Madras High Court
Kandasamy Goundar(Died) vs Subramaniam on 15 September, 2022
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
1 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.09.2022 CORAM THE HONOURABLE MR. JUSTICE KRISHNAN RAMASAMY Second Appeal Nos.1206 & 1207 of 2003 & CMP Nos.10354 & 10355 of 2003 Kandasamy Goundar(died)
2.Samiyathal
3.Paramasivam
4.Kumarasamy ... Appellants/plaintiffs in both SAs (appellants 2 to 4 brought on record as Lrs of the deceased sole appellant vide order of this Court dated 22.06.2022 made in CMP No.9368 & 9242 of 2022 in S.A.No.1206 & 1207 of 2003 by CVKJ) Vs.
1.Subramaniam
2.Palaniappan
3.Rathinam
4.Murugesan
5.Sadhasivam
6.Loganathan
7.Saraswathi
8.Kittusamy
9.Mylathal .. respondents/defendants in both SAs 1/19 https://www.mhc.tn.gov.in/judis 2 Prayer :- This second appeal has been filed under Section 100 C.P.C., to set aside the judgement and decree dated 21.02.2003 made in A.S.Nos.153 & 154 of 2001 respectively on the file of the learned I Additional District Judge cum Chief Judicial Magistrate(Second Additional District Court-incharge), Erode, confirming the judgement and decree dated 11.06. 2001 made in O.S.Nos.277 of 1995 & 164 of 1996 respectively on the file of the learned Principal District Munsif, Erode(in both second appeals).
For Appellants : Mr.C.A.Ramanan for
Mr.N.Manokaran
For respondents : Mr.J.Prithivi as Amicus Curiae
COMMON JUDGEMENT
These second appeals arise out of common judgment dated 21.02.2003 in A.S.Nos.153 & 154 of 2001 passed by the learned I Additional District Judge cum Chief Judicial Magistrate (II Additional District Court-incharge), Erode, confirming the common judgement dated 11.06. 2001 passed in O.S.Nos. 277 of 1995 & 164 of 1996 by the learned Principal District Munsif, Erode. 2/19 https://www.mhc.tn.gov.in/judis 3
2.The appellant, deceased Kandasamy Gounder (now represented by his LRs., the appellants 2 to 4) in both the appeals, was the plaintiff in the suit in O.S.No.277 of 1995 and first defendant in O.S.No.164 of 1996 on the file of the learned I Additional District Munsif Court cum Chief Judicial Magistrate/IIAddl.District Court Incharge), Erode. One Thiru Subramanniam, 1st respondent in both the appeals, was the plaintiff in O.S.No.164 of 1996 and 1st defendant in O.S.No.277 of 1995.
3. The suit in O.S.No.277 of 1995 was filed by the deceased appellant/plaintiff for permanent injunction against the respondents/defendants restraining them from in any manner interfering with the appellant's peaceful possession and enjoyment of the suit property, specifically marked in red colour in the plaint plan enclosed with the plaint.
4. The suit in O.S.No.164 of 1996 was filed by the 1 st respondent 3/19 https://www.mhc.tn.gov.in/judis 4 herein against the appellant herein and others for declaration, to declare that the 1st respondent/plaintiff is entitled to use 12 feet suit cart track marked as ABCD in the plaint plan specifically marked in red colour; and for mandatory injunction to direct the defendants therein, to restore the suit cart track to its original position, failing which, allow the 1st respondent/plaintiff to do the same at the cost of the defendants therein and also for grant of permanent injunction restraining the defendants therein from interfering with his peaceful possession and enjoyment of the suit property in any manner.
5. The case of the appellant, who is the plaintiff in O.S.No.277 of 1995 is that he is the owner of the suit property and the 1 st defendant/1st respondent herein, purchased a portion on South-east of old S.No.371/B in resurvey No.743/12, which reaches the lower Bhavani Canal Project poramboke land. While so, the 1st defendant along with rowdy elements attempted to enter upon the suit property of the appellant/plaintiff and to form a cart track, which was successfully thwarted by the 4/19 https://www.mhc.tn.gov.in/judis 5 appellant/plaintiff. It is the further case of the appellant that when there was no cart track in the year 1920, the respondents who are the subsequent purchasers, after the division of the lands into plots, are also not entitled to use this cart track. Hence, the suit.
