Madras High Court
Samraj vs Chinnasami Gounder on 22 February, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.02.2012 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Second Appeal Nos.1587 and 1588 of 2005 1. Samraj 2. Krishnan 3. Tamilarasi ..Appellants in both the Appeals -Vs- Chinnasami Gounder ..Respondent in both the Appeals Appeals filed under Section 100 of C.P.C. against the judgment and decrees dated 19.9.2005 passed in A.S.No.105 of 2005 and A.S.No.107 of 2005 on the file of the Principal Sub-Court, Salem confirming the judgment and decrees dated 18.2.2005 passed in O.S.No.1996 of 2004 and O.S.No.862 of 2003 respectively passed by the I Additional District Munsif Court, Salem. For Appellants : Mrs.Hema Sampath, Senior Counsel for Mr.R.Subramanian For Respondent : Mr.S.Kalyanaraman COMMON JUDGMENT
S.A.No.1587 of 2005: This appeal is directed against the common judgment and decree passed in A.S.No.105 of 2005 dated 19.9.2005 in confirming the judgment and decree passed by the Trial Court in O.S.No.1996 of 2004 in dismissing the suit.
2. S.A.No.1588 of 2005: This appeal is directed against the common judgment rendered by the first appellate Court in A.S.No.107 of 2005 in confirming the judgment and decree passed by the trial Court in O.S.No.862 of 2003 in decreeing the suit.
3. The appellants in both the appeals were the plaintiffs in O.S.No.1996 of 2004 and the defendants in O.S.No.862 of 2003, and the respondent in both the appeals was the defendant in O.S.No.1996 of 2004 and the plaintiff in O.S.No.862 of 2003 before the trial Court.
4. The case of the plaintiffs in O.S.No.1996 of 2004 in brief before the trial Court would be as follows:
The first plaintiff is the elder son and the second plaintiff is the younger son of Arthanari Gounder. The 3rd plaintiff is the wife of the 2nd plaintiff . The defendant is the younger brother of Arthanari Gounder. The said Arthanari Gounder and the defendant had ancestral properties the S.Nos.54/7B22, 54/7B23, 54/7B10 and 54/7B11 of Aarigoundampatti village. Later in 1959, Arthanari Gounder, the defendant and one Ramasamy Gounder jointly purchased properties in S.No.64/1, S.No.63/2B2 and S.No.63/2B1. Subsequent to the said purchase, Ramasamy Gounder was allotted land in S.No.63/2B2. Later, Arthanari Gounder and the defendant jointly enjoyed the ancestral properties and the newly purchased properties. After some time, Arthanari Gounder and the defendant orally partitioned all the properties. As per the oral partition, the defendant was allotted property in S.Nos.54/7B22 and 54/7B10 in the ancestral property, while the Arthanari Gounder was allotted S.No.54/7B23 and S.No.54/7B11. The defendant's share were situated on the western side of the Arthanari Gounder's share. Out of the purchased properties, the defendant was allotted S.No.64/1, while the Arthanari Gounder was allotted S.No.63/2B1. The plaintiff's father was granted a pathway right of 5 feet on the western side of S.Nos.54/7B22 and 64/1 and similarly, a pathway of 5 feet in S.No.54/7B10 on the northern side. The plaintiff's family have the said pathway right across the defendant's land. They are using it for the past 40 years without any obstruction and any hindrance from anybody. It is the only pathway to the plaintiffs' property to enjoy and to do agriculture in their lands. The Arthanari Gounder died before 18 years. After the death of Arthanari Gounder, the plaintiffs 1 and 2 being his sons are in possession and enjoyment of the property allotted to their father. Subsequently, the second plaintiff purchased land in S.No.63/2B2 and S.No.54/4B2 from Rangasamy and others. When the oral partition was effected, the defendant was allotted 10 cents in excess to compensate the pathway which is running across his land. The second plaintiff after purchase of his land had dug a bore well in S.No.63/2B2 and had obtained electricity connection. The second plaintiff executed a settlement deed in favour of his wife namely the 3rd plaintiff in the year 2003. Hence, the 3rd plaintiff being the owner of S.No.63/2B1 is also impleaded as necessary party to the suit. All of a sudden, the defendant is trying to close the pathway through which the plaintiffs have to reach their lands. On 24.8.2004, the defendant along with his henchmen attempted to put up a stone revertment across the pathway and it was somehow stopped. The defendant had challenged to put up barbed wire fence along his property. If the defendant succeeds in doing so the plaintiffs' lands will be land locked. Hence, the suit for declaration and injunction.
