Madras High Court
Nanjammal And Ors. vs Marappa Gounder And Anr. on 21 July, 1997
Equivalent citations: (1998)1MLJ151
JUDGMENT S.S. Subramani, J.
1. Additional plaintiffs 2 to 7, who are legal heirs of original plaintiff in O.S. No. 105 of 1975, on the file of the District Munsif's Court, Gobichettipalayam, (renumbered as O.S. 87 of 1982, on the file of Sub Court, Gobichettipalayam), are the appellants.
2. The plaintiff filed the suit to declare the title over the suit property and also for other consequential re-liefs which are described thus:
(a) Declaring the plaintiff's title of the suit property;
(b) Declaring plaintiff's easement right in the suit cart track for using and taking carts, cattle and men through the cart track to the suit property;
(c) Granting a permanent injunction restraining the defendant, their relatives and on from inter-fering the suit property peaceful enjoyment of the plaintiff in the suit property and from obstructing or preventing the free user of the cart track-by the plaintiff; and
(d) Awarding the cost of the suit.
The suit property is described thus:
An extent of 2 acres and 933/4 cents situated in the northern portion in S.F. No. 369 and 370 in Kondappanaickenpalayam village, Gobichettipalayam Taluk along with the carttrack starting from the Panchayat Board road which proceeds from Panchayat Board Road through S.F. No. 364, and other fields and reaches the suit property at point A with the breadth of 10 feet on shown in the red marked portion in the plaint plan attached herewith in S.F. 364, S.F. 363 and S.F. 369.
3. In the plaint, it is averred that the property origi-nally belonged to one Sankarappa Gounder, being his ancestral property and the original plaintiff purchased the same on 27.11.1970 for valuable consideration of Rs. 3,000. The property included in the sale deeds is 2 acres and 933/4 cents in S.F. Nos. 369 and 370 along with the cart track. It is said that Sankarappa Gounder was raising crops and subsequent to the sale plaintiff is in possession of the suit property from the date of sale deed and he also dug a well and installed an electric motor pumpset. It is his further case that the suit cart track as shown in the plan attached to the plaint is starting from the Panchayat Board Road which is situated on the southern portion of the first defendant's land. It is his further case that a cart track having a width of 10 feet starts from the south western corner of the first defendant's property and it goes upto the southern end of the plaintiff's property. This, according to the appellant, is absolutely necessary for their enjoyment and plaintiff and his predecessors were in enjoyment of the same for the last more than 40 years. It is said that over the suit property, defendants have no right. But they are adjoining property owners. Due to some ill-feeling prior to the institution of the suit,-they are interfering with their peaceful possession and are attempting to prevent them from using the cart track. The defendants have no manner of right to interfere with the peaceful en-joyment of the suit cart track. It is said that the plaintiffs have no other way to reach the suit pathway. In view of the conduct of the defendants, the suit was necessitated, and the plaintiff prays for declaration of title over the suit property and also claims an easementary right over the suit cart track. In paragraph 4 of the plaint, the alleged easement is claimed thus:
The track is specifically mentioned in the sale deed dated 29.11.1970 by prescription and necessity.
Originally there were only two defendants. After the original plaintiff's death, his legal heirs were impleaded as additional plaintiffs 2 to 7, and after the second defendant filed written statement, defendants 3 to 7 were also impleaded.
4. In the written statement filed by the second defendant, he disputed the claim of the plaintiff to the suit cart track. According to him, there is no cart track. It is contended therein that from the southern panchayat road, the owners of the property wanted to provide a road for which sale deeds were taken and given between defendants and they wanted to form the same. The second defendant also wanted a portion of the plaintiff's property for the said purpose and requested the plaintiff to sell the same. He refused to do so. At the same time, he wanted private properties purchased by them to be used as the cart track. It is said that even at the time of sale in favour of the plaintiff, there was no cart track as described in the plaint. There cannot be any question of easement by prescription. The second defendant also denied that there can be no easement of necessity also since the property never belonged to a common owner. They also disputed the description of property. The second defendant did not dispute the title over 2 acres and 933/4 cents purchased under Ex. A. 2 by the plaintiff. The dispute confined only to the cart track.
