Madras High Court
V. Ponnusamy Padayachi vs Rathina Padayachi And C. Ponnusamy ... on 15 March, 2004
Author: M. Chockalingam
Bench: M. Chockalingam
JUDGMENT M. Chockalingam, J.
1. The first respondent filed a suit for partition and for declaration of easement right of the suit mentioned pathway on the following allegation.
2. The plaintiff and the first defendant are the sons of the deceased Chinnasamy Padayachi and as between these 3 coparceners, a partition had taken place by virtue of a registered partition deed dated 4.2.76 when Chinnasamy was alive; that two items of properties mentioned in the schedule were allotted to the share of Chinnasamy and 'A' schedule to be partitioned by the 2 sons after the time of Chinnasamy, while 'B' and 'C' schedules of properties were allotted to the share of 2 sons as per the deed; that after the death of Chinnasamy, the suit properties are being enjoyed by the plaintiff and first defendant as co-owners without any partition and they are in joint possession; that the 2nd defendant is the brother's son of the said Chinnasamy Padayachi i.e., paternal uncle's son of the plaintiff and the first defendant; that between the 2nd defendant's father by name Vaiyapuri Padayachi and Chinnasamy Padayachi, there was a oral partition some 50 years back; that in the suit locality, 2nd defendant has also owned properties adjacent to the suit properties and other properties of plaintiff and first defendant; that the suit locality is situate in Ryotwari land comprised in S.F.119/4 Ac.2.03 and the partition is in accordance with the indications submitted in the plaint plan with house, manure pit, hay-rick, well and cultivable lands; that to reach the respective portions of the plaintiff and 1st defendants on one part and 2nd defendant on the other part, there has been a pathway in existence for the last 50 years; that the said pathway is the suit pathway marked as A B B 1 C D E F G.; that the said pathway passes through the portion belonging to both parties and they never felt to have separate demarcation for the pathway as it passes through vacant sites belonging to both parties; that when the suit property was enjoyed by the plaintiff and 1st defendant, the 2nd defendant has brought up a bogus exchange deed from first defendant on 21.2.83 falsely alleging that the southern half portion in each of the suit property did belong to the first defendant exclusive when there has never been any partition between the plaintiff and first defendant; that after getting this fraudulent sale, the second defendant is attempting to prevent the plaintiff from using the suit pathway denying the right of the plaintiff; that the 2nd defendant claims title over the southern half share in each of the suit property and also denies the easementary right of pathway over the suit pathway which stands vested with the plaintiff; that since the suit pathway has been enjoyed by the plaintiff and his predecessors in title for a period of 50 years and more, the plaintiff has acquired the right of pathway by adverse possession also over the suit pathway; that the Court has set out a pathway in accordance with the provision of the Easement Act for the plaintiff over the suit locality; that in view of the alleged bogus Exchange Deed, it has become incumbent on the plaintiff to sue for partition of the suit properties and for allotment of " share with possession to him and hence, the suit was filed for easementary right of the plaintiff over the suit pathway and also for partition of the suit 1st and 2nd items into two equal half and for allotment of one share providing pathway.
3. The suit was resisted by the 2nd defendant. The 2nd defendant had stated that he admits the relationship set out in the plaint among the parties and also the partition between Chinnsamy and Vaiyapuri; that it is true that in the partition deed, dated 4.2.76, the suit items and other items were allotted to the share of Chinnasamy with a life estate to be partitioned by the plaintiff and the first defendant after the life time of Chinnasamy; that after the death of Chinnasamy, the suit items 1 and 2 have been partitioned into two shares; that there is no pathway in existence as shown in the plaint plan as A B B 1 C D E F G for taking carts to the lands of the respective parties for over 50 years as alleged in the plaint; that there is only a feet pathway as shown in the Commissioner's plan to reach the lands of the respective parties to the suit; that it is being used during non-cultivation season for men and taking cattle for ploughing the lands of parties and during cultivation season and it is being used only by the parties to reach their respective lands; that no cart has ever been taken at any point of time through the pathway shown in the plaint plan; that as there is no pathway at all in existence for carts to go at any point of time, the claim of the plaintiff that he and his predecessors in title have acquired the right of pathway by adverse possession is false; that the plaintiff has been reaching his lands on the southern side through the opening shown in southern land of the plaintiff ; that the claim for partition and easementary right of pathway is unsustainable and hence, the suit has got to be dismissed.