6. The case of the 1st respondent herein, who is the plaintiff in O.S.No.164 of 1996, is that the suit property, i.e. cart track is situated in Old S.F.No.371/B (New S.F.No.743/2, 8 and 9 of Archalur village, Erode taluk which has to be reached through Old S.No.371/B (new S.F.No.743/1) leading from Erode to Kangayam main road. The land measuring 7.93 acres in S.F.No.371/B originally belonged to one Nachi and after his demise, one of his sons, Kali Parayan sold 1/3rd common share measuring 2.64 acres to the 1st defendant's grandfather, Vembana Gounder, whose 4th son is the father of the 1st defendant inherited Ac.0.66 ½ cents out of 2.64 cents purchased by his grandfather Vembana Gounder, while his another son, namely Chinnappa Gounder inherited Ac.0.66 ½ cents from his father. On 10.2.1995, the 1st 5/19 https://www.mhc.tn.gov.in/judis 6 respondent herein purchased 0.66 cents and thereby, he became owner of Ac.1.32 cents. While so, the only access to the 1st respondent's lands in Old S.F.No.371/A (New S.F.No.743/1) is through a 12 feet width south card track, marked as ABCD in red colour in the plaint schedule on the western end of R.S.No.743/2,8 and 9, which is in existence more than 75 years. Therefore, the 1st respondent is entitled to use the cart track as an easement of necessity and easement by prescription. While so, due to enmity, the appellant/defendant obliterated the suit cart track and on questioning the same, he promised to restore the same, but failed to restore the same. Hence the suit.
7. Therefore, both the appellant as well as the respondents filed their suits for the reliefs sought for therein.
8.The trial Court, on consideration of both oral and documentary evidence and after hearing both the parties, by common judgment dated 11.06.2001, decreed the suit in O.S.No.164 of 1996 and dismissed the 6/19 https://www.mhc.tn.gov.in/judis 7 suit in O.S.No.277 of 1995. Aggrieved over the said judgment and decree, the appellant herein preferred appeal suits in A.S.Nos.153 & 154 of 2001 before the lower appellate Court. On consideration of the findings of the lower Court and on hearing both parties, the lower appellate Court, vide judgment dated 21.02.2003, dismissed both the appeals and thereby, the respondents' right to use the suit cart track ABCD has been confirmed. Aggrieved over the said judgment and decree passed by the lower appellate Court, the appellant has come forward with the present appeals in S.A Nos.1206 & 1207 of 2003.
9. When these appeals came up for admission on 07.02.2004, this Court admitted the second appeals on the following substantial questions of law:
(i) Whether the findings of the Courts below that the respondents herein are entailed to the relief on the basis of easmentary right and necessity is sustainable in law especially when the respondents not proving the existence of the cart track as 7/19 https://www.mhc.tn.gov.in/judis 8 claimed by them?
(ii) Whether the Courts below are correct in decreeing the suit in O.S.No.164 of 1996 on the basis that the plaintiff is entitled to have the cart track as an Easement of Necessity, where mere convenience or inconvenience is not the test of an Easement of Necessity?
(iii) When it is admitted by the respondents that an alternative cart track exists, whether it can be set that satisfied the test laid down under Section 13 of the Indian Easements Act, for grant of a decree on the ground of absolute necessity?
(iv) Whether the respondents have proved that they cannot use their property absolutely except by the suit cart track when it is admitted by PW2 that there is an alternative way to reach their property?
(v)Whether the judgments of the Courts below are vitiated in that it has been granted a decree of Easement of Necessity on the sole ground that the admitted alternative cart track cannot be conveniently used?
8/19 https://www.mhc.tn.gov.in/judis 9
10. The learned counsel for the appellant would submit that both the Courts below have not properly appreciated the documentary evidence, especially Exs.B1 and A1 to A4 which clearly shows that there is no cart track on the western side of the suit property at any point of time and also, no pathway was mentioned in Ex.B2 dated 10.02.1995 under which, the respondents' father purchased the property, i.e. after dispute arose claiming path way right along western side, but a false recital has been mentioned in Ex.B2, which cannot be acceptable. He would further submit that since the respondents' claim the suit cart track by way of easement of necessity and easement by prescription, the burden is heavily cast upon respondents to prove that the suit cart track was in existence within twelve years before filing the suit and has been used for a continuous period of 20 years without any interruption.