5. The objections raised by the defendant in the written statement are as follows:
The relationship stated in the plaint is correct. The averment stated in paragraph No.4 of the plaint are correct, except the allegation that the father of the plaintiffs 1 and 2 had been jointly enjoying the ancestral property and the newly purchased property along with this defendant. Immediately, after purchase, Arthanari Gounder, the defendant and Ramasamy Gounder had orally partitioned the property and separately enjoying their shares. In fact, the Salem Steel Plant had even acquired a portion of the property that belonged to Arthanari Gounder and he had also received compensation separately. The property was partitioned as per the panchayat and it is the decision of the panchayathars to allot 10 cents in excess with reference to the nature and fertility of the soil. The vendors of the newly purchased property were different persons and there was a pathway on the east of the newly purchased land. Therefore, it is meaningless to allege that the plaintiffs are using the pathway for more than 40 years. It is false to allege that the plaintiffs have to reach their lands through the pathway which is allegedly running across the defendant land. The plaintiffs have no right of pathway across the defendant's land. No pathway is in existence in the defendant's land for the use of the plaintiffs. The settlement deed executed by the second plaintiff in favour of the 3rd plaintiff is not true and created for the purpose of troubling the defendant. On the strength of the said settlement deed, the plaintiffs joined together and tried to lay a pathway in the defendant's property. Hence, the defendant filed a suit in O.S.No.862 of 2003 and I.A.No.1713 of 2003. The defendant had also obtained temporary injunction. Despite such injunction, the plaintiffs caused trouble. Hence, the defendant filed application in I.A.No.211 of 2004 for police aid and the same was ordered on 24.3.2004. So it is false to allege that the plaintiffs are passing through the defendant's land. There is no pathway in existence as claimed by the plaintiffs. It is again false to allege that the plaintiffs have no other alternative pathway to reach their land. The bore-well dug by the second plaintiff and the electricity service connection obtained will confer no right to the plaintiffs. It is false to allege that this defendant is attempting to close the pathway. It is again false to allege that on 24.8.2004 the defendant along with henchmen attempted to close the pathway. It is false to allege that the plaintiffs lands will be landlocked if the pathway right is denied. The plaintiffs had suppressed the previous suit filed in O.S.No.862/2003 and its proceedings. The plaintiffs are not entitled to any relief since they had suppressed the material facts. There is no cause of action for the suit. Hence, the suit is liable to be dismissed.
6. The case of the plaintiff in brief in O.S.No.862 of 2003 would be as follows:
The plaintiff and the father of the defendants 1 and 2 namely Arthanari are brothers. The 3rd defendant is the wife of the second defendant. The suit property along with other properties originally belonged to the father of the plaintiff ancestrally. Later, the plaintiff and Arthanari Gounder along with one other person have jointly purchased the properties in S.No.64/1, S.No.63/2 of Aarigoundampatty village under a registered sale deed dated 7.12.59. After that, the plaintiff along with his brother and Ramasamy Gounder were in joint possession for some time. Later, during life time of plaintiff's father, all the joint family properties were divided orally among the sons of Ramasamy Gounder and the suit property was allotted to the plaintiff. Since then, the plaintiff and his family are in peaceful possession and enjoyment of his property. The patta also had been issued to the plaintiff on 13.1.1985 vide patta number 60. All other revenue records for the suit property stand in the name of plaintiff. The plaintiff is paying kist to the Government. Thus, the plaintiff is in peaceful possession and enjoyment of the suit property for more than 40 years without any hindrance. The father of the plaintiff died 30 years ago and the father of the defendants 1 and 3 died 18 years ago. Now, the plaintiff came to know that the defendants had created some false documents among themselves and under the guise of those documents the defendants are trying to trespass into the suit property. On 28.11.2003, the defendants along with their henchmen attempted to trespass into the suit property which was somehow averted. Any kind of mediation is of no avail. Hence, the plaintiff was forced to file the suit for declaration and injunction.