5. After the amendment, an additional written statement was also filed taking more or less the same contentions.
6. The trial Court, on the above pleadings, raised issues and took oral and documentary evidence. Ex. A. 2 is the sale deed and Ex. A. 1 is the receipt for payment of tax. Exs. B. l and B. 2 were marked on the side of the defendants. Both are sale deeds dated 10.4.1974. The Commissioner deputed by Court filed a report and plan, and they were marked as Ex. C. 1 and C. 2. Additional plan filed by the Commissioner was marked as Ex. C. 3. The fourth plaintiff got examined as P.W. 1. The vendor under Ex. A. 2 was examined as P.W. 2 and one Kaliappa Gounder was examined as P.W. 3. Second defendant got himself examined as D.W. 1, and an independent witness was examined as D.W. 2. After evaluating the entire evidence, and mostly relying on the oral evidence of the parties, the trial Court found that the plaintiff is entitled to succeed. A decree was granted.
7. The trial Court found that even though the claim of the plaintiff that the suit cart track was in existence for more than 40 years, was not proved, it was found that it was in existence atleast for 30 years. The trial court found that there was a cart track, though the width of the same may not be 10 feet. Relying on the evidence of P.W. 3, the trial court found that it must have been in existence for more than 30 years. Ag-grieved by the judgment, defendants 2 and 7 preferred A.S. No. 176 of 1983, on the file of District Judge, Periyar District at Erode. The lower appellate Court reconsidered the entire evidence and came to the con-clusion Plaintiff has miserably failed to prove his face, and he is not entitled to any relief. The lower appellate Court found that there was no cart track as pleaded by the plaintiff. It could not have come into existence as alleged by the plaintiff and even as per easement of necessity, the plaintiff is not entitled to any relief. The lower Court further found that the plaintiff has other rights of way which disentitle him to claim an easement of necessity under Section 13 of the Easements Act. It is the said judgment that is challenged in this second appeal filed by the additional plaintiffs.
8. At the time of admission of the Second Appeal, the following substantial questions of law were raised for consideration:
(1) Whether the lower appellate Court has com-mitted an error in construing the terms of Ex. A. 2?
(2) Whether the lower appellate court has com-mitted an error in applying the decision reported in Krishnan Kutty v. Govinda Menon, 69 L.W. 435 to the facts of this case?
and (3) Has the lower appellate court committed an error in failing to consider whether in any event the plaintiff is entitled to the cart track as an easement of necessity?
9. According to me, all these questions of law could be considered together. Ex. A-2 is the sale deed in favour of the original plaintiff, which has been executed by P.W. 2. The property having an extent of 2 acres 933/4 cents is conveyed to the deceased plaintiff as per Ex. A. 2. The ownership and possession over the said land is not disputed by the respondent. In fact, the lower appellate Court has recorded the statement of the counsel that they are not claiming any right over the land purchased by the original plaintiff. The dispute is only with regard to the right of the plaintiff along the suit cart track which, according to him, is having a width of 10 feet. It starts from the Panchayat Board Road in he south and goes upto the southern extremity of the plaintiff's land. According to the plaintiff, the above cart track is in existence and it was being used by him and his predecessors atleast for 40 years prior to the institution of the suit. In this connection, we have already extracted the claim of the plaintiff over the cart track. He claims easement both by prescription and necessity. The very claim by prescription and necessity is inconsistent. The sale deed was obtained in 1970, and the suit was filed in 1975. Plaintiff will have to prove that himself and his predecessors were enjoying the pathway atleast 20 years before the institution of the suit. Ab-solutely no evidence has been let in that regard. The only person who speaks about the cart track is P.W. 2, the vendor. I will come to the evidence of P.W. 3 later. According to me, the document executed by P.W. 2 itself is an answer against the suit clam. In Ex. A. 2, after describing the 2 acres and 933/4, it is further stated thus:
In the sale deed, the width of the cart track is not mentioned though the plaintiff says that it is 10 feet. From the Commissioner's Plan Ex. C-2, it is seen that the cart track cannot be 10 feet, and nowhere it has a track cannot be 10 feet, and nowhere it has a width of 10 feet. At the south western extremity, the width is only 6 feet and upto the point C, it has got a width of 7 1/2 feet. Thereafter, from the Report, it is seen that it is not lying as a cart track though he has seen the marks of the cartwheels passing through that way. It is further seen from the Report that the alleged cart track is not on the same level. From E point upto Z point, the alleged cart track is on a lower level by 2 ft. That itself shows the improbability of having a cart track unless there is a slope. From the Report of the Commissioner, it cannot be said that there is a well defined cart track as pleaded in the plaint. Along with the same, the documents taken by the defendants also can be considered. Exx. B-1 and B-2 are two such documents. It is said therein that the second defendant and others have purchased portions of the Survey number situated north of Survey No. 364 for the purpose of a cart track and it is being used as a cart track. So, private ownership is assert and the transaction is also effected for the purpose of forming a road. It is the case of the second defendant that he wanted the plaintiff also to contribute for making the road, and wanted a portion of his land for the said purpose. But the plaintiff declined the request. The lower appellate Court has held that the conduct of the plaintiff along with Exs. B. l and B. 2 will probabilise the case of the second defendant.
