Madras High Court
Sengodam vs O.V.Muthuramalingam on 20 October, 2022
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
S.A.No.2167 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 08.09.2022
Pronounced On 20.10.2022
CORAM
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
S.A.No.2167 of 2002
Sengodam ...Appellant
Vs.
1.O.V.Muthuramalingam
2.O.M.Rajagopal
3.O.M.Balakrishnan
4.R.Venkateswaran ...Respondents
PRAYER : Second Appeal filed Under Section 100 of the Code of Civil
Procedure against the Judgment and Decree dated 05.04.2002 made in
A.S.No.2 of 2002 on the file of the Additional District Court No.IV / Fast
Track Court No.IV, Bhavani, confirming the Judgment and Decree dated
24.10.2000 made in O.S.No.698 of 1995 on the file of the Principal District
Munsif Court Bhavani.
For Appellant : Mr.N.Manokaran
For R1, R2 & R4 : No Appearance
For R3 : Mr.V.Anandhamurthy
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S.A.No.2167 of 2022
JUDGEMENT
This Second Appeal is preferred as against the Judgment and Decree dated 05.04.2002 made in A.S.No.2 of 2002 on the file of the Additional District Court No.IV / Fast Track Court No.IV, Bhavani, confirming the Judgment and Decree dated 24.10.2000 made in O.S.No.698 of 1995 on the file of the Principal District Munsif Court Bhavani.
2.The appellant herein is the plaintiff and the respondents herein are the defendants in the suit.
3.For the sake of convenience, the parties are referred to as per their ranking before the trial Court.
4.The case of the plaintiff is that the plaintiff purchased the vacant house site in R.S.No.351/2 with specific boundaries on 01.11.1982 from one Kuppusamy. The plaintiff's predecessors in title have been using the suit car- track from south to north as an access. The plaintiff filed a sketch showing the topography of the land, wherein he has marked the suit cart-track as 2/18 https://www.mhc.tn.gov.in/judis S.A.No.2167 of 2022 A,B,C,D. The plaintiff had claimed that he has been using the cart- track as ingress and egress from Bhavani to Komarayanoor main road. The plaintiff constructed a titled houses in the vacant site purchased in R.S.No.351/2 in the year 1993 and he has been paying house tax to the panchayat. The defendants are the owners of the land in R.S.No.347/2 which situates eastern side of plaintiff's land. The further case of the plaintiff is that the suit cart-track is being enjoyed by him as easementry right by long user prescription and necessity. Further, he claims that there is no other way to reach his house and since the defendants are preventing the plaintiff from using the cart-track, the plaintiff has filed the suit in O.S.No.698 of 1995 on 25.10.1995 for declaration and permanent injunction.
5.The case of the defendants is that the defendants 2 and 3 owns ancestral properties in R.S.Nos.347 and 345 apart from other lands. As the said lands are abutting the road, there is no necessity for a separate cart- track to reach their lands till 1992. On 14.05.1992, the defendants 2 and 3 effected a registered partition of R.S.No.347 and other properties by which the entire R.S.No.347/4 and a small extent of land in R.S.No.347/2 was 3/18 https://www.mhc.tn.gov.in/judis S.A.No.2167 of 2022 allotted to the 3rd defendant. The 2nd defendant was allotted with the remaining land in R.S.No.347/2 and R.S.No.345. Subsequently, a cart-track to a width of 12 feet was laid in the eastern side of R.S.No.347/4 and a right of way was given to the 2 nd defendant to access his lands since the lands allotted to the 2nd defendants were cut off from the road and that cart-track has been claimed by the plaintiff and it was denied by the defendants since it was not in existence prior to 1992. It is the further case of the defendants that the plaintiff has an alternate way to reach his house and his vendors also does not use the suit cart-track. Hence, the plaintiff has no legal right to claim usage of the cart-track.
6.Before the Trial Court, on behalf of the plaintiff, P.W.1 was examined and Exs.A1 to A5 were marked. On behalf of the defendants, D.W.1 and D.W.2 were examined and Exs.B1 to B7 were marked and on behalf of the Court, Exs.C1 and C2 were marked.
7.After hearing both the parties, the Trial Court dismissed the suit on 4/18 https://www.mhc.tn.gov.in/judis S.A.No.2167 of 2022 the ground that, as per Ex.C1, the plaintiff claims right over the cart-track only for the convenience and he has not proved that he has been enjoying the cart-track for more than 12 years.
8.Aggrieved over the said judgment and decree passed by the Trial Court on 24.10.2000 made in O.S.No.698 of 1995, the plaintiff preferred an appeal in A.S.No.2 of 2002. On behalf of the plaintiff Exs.A6 and A7 were marked before the First Appellate Court.
