Madras High Court
Malaya Gounder (Died) vs Nachiappa Gounder on 16 March, 2012
Equivalent citations: AIR 2012 MADRAS 182
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16 .03.2012 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Second Appeal No.184 of 2005 1. Malaya Gounder (died) 2. Periyasamy 3. Subramani Gounder (died) 4. Ramasamy 5. Krishnasamy Gounder (died) 6. Ramathal 7. Jayamani 8. Santhamani 9. Tmt.Ammaiammal 10.K.Nallasamy 11. K.Subramani 12.K.Venkatachalam 6th appellant brought on record as LR of the deceased 1st appellant and 7th and 8th appellants brought on record as LRs of the deceased 3rd appellant and 9th to 12th appellant brought on record as LRs of the deceased 5thappellant vide order of Court dated 2.2.2012made in C.M.P.Nos. 83 of 2012 and C.M.P.No.84 to 86 of 2012 and C.M.P.Nos.87 to 89 of 2012 respectively ..Appellants -Vs- 1. Nachiappa Gounder 2. Ramasamy 3. Marappa Gounder ..Respondents Appeal filed under Section 100 of C.P.C. against the judgment and decree dated 24.6.2004 on the file of the Additional District Judge (Fast Track Court No.1), Erode in A.S.No.10 of 2004 reversing the judgment and decree of the learned District Munsif cum Judicial Magistrate, Perundurai in O.S.No.136 of 1999 dated 10.11.2003 For Appellant : Mr.A.K.Kumaraswamy For Respondents : Mr.N.Manoharan J U D G M E N T
This appeal is directed against the judgment and decree passed by the first appellate Court in A.S.No.10 of 2004 dated 24.6.2004 in reversing the judgment and decree of the trial Court made in O.S.No.136 of 1999 dated 10.11.2003, dismissing the suit.
2. The appellants 1 to 5 were the defendants, the 6th appellant was impleaded as the legal representative of the deceased first appellant and the appellants 7 and 8 were brought on record as legal representatives of the 3rd appellant and the appellants 9 to 12 were brought on record as the legal representatives of the deceased 5th appellant in this appeal.
3. The case of the plaintiff as stated in the plaint before the trial Court would be thus:
The 2nd plaintiff is the son of the 1st plaintiff and the 3rd plaintiff is the brother of the 1st plaintiff. The 2nd defendant is the son of the 1st defendant. The 4th defendant is the son of the 3rd defendant. The defendant Nos. 1, 3 and 5 are the brothers and sons of one Velappa Gounder. Originally one Mola Gounder was the owner of R.S.Nos. 158,1 59 and 163 corresponding to Old S.Nos. 146, 151 and also other survey numbers and the same were in one unit. The said Mola Gounder had 4 sons and the plaintiffs and the defendants are the branches of the above said Mola Gounder. On 18.9.1961 the father and mother of the plaintiffs 1 and 3 by name Palani Gounder and Devayal and the plaintiffs 1 and 3 and their brother Velappa Gounder partitioned their family properties under a registered partition deed. In that partition deed, B-Schedule property was allotted to the 1st plaintiff and C-Schedule property was allotted to the 3rd plaintiff and D-schedule property was allotted to Velappa Gounder. The plaintiffs are enjoying their properties peacefully without any disturbance. The plaintiffs are paying kist to the Government. Alampalayam Koothapalayam Panchayat road running east-west and from that road, a cart track is branched to a width of 20 feet towards south and running across the 3rd parties land and then it proceeds towards the land of the defendants in between R.S.No.158 and 159 of Koothampalayam village upto the land of the plaintiffs. After that, the cart track turns towards east and then runs towards south to the lands of the defendants. A rough sketch of the pathway is produced along with the plaint. The pathway is shown in yellow colour. The plaintiffs are also owning houses and Thondupatti in R.S.No.163 at koothampalayam village. This cart track is the suit track. It is in existence from time immemorial. It is used by the plaintiffs to reach their lands. The plaintiffs as well as the predecessors in title as well as the defendants and their predecessors in title were using the said cart track for taking men, cattle, carts and vehicles, etc. The said cart track is clearly mentioned in the partition deed, dated 15.9.1961. The plaintiffs have perfected title, under the principles by easement by prescription. The plaintiffs have no other cart track, except this suit cart track. Therefore, under the principle of easement of necessity also, the plaintiffs are entitled to use the cart track. The plaintiffs are enjoying the suit cart track openly, continuously, uninterruptedly with the knowledge of the defendants and others till date. Therefore, the plaintiffs have perfected their right under the principles of easement of necessity, prescription and grant also. The properties of the plaintiffs are surrounded by the lands of the defendants. The defendants are having an eye over the properties of the plaintiffs. The defendants demanded the plaintiffs to sell their properties for which the plaintiffs refused. Hence, there arose enmity. All of a sudden, the defendant attempted to prevent the plaintiffs from using the suit cart track and also obliterate the same. The plaintiffs prevented the same. The defendants went away proclaiming to renew their attempt. Hence, the suit for permanent injunction with costs.
