Madras High Court
Velusamy (Deceased) vs Palanisamy (Deceased) on 9 January, 2023
Author: P.T. Asha
Bench: P.T. Asha
S.A.No.872 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.01.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.872 of 2006
in
M.P.No.2 of 2006
1.Velusamy (deceased)
2.Sengottu Velappan
3.Thangaraj (died)
4.Subramaniam (died)
5.T. Tamil Selvi
6.T.Vijay
7.V.Nallammal
8.T.Vanitha
9.V.Balu
10.Indhirani
11.S.Sharmila
12.S.Keerthana ...Appellants/Respondents/Plaintiffs
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S.A.No.872 of 2006
Vs.
1.Palanisamy (deceased)
2.Chenniappa gounder
3.Saraswathi @ Sarasu
4.S.Poongodi
5.P.Sumathi
6.S.Shanthi
7.A.Bhuvaneswari ...Respondents/Appellants/Defendants
(Appellants 5 and 6 brought on record as the legal representatives of
the deceased 3rd appellant vide Order of this Court dated 10.06.2015 in
M.P.No.1 of 2015 in S.A.No.812 of 2006).
(Appellants 7 to 9 brought on record as the legal representatives of the
deceased 1st appellant vide Order of this Court dated 16.08.2017 in
C.M.P.Nos.13016 to 13018 of 2017 in S.A.No.812 of 2006).
(Appellants 10 to 12 brought on record as the legal representatives of
the deceased 4th appellant vide Order of this Court dated 17.11.2021 in
in S.A.No.812 of 2006).
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S.A.No.872 of 2006
(Respondents 3 to 7 brought on record as the legal representatives of
the deceased 1st respondent vide Order of this Court dated 12.12.2014
in M.P.Nos.3 and 4 of 2014 in S.A.No.812 of 2006).
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 29.12.2005 in
A.S.No.92 of 2005 on the file of the learned I Additional Subordinate
Judge, Erode, reversing the Judgment and Decree dated 28.07.2005 in
O.S.No.1185 of 2004 on the file of the learned Principal District
Munsif, Erode.
For Appellants : Mr.Titus Enock
for M/s.I.C.Vasudevan
For Respondents : Mr.Arun Anbumani
for Mr.M.Guruprasad
for R2 to R7
R1 - died
JUDGMENT
The plaintiffs are the appellants before this Court challenging the Judgment and Decree passed by the learned I Additional Subordinate Judge, Erode, in and by which the learned Judge has reversed the Judgment and Decree passed by the learned Principal 3/24 https://www.mhc.tn.gov.in/judis S.A.No.872 of 2006 District Munsif, Erode in O.S.No.1185 of 2004. The reference to the parties in this Second Appeal is in the same ranking as before the Trial Court.
2.The suit in question is for a declaration that the plaintiffs are entitled to use an itteri situate in R.S.Nos.12/1 and 14/1 of Pavalathampalayam Village of R.D.Perundurai, Erode.
3.The facts as set out in the Plaint are as follows:
The suit property is comprised in R.S.No.12/1 (Old No.36) measuring an extent of 0.01.5 Hectares and R.S.No.14/1 (Old No.23A3) measuring an extent of 0.09.5 Hectares which is used as a cart track (itteri) situate in R.S.Nos.9 and 8. It is the plaintiffs' case that the itteri runs through R.S.Nos.12/1 and 14/1 branching out from the North – South Nanjanapuram main Road. It is their case that the 1st and 4th plaintiffs own lands in R.S.No.9/1 measuring an extent of 2.80 ½ acres and the 2nd plaintiff owns 31 cents in R.S.Nos.9/8 and 9/7 which is situate South of the suit itteri in R.S.No.12/1. The 3 rd 4/24 https://www.mhc.tn.gov.in/judis S.A.No.872 of 2006 plaintiff owns his lands in R.S.No.9/6. It is their case that the suit cart track is their only access from the Nanjanapuram to Namiyanur Road.
The defendants are the sons of one Karuppanna Gounder who own the lands in R.S.No.12 which lies immediately to the South of the cart track. The defendants have now attempted to annex the cart track into their lands and with an intention, they had dug pits to plant coconut saplings in the cart track. Therefore, left with no other option, the plaintiffs have come forward with the suit in question.