4. The trial Court framed necessary issues, tried the suit and dismissed the same. Aggrieved plaintiff, took it on appeal wherein the first appellate Court reversed the judgment of the trial Court in respect of the denial of right of pathway and granted the relief stating that the plaintiff was entitled for easementary right over the cart track. Aggrieved defendant has brought forth this Second appeal.
5. At the time of admission, the following substantial questions of law were formulated by this Court.
1. Whether the lower appellate Court is correct in law in holding that the plaintiff is entitled to a decree regarding the pathway claimed by him as an easement by prescription without there being any proof of such right being exercised by the plaintiff as per the provisions contained in Section 15 of the Easements Act?
2. Whether the 1st respondent is entitled to a decree on the basis of an easement by prescription with reference to the suit pathway without any proof of long and continued user for a period well over 22 years as required under Section 15 of the Easements Act?
6. Heard, learned counsel for the appellant and also the respondents on those contentions.
7. The plaintiff sought for a declaration of easementary right of pathway over the pathway which is A B B 1 C D E F and G and also for consequential permanent injunction. The specific case of the plaintiff was that the suit properties situate in S.No.119/4 is the pathway to reach the plaintiffs land and that of the first defendant on one part and the second defendant on the other part. The said pathway is in existence for nearly about 50 years and it has been used to reach the respective lands and the same is indicated as A B B 1 C D E F G in the plaint plan marked as Ex.A4. The said pathway passes through the land of defendants and the same was being used in the past continuously and it was the only way to reach the plaintiff's land and thus, it has become necessary for the plaintiff to seek for declaration of easementary right of the pathway when there was an objection on the side of the opposite party.
8. It is pertinent to point out that the defendants in the written statement has categorically admitted the existence of a feet pathway but they would add that it was being used during non cultivation season for men and taking cattle's to plough the lands and during the cultivation season, it is being used to reach the respective lands and no cart is ever been taken at any point of time through the pathway shown in the plaint plan. A commissioner is appointed whose report and plan was marked as Exs.C1 & C2 . The Commissioner had categorically pointed out the existence of pathway in question. The trial Court without appreciation of the evidence available, denied the relief but the Appellate Court has committed a mistake by granting the relief of declaration that the plaintiff is entitled for easementary right over the cart track only during non-cultivation season. It is pertinent to point out that even in the plaint the plaintiff has sought for the relief which reads as follows:
a) declaring the easementary right of pathway of the plaintiff over the suit pathway A B B1 C D E F G and restraining the defendants and their men from interfering with the plaintiff's right to use it as pathway for him, his men, cattle and cart by using a permanent injunction thereon
b) by passing both preliminary and final decree for partition of the suit 1st and 2nd items into two equal half share and for allotment of one share providing for pathway, if necessary with possession.
c) directing the defendants to pay the cost of the suit to the plaintiff.
9. Under such circumstances, it is highly surprising to note that the first Appellate Court even without looking into the plaint and the existence of the pathway, which was admitted by the defendant in the written statement and found to be in existence in the Commissioner's report has declared the easementary right to the plaintiff over the cart track only during non-cultivation season. From the available evidence, the right of the plaintiff as to his easementary right of pathway which is shown as A B B 1 C D E F G and was also pointed out by the Commissioner has got to be recognised and granted.
10. Learned counsel for the appellant would submit that if the Court comes to the conclusion that the suit pathway has got to be granted in favour of the plaintiff, it has got to be given only during the period of non-cultivation season and not during other seasons. It remains to be stated that it is well admitted in the written statement that a feet pathway was being used by the respective parties during the non-cultivation season.
11. Under such circumstances, the Court is of the considered view that the said easementary right has got to be granted in favour of the plaintiff during both cultivation and non-cultivation seasons. Hence, the judgment of the first Appellate Court is modified and decreed in favour of the plaintiff to the extent that the plaintiff had recognised his right over the pathway and that he can use the said pathway during both cultivation and non-cultivation seasons.
12. With the above modification in the judgment of the First Appellate Court, the second appeal is dismissed leaving the parties to bear their costs.