4. The objections raised by the 4th defendants in the written statement as adopted by the other defendants would be as follows:
The relationship of the parties as stated in para 4 of the plaint is admitted. The plaintiffs are deliberately silent about the 4 sons of the Mola Gounder as to how the plaintiffs and the defendants are the branches of Mola Gounder. The plaintiffs have not given the survey numbers of the single unit. The rough sketch attached to the plaint is incorrect and misleading and the same lacks material particulars. It is true that Alampalayam, Koothampalayam road is running east-west. It is also true that the cart track branches from the said road and runs towards south across the third parties land on the north and then proceeds southwards in between the land in R.S.No.158 and 159 that belongs to the defendants. But, it is false to state that it runs upto the lands of the plaintiffs. The same runs further south as itteri and turns and proceeds towards east along with Itteri to a considerable distance and joins in another Itteri running in north south direction, which is to a width of about 40 feet and another Itteri branches from that Itteri and runs east west and joins Kasipalayam and then joins Chennimalai main road. There are live fences on both sides of the said Itteri and the width of the same varies from 10 to 40 feet. The allegation that the cart track proceeds beyond the plaintiff's land and reaches the defendant's land are admitted. The portion of the cart track situated south of the plaintiffs land in R.S.No.163 and that portion which turns east and which proceeds upto Chennimalai road was in existence as a public Itteri for long number of years and the same being used by the owners of the land on either side of the itteri to reach their respective lands. That portion of the cart track now exists on the north of the plaintiff's land up to Alampalayam Koothampalayam road was not in existence. In the family partition of the defendants dated 30.6.1952, that portion of the cart track was proved by the predecessors in title to the defendants in their own lands for their own exclusive use to reach their lands that were allotted to the various co-sharers in the family. That portion of the cart track is a private cart track, provided for the exclusive use of the parties to the registered partition deed dated 30.6.1952 and no other person including the plaintiffs herein are entitled to use it or claim any right therein. The properties never formed a single unit. The plaintiffs and the predecessors in title never used that portion of cart track since the Itteri was their access all these years. The plaintiffs are not entitled to use the portion of the suit cart track either by prescription or by easement of necessity. Taking advantage of the existence of such a cart track, the plaintiff have wrongly and fraudulently incorporated a self-serving recital in their partition deed. The defendants have laid a pipeline in their portion of the suit cart track and they have taken water across the portion of the cart track from east-west. The alleged cause of action is false. There is no question of the defendants obliterating their own cart track. The plaintiffs have other access to their lands. The plaintiffs must establish their right of use suit and the consequential injunction and the suit for bare injunction are not maintainable. The suit cart track runs across the third parties land and hence, the third parties are necessary parties to the suit. Therefore, the suit is bad for non-joinder of necessary parties. The plaintiffs are not entitled to the discretionary relief of permanent injunction. Hence, the suit is liable to be dismissed with costs.
