Madras High Court
K. Ramasamy vs K. Ramasamy on 19 October, 2024
S.A.No.1182 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 19.10.2024
CORAM:
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
Second Appeal No.1182 of 2011
and
Miscellaneous Petition No.1 of 2011
K. Ramasamy,
S/o. Kuppusamy ... Appellant
Vs.
1. K. Ramasamy, [Died]
S/o. Karuppa Gounder
2. Kalliyammal
3. Pathmavathi
4. Vijayalakshmi
5. Gokul
6. Praveena
7. Sarmadha ... Respondents
[R1 died RR2 to 7 are brought on record as LRs of the
deceased R1 vide order dated 09.06.2023 in CMP No.6062/2022]
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S.A.No.1182 of 2011
Second Appeal filed under Section 100 of the Civil Procedure
Code against the Judgment and the decree dated 31.01.2011 passed in
A.S.No.28 of 2008, on the file of the Sub Court, Namakkal, reversing the
Judgment and Decree dated 01.02.2008 passed in O.S.No.128 of 2002 on the
file of the District Munsif -cum-Judicial Magistrate, Paramathi.
For Appellant : Mr. N. Manokaran
For R1 : Died
For R2 to R7 : Mr. S. Kaithamalaikumaran
JUDGMENT
The appellant herein is the defendant in the suit filed by the plaintiff in O.S.No.128 of 2002 on the file of the District Munsif-cum-Judicial Magistrate, Paramathi, for the relief of declaration, to declare that the defendant has no right of way through the land attached with the plaint and consequential permanent injunction. The trial Court rejected the claim of plaintiff and dismissed the suit and the Appellate Court reversed the finding and decreed the suit. Agreed over the Judgment of the Lower Appellate 2/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 Court, this Second Appeal is filed.
2. For the sake of convenience, the parties are referred as per their ranking in the Trial Court.
3. The plaintiff's father, his grand father and another have entered into a Partition deed, dated 30.07.1965 whereby, the suit property and other properties situated in Sungakaram Patti Village, Paramathi Taluk, Namakkal District were allotted in favour of the plaintiff’s father Karuppa Gounder. After his death, the first plaintiff has inherited the property and was in peaceful possession and enjoyment of the same. The Revenue Records were also mutated in favour of the plaintiff. On the North and East of the suit property, the lands in Survey No.113 and Survey No.111 respectively, were situated. East of the Survey No.111, there is a North South Main Road. The plaintiff having a land in Survey No.112/1 shown as P1 in the Rough Plan situated on the Southern side of Survey No.113. Further, Southern side of Survey No.112/1, the defendants lands in survey No.112/2 and 112/3 are 3/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 situated. The plaintiff use the ittary pathway running over the lands in Survey No.111 and Survey No.113 to reach his land. The defendant is having separate way to reach his lands in Survey No.112/2 and Survey No.112/3 marked as D1 and D2 in the Rough plan. Without any right, the defendant is attempting to reach his land from the very same ittary pathway used by the plaintiff and also over the plaintiff’s land. The defendant has no manner of right to use the plaintiff’s land. The defendant’s predecessor-in-title uses the corner of P1 land, if there was no standing crop and at no point of time, there is a pathway in P1 land. Suddenly, during last week of November 2002, the defendant trying to form a cart track, which is shown as X3, X4 in the rough plan to the width of 20 links by encroaching plaintiff-P1 land. Hence, he has come forward with the suit.
4. The plaint Rough Plan is given below:
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5. The defendant has contested the suit on the ground that originally, the lands marked as D1 and D2 i.e., defendant's land in the rough plan was part of Survey No.112. Subsequently, those lands were sub divided among the predecessor-in-title of the plaintiff as well as defendant. The predecessor-in-title of the defendant was enjoying D1, D2 lands by using the cart track situated on the Eastern corner of D1, D2 and P1 lands. They used to take vehicles, cattle and for all purposes to transport agriculture produces from D1, D2 and P1 lands. In the Sale deeds executed in favour of the defendant, existence of 20 links and approach road has been mentioned. Due 5/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 to communal enmity as well as to prevent the defendant from enjoying D1, D2 lands, the suit has been filed.