11. But absolutely no evidence was adduced by the respondents to prove the existence of suit cart track that it is the only pathway for the respondents to reach their lands. The learned counsel for the 9/19 https://www.mhc.tn.gov.in/judis 10 appellant stated that the respondents' grandfather had purchased the property from one Kaali by virtue of Ex.B1, sale deed dated 08.03.1920 while the plaintiff's father purchased 2.64 acres in old S.No.371/B from one Nachi by virtue of Ex.A1 sale deed dated 02.05.1955. The specific case of the appellant is that the appellant had been using the passage situated along with Keelbhavani Poramboke Canal situated south-east to his property, by walk to reach his property since 1955 and there is no common pathway in the appellant's property for the respondents and their predecessors as claimed by the respondents. According to the learned counsel, in Ex.A1 sale deed, cart track is marked for the usage of the predecessors of the sale deed i.e., the appellant's father. Further, he contended that in Ex.B1 sale deed, which was purchased by the respondents grandfather father namely, Vembana Gounder, wherein, nothing was mentioned about the availability of the cart track for their usage. Therefore, he would contend that without any right, the respondents are not entitled to use the cart track. Therefore, he contented that the appellant is entitled for the reliefs as prayed for and 10/19 https://www.mhc.tn.gov.in/judis 11 these aspects were not considered by the trial Court as well as the first appellate Court, but erroneously, while dismissing the suit filed by the appellant, decreed the suit filed by the respondents, which are liable to be set aside. Therefore, he prayed for allowing the present Second Appeals.
12. On the other hand, no one appeared for the respondents. Therefore, this Court appointed one Mr.J.Prithivi, Advocate as Amicus Curiae and he also assisted the Court on behalf of the respondents.
13. Initially the entire property situated in old S.No.371/B was held by three parties namely Nachi , who was holding the north of the property, secondly, Mottayan in the middle and thirdly, Kaali who held the South portion wherein, the appellant's father namely Sellappa Gounder bought the 1/3rd of Nachi's property by virtue of sale deed Ex.A1 dated 02.05.1955 while, the first respondent's grandfather namely Vembana Gounder purchased 2.64 acres in old S.No. 371/B i.e. South 11/19 https://www.mhc.tn.gov.in/judis 12 portion of entire old S.No. 371/B from Kaali by virtue of Ex. B1, sale deed dated 08.03.1920. Further, it is clear that the father of the appellant and the first respondent's grandfather purchased the property of one Nachi and his her legal heirs, which is situated adjacent to the respondent's property where, they have earmarked the cart track, which cart track was already in usage since the original owner Nachi had been using this cart track to reach her place and as such, unless and otherwise, the cart track was in usage by Nachi, there is no chance for mentioning the cart track in Ex.A1 document and prior to the purchase of the property by the appellant's father by virtue of Ex.A1 document, it is clear that the first respondent's grandfather had been using the said cart track. Therefore, the respondents are entitled to the said cart track by way of easementary right. That apart, if the respondents are not permitted to use the said cart track, they would have no other option to reach their property, because it is the only way, which had been in usage since 1920. The contention of the learned counsel for the appellant is that the respondents can use yet another way, which is available, 12/19 https://www.mhc.tn.gov.in/judis 13 situated all along lower Bhavani Canal, but this can be used only for carrying water to the fields and certainly not for the use as cart track or grazing of cattle. Hence, the learned Amicus Curaie would submit that both the Courts below have rightly rejected the claim of the appellant and decreed the suit filed by the first respondent and dismissed the suit filed by the appellant.
14. Heard the learned counsel for the appellant as well as the Amicus Curiae appointed by this Court to represent the respondents and perused the entire materials placed before this Court.
15. This Court, upon hearing the submissions made by the learned counsel for the appellant as well as the counsel for the respondents and on a perusal of the documents, it appears that the dispute is revolving around the utilization of ABCD cart track marked in red colour as mentioned in the plaint plan filed in O.S.No.164 of 1996. This Court has also gone through the plaint plan, and on a perusal of the entire 13/19 https://www.mhc.tn.gov.in/judis 14 pleadings of both parties, it would reveal that S.Nos.743/10, 743/11 and 743/12 are belonging to the respondents, viz., plaintiffs in O.S.No.164 of 1996 whereas, S.Nos.743/2 and 743/8 and 743/9 are belonging to the appellant, who is the defendant in O.S.No.277 of 1995. The first respondent's grandfather purchased the property as early as in the year 08.03.1920 by virtue of Ex.B1 sale deed and also by virtue of Ex.B2 sale deed dated 10.3.1995, he purchased another extent of property to an extent mentioned in Ex.B1 document, i.e. 66.2 cents, wherein, the cart track has been mentioned. As such, it is clear that the vendors who were enjoying the properties under Ex.B1 sale deed as well as the vendors who were enjoying the properties under Ex.B2 sale deed, have been using the said cart track right from the year which was transferred in Ex.B1 sale deed dated 02.05.1955.