5. The trial Court had framed necessary issues and had entered trial. After appraisal of the evidence adduced before it, it had come to the conclusion of dismissing the suit with costs. Aggrieved by the dismissal of the suit, the plaintiffs filed an appeal against the judgment and decree passed by the trial Court in A.S.No.10 of 2004. After hearing both sides, the first appellate Court had come to the conclusion of setting aside the judgment and decree passed by the trial Court and thus, allowed the appeal without costs.
6. Having aggrieved by the judgment and decree passed by the first appellate Court, the defendants have preferred this second appeal.
7. On admission, this Court had formulated the following substantial questions of law for being considered in this second appeal.
i) Whether the right of easement by grant based on a document (Ex.A.1) which is a partition deed interse between the plaintiffs themselves can be sustained in the eye of law?
ii) In other words to base a claim on easement by grant, should there not be a document under which one person already enjoying an easement transfers his existing right on such easement by grant to the other person?
iii) In the absence of pleading and proof that for a continuous period of 22 years prior to filing of the suit the plaintiffs had enjoyed the easement by prescription,c an a Civil Court grant a decree on the basis of easement by prescription?; and
iv) when it is found as a fact that the plaintiffs claiming easementary right by necessity has an alternate passage, can the claim based one easement of necessity be sustained?
8. Heard Mr.A.K.Kumaraswamy, learned counsel for the appellants and Mr.N.Manoharan, learned counsel for the respondents.
9. Learned counsel for the appellants would submit in his argument that the first appellate Court had unnecessarily interfered with the judgment and decree passed by the trial Court which was a well balanced one after considering the evidence adduced before it. He would further submit that the first appellate Court did not perceive the evidence properly but had set aside the judgment of the trial Court. He would also submit that the specific case of the plaintiff was that he is entitled to use the said cart track as an easement by grant, easement by prescription and easement by necessity and the plaintiffs have miserably failed in their case and the plaintiffs cannot rely upon the weakness of the defendants for the grant of the relief sought for by them. He would further submit that the right claimed under Ex.A1 partition deed has given only a right of footpath and not a cart track. He would further submit that in order to establish the cart track by grant, the recitals in Ex.A1 ought to have been established. He would further submit that the relationship in between the plaintiffs and and defendants were not promptly established so as to get a right in the pathway to bind the defendants. He would also submit that the existence of cart track alone will not give any right of easement unless the plaintiffs establish their right to use the said pathway for which the plaintiffs are not entitled. He would further submit that the defendants were not parties to Ex.A1 and the said recitals in Ex.A1 will not bind on the defendants. He would further submit that the partition deed in between the defendants produced in Ex.B2 which sets up a pathway in 44 cents would go to show that the plaintiffs have absolutely no right in the cart track which is exclusively belonging to the defendants family. He would further submit that the report of the Commissioner would go to show the presence of the underground pipeline in the cart track which belonged to the defendants and since no other person would be entitled to lay pipeline except the defendants and that would prove that the defendants are the exclusive owners of the cart track. He would further submit that the plaintiffs claim that they are entitled to use the pathway as a thorough fare cannot be justified since the defendants are having exclusive right in the cart track nor the plaintiffs have any right by using the cart way for over 20 years to attain the right by prescription. He would further submit that the plaintiffs cannot claim the right of easement of necessity in the suit cart track since the commissioner's report would go to show that there is an alternative pathway from northern and eastern side of the plaintiffs land and therefore, the easement of necessity would not be available to the plaintiffs. He would also submit that the plaintiff was not entitled to any right of easement through grant, by prescription or by necessity and therefore, the injunction sought for by the plaintiffs cannot be granted to the plaintiffs. He would further submit that the plaintiffs have miserably failed to prove their right as stated in the plaint and it was very correctly decided by the trial Court. He would further submit that the first appellate Court, without any reason had unnecessarily interfered with the right of the defendant's exclusive cart track. He would also submit that the judgment and decree passed by the first appellate Court have to be interfered and set aside and the well considered judgment of the trial Court ought to have been restored and thus, the appeal may be allowed.