4.The defendants had filed a Written Statement inter alia denying the claim of the plaintiffs. It was their categoric case that there is no access available to any person including the plaintiffs through R.S.Nos.12/1 and 14/1. In fact, there is no pathway as shown in the Plaint on site and they had categorically denied that the alleged pathway is the only access to reach the main road. The defendants would submit that the suit property exclusively belongs to them and they are in enjoyment of the same for several decades. The properties stood in the name of the father of the defendants, Karuppanna 5/24 https://www.mhc.tn.gov.in/judis S.A.No.872 of 2006 Gounder and after his demise, the defendants are enjoying of the same. The revenue records would also stand in their name. It is their case that the properties of the 1st and 4th defendants are situate immediately abutting the main road and the defendants 2 and 3 have their access through a well defined mud road immediately to the West of their property. This pathway proceeds Southwards and joins the road in Kumaran Nagar, which is the approved layout and proceeds further Southwards and reaches Nanjanapuram Road to Namiyanur Road. Therefore, the plea of easement of necessity does not exist and the plaintiffs are not entitled to the decree as claimed by them.
5.The learned Principal District Munsif, Erode, had framed the following issues:
vGtpdhf;fs;:
“(1)thjpfs; nfhUk; epue;ju cWj;Jf;
fl;lisg; ghpfhuk; mth;fSf;F
fpilf;fj;jf;fjh?
(2)jhth tz;og;ghijia thjpfs;
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S.A.No.872 of 2006
gad;gLj;jp tUfpd;wdh; vd;gJ rhpah?
(3)thjpfSf;F fpilf;fj;jf;f ntW
ghpfhuk; vd;d?
TLjy; vGtpdhf;fs;:
“(1)thjpfs; nfhUk; tpsk;g[ifg; ghpfhuk;
mth;fSf;F fpilf;fj;jf;fjh?
(2)thjpfs; nfhUk; epue;ju cWj;Jf;
fl;lisg; ghpfhuk; mth;fSf;F
fpilf;fj;jf;fjh?
(3)jhth tz;og;ghijia thjpfs;
gad;gLj;jp tUfpd;wdh; vd;gJ rhpah?
(4)thjpfSf;F fpilf;fj;jf;f ntW
ghpfhuk; vd;d?”
6.The plaintiffs had examined the 2nd plaintiff as PW1 and one Ponnusamy, a third party as PW2. Mr.Mohanasundaram, Village Administrative Officer as PW3 and one Mahalingam, Panchayat President as PW4. To substantiate their case, the plaintiffs had 7/24 https://www.mhc.tn.gov.in/judis S.A.No.872 of 2006 marked Ex.A.1 to Ex.A.11. On the side of the defendants, Mr.Palanisamy, the 1st defendant had examined himself as DW1 and one Thangamuthu as DW2. Ex.B.1 to Ex.B.10 were marked to substantiate the case of the the defendants. The report of the Advocate Commissioner and Plans were marked as Ex.C.1 to Ex.C.4.
7.The trial Court on a perusal of the evidence and other records decreed the suit. The trial Court was persuaded to decree the suit on account of the fact that the suit pathway has been described as a epytpay; ghij and the learned Judge also held that the suit pathway was the only access in respect of the properties of all the plaintiffs to reach the main road and therefore, on the ground of easement of necessity, the plaintiffs are entitled to a decree. The learned Judge had also observed that the obliteration of the cart track as evidenced by Ex.C.1 to Ex.C.4 – Commissioner's reports and Plans would point fingers only at the plaintiffs. Therefore, the learned Judge had decreed the suit.
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https://www.mhc.tn.gov.in/judis S.A.No.872 of 2006 Challenging the said Judgment and Decree, the defendants had filed A.S.No.92 of 2005 on the file of the learned I Additional Subordinate Judge, Erode. The learned Judge on considering the evidence on record, arguments and the pleadings allowed the appeal and set aside the Judgment and Decree passed by the trial Court. The learned Judge observed that Ex.B.10 upon which the trial Court had placed reliance did not relate to the defendants as Karuppa Gounder referred to in the said Deed was the grandfather of the 3rd plaintiff and not the father of the defendants. The learned Judge further observed that Ex.B.6 and Ex.B.7 would clearly show that the property exclusively belongs to the defendants. Further, after the sale by the 3rd plaintiff under Ex.A.11, the 3rd plaintiff has no share in the suit property and therefore, he has no subsisting right to maintain the suit. The Appellate Court observed that the trial Court has not appreciated the Advocate Commissioner's reports and the Appellate Court had also taken note of the fact that the 2 nd plaintiff, who had no direct knowledge of any of the earlier transaction alone had adduced evidence and the other plaintiffs had not entered the witness box to 9/24 https://www.mhc.tn.gov.in/judis S.A.No.872 of 2006 adduce evidence. The Appellate Court taking into account the Commissioner's report and Plan which were filed initially (Ex.C.1 and Ex.C.2) and filed after injunction had been granted in favour of the plaintiffs as Ex.C.3 and Ex.C.4 observed that the first Commissioner has clearly found that there was no pathway in existence and on the contrary, the defendants have been cultivating in that portion of the property. Therefore, the Appellate Court had proceeded to allow the appeal. Challenging the same, the plaintiffs have filed the above Second Appeal.
