Andhra HC (Pre-Telangana)
E. Venkataramana Naidu vs Mittamarri Alias Sogasani Bayya Reddy ... on 1 August, 2002
Equivalent citations: 2002(6)ALD154, 2002(5)ALT338, 2003 A I H C 1622, (2002) 6 ANDHLD 154, (2003) 1 ICC 339, (2002) 5 ANDH LT 338
JUDGMENT P.S. Narayana, J.
1. The 3rd plaintiff in OS No. 543/97 on the file of Principal District Munsif, Madanapalle - the 3rd respondent in As No. 62 of 1987 on the file of Additional District Judge, Madanapalle is the appellant. Respondents 6 and 7 shown in the present Second Appeal are the co-plaintiffs and the appellants in AS No. 62/87 and the defendants in OS No. 543/97 are the other respondents, in the present second appeal. The 1st defendant died during the pendency of the said appeal and his legal representatives were brought on record as per the orders in IA No. 30/89 dated 6-9-1989.
2. For the purpose of convenience, the parties will be referred to as "plaintiffs"
and "defendants" as arrayed in the trial Court.
3. The plaintiffs filed the suit for declaration of title relating to the plaint schedule property and for permanent injunction restraining the defendants and their men from in any way interfering with the plaintiffs peaceful possession and enjoyment of the same and also for the relief of mandatory injunction directing the defendants to remove the wall put up at the place marked as "D" in the plan and for costs of the suit. The trial Court on the strength of the respective pleadings of the parties after settling the relevant issues, having examined PW1 to PW3, DW1 and DW2 and marking Ex.A1 to Ex.A4 and Ex.B1 to Ex.B7, had arrived at the conclusion that the plaintiffs are not entitled to the relief of declaration of title as prayed for over the disputed pathway and also mandatory injunction to remove the entire wall at "D" as shown in the plaint plan, but had decreed the suit so far as the declaration of right of the plaintiffs to take water through the disputed channel and mandatory injunction to remove the wall with measurements 1 1/2 x 1 1/2 feet at the drainage channel, are concerned. Aggrieved by the said judgment and decree, both the parties had preferred appeals and the appellate Court after framing the relevant points for consideration had arrived at the conclusion that the plaintiffs are not entitled even to the said relief and had dismissed the suit and aggrieved by the same, the present second appeal is filed.
4. Sri Sunder Rajan, the learned Counsel representing the appellant/3rd plaintiff had fairly submitted that in the light of the concurrent findings recorded by both the Courts below relating to the question of title, the said question cannot be seriously canvassed in this second appeal. However, the learned Counsel submitted that as far as the reversal of the judgment and decree of the trial Court, so far as it relates to the easementary right of discharging the drainage water is concerned, the same cannot be sustained. The learned Counsel had commented that the appellate Court had proceeded as though there is no plea in this regard and had pointed out to the relevant pleadings wherein the exercise of these rights and also the easement of necessity had been specifically pleaded in the plaint. The learned Counsel also further in all fairness had submitted that the question of ownership, joint ownership and easement may not go together since these are inconsistent pleas. But however, the learned Counsel would maintain that merely because a larger relief had been prayed for that does not mean that the Court, if satisfied on the material available on record, cannot grant another appropriate relief at all. The leaned Counsel also had taken me through the findings recorded by the trail Court and also the appellate Court and had submited that the whole approach of the appellate Court in reversing the judgment of the trial Court is totally unsustainable. The learned Counsel also had taken me through the report of the Commissioner and also the findings recorded by the trial Court relating to the personal inspection of the learned Principal District Munsif, Mandanapalle and had contended that it is a case where on appreciation of oral and documentary evidence the Court of first instance felt that it is a fit case where the limited relief should be granted in favour of the plaintiffs and the appellate Court had reversed the same on certain irrelevant grounds. The learned Counsel also had taken me through the report of the Commissioner appointed at the appellate stage and had pointed out that having appointed yet another Commissioner at the appellate stage the appellate Court had not considered this aspect at all and in any view of the matter, the very approach the appellate Court in appreciation of the evidence is totally erroneous and hence the judgment and decree of the appellate Court are liable to be set-aside and the judgment and decree of the trial Court are to be restored. The learned Counsel also had placed strong reliance on B. Venkataramana and Ors. v. A. Balaramudu and Ors., 1978 (2) An.WR 370, Vishram Arjun v. Shankariah, 1958 (2) An.WR 259, Chandan Mull v. Chiman Lal, AIR 1940 PC 3, V. Appayamma v. L. Sahu, .