7. The objection raised by the 1st defendant in the written statement as are follows:
It is true to say that during the lifetime of Ramasamy Gounder, all the joint family properties were divided orally among the sons of Ramasamy Gounder and the suit property was allotted to the plaintiff. It is false to state that patta for the suit property stands in the name of the plaintiff. It is equally false to allege that all the revenue records regarding the suit property stand in the name of the plaintiff. It is false to say that the defendants had created some false documents and trying to trespass into the suit property. There is no cause of action for the suit. Hence, the suit is liable to be dismissed.
8. The trial Court had framed necessary issues in both the suits and recorded the evidence in O.S.No.1996 of 2004 and had appraised the evidence and came to the conclusion of dismissing the suit in O.S.No.1996 of 2004 and decreeing the suit in O.S.No.862 of 2003.
9. Aggrieved by the said judgment and decrees passed by the trial Court, the plaintiffs in O.S.No.1996/2004 / defendants in O.S.No.862 of 2003 preferred appeals before the first appellate Court in A.S.No.105 of 2005 and A.S.No.107 of 2005 respectively. The first appellate Court, after hearing both sides in the appeals, had dismissed the said appeals and confirmed the judgment and decrees passed by the trial Court in both the suits.
10. The plaintiffs in O.S.No.1996 of 2004 / defendants in O.S.No.862 of 2003 have filed appeals before this Court against the judgment and decrees passed by the first appellate Court in A.S.Nos. 105 of 2005 and 107 of 2005.
11. At the time of admission of the second appeal in S.A.No.1587 of 2005, this Court has formulated the following substantial question of law for consideration in this second appeal.
" In the face of pleading and proof, including the report of the advocate commissioner, that the plaintiffs have no other way except the right of way claimed in their suit as easement of necessity, having not the courts below, by misdirecting themselves that the plaintiffs are asking for an easementary right by grant, committed an error in dismissing the suit on such misdirection?"
12. At the time of admission of the second appeal in S.A.No.1588 of 2005, this Court has formulated the following substantial question of law for consideration in this second appeal.
"If the decree in O.S.No.1996/2004 is liable to be set aside on the question of law raised in the connected second appeal namely, S.A.No.1587/2005, is not the judgment of the courts below liable to be set aside on a point of law?"
13. Having considered that the suits filed by both parties were clubbed together and the evidence was recorded in O.S.No.1996 of 2004 and a common judgment was delivered and on filing appeals, the first appellate Court had also taken both the appeals together and heard the appeals jointly and pronounced a common judgment in A.S.Nos.105 and 107 of 2005 dated 19.9.2005. I am also inclined to hear the appeals jointly in order to consider the substantial questions of law formulated in both the appeals in common and to pronounce the judgment in common.
14. For convenience, the status of the parties in O.S.No.1996 of 2004 is maintained in these second appeals also.
15. Heard, Mrs.Hema Sampath, learned senior counsel appearing for Mr.R.Subramanian, learned counsel for the appellants/plaintiffs and Mr.S.Kalyanaraman, learned counsel for the respondent/defendant.