6. Based on the pleadings made on both parties, the trial Court has framed the following Issues and Additional Issues.
Issues:
“1. Whether the suit cart track is a common cart track?
2. Whether the plaintiff is entitled for declaration and consequential injunction as prayed for?
3. To what other relief the plaintiffs is entitled for?” Additional Issues:
“1. Whether the defendant is entitled to use the lands in D1 described as X3, X4 cart track to reach his D1 and D2?”
7. After considering the evidence of both sides, the trial Court has rejected the case of the plaintiff and dismissed the suit.
8. Aggrieved over the same, the plaintiff approached the Appellate Court and the Appellate Court, after considering the relevant issues granted 6/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 injunction in favour of the plaintiffs, on the ground that, the defendant has no right to claim right to use the cart track based on the Sale deed executed in favour of him since the plaintiff is not a party to the said deed. It further held that, existence of cart track not established by the defendant.
9. Aggrieved over the concurrent findings, this Second Appeal is filed by the defendant. At the time of admission, this Court has framed the following substantial question of law?
“1. Whether the First Appellate Court erred in law in not taking into consideration or giving a specific finding on the admission made in the evidence of P.W.1 with regard to the existence and usage of the suit cart track by the respective parties before decreeing the suit?
2. Whether the First Appellate Court justified in granting a decree for injunction in favour of the plaintiff notwithstanding the fact that the defendant has pleaded easement by prescription and necessity between the portion X3 to X4 in the cart track particularly when the foot way mentioned in Ex.C2 would no way non-suit the defendant?
3. While common owner owned and held the entire land in S.F.No.112, whether the findings with regard to refusal to grant easement of necessity and prescriptions contrary to the law of Easement?” 7/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011
10. It is admitted case of the parties that the ancestors of the plaintiffs and vendors of the defendant jointly owned lands mentioned in Survey Number 112, later it was sub divided into three Survey Numbers. Survey No.112/1 is in possession of the plaintiffs and Survey No.112/2 and Survey No.112/3 are in possession of the defendant. These lands have been shown as P1, D1 and D2 respectively in Rough Plan. These sub divisions were made, in pursuant to a Partition Deed-Ex.A1, dated 30.07.1965 entered between the plaintiffs and their family members. The lands in Survey No.112 is bounded by Survey No.113 on the North and Survey No.111 on the East. On the Northern corner of Survey No.111, there is approach road called Ittary pathway running East – West, enters into Survey No.113 running towards North - South is being used to connect the land in Survey No.112 with Ittary marked as X1 to X4 in Rough Plan. The plaintiffs claimed that the defendant's land which was situated in Southern side of the plaintiffs' land are not entitled to use this North - South cart track, which is 8/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 suit cart track.
11. It is the case of the defendant that they have purchased the land with the right to use this North - South cart track to reach his land by using the Eastern portion of the plaintiffs' land. In the Rough Sketch filed along with the plaint, this portion has been marked as X1, X2, X3 and X4. According to P.W.1, they take men, cattle, vehicles in this marked portion. He has also admitted that the defendant's vendors also used this portion of land, to reach their land i.e., the plaintiffs' and defendant's land. He further deposed that the defendant is not entitled to lay the road permanently in that portion and the defendant has attempted to lay the road in X3, X4 portion of Rough Sketch which runs through the plaintiffs' land shown as Ex.P1.
12. At the time of purchasing the property, the vendors have given a right to reach the defendant's lands i.e., lands in Survey No.112/2 and Survey No.112/3 through the lands in Survey No.113. Prior to execution of Ex.B1- 9/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 Sale deed, on 13.07.1990, the vendors of the defendant have also executed the Partition Deed-Ex.A1 among their family including plaintiff's father, wherein, the lands in Survey No.112/2 and Survey No.112/3 was allotted in favour of the vendors family. In Ex.B1-Sale Deed, dated 13.07.1996, there is a specific clause mentioned about the existence of 20 links vide cart track to reach the lands in Survey No.112/2 and Survey No.112/3 which runs on the lands in Survey No.113 running North - South linking ittary. Ex.B2-Partition Deed dated 13.07.1990 and Ex.B3-Patta shows that there was 20 links cart track was in existence.