5. On the contrary Sri M.N. Narasimha Reddy, the learned Counsel representing the respondents-defendants in the suit in his calm but emphatic style had made the following submissions. This is a case where the specific stand taken by the plaintiffs claiming title to the property had been negatived by both the Courts below. The learned Counsel also had pointed out that clear findings had been recorded by the appellate Court why it was not inclined to agree with the finding recorded by the trial Court relating to the limited relief granted by the trial Court. The learned Counsel further commented that the appellate Court had discussed all the material aspects, and the non-consideration of the report of the Commissioner appointed at the appellate stage in the light of the findings recorded in detail, may not be of any consequence. The learned Counsel had further taken me through the several findings recorded by both the trial Court and the appellate Court relating to the local inspection and also the report of the Commissioner. The learned Counsel also pointed out that in the light of the local inspection made by the learned Principal District Munsif, Madanapalle himself, the report of the Commissioner may fall into insignificance. The learned Counsel also commented that there is no specific finding that the plaintiffs are entitled to the easement of necessity and inasmuch as the plea of easement or plea of prescriptive right or the plea of adverse possession being totally inconsistent with the main stand taken that the plaintiffs are owners of the plaint schedule property, the same cannot be sustained and hence the appellate Court had arrived at the correct conclusion and had dismissed the suit of the plaintiffs in toto. The learned Counsel also had placed reliance on Chapsibhai v. Purushotiam, .
6. Heard both the Counsel.
7. The only question that falls for consideration in the present second appeal is whether the appellate Court in justified in dismissing the suit of the plaintiffs in toto negativing the relief to the plaintiffs to take water through the disputed channel and mandatory injunction to remove the wall with measurements of 1 1/2 x 1 1/2 feet at the drainage channel, in the facts and circumstances of the case.
8. The facts in brief, as narrated in the respective pleadings of the parties, can be stated as follows:
9. The plaintiffs are the owners of the property described as ABCDE in the plaint plan. The site described as JIGKHDE in the plaint plan is jointly owned by the plaintiffs and the defendants. The defendants are the owners of the house lying East of JG. The site described as UKHDE is being used as passage by, both the plaintiffs and defendants for ingress and egress. Except the site IJGKHDE there is no other passage for the plaintiffs to reach the main road. The plaintiffs and their predecessors-in-title have perfected their title by adverse possession and prescription having used the same for the past over 50 years. The defendants are members of joint family and the 2nd defendant is the Manager of the joint family. The defendants are constructing upstairs. While constructing the upstairs high-handedly they removed the door frame marked as 'd' in the plaint plan during the night time and hastily constructed a wall in that place obstructing the plaintiffs tenants from entering the suit site and reaching Bangalore road. It took place about three days back. Next day on information from the tenants the plaintiffs convened a panchayath wherein the defendants agreed to remove the wall and allow the plaintiffs tenants to pass through the site marked as IJGKHDE. The defendants as promised did not remove the wall and on the other hand they are obstructing the flow of drainage water through the drain marked blue in pencil. The defendants have no right to obstruct the plaintiffs drainage to flow through the drain marked blue in the plaint plan. The plaintiffs and their predecessors-in-title have been draining out their water through the drain marked blue in the plaint plan from times immemorial and perfected their title by prescription and adverse possession. By way of necessary easement also it is the only way. By the act of the defendants, the drainage water is stagnating within the plaintiffs premises and the plaintiffs tenants are forced to pass through the space marked KI in the plaint plan as the wall in that portion has fallen. Hence the plaintiffs filed the suit for declaration of their title in respect of the plaint schedule properties restraining the defendants and their men from interfering with the plaintiffs peaceful possession and enjoyment and for grant of mandatory injunction directing the defendants to remove the wall putup at the place marked as 'd' in the plaint plan.