9.The Second Appeal was admitted on the following Substantial Questions of Law:
“(a)Whether the Judgment of the Lower Appellate Court is vitiated in its failure to consider the material admission of DW2 that suit cart track has been used for long time especially when the trial Court relied on his evidence to decree the suit?
(b)Whether the respondents/defendants are entitled 10/24 https://www.mhc.tn.gov.in/judis S.A.No.872 of 2006 to plead non user and non existence of suit track when the suit cart track has been described in Ex.A.11, their parent document?
(c)Whether the Judgment of the Lower Appellate Court is vitiated by perversity in its stating that Advocate Commissioner had pointed out an alternative cart track when no such alternative pathway had been mentioned in the Commissioner's report?
(d)Whether the Lower Appellate Court erred in Law in negativing the plea of perspective easement on the ground that alternative pathway is available and whether Lower Appellate Court finding is the result of misreading of Plaint pleadings?”
10.Mr.Titus Enock, learned counsel appearing on behalf of the appellants would base his preliminary argument on the fact that the suit property has been described as epytpay; ghij in Ex.A.6 and Ex.A.7 which are the survey sketches for R.S.Nos.9 and 12 and 11/24 https://www.mhc.tn.gov.in/judis S.A.No.872 of 2006 Ex.A.5 - FMB sketch. The learned counsel appearing for the appellants/Plaintiffs would further submit that in Ex.A.1 – Sale Deed under which the 1st plaintiff's father purchased a property, there is a reference to the mamool pathway. Even in the partition under Ex.A.2 under which the 2nd plaintiff's father had obtained a share there is a mention to the itteri. In Ex.A.11 which is the Sale Deed executed by the 3rd defendant to one Sankaran the said cart track had been clearly delineated and this property has been ultimately purchased by the defendants and therefore, the defendants cannot question the existence of the cart track. Therefore, it is the contention of the plaintiffs that Ex.A.1, Ex.A.2, Ex.A.11 and Ex.B.10 – Partition Deed put together show the existence of the pathway. PW3, who is the Village Administrative Officer has spoken about the right of way. He would also submit that the report of the Commissioner, particularly, the first Commissioner's report will not in any manner go to show that there is no pathway since grass has grown on account of there being no agricultural activities. He would further draw the attention of this Court to the evidence of DW2 in this regard wherein the witness has 12/24 https://www.mhc.tn.gov.in/judis S.A.No.872 of 2006 admitted that the property that has been sold by the 3 rd plaintiff under Ex.A.11 is the very same property that the defendant had purchased. The witness has also admitted that the recitals in Ex.A.11 which would state that from the road the pathway proceeds through R.S.No.12/1 over which carts, men and cattle could proceed. Therefore, the learned counsel would submit that the Appellate Court has clearly committed an error in allowing the appeal filed by the defendants.
11.Per contra, Mr.Arun Anbumani, learned counsel appearing on behalf of M/s.M.Guruprasad for the respondents 2 to 7 would submit the following crucial dates for consideration of this Court:
23.07.2004 - Plaint filed and Advocate Commissioner appointed.
23.07.2004 - Advocate Commissioner inspects the property. 24.07.2004 - Interim injunction granted.
29.07.2004 - First report is filed.
30.07.2004 - I.A.No.1019 of 2004 is filed by the defendants
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S.A.No.872 of 2006
for the second inspection and the police complaint
has also been lodged alleging that the plaintiffs had
trespasseed into the property after the
injunction order was obtained in their favour.
