Madras High Court
Silambanna Gounder, Marudayee Ammal, ... vs Pasuvayee Gounder And Soliammal on 30 August, 2002
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
1. The appellants in S.A. No. 1795 of 1990 are the defendants in O.S. No. 301 of 1982 and the appellants in S.A. No. 1796 of 1990 are the plaintiffs in O.S. No. 680 of 1987. Having lost before both the Courts below, they have filed these second appeals.
2. The respondents in S.A. No. 1795 of 1990 filed the suit in O.S. No. 301 of 1987 for permanent injunction restraining the defendants from interfering with their right to use the plaint 'vaikal'.
3. The appellants in S.A. No. 1796 of 1990 also filed another suit in O.S. No. 680 of 1987 for declaration that they are entitled to use the same suit property as cart-pathway and for consequential relief and injunction.
4. Thus, 'B' schedule property in O.S. No. 680 of 1987, the subject matter, is one and the same in both the suits.
5. According to the appellants/plaintiffs in O.S. No. 680 of 1987, 'B' schedule property which is a cart pathway is the only access to reach 'A' schedule property. According to the respondents/defendants in O.S. No. 680 of 1987, the said property is a vaikal, which they are entitled to use it and the same cannot be used as a cart-pathway.
6. As agreed by parties, both the suits were tried together. The appellants in S.A. No. 1796 of 1990 were treated as plaintiffs and the respondents in S.A. No. 1795 of 1990 were treated as defendants and common evidence were recorded.
7. On appreciating the evidence, both oral and documentary, the trial Court passed common judgement, decreeing the suit in O.S. No. 301 of 1987 as prayed for and dismissed the suit in O.S. No. 680 of 1987. Aggrieved by the same, the appellants filed two first appeals in A.S. No. 160 of 1987 and 119 of 1987 respectively. The appellate Court also confirmed the judgement and decree passed by the trial Court in both the suits and dismissed both the appeals. Challenging the same, as noted above, these two second appeals have been filed.
8. The case of the plaintiffs in O.S. No. 680 of 1987 (Appellants) is as follows:-
'B' schedule property is east-west cart track, which was commonly enjoyed by the plaintiffs and the defendants. 'A' schedule property which belongs to the plaintiffs is situated on the eastern side of the 'B' schedule property. 'B' schedule property, which is the cart pathway, is the only access to 'A' schedule property belonging to the plaintiffs. As such, the plaintiffs and their ancestors are in open, continuous, exclusive and hostile possession and enjoyment of the pathway for many decades till the date of the suit with the knowledge of the defendants and others as of right. Thus, they have perfected right, title and interest for 'B' schedule property--pathway to reach 'A' schedule property by means of prescriptive easement, grant and consent. Since the usage of the said pathway by the plaintiffs was disturbed by the defendants on the strength of temporary injunction obtained in their suit filed in O.S. No. 301 of 1987, they are constrained to file the suit in O.S. No. 680 of 1987 on account of the stand taken by the defendants, as there is cloud over the rights of the plaintiffs in the suit 'B' schedule cart pathway for declaration that the plaintiffs were entitled to use the cart pathway to reach 'A' schedule property and for consequential injunction.
9. The case of the defendants in O.S. No. 680 of 1987, who are the plaintiffs in O.S. No. 301 of 1987 (Respondents) is as follows:-
The suit property is east-west vaikal. They are entitled to use the said vaikal for taking water from the 'raja vaikal' through 'EF' vaikal to the land in S.F. No. 553/C. Regarding their right to take water to their vaikal, the defendants earlier filed the suit in O.S. No. 791 of 1995 for declaration and the suit was decreed in their favour. Thus, the suit property was declared as 'vaikal', by which, the right was conferred on the plaintiffs to use and take water through the said vaikal, namely, 'EF'. In the said judgement, it was held that the suit property is the common vaikal enjoyed by both parties intended only to take water to their respective fields. It was never considered to be a cart pathway. The suit vaikal is convenient only for enjoyment of sharers for taking water and not for taking cart. If the other parties are allowed to take carts, then, the utility over the suit vaikal will be damaged. Therefore, they alone are entitled to get permanent injunction restraining the other party from interfering with their peaceful possession and usage of the suit property as vaikal and restraining them from causing damage to the said vaikal by taking carts.
10. On the basis of the above pleadings, necessary issues were framed in these two suits. On the side of the plaintiffs, Kandasamy, the second appellant in S.A. No. 1796 of 1990 was examined as P.W.1 and one Palanisamy was examined as P.W. 2. and Exs. A-1 to A-6 were marked. On the side of the defendants, Pasuvayee Gounder, the first respondent in both the second appeals, was examined as D.W. 1 and one Pichamuthu was examined as D.W.2 and on their side, Exs. B-1 to B-4 were marked.
11. On an appraisal of the evidence, oral and documentary, adduced by both parties, the trial Court decreed the suit in O.S. No. 301 of 1987 and dismissed the suit in O.S. No. 680 of 1987. The said findings were confirmed by the appellate Court as well, in two separate appeals filed by the appellants in A.S. Nos. 119 of 1987 and 160 of 1987 respectively. Hence, these two second appeals.