10. In the sale deed Ex. A-2, the existence of a cart track on the western portion of Survey No. 364 alone is mentioned. If in fact there was a cart track north of Survey No. 364 upto the plaintiff's property and it was being really used by Sankarappa Gounder, under normal circumstances, he would have stated so in the document. The absence of any such statement about any cart track north of Survey No. 364 belies the case of the plaintiff that himself and his predecessors were enjoying the same for more than 40 years.
11. The Court can recognise the customs and manner in the villages. Through the private property, especially when there is no fencing, it is but normal for th people to cross through other man's property to have an easy access to the road. That is the habit of the people. When the case of prescription is claimed, the habit of the people in the country should also be taken into consideration. It is more or less on the impleaded consent of the owners, people are made on the basis of prescription, it must be as of right. In the plaint, I do not think the plaintiff has a case that he was exercising the same as of right. The words 'as of right' are conspicuously absent in the plaint. In B.B. Katiyar--Easement & Licences'--11th Edition (1993), the learned Author has said at page 320 thus:
... According to conditions in India there is a presumption that the user is permissive and the person claiming the right must prove that acquisition of such right under Section 20 of Limitation Act or Section 15 of Easement Act. It is common for one cultivator to pass over the Mend of another cultivator as a means of access to his own field and such user of the Mend of one's field by an-other for purpose of agricultural operations and allied activities, is, generally speaking, never objected to and is, therefore, nothing but permissive. No easementary right therefore, can be acquired in this country by use of a Mend as a way unless there is clear evidence of such user as a matter of right.
The lower appellate Court has rightly held that the plaintiff has miserably failed to prove the easement. It may be further noted that while describing the property for which declaration is sought for, title is also claimed by the plaintiff. The plaintiff has not sched-uled the cart track and the property which he purchased in separate schedule. He wanted a declaration of title also for the pathway.
12. The further question that arises for consideration is, whether there is any easement of necessity. All the properties which touch the alleged pathway upto the plaintiffs' land belong to independent owners, and it was never part of a common ownership. It is also borne out from the evidence of the Commissioner and the defendants' evidence that the plaintiff has other access to his property. Even though the Com-missioner has reported that the alternative pathway suggested by the second defendant is in a difficult terrain, it cannot be a ground for granting a relief of easement of necessity. The Commissioner himself has reported that in the alternative way, he has found the marks of cart wheels passing through the same which reach upto the plaintiff's property. Even if there is any difficulty for using the same, Court also will have to take that factor into consideration while considering the relief sought for by the appellant. In the book on Easements and Licences mentioned above, the learned Author, while commenting on Section 13, has said thus (at page 240):
... An easement of necessity means an easement without which the property cannot be used at all. Mere convenience is not the test of an easement of necessary. It can be claimed only when there is absolute necessity for it, i.e., when the property cannot be used at all without the easement and not merely where it is necessary for its reasonable, or more convenient enjoyment. A man cannot acquire a right of way as an easement of necessity, if he has nay other means of access to his land however more inconvenient it may be than by passing over his neighbours.
An easement of necessity is not to be granted merely on the ground of convenience and advantage, but solely on the ground of absolute necessity. When there are other ways of ingress and exist, an easement of necessity cannot be claimed merely on the ground that such ways are inconvenient.
The right of way as easement of necessity implies that there is no other means of access, however, inconvenient. When the dominant tenement cannot be enjoy without imposing burden on the servient tenement, then the question of easement of necessity arises. If an alternative way exists no question of necessity arises.
Whatever may be the difficulty, if there is a way, that will be sufficient to decline the relief sought for By the appellants. The lower appellate Court has considered the evidence in that regard also, and has rightly come to the conclusion that the plaintiffs are not entitled to any relief.
13. In the result, confirming the judgment of the lower appellate Court, I dismiss the second appeal, how-ever, without any order as to costs.