10. The 2nd defendant in the suit filed a written statement denying all the allegations and taking a specific stand that the plaintiffs are the owners of the site described as ABCDE in the plaint plan. It was further pleaded that it is also incorrect to state that the plaintiffs have got right in the site marked as IJGKHDE. It is also incorrect to state that the defendants are the owners of the house lying to the East of JG only. They are the owners of the site and house situated to the East of the compound wall of Nallappa Naidu. The plaintiffs have no right whatsoever in the portion marked as IJKHDE and they have no right and they never exercised any right either to drain off the sullage water or as a passage in the suit site. Neither the plaintiffs nor their predecessors-in-interest have any right over the same. It is incorrect to state that the plaintiffs perfected their title by adverse possession and prescription. The plaintiffs have got their door way in the Western compound wall of their house and they have been and are using the same for ingress and egress. The suit site and also the site situated North of ED originally belonged to one Harijan gentleman which was ultimately purchased by the defendants. It is more than three years ago that the defendants have constructed the upstairs and staircase to the knowledge of the plaintiffs. There is no necessity to hastily construct a wall during night time. At no time the tenants of the plaintiffs were obstructing the defendants. It is also incorrect to state that there was a drain as shown in blue in the plaint plan. The water of the plaintiffs houses never used to pass through the suit site and so the question of easementary right does not arise as the plaintiffs are claiming title over the suit site. There is no cause of action for the plaintiffs to file a suit.
11. The present appellant - 3rd plaintiff in the suit, purchased the property on 22-1-1981 and hence he was impleaded as a party in LIA No. 317/83 on 7-11-1983.
12. As many as four issues were settled by the trial Court and as already referred to supra, limited relief was granted and aggrieved by the same both the parties preferred appeals referred to supra, and after framing the relevant points for consideration the suit of the plaintiffs was dismissed in toto by the appellate Court.
13. Here is a case where not only a Commissioner was appointed in the trial Court in IA No. 3493/77 in OS No. 543/77 but also the then Principal District Munsif, Mandanpalle had personally inspected the plaint schedule property. It may not be out of context if I state here itself that one Hussain Bee was appointed as Commissioner at the appellate stage in AS No. 62/87 on the file of the Additional District Judge, Madanapalle. It is no doubt true that the plea of ownership of joint ownership and the plea of easement of necessity or easement by way of prescription are inconsistent pleas. But however, as can be seen from the respective pleadings, though the relief prayed for is for declaration of title and consequential reliefs as such, the averments clearly go to show that the right of easement also had been specifically pleaded in the plaint itself. Hence, it cannot be said that there is no plea at all in this regard. It is one thing to say that inasmuch as there is no plea, the relief is negatived and it is another thing to say that a plea though raised, had not been established and hence the party is not entitled to a particular relief. It is needless to point out that trivial technicalities should not come in the way of the Courts while dealing with substantive rights of the parties, unless such technicalities touch the very root of the matter. While construing the pleadings, the Courts are not expected to adopt a pedantic approach. The pleadings should be read as a whole and the substance of the pleadings always should be considered and a matter has to be decided in the background of the substance of the pleadings of the respective parties and the oral and documentary evidence let in by the parties. In the present case, a careful reading of the respective pleadings of the parties will clearly go to show that the aspect of easementary rights had been specifically raised by the plaintiffs and denied by the defendants. But however, as can be seen from the judgment of the appellate Court, the limited relief granted by the trial Court had been reversed by the appellate Court even on the ground of absence of the pleadings. Both the trial Court and the appellate Court on appreciation of both the oral and documentary evidence had recorded concurrent findings negativing the relief of title to the property to the plaintiffs and inasmcuh as these are the concurrent findings recorded by both the Courts below, I am not inclined to disturb any of these findings.