16. That apart, the property under Ex.B1 sale deed dated 02.05.1995, which was purchased by the father of the appellant in the year 1995, wherein, the right of using cart track has been transferred in 14/19 https://www.mhc.tn.gov.in/judis 15 favour of the predecessor of the properties mentioned in Ex.B1 sale deed and therefore, it is established that there has been existence of cart track and it has been in usage. It seems that the suit cart track is starts from the first respondent's property and end with S.No.743/1 which shows that the cart track has been effectively used by the respondents' grand father, who purchased the property in the year 1920 by virtue of Ex.B1, whereas, the appellant's father purchased the property in the year 1955 wherein the right to use the cart track has been provided for the usage of cart track as mentioned in the sale deed Ex.A1 dated 02.05.1955.
17. All these aspects indicates that the cart track, which is in usage prior to the usage of the respective parties in S.Nos.743/10, 743/11 & 743/12 was in existence since the year 1920, which is prior to the purchase of the said properties by the appellant's father in the year 1955. As both the appellant's father and respondents' grand father had purchased the properties from one Nachi and his heirs, it is presumed 15/19 https://www.mhc.tn.gov.in/judis 16 that the 743/1 cart track should have been used to reach the properties as established by the respondents from 1920 onwards and prior. The contention of the appellant as regards usage of pathway situated all along lower Bhavani Canal Project is concerned, upon perusal of Exs.C1 and C2, there is no evidence stating that there is a way but it is a watercourse, i.e. the cart track available for the respondents to reach their lands. Therefore, the appellant, if at all there is no right given for usage, he cannot claim any exclusive right for himself and restrain the other rightful persons for the usage of the said cart track. Therefore, this Court is of the view that the respondents are entitled only for the usage of the cart track. But cart track was allotted only for alternative usage of the respondents because it run through the appellant's lands and as such, the respondents cannot claim any exclusive ownership over it. The contention put forth by the learned counsel for the appellant that on the eastern side of the appellants property, there is pathway all along side of the LBP canal available and the same can be used by the respondents, is concerned, it is clear that the said pathway can be used 16/19 https://www.mhc.tn.gov.in/judis 17 only taking water from the one point to another from the canal and it cannot be used as cart track to reach the lands of the respondents and also not possible to take cattle through it. Therefore, except the suit cart track, the respondents have no other alternative way and the said cart track, has been in existence for years together and the respondents established their right of usage by way of easmentary right of convenience and except this pathway, no other pathway is available for them hence, they are also entitled to use the pathway as the easement of necessity and thereby the ingredients contained in Section 13 (e) and (f) of Easement Act, 1882 are fulfilled, which envisages that if an easement over the share of one of them is necessary for enjoying the share of another, the latter shall be entitled to such easement and if such easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition/sale took effect, unless a different intention is expressed or necessarily implied, he is entitled to such easement. In the present case also, the easement is apparent as could be seen from Ex.B1 sale deed dated 08.03.1920 and 17/19 https://www.mhc.tn.gov.in/judis 18 Ex.A1 sale deed dated 02.05.1955 and Ex.B2 dated 10.2.1995. Therefore, this Court finds that both the Courts below have properly appreciated Ex.A1 and Ex.B1 and B2 and rightly decreed the suit filed by the respondents and dismissed the suit filed by the appellant herein. This Court does not find any infirmity in the judgment and decree passed by both the trial Court as well as the I Appellate Court. Accordingly, all the substantial questions of law framed by this Court are answered in favour of the respondents.
18. In the result, the second appeals are dismissed. The parties shall bear their own costs. Consequently connected miscellaneous petitions are closed. No costs.
Dn 15.09.2022
To
1.The I Additional District Judge cum Chief Judicial Magistrate (Second Additional District Court-incharge), Erode
2.The Principal District Munsif, Erode 18/19 https://www.mhc.tn.gov.in/judis 19 KRISHNAN RAMASAMY.J., dn Second Appeal No.1206 & 1207 of 2003 15.09.2022 19/19 https://www.mhc.tn.gov.in/judis