13. Admittedly, Survey No.112/1, belongs to the plaintiff and he has not produced any document which grants him right to use the cart track situated in Survey No.113 to reach his land. Even though, he has produced Ex.A1-Partition deed, dated 30.07.1965 to show that in Survey No.112 referred as Mala Koil Punjai, in which, his family is allotted 1/3 shares with specific boundaries, there is no mention about the cart track to reach this 1/3 share. Having allotted 1/3 share, even though, there is no mention about the 10/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 cart track to reach his land in Survey No.112/1, he claims that there is a cart track running in Survey No.113 to reach his land. He is not able to produce any evidence to show that, how he derived the right to use the land in Survey No.113. However, in the evidence, he has admitted that there is a cart track and the defendant's vendors have also used this cart track to reach their land.
14. The proof affidavit filed by the plaintiffs clinchingly reveals that Survey No.112, the portion of land i.e., now shown as P1 in the Rough Sketch was allotted to the family of the plaintiffs in the year 1965 itself. As per Partition deed-Ex.A1, dated 30.07.1965, the possession was also handed over to the plaintiff's father namely Karuppa Gounder. The lands shown as P2 and P3 was allotted in favour of one of the family member i.e., paternal uncle of the plaintiffs. It is also specific case that after effecting partition, they were using this portion of the land by accessing it by X1, X2 cart track.
15. It is also pleaded in the plaint that the defendant's predecessor-in- title would take men and cattle only through Pl land, where there is no 11/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 standing crop in the specific portion, can be claimed as path way. This evidence denotes that from the date of partition in the year 1965, P1 portion of land was carved out from Survey No.112 and the approach cart track was provided to his land marked as X1, X2 portion. That being so, naturally, the portion, which is allotted to the plaintiffs relatives in D1 and D2 also would have been given approach road as given to P1 land. In the Sale deed, executed in favour of the plaintiffs Vendor in the year 1990, they have categorically stated that it is custom cart track used to reach the East- West Ittary. Even though, the defendant claim that he is using this portion of land based on easement by grant in terms of Sale deed in the year 1990, the proven facts shows that, even prior to execution of Sale deed in favour of plaintiff, their vendors used this cart track and they state it as custom cart track. Thus, it shows that the vendors of the defendant used the land not based on the easement of grant but based on the easement by necessity and by prescription.
16. It is the case of the plaintiff that in the year 1965 itself, P1 portion 12/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 was allotted to them and remaining portion D1 and D2 portion was allotted to one Kuppanna Gounder, who is also a family member of the plaintiff's father. Thereby, this Court is of the view that even though, the defendant is not having right to claim easementary right to use the cart track on the basis of easement by grant, they are entitled to use the portion of cart track as easement by prescription. The evidence produced on the side of the defendant has been properly appreciated by the trial Court and it has rightly held that the existence of cart track is admitted and the Advocate Commissioner, who has visited and noted down the physical features also recorded that there is a way, which contain Tractor tyre marks running on Survey No.113 and Survey No.112/1 to reach the lands in Survey No.112/2 and Survey No.112/3.
17. The Lower Appellate Court has held that the lands in which, running of X3, X4 cart track belongs to the plaintiffs, the defendant has not made any claim of easement to use those lands instead, he claims that there is a cart track and he is entitled to use it. Since, no easement right has been 13/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 claimed by the defendant, he is not entitled to use the land of the plaintiffs to reach his land. The Lower Appellate Court has further interpreted the Advocate Commissioner's Report and held that the Advocate Commissioner has only noted the pathway connecting the ittary to the lands in Survey No.112/1, and it shall not be considered as a cart track and has held that the defendant ought to have filed the suit for declaration seeking mandatory injunction to lay the road of the lands in Survey No.113 as well as other portions.
18. The Lower Appellate Court has also wrongly appreciated the burden of proof in this case. Having admitted the fact that, the defendant's Vendors used the Eastern side of the land in Survey Nos.112 and 113 to reach their lands, the plaintiffs who approached the Court seeking declaration and injunction against the defendant that, the defendant is not having right of way through X3, X4 portion in P1 land, the plaintiffs have to prove their case in support of the same.