9.The First Appellate Court after hearing both the parties, dismissed the appeal holding that the suit cart-track was just a mule-track and not an ancient one and there is no evidence for the usage of cart-track over a period of time prescriptive. Further, the Court below held that the evidence of P.W.1 was not corroborated by any other witnesses and there is alternate pathway available as per Exs.C1 and C2 and dismissed the first appeal.
10.Against the said judgment and decree, the plaintiff herein preferred 5/18 https://www.mhc.tn.gov.in/judis S.A.No.2167 of 2022 the present second appeal. When the matter came up for hearing on 07.02.2003, this Court admitted the Second Appeal by framing the following two substantial questions of law:-
“1.Whether the First Appellate Court was correct in refusing to entertain the additional documents filed in I.A.No.186 of 2001 under Order 41 Rule 27 C.P.C?.
2.Whether the non-compliance of Order 41 Rule 31 C.P.C will make the judgment of the First Appellate Court as void, in view of the law laid down by the Division Bench of this Honourable Court in 1997 (1) LW 704?”
11.Subsequently on 07.07.2022, after hearing both the parties, framed the following additional substantial questions of law:
“1.Whether Exs.A8, A9 and A10, which are sale deeds executed by the 2 nd and 4 th defendants/respondents herein along with Ex.A11 which was also a document affirming the rights mentioned in the said sale deeds by the said respondents would expand the right of the plaintiff to use or have access to the cart track?6/18
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2.Whether if such a right is claimed on the basis of the aforesaid document, the original claim of the appellant on the basis of easmentary right would pale into insignificance and whether the claims on the basis of title and the claims on the basis of easmentary right can be considered to be mutually exclusive to each other?
3.Whether a private cart track in a patta land can also be construed to be a public pathway under the revenue standing orders in 26(15) and the requirements for such construction as a public pathway?”
12.By virtue of C.M.P.No.1926 of 2016, the plaintiff was permitted to mark Exs. A8 to A19, pending the Second Appeal.
13.The learned counsel appearing for the plaintiff would submit that the suit cart-track is in existence even at the time of purchase of the properties by virtue of the sale deed dated 01.11.1982, wherein it has been clearly described as “Mamool cart-track”. In the partition deed/Ex.B2, dated 14.05.1992, executed between defendants 2 and 3, the suit cart-track has been clearly mentioned. The Panchayat has installed drinking water hand 7/18 https://www.mhc.tn.gov.in/judis S.A.No.2167 of 2022 pump and a common well dug in the year 1965 itself. The panchayat also passed resolution to install a street light in the suit passage. Accordingly, an electric pole with a street light had been erected. D.W.1/2nd defendant and D.W.2/VAO have categorically admitted the existence of physical features in the suit property. In the year 2010, the plaintiff purchased three plots from 2nd defendant by virtue of the Exs.A8 to A10, wherein the plaintiff has given right of usage in and over the suit passage measuring 12 feet breadth. A deed of consent also executed on 30.06.2010 by defendants 2 & 4 enabling the plaintiff to use the suit cart-track, which has been marked as Ex.A11.
Pursuant to Exs.A8 to A10/sale deeds, the plaintiff's name has been included as joint pattadar in the revenue records/Exs.A12, A14, A16 and A18. As such he contended that Exs.A12 to A19 would establish that the plaintiff's name has been included as a co-pattadar in the revenue records to enable him to use the suit cart-track in R.S.No.347/4.
14.The learned counsel would further submit that the plaintiff has been enjoying the suit cart-track by easement of grant, prescription and necessity and not claiming title to the passage. Since the plaintiff has been 8/18 https://www.mhc.tn.gov.in/judis S.A.No.2167 of 2022 using the suit cart-track from the date of purchase, he is entitle to use the same by way of prescription and he is entitled for easement since no other cart-track is available. Both the Courts below have come to the conclusion based on Exs.C1 and C2 that alternate pathway is available and there was no plea on the part of the defendants about the availability of the alternate pathway and in this regard the defendants have not produced any evidence. Therefore, he would submit that all these aspect were not considered properly by the Court below. Further, he would also refer the Revenue Standing Order 26(15) and submitted that even the suit cart-track is running in patta land, the same is considered as Government land. The panchayat passed resolution to install electric pole and there is public Well on the suit property Therefore, this pathway is in public use and even if it is situated in a private land, it would be considered as public land and the defendants could not prevent the plaintiff from using the said pathway.
15.On the other hand, Mr.V.Anandhmurthy, learned counsel appearing for the 3rd defendant would submit that now the plaintiff is claiming right to use the cart-track by acquisition, pending the appeal. The 9/18 https://www.mhc.tn.gov.in/judis S.A.No.2167 of 2022 claim that the plaintiff was using the cart-track for number of years had been negatived by both the Courts below. But, now the plaintiff by marking Exs.A8 to A11 has raised a claim of right and title over the cart-track.
