pathway has been granted to him in the partition deed dated 25.02.1985. It is not his case that using the pathway would be an easement of necessity, as he has some other right of way to the property in R.S.No.195. It is his case that his predecessor in title had been using the right to use the pathway in R.S.No.196, in respect of the land covered in R.S.No.195 and therefore, he will also have the right to use the same. But, this contention has to be rejected outright, because of the following reasons:-
1.At the time of partition during 1985, there was no pathway in existence. Only during partition, it was agreed that a pathway would be formed by consent of co-sharers, at a later point of time.
2.The property in R.S.No.195 having been purchased in the year 1971, the predecessor in title would not have used the alleged pathway in R.S.No.196, (which was formed only during 1985).
3.If there had been some other pathway, other than the one mentioned in the sale deed itself, that fact would have been mentioned in the sale deed dated 06.12.1971. It is not stated so.
4.Instead, the sale deed, dated 06.12.1971, speaks about the existence of yet another pathway which is not in R.S.No.196, which if used would involve using a circuitous route of 1= kms. Therefore, the contention that the first defendant would have the right to use the pathway just because his predecessor in title had been using the same cannot be accepted.
8. The only remaining contention is, whether the partition deed dated 25.02.1985 has granted right to use the pathway in R.S.No.196, in respect of the land covered in R.S.No.195 also, which is not a property covered in the partition deed.
8.1. Partition had been effected between legal heirs of Kaliappa Gounder, who are parties 1, 2, 3 and legal heirs of Kandasamy Gounder, who are parties 4, 5, 6 and the legal heir of late Ramasamy Gounder, who is party No.7 (who were brothers). A perusal of the partition deed would only go to show that the right to use the pathway (to be formed) in R.S.No.196 has been made available to parties to the partition deed only and the properties covered are lands covered under the partition deed alone. The relevant line runs as follows:
... mtutUf;F ghj;jpag;gl;l epy';fSf;F tz;o thfd';fs; Xl;oa[k; fhy;eilfis Xl;oa[k; ele;J bfhs;s ntz;oaJ vd;Wk;//// 8.2. Right to pass and re-pass, i.e., right to walk has been granted to the first defendant apart from others only in respect of lands situated in R.S.Nos.196/1D, 196/2A, 196/2-B and 196/3 (to the extent of 3 feet abutting western edge) and not for any other lands. For the benefit of other lands, some other pathway has been prescribed and not the suit pathway.
9. What is the interpretation to be given with reference to usage of common pathway formed between the members of the partition deed, is the issue to be considered.
9.1. In order to give a interpretation, the following two decisions, each one being relied upon by the parties to the suit, has to be considered.
9.2. The next contention of the learned counsel for the appellant is that the decision in (1985) 1 MLJ 36 (Ayyaswami Gounder vs. Munnuswamy Gounder) ought not to have been relied upon by the first appellate Court and that the decision reported in 1979 (2) MLJ 423 (Karuppusami Gounder vs. Palaniswami Gounder) ought to have been relied upon, as done by the trial court.
9.3. The decision in 1985 (1) MLJ 36 (referred to supra) is pertaining to right of the plaintiff, as a co-owner, to use the common land and common channel. It has been held as follows in the said case:
In the absence of any specific pleading regarding prejudice or detriment to the defendants-respondents, the plaintiffs have every right to use the common land and the common channel. The plaintiffs-appellants were claiming their right on the basis of admitted co-ownership rights which includes unrestricted user, unlimited in point of disposition. ... The right of co-ownership presupposes a bundle of rights. ... 9.4. The decision reported in 1979 2 MLJ 423 (referred to supra), is also pertaining to right of using the common pathway It would not be open to one of the co-owners of the common pathway - right reserved for enjoying a particular land to enjoy that right for reaching some other land. It was not open to the plaintiff to use the common pathway in the present case reserved for enjoyment of S.No.880, to reach some other land, namely, S.No.867 which belonged to the plaintiff and not to any of the three brothers at the time of partition between those three brothers (under Exhibit A-2). 9.5. Out of these two decisions, the later decision, being the law laid down by the Supreme Court is binding upon this Court also. It is appropriate to consider the legal proposition, which has been stated in the Book - Law of Easement by Gopalakrishnan, First Edition 2003, at page 270 which runs thus:
Each co-owner would be entitled to reasonable user in respect of a common property. As between the co-owners each is entitled to use the common property in the best possible manner without detriment to the enjoyment of the owner and that so long as the property does not suffer any injury or result in any loss, the co-owner cannot make any complaint. That means, any interference with the joint property by one of the co-owners which amounts to a complete ouster of rights of enjoyment of other co-owner is actionable unless such interference was with the consent of other co-owners.
The Supreme Court also in the said decision has pointed out that in the absence of any specific pleading regarding prejudice or detriment to the rights of one of the co-owners, the other co-owner cannot prevent the counter-part to use and enjoy the rights available under the co-ownership. 9.6. The first defendant can make use of the common pathway in respect of lands belonging to him, but not covered under the partition deed, only and if only it does not cause any prejudice to the rights of the other parties to the partition deed.
9.7. The plaintiff has specifically stated in his evidence that the usage of the pathway by the first defendant in respect of the lands in R.S.No.195 causes prejudice to the rights of all other parties who are using the common pathway. He has stated that frequent use of the pathway would lead to extra expenditure in the maintenance. When there are large number of persons, i.e., seven persons have to use the pathway, naturally, the usage of the pathway in respect of other lands also would cause serious prejudice to other members of the partition deed. If all the seven of them start using the pathway, in respect of lands not covered in the partition deed, then the usage of the pathway for the lands covered in the partition deed would become difficult. This is what is contended by the learned counsel for the plaintiff / appellant.
9.8. Therefore, when it is proved that using the common pathway would cause prejudice to the rights of members of the partition deed, the plaintiff cannot be permitted to use the pathway in respect of any other land which is not covered in the partition deed. Therefore, the order passed by the first appellate court is set-aside, though for different reasons.
9.9. It has been suggested to the first defendant that only because he prevented the plaintiff from taking the water via., pipeline through his land, the plaintiff has objected the usage of the pathway by the first defendant in respect of any other land, which is not covered under the partition deed. This suggestion also would go to show the conduct of the first respondent is not equitable. Therefore, based on equitable considerations, the right to use the pathway cannot be granted.
10. In view of the settled legal position indicated above, the claim of the plaintiff is upheld. Therefore, the judgment of the first appellate court, dismissing the suit is hereby set-aside and the suit is decreed.
10.1. In the result, the second appeal is allowed. The judgment and decree dated 31.08.2004 passed in A.S.No.31 of 2000 on the file of the Subordinate Judge, Namakkal, is set-aside and the judgment and decree, dated 26.04.1999 in O.S.No.376 of 1998 on the file of the Additional District Munsif, Namakkal, is confirmed. No costs.
12.08.2014 Index : Yes/No Internet : Yes/No sra / srk To
1.The Subordinate Judge, Namakkal,
2.The Additional District Munsif, Namakkal.
3.The Section Officer, V.R.Section, High Court, Madras.
S.VIMALA, J., sra/srk Pre-delivery judgment in S.A.No.707 of 2005 12.08.2014