12.The learned counsel would submit that in Para IV and Para V of the Plaint, the plaintiffs have contended that the suit cart track is the only access in respect of the properties of all the plaintiffs to reach the main road. Therefore, he would submit that the plaintiffs have come to Court on the ground that they require the pathway as an easement of necessity. He would next point out the difference in the reports of the Commissioner prior to the grant of injunction and post the granting of injunction. During the inspection conducted on 24.07.2004 (report which is submitted on 29.07.2004), the Advocate Commissioner has clearly shown that the property which has been described as the suit property has about 45 numbers of small pits dug through the area to plant coconut saplings and there is a mention that a portion of the property was also cultivated with corn (nrhsk;). After the Advocate 14/24 https://www.mhc.tn.gov.in/judis S.A.No.872 of 2006 Commissioner's report was submitted, the learned Principal District Munsif, Erode, had proceeded to grant an interim injunction to the plaintiffs. Being armed with the injunction order, the plaintiffs had forcefully trespassed into the suit property and obliterated the entire Northern portion of the defendants' lands and formed a pathway.
13.During the second visit, the Advocate Commissioner had submitted a report stating that what he had earlier noted as physical features is not available on site. The Commissioner has clearly stated that a pathway has been formed after the first visit. Therefore, he would submit that the suit pathway as pleaded by the plaintiffs was never in existence and after obtaining the injunction the pathway has been created. He would next draw the attention of this Court to Ex.B.7 which is the Sale Deed executed by the defendants to one Jaganathan wherein the Southern boundary has been clearly described as Jaganathan's land and the property on the North as the land of a third party and it was nowhere stated in the document that there is an itteri.
That apart, the plaintiffs who claim that the suit property is a public 15/24 https://www.mhc.tn.gov.in/judis S.A.No.872 of 2006 road, have not made any reference in his pleadings that the pathway has been used by the general public.
14.The learned counsel would submit that the suit itself is an engineered one for creating an access to the neighbouring layout since the defendants want to form house sites and two accesses would ensure an enhanced sale consideration. PW4 in his Chief examination has no clue about the mamool cart track in R.S.No.12/1. He would further submit that the defendants have made it appear as if the suit property is being jointly enjoyed by the plaintiffs and the defendants, which is not the case. He would further submit that the trial Court has committed a grave error in construing that Ex.A.10 is the partition between the predecessor of the plaintiffs and the defendants and come to the conclusion that the defendants and the plaintiffs have a common owner. He would submit that the Lower Appellate Court has extensively considered the evidence, re-appreciated it, distinguished the findings of the trial Court and ultimately allowed the appeal. 16/24 https://www.mhc.tn.gov.in/judis S.A.No.872 of 2006
15.Heard the learned counsels appearing on either side and perused the papers.
16.The plaintiffs have come forward with the suit for a declaration and permanent injunction in respect of a cart track stating that this cart track is in their use for over several decades. A perusal of the pleadings at this juncture woud be relevant. In Para VI of the Plaint, the plaintiffs have mentioned as follows:
“VI.The defendants 1 and 2 are making all hectic efforts to annex the suit cart track itteri with their agricultural land situate on the South. With bad motive in mind, on 23.07.2004, the defendants and their henchmen dug pits to erect coconut saplings in the suit cart track itteri....”
17.A reading of the above pleadings it would show that on the date of the filing of the suit, the suit cart track was not described as cart track since the area described as the suit property has been 17/24 https://www.mhc.tn.gov.in/judis S.A.No.872 of 2006 covered with several pits to plant coconut saplings. The plaintiffs without seeking for a mandatory injunction to restore the property as a pathway has filed a suit for bare injunction. The plaintiffs have primarily based the suit on the ground of easement of necessity in terms of access to the main road in respect of the properties of all the plaintiffs. Therefore, the plaintiffs have to first prove that they have no alternate pathway. The defendants have in categoric terms stated that the plaintiffs have alternate pathway on either side, namely, the East and the West. A perusal of Ex.C.1 – Advocate Commissioner's report and Plan would clearly show that in the suit property, the defendants had dug pits to plant coconut saplings. The lands of the defendants are situate to the South of the plaintiffs' land. The Commissioner's report would show that the 1st and 4th plaintiffs have direct access to the main road and in the case of the 2nd and 3rd plaintiffs, they have an access to the mud road on the East which leads ultimately to the main road. A perusal of Ex.C.2 would clearly indicate that the alleged suit pathway has not been used since on the date of the first inspection by the Advocate Commisisoner, the 18/24 https://www.mhc.tn.gov.in/judis S.A.No.872 of 2006 pathway was not in existence and only pits for planting coconut saplings were there.