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19. It is true that, the defendant has been granted to use Eastern portion of the land in Survey Nos.112 and 113, as per Ex.B1-Sale deed, in which, the plaintiffs are not party and the same is not binding on them. However, having accepted the fact that the defendant's Vendors and their ancestors in title used the cart track as referred as X3 and X4, the plaintiffs failed to establish how the defendant is not entitled to continue the right of using cart track. The Lower Appellate Court has, on technical grounds, dismissed the case of the defendant and observed that the defendant has not claimed easement by necessity. It is relevant to read Section 13(e) and (f) of the Indian Easements Act, 1882 (Easements Act, hereafter) deals with the creation of Easements of necessity and quasi easements at the time of partitioning joint properties to several persons.
20. Section 13 of the Indian Easements Act, 1882 reads as follows:
“Section 13- Easements of necessity and quasi easements.—Where one person transfers or bequeaths immovable property to another,—
(a) if an easement in other immovable property of the 15/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement;
(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
Where a partition is made of the joint property of several persons,—
(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be 16/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 entitled to such easement.”
21. Section 13 further clarifies that, Easements mentioned in Clauses, a, c and e are called Easements by necessity. This Section along with Section 15 of the Easements Act was interpreted by this Court in Palaniswami Naicker vs. Chinnaswami Naicker (1968 (1) MLJ 502) and in paragraph No.11, it has been observed as follows:
“11. An easement of way being an affirmative easement enabling the dominant owner to use the servient tenement, ought to be continuous and apparent. It should be peaceably and openly enjoyed as of right and as an easement. It may have its origin in a statute or in an express or implied grant or acquired by prescription. Such a prescriptive right of way can be destroyed only by a totality of cessation of the exercise of such a right. As the definition itself postulates, the interruption of the course of way should be significant. In the instant case, there is no acceptable evidence to show that there has been a telling interruption leading to a normal presumption as to extinguishment of the right of way originally created by the instrument of 1890. Can it be said that there has been a snap in the chain of continuity of the assessment by the non-mention of the same in Exhibit B-2 which is the sale deed in favour of the predecessor in title of plaintiff. A right of way enjoyed as an easement of another's land passes with the transfer of the dominant tenement, whether it be by alienation or succession. In my opinion, the omission to mention the obvious in a conveyance deed is immaterial. Of course, when 17/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 such a recital is there, it may be considered as supporting evidence. An easement being an appurtenance to the dominant tenement, passes with the property' and it cannot be destroyed or extinguished by a casual omission of a drafts man while drawing up a conveyance deed. Thus the omission of the suit pathway in Exhibit B-2 and of the existence of the accredited easement of way in question over the southern portion is not a material circumstance so as to delimit in any way the vested right in the plaintiff. It should not however be forgotten that Exhibit A-4 dated 23rd June, 1932, this right is expressly mentioned. As already stated, disinterested witnesses examined on the side of the plaintiff have spoken to the user of the suit pathway by the dominant owner. It is however contended that the right of way granted under Exhibit A-3 is a personal right to Chinna Venkataswami Naicker. In my opinion it is not so. We have seen the express provision in Section 13 (e) and (f) of the Easements Act. It is indisputable in this case that there exists the dominant and the servient tenements. Therefore, the easement of way provided in Exhibit A-3 got itself attached to the northern portion of the originally composite land. It is therefore not a right in personam but a right in rem. As observed in Krishna Iyer v. Venkatachala Mudali (1871-74) 7 M.H.C.R. 60.
An easement is an incorporated right exercised in, or over, corporeal property for the beneficial enjoyment of other corporeal property.”