14. The evidence available on record is that of the 2nd plaintiff, who was examined as PW1 and apart from the evidence of PW1, PW2 and PW3 also were examined. Ex.A1 is the sale deed dated 24-7-1964 between Abdul Mazid and Srinivasa Rao. Ex.A2 is the sale deed dated 12-9-1947 executed by Dr. Danieal in favour of Abdul Mazid and Ex.A3 is another sale deed dated 11-8-1942 executed by Venkatappa and Rangamma in favour of Dr. Daniel and Ex.A4 is the sale deed executed by Venkatappa in favour of Dr. Daniel, dated 15-11-1942. The 2nd defendant was examined as DW1 and another Narayana Reddy was examined as DW2. Ex.B1 is the deposition of PW2 in CC No. 143/75 on the file of Judicial First Class Magistrate, Madanapalle. Ex.B1 (a) to Ex.B3 are the portions marked in Ex.B1. Ex.B4 is the sale certificate dated 4-5-1954. Ex.B5 is the possession receipt. Ex.B6 is the sale deed dated 4-5-1956 executed by Vasantha Madhava Rao in favour of Reddeppa. Ex.B7 is the registration copy of the sale deed executed by D. Srinivas Rao in favour of Venkat Reddy and others. As already observed by me supra, the documentary evidence, in particular, had been discussed in detail by both the Courts below relating to the title to the disputed property and a finding had been given negativing the title of the plaintiffs and hence I do not want to dwell upon this point any more and the said findings are hereby confirmed.
15. The next question that has to be considered is the claim of easementary rights made by the plaintiffs. As already observed by me, if the substance of the pleadings is taken into consideration, though specifically no relief was prayed for in this regard, there is really a controversy between the parties relating to the easementary rights. It is no doubt true that the claim of ownership or joint ownership cannot be said to be consistent with the easementary rights. In the decision referred supra, it was no doubt held by. the Apex Court that a party to a suit can plead inconsistent pleas in alternative such as the right of ownership and a right of easement, but where he has pleaded ownership and has failed, he cannot subsequently turn around and claim that right as an easement by prescription. Here is a case where there Court of first instance granted a limited relief which was reversed by the appellate Court. It cannot be laid down as a rule always that merely because the claim relating to easementary rights is inconsistent with the claim relating to declaration of title, under no circumstances the relief can be granted. The Courts are always at liberty to mould the relief and to grant the limited relief though a larger relief had been prayed for by a party and this was the view expressed in a similar fact situation in the decision referred supra. Reliance also was placed on the decision referred supra, to substantiate this contention.
16. As can be seen from the material available on record, a Commissioner was appointed in the trial Court and also yet another Commissioner was appointed, no doubt, for slightly a different purpose, even in the appellate Court. Apart from all these, the learned Principal District Munsif, Madanapalle also had personally inspected the plaint schedule property and the inspection notes also forms part and parcel of the record. The trial Court at paragraph 6 of its judgment had observed that inasmuch as the Court had inspected the suit locality there is no need to consider the report of the Commissioner. The trial Court further at paragraph 18 of the judgment had observed as follows:
"Coining to the next point i.e., about the drainage water also no documents are filed. My local inspection reveral that the drainage channel in the house of the plaintiffs extends upto the disputed wall and it is not in use and filled with earth from a sluice. It is completely blocked at the disputed wall. It is not the case that it was recently constructed. It appears that it has been in existence since a long time. It is also in line with the drainage channel in the house of the defendant. It would not have been constructed unnecessarily. There is a wall which appears to be very old. My local inspection further reveal that there is sluice to the Western wall to the North of the disputed wall as mentioned already. It is not setup uniformly from both sides. It also appears that by removing some bricks from the wall this sluice was formed. There are also no traces of uniformly constructed sluice at this place. The water passing through this sluice enters another drainage channel in the Post Office which is abutting the western wall to its west and further reaches the main municipality drainage on the Madanapalle-Bangalore road. It clearly appears that some temporary arrangement was made by the plaintiffs to divert the drainage water to reach the main drainage on the Madanapalle between road of they had right to drain water through the disputed channel unless some obstruction was made they would have made any alternative arrangement. It must be that the disputed drainage channel is a natural formation............"