16.Pending the Second Appeal, the 2nd defendant sold a tiny portion of land situated in R.S.No.347/2 to the plaintiff under three sale deeds. The cause of action is entirely different from the original relief in the plaint and the documents namely Ex.A8 to A11 could not be considered in this proceedings, which is far away from the relief originally prayed by the plaintiff.
17.The learned counsel appearing for the 3rd defendant would further submit that the ownership and easement are mutually exclusive. In the suit, the relief was claimed based upon easementary right and not on any ownership right. Though the plaintiff purchased tiny portion of land from the 2nd defendant pending the Second Appeal, it does not confer him a right as co-owner. The claim of right of passage as co-owner diagonally opposite to the plea of easementry right over the passage. The cart-track in 10/18 https://www.mhc.tn.gov.in/judis S.A.No.2167 of 2022 R.S.No.347/4 was formed for the convenience of the 2 nd defendant to reach his lands since his land was cut-off from the main road during the partition held on 14.05.1992 under Ex.B2. Prior to it, the properties were divided among the defendants 2 & 3 by partition took place on 11.09.1974 under Ex.B1 in which there was no mention about the existence of cart-track. If at all there is any cart-track, the same should be mentioned in the earlier partition deed dated 11.09.1974. Further, both the Court below have held that it was not proved that the “Mamool cart track” referred in Ex.A1 and the suit cart-track are one and the same. The plaintiff is stranger to the suit property and he is not entitled to the cart-track in 3 rd defendant's property allotted under Ex.B2.
18.He would also submit that since the plaintiff's claim that he is entitled to use the cart-track on the basis of easement of necessity was negatived by both the courts below, now he wants to claim the cart-track right as co-owner. There are no pleadings to that effect in the suit and the plaintiff cannot traverse beyond his pleadings in the Second Appeal stage. Further he would submit that the easementary right over the suit pathway 11/18 https://www.mhc.tn.gov.in/judis S.A.No.2167 of 2022 got extinguished due to the subsequent claim of the plaintiff based on the sale of tiny portions in his favour. Hence, he would submit that with regard to the pathway, more particularly, the necessity itself has ceased to exist due to the subsequent purchase of the property adjacent to the suit pathway. Therefore, he would contend that all these aspect are well considered by the both the Courts below and there is no need for interference by this Court and prayed for dismissal of the appeal.
19.Heard the learned counsel appearing for the appellant/plaintiff and the 3rd respondent/3rd defendant and perused the materials available on record.
20.Initially this Court framed two substantial questions of law on 07.02.2003 and thereafter due to subsequent development i.e sale deeds executed vide Exs.A8 to A11, this Court permitted the appellant/plaintiff to mark those documents vide order dated 21.01.2019 in C.M.P.No.9023 of 2016 in S.A.No.2167 of 2002. The plaintiff marked Exs.A8 to A19 through P.W.1/ D3, who was not cross examined and after hearing the parties, three 12/18 https://www.mhc.tn.gov.in/judis S.A.No.2167 of 2022 additional questions of law were framed on 07.07.2022.
21.Now the main issue revolving in the present appeal is whether the plaintiff is entitled for the usage of the cart-track or not? According to the plaintiff, the suit cart-track was in existence when he purchased the land in R.S.No.351/2 vide Ex.A1/sale deed dated 01.11.1992.