18.That apart, in the Southern boundary of the 1st and 2nd plaintiffs, coconut trees are planted and grown from the plaintiffs' house right up to the Eastern boundary of the defendants 3 and 4 and they form a kind of a boundary line and the alleged pathway is covered with pits. However, on the second visit by the very same Advocate Commissioner, this portion in which pits were dug up has been totally obliterated and a pathway like formation has been created by the plaintiffs. That apart, the first Commissioner's report would clearly show that on site there is no pathway and the Advocate Commissioner's report also tallies with the pleadings of the defendants at Para VI as extracted supra. However, during the second visit, the Advocate Commissioner found that the property of the defendants had undergone a change. That apart, the plaintiffs have access on either side of their lands, namely, on the West they have the Nanjanapuram Road to Namiyanur Road and on the East by a mud 19/24 https://www.mhc.tn.gov.in/judis S.A.No.872 of 2006 road which runs into the adjacent approved layout and then later up to the main road. Therefore, the plea of easement of necessity stands extinguished under Section 41 of the Indian Easements Act. Once the necessity ceases to exist the plea of easement is no longer available to the party in the instant case. The 2nd plaintiff had examined as PW1 as an independent witness to speak about there being no other access to reach the suit property. However, during his cross examination, he has admitted the alternate pathway.
19.PW1, the 2nd plaintiff, during his cross examination would admit that the well is situate in the property of the 2nd plaintiff and this well is commonly owned by both the 2 nd and 3rd plaintiffs which clearly indicates that the 2nd plaintiff has an access into the 3rd plaintiff's property and therefore can also access the North - South pathway on the East from the 3rd plaintiff's property as well. He has also not contended that the first Commissioner's report is wrong. He has in fact admitted that he has been coached to give evidence. The witness would also admit the existence of the mud road to the East of 20/24 https://www.mhc.tn.gov.in/judis S.A.No.872 of 2006 the 3rd plaintiff's property which leads to Kumaran Nagar layout and ultimately to the main road. PW3, the Village Administrative Officer, would submit that R.S.No.12/1 has been declared as a epytpay; ghij. Further, PW3 would himself admit that the pathway is in the patta land and was standing in the name of the defendants' father. The patta in respect of the properties also stands in the name of the defendants' father and the defendants. Considering the fact that the defendants have not established that they do not have an alternate pathway or that they are only dependent on the suit pathway, the Substantial Question of Law (a) is answered against the plaintiffs.
20.The existence of the alleged pathway is found only in Ex.A.1 which is the Sale Deed that had come into existence just two years prior to the filing of the suit on 23.07.2004 and that on the date of the 1st Commissioner's visit, the suit pathway was not in existence. It has been stated that the defendants had dug pits for planting coconut saplings through out the property described as a cart track. Therefore, on the date of filing of the suit, there was no pathway in existence. A 21/24 https://www.mhc.tn.gov.in/judis S.A.No.872 of 2006 perusal of Ex.C.2 would clearly show that a portion of the alleged epytpay; ghij was cultivated with nrhsk; apart from the pits dug through out the property. There is no explanation from the plaintiffs as to how before the visit of the second Commissioner a cart track had come into existence. These two reports would definitely go to show that the plaintiffs have attempted to form the pathway so as to substantiate their case. Further, the Commissioner's report also clearly shows that there is an alternative pathway on either side of the property of the plaintiffs who have jointly filed the suit. Therefore, the Apellate Court has rightly allowed the appeal. As regards the Substantial Question of Law (b), Ex.A.11 is of the year 2002 in 2004, when the plaintiffs have filed the suit they have themselves stated that the defendants have dug pits through out the property. Therefore, for argument's sake if the plaintiffs' case is accepted the cart track has been obliterated on the date of filing of the suit the plaintiffs ought to have sought for a mandatory injunction. The trial Court has decreed the suit only on the ground that the plaintiffs have no alternate pathway. However the records, including the Commissioner's report, 22/24 https://www.mhc.tn.gov.in/judis S.A.No.872 of 2006 are otherwise. Therefore, the Substantial Questions of Law b, c, and d are answered against the plaintiffs.
The Second Appeal is dismissed and the Judgment and Decree of the Appellate Court in A.S.No.92 of 2005 is confirmed. No costs. Consequently, connected Miscellaneous Petition is closed.
09.01.2023
Index : Yes/No
Internet : Yes/No
Speaking order / Non speaking order
mps
To
1.The I Additional Subordinate Judge,
Erode.
2.The Principal District Munsif,
Erode.
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S.A.No.872 of 2006
P.T. ASHA, J,
mps
S.A.No.872 of 2006
in
M.P.No.2 of 2006
09.01.2023
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