12. At the time of admission of the second appeals on 5-12-1990, this Court formulated the following common substantial questions of law in both the second appeals, which are as follows:-
"(i)Whether the judgements and decrees of the Courts below are contrary to the conclusions reached in A.S. No. 246 of 1976?
(ii)Whether the Courts below are justified in rejecting the case of the appellants in view of the findings in A.S. No. 246 of 1976?"
13. In elaboration of the above substantial questions of law, learned counsel for the appellants would argue at length. He would submit that both the Courts below have failed to consider that the appellants have no other pathway to take manure, haystack and agricultural produces to their field in 'A' schedule property, that the appellants have been using 'B' schedule property for many decades without any objection, openly to the knowledge of the opposite parties and as such, both the Courts below ought to have held that the respondents/defendants have no right to restrain their right to use the 'B' schedule property as a cart pathway.
14. It is further contended by learned counsel for the appellants that permanent injunction was granted in favour of the respondents/defendants in their suit, as against dictum laid down by this Court in BHUVANESWARI VS. R. ELUMA (2002 (3) C.T.C. 27).
15. On the other hand, learned counsel appearing for the respondents would contend that the suit pathway was never considered to be cart pathway and it is only 'vaikal'. The said issue was raised and decided in the earlier suit, and as such, raising the issue again, would be barred by the principle of res-judicata contained in Section 11 of C.P.C. She would cite two decisions of the Supreme Court reported in STATE OF U.P. VS. NAWAB HUSSAIN and FORWARD CONSTRUCTION CO. VS. PRABHAT MANDAL (REGD.), ANDHERI (AIR 1980 SC 391) to substantiate the above contention.
16. I have carefully considered the submissions made by learned counsel for both the parties and also perused the records.
17. According to the plaintiffs in O.S. No. 680 of 1987, the suit cart pathway is the common pathway enjoyed by the parties. It is the specific case of the plaintiffs, the appellants in S.A. No. 1796 of 1990 that they are in open, continuous and exclusive enjoyment of the 'B' schedule property, the cart pathway, for many decades with the knowledge of the defendants and others as of right, which had perfected their right, title and interest. Therefore, the claim of the plaintiffs is that they have perfected their title by means of prescriptive easement, grant and consent.
18. This is emphatically denied by the respondents/defendants. According to them, the suit schedule property was never used as a cart pathway. On the other hand, the area in the suit property which is mentioned as 'Ef' was the subject matter of dispute in O.S. No. 791 of 1975 and in that suit, decree of declaration was granted holding that it is only the 'vaikal' where the parties would be entitled to take water through the said vaikal. Even though the appellants are parties to the said suit, it was contended that it is the cart pathway used by both. As a matter of fact, the said judgement and decree passed in favour of the other side was challenged by the appellants in A.S. No. 246 of 1976 and the same was dismissed by the appellate Court. This fact has not been disputed.
19. That being the case, it is for the appellants/plaintiffs to prove that they have been using the suit property as common pathway for number of years, thereby, they have got prescriptive easementary right by means of consent.
20. In the plaint, the appellants/plaintiffs would state that the suit pathway has been used by the parties for many decades with the knowledge of the defendants. According to the appellants, they have been using the suit property as a cart pathway for the past 16 years. The present suit has been filed in 1987. The earlier suit which was filed in the year 1975 was disposed of by the appellate Court through Ex. B-2 in the year 1979. The trial Court held that the fact that the appellants/plaintiffs have been using the suit property as cart pathway, had not been argued by them before the lower Court in the said suit of the year 1975. Under those circumstances, this Court is unable to hold that the plaintiffs have proved that the pathway has been used as a common cart pathway by them for a number of years and as such, they are entitled to use the same, as of right.
21. Furthermore, both the Courts below would hold that the plea that the plaintiffs have been using the pathway as of right, has not been projected during the course of evidence and in fact, contrary stand has been taken by the appellants that they have got easementary right. Though P.W. 1 would state that 'B' schedule property is the only access to reach 'A' schedule property, D.W. 1. would state that the appellants have got other way in natham poramboke to reach their place. This aspect of evidence has been discussed by both the Courts below in detail.
22. Furthermore, the decree in O.S. No. 791 of 1975 has been confirmed by the appellate Court and the suit property, which is 'EF' in S. No. 553/C was the subject matter of the said suit and in that suit, no plea was raised by the appellants that the subject matter was not only vaikal, but also the cart pathway. That apart, the Commissioner's report also does not show that there was a cart pathway which is in existence for a long number of years.
23. Under those circumstances, I am unable to hold that there is any substantial question of law in the second appeals, as in my view, both the trial Court as well as the appellate Court considered the balance of convenience and correctly granted the relief sought for by the respondents herein and dismissed the suit filed by the appellants. Hence, both the second appeals are dismissed. No costs.