22. The Lower Appellate Court has misread the evidence of the defendant, admission of plaintiffs' as well as the recitals in Ex.A1 i.e., Sale 18/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 deed executed in favour of the plaintiffs' Vendors, where it is established that, the ancestors-in-title treated the cart track as custom cart track and though they derived their right to use the cart track instantly by way of easement by necessity after partition and subsequently by prescription, i.e., by way of continuously using it from 1965 onward. In the Sale deed, Vendors had pass on this right in favour of defendant's vendors. This transfer of right of easement by prescription was relied on the plaintiffs for claiming right to use the cart track, is not based on new grant, it is only transfer of easement right which is already in existent. Section 19 of the Easements Act permits the transfer of this right. Section 19 of the said Act reads as follows:
“19. Transfer of dominant heritage passes easement Where the dominant heritage is transferred or devolves, by act of parties or by operation of law, the transfer or devolution shall, unless a contrary intention appears, be deemed to pass the easement, to the person in whose favour the transfer or devolution takes place. Illustration A has certain land to which a right of way is annexed. A lets the land to B for twenty years. The right of way vests in B and his legal representative so long as the lease continues.”
23. This Section supports the case of the defendant that, with the 19/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 transfer of dominant heritage, the easement on the servient tenement also stood transferred. In the right of easement so acquired are never personal and such rights are always annexed to dominant heritage. Section 19 of the Easements Act, 1882 provides wherever dominant heritage is transferred or devolves by act of parties or operation of law, unless the contrary intention appears, right of easement also pass on with the dominant heritage.
24. The Patna High Court in the case of Rajpur Colliery Co. and others v. Pursottam Gohil and another (AIR 1959 Page 463), has held that, even in the absence of mentioning of easementary right of the dominant heritage in the conveyance deed, easement is legally uppertenant to the dominant heritage. In paragraph Nos.68 to 76, it is observed as follows:
“68. It has also been found that the plaintiff and his men had also used this road for the aforesaid purposes and had been so doing till 1949, when the defendants obstructed this road by digging trenches and putting obstructions. The further fact also cannot be lost sight of that when the defendants' predecessor-in-interest took the lease in 1914, this road in question had already come into existence and that each and every person connected with the tenements in 20/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 plots Nos. 23 and 24, namely, the lessor, the two lessees and their predecessors-in-interest must have been conscious of the existence of this road and its use for all sorts of traffic by the persons in possession of the property, i.e., plot No. 23.
69. In this background if we look to the contents of the lease of 1935 (Exhibit 4/c) granted by the lessor to the plaintiff, it becomes clear to me that the plaintiff had acquired the right to use this road, by implied grant.
70. The important and significant recitals in this deed of lease (Exhibit 4/c) are that the plaintiff had expressed the desire of taking settlement of plot No. 23, together with all appurtenances, machineries etc. that is to say, the entire properly. The lessor had granted this prayer and accordingly this putta had come into being. I do not think any other reasonable inference can be drawn from these facts than that the plaintiff had been impliedly granted his right of way, namely, the right to use the road between the points A and C, (see Hansford v. Jago, (1921) 1 Ch 322).
71. Mr. Lal Narain Sinha also raised the point that since the lease of 1935 was not in accordance with section 107 of the Transfer of Property Act because no counter part of the lease had been executed by the lessee, and the lessee had not also executed Exhibit 4/c, the putta, no title had passed to him and consequently there was no valid grant in favour of the plaintiff, and, therefore, he could not claim the right by implied or express grant.
72. This argument, however, does not cut much ice for 21/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 the appellants, for even if it be taken that the lease was initially invalid for the reason stated above, the position here is that the plaintiff has remained in possession of the leasehold property from the date of the grant in 1935 all along till his right of way was interfered with in 1949 and indeed is still in possession of that property. It was not disputed before us that the lessor has been always treating the plaintiff as his tenant in respect of the leasehold property, plot No. 23, and has also been accepting the rent etc. payable under the lease by him under the putta (Exhibit 4/c).
There is, therefore, no force in this contention of Mr. Lal Narain Sinha.