10. Learned counsel for the respondents/plaintiffs would submit in his arguments that the existence of the cart track was not disputed by the defendants and it was not a cart track wholly running in the property of the defendant but it had branched from Alampalayam to Koothapalayam Panchayat Road towards south and entered into the promboke land and thereafter passes through the defendants land and turned slightly towards the eastern side and thereafter, it is running towards south adjacently to the properties of the plaintiff and the third parties and the said cart track had entered into the plaintiffs land and thereafter, passes towards south and joined with another panchayat road on the south and also branched towards east to join with another panchayat Road. He would further submit that the said pathway as found in the commissioner's report had been referred to in the Village map produced in Ex.A7 and the reference as to the pathway in the field map Ex.A7 would show that the said cart track was in existence for several years even during the period when the survey had taken place. He would further submit that the said panchayat has also been referred to in Ex.A1 partition deed had in between the parties in the year 1961. He would also submit that the evidence of D.W.2 would go to show that the said cart track was in existence as mentioned in the commissioner's report. He would also submit that the evidence of D.W.2 would further show that the said cart track crosses the resurvey Nos.157, 159, 160 and 158 and reaches the plaintiffs land in S.No.163 and the said cart track was in existence from his childhood days. He would further submit in his argument that D.W.1 had also admitted the existence of suit cart track as described in the commissioner's report and sketch and the said cart track was in existence from the year 1944 onwards. He would further categorically submit that the plaintiff Nachiappa Gounder, Ramasamy Marappa Gounder had used the said cart track to go to the south from the year 1944 onwards. He would further submit in his arguments that the existence of the cart track was being there for more than 44 years and the usage of the plaintiff through the said cart track to go to south would show that the plaintiffs are enjoying the cart track for more than the statutory period. He would further submit that D.W.1 had further admitted in his evidence that the persons who are owning the property adjacent to the cart track are using the said pathway and therefore, it could be presumed that the persons who are having the lands adjacent to the suit cart tract running from Alampalayam to Koothapalayam Panchayat Road towards south are using the suit cart track for reaching the land which would also includes the defendants, third parties as well as the plaintiffs. He would further submit in his arguments that the plaintiffs were also entitled to use the suit cart track since there is no other way to reach Alampalayam to Koothapalayam Panchayat Road and the alleged alternative Road stated to have branched towards east goes to Itteri and thereafter reaches another panchayat road and it will not reach Alampalayam to Koothapalayam Panchayat Road and the said route were blocked by various roots of the trees and other hurdles. He would further submit that the cart track cannot be considered as an alternate cart track for the suit cart track to reach Alampalayam to Koothapalayam Panchayat Road. He would cite a judgment of the Honourable Apex Court reported in 2010 (1) CTC 455 (SC) (Sree Swayam Prakash Ashramam v. G.Anandavally Amma) in support of his argument regarding the continuous enjoyment of the suit cart track for over 44 years. He would draw the attention of the Court to yet another judgment of this Court reported in 2009 (2) LW 752 (C.Pazhamalai Pillai (died) v. Chinnadurai) for the principle that the continuous enjoyment of the cart track for more than 20 years would enure easement by prescription. He would therefore submit in his arguments that the admission given by D.W.1 to the effect that the cart track running towards south from Alampalayam to Koothapalayam Panchayat Road was used by the plaintiffs for more than 44 years and it would go to show that the plaintiffs are entitled to easement right of using the cart track through prescription and by grant and therefore, there is no reason for interfering with the judgment and decree passed by the first appellate Court.