16. Learned senior counsel would submit in her argument that the judgment of the first appellate Court in confirming the judgment of the trial Court had failed to note that the properties to which the pathway right was claimed by the plaintiffs was once the joint family properties of both appellants' father and the respondent and they were in joint enjoyment. She would further submit that the appellants had the pathway right over the respondent's land. She would also submit that the oral partition had in between the appellants' father and the respondent/defendant was admitted and in the properties which were once common and divided among the joint owners, each of the co-sharers will have the right of pathway and it cannot be exclusively claimed by one co-sharer. She would also cite a judgment of this Court reported in 2002(2) MLJ 647 (Adhinatha Pandithar v. A.Skumara Pandithar) in support of her argument. She would also submit in her argument that the commissioner's report filed in Ex.C1 would show that there was no alternative pathway in respect of the properties in S.Nos.63/2B1, 63/2B2 and 54/4B2 but the same was not considered by both the courts below. She would further submit that the reasons putforth by the courts below that the said lands were having access from the eastern side of the land in S.No.64/1 obtained through the previous owner would not amount to an alternative pathway since the plaintiffs' father Arthanari Gounder and the defendant purchased the properties jointly and held the said properties in S.No.63/2B1 and S.No.63/2B2 and subsequently, divided them. She would also submit that the pathway leading from the 'thar' road towards north to the public well located in S.No.54/7B21, was extending further north on the western side of the land in S.No.54/7B22 but it had been reverted by putting stone pillar with iron barred wires in the said property on its north western corner, and on the western side of the land in S.No.64/1, would go to show that the defendant had obliterated the said pathway by putting the fence recently. She would further submit that the report of the commissioner would show that those fence put up in between S.Nos.64/1 and 54/4B2 and on the north western corner of S.No.54/7B22 are new which would also establish that it was purposely put up by the defendant for preventing the plaintiffs to go over to the properties in S.No.63/2B1 and S.No.63/2B2 through the pathway in S.No.64/1 and S.No.54/7B22 belonging to the defendant. She would also submit that the lower court having come to the conclusion that the plaintiffs have got alternative pathway from the eastern side lands belonging to the previous owner had forgotten that the right in the properties held in common were entitled to have the right of easement as an inherent right. He would also submit that the lower courts have also erred in deciding the right of pathway against the plaintiff on the admission given by P.W.1 that there was a pathway on the southern side of the land in S.No.54/7B14 belonging to the plaintiffs for reaching the land in S.No.54/7B11. The Courts below ought to have accepted the right of pathway from the 'thar' road through the pathway in between S.No.54/7B9 and S.No.72/2B2 to reach the land in S.No.54/7B11 viz., pathway to be provided on the north side of the land in S.No.54/7B10. She would also submit that having admitted that the lands in S.No.54/7B11 and S.No.54/7B10 are once joint properties and subsequently, they were divided in between the plaintiffs and the defendant were not considered as dominant and servient tenaments to allow the pathway through the land in S.No.54/7B10. She would also submit in her argument that the properties in S.No.63/2B1 and 63/2B2 and S.No.64/1 were purchased by the plaintiffs' father Arthanari Gounder, defendant and one Ramasamy Gounder through 7.12.1959 through Ex.A1 and they were subsequently divided in between the plaintiffs' father and the defendant and therefore, the right of enjoyment of properties in between the joint owners would be necessarily with the right of pathway through the the said divided properties for the benefit of the servient tenement against the dominant tenement. She would also submit that the courts below have simply rejected these points but have acted against this principle for reaching the decision against the plaintiffs and have misapplied the facts adduced through the evidence and such conclusion reached by the trial Court as well as the first appellate Court are certainly perverse. She has also brought to the notice of the Court a judgment of this court reported in 2002(2) MLJ 659 (Ponnaiyan v. Karuppakkal)for the principle that even though the findings of the Court below are concurrent, the High Court is empowered to interfere under Section 100 C.P.C. if the finding is recorded without any legal evidence on record or suffers from any legal infirmity which materially prejudice the case of one of the parties or the finding is perverse. She would also submit in her arguments that the judgment and decrees passed by the trial court that alternative pathway was available to S.No.54/7B11 and therefore, the pathway through S.No.54/7B10 could not be made, cannot be correct since both the properties were once joint properties and were divided among the plaintiffs and the defendant. Similarly,she would submit that S.No.63/2B1, S.No.63/2B2 and S.No.64/1 were originally purchased through Ex.A1 by the plaintiffs' father, defendant and one Ramasamy and were divided among the plaintiffs' father and the defendant and the properties allotted to the plaintiffs branch should have been given access through the land allotted to the defendant in S.No.64/1 as it was maintained prior to the partition through the pathway on the western side of S.No.54/7B22. She would further submit that the first appellate Court failed to frame the points on this aspect but it had simply discussed the evidence in the line of the trial Court's discussion and found that there was an alternative pathway for both the lands and had erroneously confirmed the judgment, without properly appreciating the evidence. Therefore, she would request the Court that the judgment and decrees passed by the first appellate Court in confirming the judgment and decrees of the trial Court may be set aside and the second appeals may be allowed.