73. I am also disposed to uphold the alternative contention of Mr.B.C. De on the point of the acquisition of the right of way by the plaintiff by express grant. This point was taken up in the court below and was discussed before us elaborately. Mr. B.C. De's contention as I understood it was that even if it were taken that by the purchase of the dominant tenement by the lessor in 1934, no change had taken place so far as the servient tenement was concerned, only the right of reversion remaining with the lessor, and this was not sufficient to attract the principle of implied grant which came into play only when a person was the owner in possession of both the tenements-dominant as well as the servient, the plaintiff would still succeed on the principle of express grant. He developed this argument thus:—
74. If Imam Ali and his partner who held the dominant tenement, plot No. 23, and the buildings thereon, had already acquired this right of easement in law, the subsequent 22/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 purchase of this plot by the lessor in 1934 with all the rights etc. appertaining thereto had the effect of transferring this easement to him, and when the lessor transferred lie dominant tenement (plot No. 23) to the plaintiff in 1935, it must be held that this transfer conveyed as a matter of law (see Section 8 of the Transfer of Property Act and also the same principle embodied ill Section 19 of the Indian Easements Act) this right of way to the plaintiff, it having been not necessary to mention it specifically in the deed of lease of the 26th February, 1935 in favour of the plaintiff. I think this contention is correct.
75. It is settled law that once an easement has become legally appurtenant to a dominant tenement, it will ipso facto pass on a conveyance of that dominant tenement, no express mention thereof in the deed of conveyance being necessary; See International Teas Stores Co. v. Hobbs, (1903) 2 Ch D 165; Vishun v. Rangi Ganesh, ILR 18 Bom
382. It was, however, contended that there was nothing to show that Imam Ali and others had acquired any such easement for plot No. 23 before it was purchased by the lessor in court sale in 1934.
76. Now, it is also well established that Section 26 of the Indian Limitation Act is not the only way of acquiring an easement, but that it can as well be acquired in other recognised ways, such as express grant, implied grant or lost grant, i.e. long user raising the presumption of the legal origin of ‘the right; see the case of Rajroop Koer v. Abdool Hossain, ILR 6 Cal 394 (PC).”
25. Section 8 of the Transfer of Property Act, 1882 also recognises 23/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 that, easement passes with property for the beneficial enjoyment of which it exists, as a thing upper tenant thereto. It reads as follows:
“Section 8: Operation of transfer.
Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof.
Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth;
and, where the property is machinery attached to the earth, the moveable parts thereof;
and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows and all other things provided for permanent use therewith;
and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accured before the transfer;
and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.”
26. The Calcutta High Court in the case of Santosh Kumar Dey and Another vs. Jauanti Sanyal 2005 SCC OnLine Cal 395, after considering 24/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 the effect of Section 8 of Transfer of Property Act, 1882, and Section 19 of the Indian Easements Act, 1882, held in paragraph 27 as follows:
“27. Admittedly, the plaintiff has not purchased the entire interest of Lalit in the said holding. The plaintiff only purchased a portion of the holding of Lalit through her successor-in-interest who retained the rest of the land together with the right of passage over the ‘B’ Schedule property with her. Subsequently, the said widow of Lalit transferred the remaining part of the land of the said holding together with the right of passage over the ‘B’ Schedule property by way of gift in favour of the defendant No. 2. It is true that in view of section 19 of the Indian Easements Act read with section 8 of the Transfer of Property Act, an easement being an appurtenance to the dominant tenement, passes with the property, and it cannot be destroyed or extinguished by the casual omission of a draftsman while drawing up a conveyance deed. As such, when a severance of the dominant tenement takes place, all its easements which are attached to the tenement, and not to the person of the owner, will attach to the severed portions.”
27. The Apex Court in Sree Swayam Prakash Ashramam and Others vs. G.Anandavally Amma and Others [AIR 2010 SC 622 : 2010 (2) SCC 689] has held that even in the absence of any pleadings for easementary right, if the evidence placed on record shows that the right of easement was exercised for a substantial period by the party, the same shall be considered 25/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 and granting decree based on the evidence is permissible and it has been held in paragraph Nos.30, 31 and 32 as follows:
“30. The learned counsel for the appellant raised an argument that since no case was made out by the respondent-plaintiffs in their plaint about the easementary right over the B schedule pathway by implied grant, no decree can be passed by the courts below basing their conclusion on implied grant. We have already noted the findings arrived at by the trial court, on consideration of pleadings and evidence on record on the right of easement over B schedule pathway by implied grant.