11. I have given anxious thoughts to the arguments advanced on either side.
12. The suit was filed by the plaintiffs seeking for permanent injunction against the defendants from in any way restraining the plaintiffs from using the suit cart track and also from obliterating the same and for costs. The suit cart track is admittedly running from Alampalayam to Koothapalayam Panchayat Road towards south through S.No.157 and thereafter crosses in between S.Nos. 159 and 158, the land belonging to the defendant and slightly turned east and thereafter, it turns towards south and runs adjacent to the plaintiffs land in S.No.163 and the land in S.No.164 and it runs towards south and goes up to the end of the land in S.No.178. The said land has been clearly shown in the field map of the village Sirukalanji. The claim of the plaintiffs is threefold. The plaintiffs are using the said cart track from Alampalayam to Koothapalayam Panchayat Road to the plaintiffs land and houses at S.No.163. The plaintiffs claim that all the surrounded properties were belonging to Mola Gounder and the four sons of Mola Gounder had partitioned themselves to divide their properties and one of the brothers Palani Gounder had got the properties and the sons of Palani Gounder are the plaintiffs 1 and 3 and one Velappa Gounder. The said sons of Palani Gounder and the father Palani Gounder and his wife Devaiyal had partitioned the properties in the year 1961 through Ex.A1 partition deed. According to the said recitals in the partition deed, in page No.6 the cart track in S.Nos.151, 146, 147 and 148 which goes up to Pillaiyarkoil Kadu was to be kept in common. It has been argued that S.No.146 and 151 were corresponding number R.S.No.158, 159 and 163 and therefore, S.No.158 and 159 were dealt with in Ex.A1 in the year 1961 and therefore, the suit cart track was given to the plaintiffs by grant, for their common use. I could see that Velappa Gounder who is stated to have been the father of the defendants 1, 3 and 5 was said to be Velappa Gounder who was shown as the son of Palani Gounder. However, the said relationship was stoutly denied by the learned counsel for the appellant in his argument.
13. The trial Court had come to the conclusion that the relationship of parties has not been established and therefore, the recitals in Ex.A1 was found to be self-serving one and it would not bind the defendants. However, on going through Ex.A1, I could see that the lands dealt with in S.Nos.158, 159 through which the suit cart track is passing through was found to have been dealt with in the said deed. Admittedly, the name of the father of the defendants 1, 3 and 5 was Vellappa Gounder and one of the brothers of the plaintiffs was also Vellappa Gounder and the property belonging to the defendant happen to be in S.Nos.158 and 159 and therefore, the proof putforth by the plaintiffs through Ex.A1 has to be distinguished or disproved only by the defendants. The suit cart track was found in existence and the admission of the defendants would go to show that the persons who are owning the land adjacent to the cart track are using the said cart track for their use to reach their properties. Therefore, it is quite clear that it was not an exclusive cart track for the defendants alone as they putforth in the written statement. The admission of D.W.1 would also go to show that the defendants are using the cart track for going towards south which has not been clarified whether they are using the cart track to go towards south from Alampalayam to Koothapalayam Panchayat Road or from their land towards south. The suit cart track means the disputed cart track which is running amidst the defendants properties in S.Nos. 158 and 159 and there is no dispute in respect of the cart track running after the plaintiffs property also towards south. Therefore, the categorical admission given by D.W.1 would show the cart track running from Alampalayam to Koothapalayam Panchayat Road towards the plaintiffs property. Therefore, the admission of D.W.1 would go to show that the denial of the reference to the suit cart track in Ex.A1 was only for the purpose of their case. Therefore, I could see that the plaintiffs have already been granted the right of using the suit cart track which is passing through Old S.Nos. 146, 151 which are co-related with the present R.S.No.158, 159 and163 to go over with the property belonging to the plaintiffs. Similarly the right of the cart track was admitted by D.W.1 in his evidence that the plaintiffs are using the cart track for more than 44 years. This would go to show that the referred cart track was nothing but the cart track mentioned in the suit. In the earlier paragraph, I have discussed that the admission given by D.W.1 was only in relation to the suit cart track branching, south from Alampalayam to Koothapalayam Panchayat Road which passes through the defendants properties so as to reach the plaintiffs house as well as the lands. In the said circumstances, the usage of such cart track is more than 20 years and therefore, there cannot be any denial of right to use the cart track by way of prescription.