17. Learned counsel for the respondent/defendant would submit in his argument that the first appellate court had discussed the points elaborately even though no separate points have been framed and had come to conclusions independently. He would also submit that the judgment of the lower appellate Court in paragraphs 18 and 19 discussed the evidence and thus came to the conclusion that the plaintiffs are not entitled to easement by grant since such plea was not raised in the plaint nor proved. He would further submit in his argument that the first appellate court had come to the conclusion that the plaintiffs have alternative pathway which could be seen through the evidence of P.W.1 in respect of land in S.No.54/7B11 and for the lands in S.No.64/1, 63/2B1 and 63/2B2. He would further submit that the evidence of D.W.2, adjacent land owner in the survey number of the defendant, would state that there is a pathway through the land of the plaintiff in S.No.54/7B23 to go over to the land of Rangasamy on the northern side and thereby to reach the land in S.No.63/2B2. He would also submit that when there are such alternative pathways available to the plaintiffs land, the report of the commissioner that there was no alternative pathway found by him, cannot be true and the first appellate Court which confirmed the finding of the trial Court, may not be disturbed when there is an alternative pathway available to the plaintiffs. He would also draw the attention of the Court to the judgment of the Honourable Apex court reported in 2010(2) SCC 689 (Sree swayam Prakash Ashramam v. G.Anandavally Amma) in support of the said argument and principle. He would also submit that the arguments advanced by the learned senior counsel for the appellants/plaintiff that easement by necessity could only be granted in the absence of easement by grant, cannot be sustained, as there are alternative pathways, which may be difficult, but were available. He would cite yet another judgment of this Court reported in 2009(1) CTC 753(Chellam Iyer v. J.Ranganathan) in support of his argument. He would also submit that since both the Courts have discussed elaborately with reference to the evidence adduced and have arrived to the concurrent findings there is no need for interfering with the judgment and decree passed by the first appellate Court, under Section 100 C.P.C. He would also submit that there is no perversity or bias in reaching such decision by the first appellate Court. Therefore, both the second appeals may be dismissed.
18. I have given anxious thoughts to the arguments advanced on either side.
19. The suit was filed by the plaintiffs in O.S.No.1996/2004 for declaration in respect of the right over the suit property to use it as a pathway and also to declare that the suit pathway is a common pathway absolutely belong to the plaintiffs and the defendant jointly and also for grant of permanent injunction restraining the defendants not to interfere with the peaceful enjoyment of the pathway in the suit property. In the description of the suit property, both the pathways were described as running with 5 feet breadth (i) from the western end of the land comprised in S.No.64/1 and S.No.54/7B22 towards S.No.54/4B2, S.No.63/2B2, S.No.63/2B1; (ii) and a pathway running from Thar Road in between S.No.54/7B9 and S.No.72 with a breadth of 5 feet, turns to eastern side and runs through S.No.54/7B10 on its northern side to reach S.No.54/7B11.