22.A perusal of the sale deed/Ex.A1 would show that, even transport right is in favour of the purchaser with regard to the usage of the Mamool Cart Track and by referring the same, the plaintiff contended that even at the time of purchase of suit property, the suit track is in existence and the plaintiff has been using the said track. On the other hand, the main contention of 3rd defendant is that suit track formed subsequent to the partition made between defendants 2 & 3 on 14.03.1992, which was marked as Ex.B2. For better appreciation, the relevant portion in Ex.B2 reads as follows:
“fpHnkyffr; bry;Yk; gthdp nuhl;oy; ,Ue;J “gp” brl;oa{y;jhuh;fSf;F ghj;jpag;gl;l xyflk; fpuhkk;. hP/f/f/ 347-4 (giHa fr/418 V MFk;) be/fhiy g{kpfspy; fpHg[wk;13/18
https://www.mhc.tn.gov.in/judis S.A.No.2167 of 2022 nfhl;od; Xukha; bjd;tly; ePspaha; “V ” brl;oy;a{y;jhuh;fSf;F ghj;jpag;gl;l xyflk; fpuhkk;. g[jpa hP/rh;nt vz;/ 345-1. 347-2. 347-1. Mfpa fhiyfspd; g{kpfSf;F 12 (gd;dpbuz;L) m[o mfyj;jpy; ngha;r; nrUk; tz;og;ghijapy; “V” brl;oa{jhujhd X/vk;/,uh nfhghy; ngh f tu ele;J bfhs;st[k;. tz;otifawh. fhy;eilfs;. yhhp. ouhf;lh;. Kjypaitfis nghftu Xl;o mDgtpf;ff; bfhs;st[k; “V” brl;oa{y;jhuh;fSf;F chpik ghj;jpak; cz;L ,ij “gp” brl;oa{y;jhuh; X/vk;/ghyfpUcPzd; jLf;fnth Ml;nrgpf;fnth TlhJ/”
23.The mere reading of the above would show that at the time of partition itself the cart-track was in existence from South to North. A perusal of the above would clear that in the partition deed, “A” schedule property holder was permitted to use the South to North cart-track. In such case, the right has been given to O.M. Rajagopal, who was allotted “A” schedule property, which shows that cart-track was in existence prior to the partition deed dated 14.05.1992 and in Ex.A1, a cart-track has been mentioned as “Mamool Cart-Track” and these aspects were not properly considered by the both Courts below. P.W.1 denied the statement made in Exs.C1 and C2 that except the suit track no other pathway is available for usage of the plaintiff and both the Court below have lost its sight in this aspect. 14/18 https://www.mhc.tn.gov.in/judis S.A.No.2167 of 2022
24.Both the Court below failed to consider that in the suit track there is public Well which is in existence since 1965 and panchayat was also passed resolution to install the electric pole in the track. Subsequently, electric pole and hand pump had also been installed for the public usage which would show that this road is under the control of the panchayat since 1965. There is no finding given by the First Appellate Court with regard to these vitals facts. Though the suit track is in a patta land there is a electric pole, water pump and public Well for public usage. As per the Revenue Standing Order 26(15), any pathway running in a patta land which is in public usage, is a Government land. In the present case, no doubt the suit track is in the usage of public for taking water from hand pump for a long period of time.
25.D.W.1 and D.W.2 in their evidence have clearly stated about the existence of the Well and hand pump and also the maintenance of cart-track by panchayat, which would clearly prove that this cart-track is meant for public usage and as such plaintiff also entitled to use this cart-track as one 15/18 https://www.mhc.tn.gov.in/judis S.A.No.2167 of 2022 among the public and there is no finding either from the Trial Court or from the First Appellate Court on these aspect, whereas the available evidence would establish the right of the plaintiff over the suit track.
26.That apart, the defendants have not made any attempt to prove that there is an alternate pathway to reach the plaintiff's house. Except Ex.C2 no other evidence are available to show that there is alternate pathway to reach plaintiff's house. Further, subsequent to the pronouncement of judgment and decree passed in the First Appeal, by virtue of Exs.A8 to A10, the plaintiff purchased three plots from the defendants and by virtue of Ex.A11, the defendants 2 and 4 granted consent to the plaintiff to use the suit-cart track. Further more, the plaintiff's name was also entered as joint pattadhar in the revenue records/Exs.A12, A14, A16 and A18. Though number of judgments were referred by both the counsel relating to the facts of the case, from the evidence of P.W.1, D.W.1, D.W.2/Village Administrative Officer and Advocate Commissioner, it is very much clear that public Well situates in the suit track and the electric pole has installed to fix street lights and as per the Revenue Standing Order 26(15), 16/18 https://www.mhc.tn.gov.in/judis S.A.No.2167 of 2022 even the cart-track is running the patta land, it should be considered as the Government land. Hence, the plaintiff is entitled to use the cart-track. Accordingly, all substantial questions of law are answered in favour of the plaintiff.
27.In the result, the Second Appeal is allowed and the judgment and decree passed by the Principal District Munsif Court, Bhavani in O.S.No.698 of 1995 dated 05.04.2002 and the judgment and decree passed by the Additional District Court No.IV / Fast Track Court No.IV, Bhavani in A.S.No.2 of 2002 dated 05.04.2002 are hereby set aside. Consequently, O.S.No.698 of 1995 is decreed as prayed for. The parties shall bear their own costs.
20.10.2022 rst Index : Yes / No Internet : Yes / No Speaking Order / Non Speaking Order KRISHNAN RAMASAMY, J.
rst To 17/18 https://www.mhc.tn.gov.in/judis S.A.No.2167 of 2022
1.The Additional District Court No.IV / Fast Track Court No.IV, Bhavani,.
2.The Principal District Munsif Court, Bhavani.
Pre-Delivery Judgment in S.A.No.2167 of 2002 20.10.2022 18/18 https://www.mhc.tn.gov.in/judis