14. The judgment of this Court reported in 2009 (2) LW 752 (C.Pazhamalai Pillai (died) v. Chinnadurai) the application of Section 15 of the Easement Act would lay down as follows:
" 31. Section 15 of Easements Act, the manner in which easement right by prescription could be acquired. One of the necessary ingredients for acquisition of rights by prescription is that it should have been enjoyed without interruption peaceably for 20 years as of right. It is more clear that Plaintiffs and other villagers have access to the suit pathway as of right for more than 20 years. On the basis of evidence, trial court rightly held that plaintiffs have established their right of easement by prescription."
15. Similarly, the judgment of the Honourable Apex Court reported in 2010 (1) CTC 455 (SC) (Sree Swayam Prakash Ashramam v. G.Anandavally Amma), it has been held as follows:
21. The High Court relied on a number of observations in Katiyar Law of easement and Licences (12th Edition) on law with respect to "implication of grant of an easement." It may arise upon severance of a tenement by its owner into parts. The acquisition of easement by prescription may be classified under the head of implied grant for all prescription presupposes a grant. All that is necessary to create the easement is a manifestation or an unequivocal intention on the part of the servient owner to that effect.
22. The High Court quoted with approval Katiyar's note to Section 8 of the easement act, which reads as follows:
"There are numerous cases in which an agreement to grant easement or some other rights has been inferred or more correctly has been imputed to the person who is in a position to make the grant, on account of some action or inaction on his part . These cases reason on the equitable Doctrine of acquiescence, but they may be referred to, for the purpose of classification, as imputed or constructive grants. The party acquiescing is subsequently estopped from denying the existence of easement. It is as if such person had made an actual grant of the easement...
... It is the intention of the grantor whether he can be presumed to have been intended to convey to the grantee a right of easement for the reasonable and convenient enjoyment of the property which has to be ascertained in all the circumstances of the case to find out whether a grant can be implied. A description in a conveyance may connote an intention to create a right of easement. An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances."
16. Nextly, when we go through the easement of necessity as sought for by the plaintiffs, it has been shown in Ex.A7, field map that the cart track which is branching from Alampalayam to Koothapalayam Panchayat Road towards south goes up to S.No.165 and 178 and it did not branch towards east to join with another Panchayat Road found in S.Nos. 155, 179 and 182. However, the commissioner's report would go to show that there is a branching of cart track towards east to go to Itteri and thereafter to reach panchayat road. The said cart track should have been as told by the plaintiffs that it could not be used as a regular and pucca cart track since the commissioner himself has reported that there are various branches of roots of the trees which have been obstructing the thorough usage of the cart track. In the said circumstances, we cannot deem it as an alternate route to reach Alampalayam to Koothapalayam Panchayat Road. That cart way cannot be considered as an alternate cart way. The plaintiffs have produced the evidence for the usage of the cart track through the grant, by prescription and also through necessity. When the existence of the suit cart track itself is admitted and it has been shown to court that the plaintiffs have been using the said cart way for over 44 years through admission of D.W.1, the finding reached by the first appellate Court on facts cannot be assailed. In view of the discussions held above, the questions of law framed by this court are not decided in favour of the appellants/defendants.
17. Therefore, I could see that the first appellate Court had rightly come to the conclusion of interfering with the erroneous judgment of the trial Court which was not in consonance with the evidence adduced before it. Therefore, I have no hesitation to uphold the judgment and decree passed by the first appellate Court in reversing the judgment of the trial Court.
18. For the foregoing discussion, I am of the considered view that the judgment and decree passed by the first appellate Court was sound and well balanced with the facts and circumstances of the case and therefore, they are liable to be confirmed and the second appeal is liable to be dismissed.
19. In fine, the second appeal is dismissed and the judgment and decree passed by the first appellate Court are confirmed. No order as to costs.
vsi To
1. The Additional District Judge (Fast Track CourtNo.1), Erode
2. The District Munsif cum Judicial Magistrate, Perundurai