20. The plaintiffs claim that the said two pathways were in existence when the properties in S.No.63/2B1, S.No.63/2B2 and S.No.64/1 were held joint in between the plaintiffs' father Arthanari Gounder, the defendant and Ramasamy on their purchase in the year 1959 and they used the 1st pathway from the Thar Road through the pathway leading to public well in S.No.54/7B21 and thereafter through the pathway lying on the western side of the land in S.No.54/7B22 to reach those properties. Similarly, the 2nd pathway for S.Nos.54/7B10 and 54/7B11 was used from the 'Thar' Road through the pathway in between S.No.54/7B9 and S.No.72/2B. The commissioner's report would go to show that there was a pathway in between S.No.72/2B2 and S.No.54/7B9. However, the trial Court had come to the conclusion that due to the admission given by P.W.1 in his evidence, the plaintiffs can come from the 'Thar' Road through his land situated on the eastern side in S.No.54/7B14 and also through the pathway lying on its southern side towards west to reach the land in S.No.54/7B11 and since it was an alternative pathway, the plaintiffs are not entitled to any right to get the 2nd pathway right from the piece of land in S.No.54/7B10. The trial court as well as the First Appellate Court had considered that in joint properties, after their division, the easementary right could be exercised by dominant tenament over the servient tenament. Similarly, it has been considered by the trial court that the 1st pathway in S.No.54/7B22 leading to S.Nos. 64/1 and 63/2B1 and 63/2B2 was also not in existence and there was an alternate pathway from its eastern side of S.No.63/2B1 and S.No.63/2B2. It has also been admitted that both the lands in S.Nos.63/2B2 and 63/2B1 and 64/1 were once held joint by virtue of the sale in favour of the plaintiffs' father Arthanari Gounder, the defendant and one Ramasamy. The commissioner's report would show that there was a pathway which runs on the western side of the land in S.No.54/7B22 upto to the north western corner of the said land but there was a stone pillar fence on its north western corner as well as on the western boundary of S.No.64/1 and it appeared to be new. The evidence of the plaintiffs would go to show that the said pathway found on the western side of S.No.54/7B22 was intact, till the reach of public well and thereafter the traces of pathway were found. Therefore, it could be seen that the pathway on the western part of S.No.54/7B22 was being used to reach the land in S.No.64/1, S.No.63/2B1 and S.No.63/2B2 from the Thar Road while those lands were kept in joint.
21. The judgment of this Court reported in 2002(2) MLJ 647 (Adhinatha Pandithar v. A.Skumara Pandithar) would go to show regarding the easementary right held by parties when it was kept in common and the right of such easement after the properties have been divided. The relevant passage would run as follows:
"11. There is no dispute that the suit channel lies in the survey numbers of the lands belonging to both the parties. The question for consideration is as to whether it is open to the respondent to claim exclusive title in respect of the suit channel, when the suit land belonged originally to the father of the parties to the proceedings and the parties leaving common irrigation facility through the suit channel. In my view, it cannot be. When once the ancestor being the common owner and the property is being divided among the legal heirs, at a later point of time, each legal representative or cosharer will take their share along with the easementary right of pathway, cart track, irrigation facility and water right, etc."
22. In the light of the aforesaid judgment, we could understand that the pathway which was used as common on the western side of land in S.No.54/7B22 to go over the property to S.No.64/1, 63/2B1 and 63/2B2, when it was kept common, has to be continued or used as a common pathway even after the division in between the parties. Admittedly, the lands in S.Nos.63/2B1 and 63/2B2 were allotted to the plaintiffs and S.No.64/1 was allotted to the defendant. When those two properties were divided among themselves, the owners of land in S.Nos.63/2B1 and 63/2B2 are entitled to use the said pathway running or lying on the western side of the land in S.No.54/7B22 through the western end part of S.No.64/1. If really the property in S.No.64/1 was allotted to the plaintiff in the oral partition, certainly, they would use the pathway through the pathway on the western side of the land in S.No.54/7B22 and would provide the pathway to the land owners of S.Nos.63/2B1 and 63/2B2. The same principle is also applicable to the 2nd pathway right over the land in S.No.54/7B10 for the land in S.No.54/7B11. Both the Courts below have not considered the jointness of the properties prior to the division in between the parties and that they were not owned by independent owners by separate purchases, for applying the theory of alternative pathway. The aforesaid legal principle as laid down by this Court in 2002 (2) MLJ 647 was not considered by both the Courts below.