31. The trial court on consideration of the evidence of both the parties recorded the finding that there was no evidence on record to show that either Yogini Amma or the defendants themselves until 1982 had objected to the plaintiff's use of B schedule pathway to access A schedule property. The trial court on consideration of the plaintiff's evidence and when the defendant had failed to produce any evidence, had come to the conclusion that the plaintiff was given right of easement by Yogini Amma as an easement of grant.
Considering this aspect of the matter, although there is no specific issue on the question of implied grant, but as the parties have understood their case and for the purpose of proving and contesting implied grant had adduced evidence, the trial court and the High Court had come to the conclusion that the plaintiff had acquired a right of easement in respect of B schedule pathway by way of implied grant. Such being the 26/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 position, we are not in a position to upset the findings of fact arrived at by the courts below, in exercise of our powers under Article 136 of the Constitution of India.
32. We also agree with the finding of the trial court that from the evidence and pleadings of the parties B schedule pathway was given to the respondent-plaintiff as an easement of grant. It is true that the appellant-defendant alleged that no implied grant was pleaded in the plaint. The trial court, in our view, was justified in holding that such pleadings were not necessary when it did not make a difference to the finding arrived at with respect to the easement by way of grant. Accordingly, there is no substance in the argument raised by the learned Senior Counsel for the appellants.”
28. As discussed supra, the defendant has pleaded easement by grant based on Ex.B1-Sale deed, however the facts established shows that ancestors-in-title of D1 and D2 lands have used the cart track even prior to his purchase in the year 1990. The defendant has not realised the fact that, what was granted as easement is only a transfer of existing right of easement by prescription. The defendant's enjoyment was not prevented by the plaintiffs. Only when the defendant attempted to lay the pucca road to the extent of 20 links, the plaintiffs have raised objection. The plaintiffs have not 27/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 raised objection of the enjoyment of the defendant as well as his vendors. Under the said circumstances, I am of the view that, the defendant has probabilised his case that, there is a custom cart track in existence and the defendant and his ancestors in title were used it continuously from the year 1965 onwards i.e., from the date of partition and subdivision of lands allotted to the respective parties in Survey No.112, thereby, the defendant has perfected his right also by prescription, and the defendant shall be permitted to continue his enjoyment.
29. As observed by the Lower Appellate Court, the plaintiffs are entitled to claim the ownership of their portion of the land, which is used as cart track. However, as a servient owner they are not entitled to get injunction against the defendant-dominant owner from using X3, X4 portion of land. Accordingly, the substantial question of law 1 to 3 are answered that, the Lower Appellate Court has erred in holding that the appellant herein who has not claimed the easement by necessity is not entitled to use the plaintiffs land, is not sustainable, in the facts and circumstances of this case. The right of using the cart track was granted by way of Ex.B1 is only transfer of 28/32 https://www.mhc.tn.gov.in/judis S.A.No.1182 of 2011 existing right of Easement by Prescription. The vendors of defendant are entitled to transfer this right in favour of defendant and the same is binding on the plaintiffs (as a servient owner) though he was not party to the document.
30. In the result, the Second Appeal is partly allowed. The plaintiffs are entitled for decree only to the extent that the defendant is not entitled to lay road in the lands marked as X3, X4 portion in the Survey No.112/1 marked P1 land in the Rough Sketch. However, they are not entitled to injunction against the defendant preventing him from enjoying the said portion of the cart track. No order as to costs. Consequently, the connected miscellaneous petition stands closed.
19.10.2024
ssi
Index : Yes / No
Speaking Order :Yes/No
Neutral Citation Case : Yes/No
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https://www.mhc.tn.gov.in/judis
S.A.No.1182 of 2011
To
1. The Principal Subordinate Judge,
Vridhachalam.
2. The Principal District Munsif's Judge,
Vridhachalam.
3. The Section Officer,
VR Section,
High Court of Madras
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https://www.mhc.tn.gov.in/judis
S.A.No.1182 of 2011
K.RAJASEKAR,J.,
ssi
S.A.No.1182 of 2011
31/32
https://www.mhc.tn.gov.in/judis
S.A.No.1182 of 2011
19.10.2024
32/32
https://www.mhc.tn.gov.in/judis