23. In the said circumstances, the judgment of this Court reported in 2002(2) MLJ 659 (Ponnaiyan v. Karuppakkal) is applicable to the present case and the relevant passage would run thus:
"25. No doubt, interference with the concurrent findings of the Courts below by the High Court under Sec.100, C.P.C. must be avoided unless warranted by compelling reasons. In a case where the finding is recorded without any legal evidence on record or misreading of evidence or suffers from any legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse the High Court can set aside the findings and take a different view."
24. Apart form that, in the judgment of the Honourable Apex Court reported in AIR 2003 SC 1905 (Bondar Singh vs. Nihal Singh), the following principle is laid down:
" 4. .......An appeal under S.100, C.P.C. can be entertained by the High Court only on a substantial question of law. There can be no quarrel with this legal proposition. The scope of powers of High Court under S.100 C.P.C. is a matter of settled law. The learned counsel for the appellant cited several judgments in support of his contention. We do not consider it necessary to discuss these decisions because so far as the question of powers of High Courts under S.100 C.P.C. is concerned, it needs no discussion. If the findings of the subordinate Courts on facts are contrary to evidence on record and are perverse, such finding can be set aside by the High Court in appeal under S.100 C.P.C. A High Court cannot shut its eyes to perverse findings of the Courts below. In the present case, the findings of fact arrived at by the lower appellate Court were contrary to evidence on record and, therefore, perverse and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit being decreed."
25. In the aforesaid judgments, we could see that even though the judgments and decrees of both the courts below are concurrent and if they have erred in applying the legal principles and the evidence to the facts and circumstances of the case, certainly, this Court, under section 100 C.P.C., is empowered to interfere with those judgments, even though, they are concurrent. Therefore, I could see that the first Appellate Court has erroneously followed the foot prints of the trial court in coming to the same conclusion instead of correcting it by applying the principles regarding the rights in between the erstwhile joint owners to prove the right of both the pathways to reach their properties after they effected division. The said right of easement would show that the dominant tenement, after division, is entitled to get such easement right from the servient tenement. Therefore, the Courts below have committed serious error in applying the evidence adduced before the trial court as if the admissions of P.W.1 and other witnesses would go to show alternative pathways and it was a case governed under the concept of easement by necessity. The judgment of the Honourable Apex Court, as cited by the learned counsel for the respondent, would certainly an undisputable one, since in a case of easement by necessity, if an alternative pathway is available, there is no question of providing of any pathway to the convenience of the parties. But in this case, it is an easementary right which goes with the land and in between the separated erstwhile joint owners rights and liabilities.
26. In view of the discussion held above, I find that the substantial questions of law, even though not exhaustive are not supporting the respondent's case and therefore, decided in favour of the appellants.
27. Therefore, I am of the considered view that the judgments of the first appellate Court, even though concurrent with the trial Court, are liable to be set aside and consequently the judgments of the trial Court are also set aside and the suit filed by the plaintiffs in O.S.No.1996/2004 is liable to be decreed. Consequently, the suit filed by the defendant as plaintiff in O.S.No.862 of 2003 seeking for injunction against the dominant tenament holder is not at all sustainable and therefore, it is liable to be dismissed.
28. For the foregoing discussions, I am of the considered view that both the second appeals are liable to be allowed and therefore, the judgments and decrees passed by both the Courts below are set aside and consequently the suit in O.S.No.1996 of 2004 is decreed as prayed for and the suit in O.S.No.862 of 2003 is dismissed. Considering the close relationship of the parties, there is no order as to costs throughout.
vsi To
1. The Principal Sub Court, Salem
2. The I Additional District Munsif Court, Salem