The appellate Court no doubt had appreciated all the aspects, but however, made a comment about non-examination of neighbouring owner one Rangaswamy. At paragraph 18 of the judgment of the appellate Court, it was observed.
"The lower Court appointed a Commissioner to note down the physical features and also made a personal inspection and this Court also on the request of both the parties appointed a Commissioner to measure the house-site of the 1st defendant as per the title deeds. Accordingly the Commissioner visited the suit schedule property and filed his report. Para 7 of the Commissioner's report clearly shows that the disputed lane come within the measurements given in the title deeds of the defendants. So the disputed lane is within the boundaries and measurements given in Ex.B6............."
The appellate Court also had stated at paragraph-24 of the judgment as follows:
"There is no documentary proof that there was a drainage in existence and the plaintiffs and their predecessors-in-title have been letting out the sullage water through the drainage as shown in the plaint plan. The local inspection of the lower Court reveals that the drainage channel in the house. So the lower Court gave a finding which is not pleaded in the plaint by the plaintiffs. Simply because that the circumstances show that the plaintiffs have right to flow water through the disputed channel that cannot be a ground to grant a mandatory injunction................"
It is no doubt true that the question of adverse possession in the facts and circumstances of the case may not arise. But the question is relating to the easementary rights. The appellate Court also stated at paragraph 26:
".......But the documents filed on behalf of the plaintiffs do not show that the disputed channel is bring jointly used by the plaintiffs and the defendants. On the other hand, the documents filed on behalf of the defendants clearly prove that the disputed passage is the exclusive property of the defendants alone. Even if there is a drainage channel in the same lane as shown in the sketch that cannot give any right to the plaintiffs because they have no right to drain the sullage water on the lane belonging to others unless they claimed any easementary right. The plaintiffs have not claimed any easementary right. Further the disputed drainage is not an easement necessity. When there is an alternative drainage channel in existence it cannot be said that the plaintiffs have any easementary right. The plaintiffs cannot claim declaration of title on one hand and easementary right on the other hand and when they claimed that they are the owners of the passage jointly along with the defendants the question of easement does not arise at all..............."
It may also be relevant to have a look at the issues framed by the trial Court and the points for consideration, which had been framed by the appellate Court. The trial Court framed the following issues:
1. Whether the plaintiffs have got title to the plaint schedule property?
2. Whether the plaintiffs are entitled for injunction as prayed for?
3. Whether the plaintiffs have perfected their title by adverse possession to plaint schedule property?
4. To what relief?
As can be seen from the framing of the issues and also the framing of the points for consideration, it is clear that there is no specific issue or point for consideration relating to the claim of easementary rights. Though there is some discussion by both the Courts below on this aspect, there is no specific, issue framed. As already observed by me, a Commissioner was appointed by the Court of first instance and also by the appellate Court. The report of the Commissioner appointed in the Court of first instance reads as follows:
"The house of the plaintiffs' is clearly shown in the sketch. The house of the plaintiffs' is divided into 4 portions. The first portion is on the northern side of the post office. There is also a verandah and a well at the middle of the house. In this portion Muniswamy is living as a tenant. The second portion bearing door No. 1-145, in which Jail Ward Venkatramana is living the tenants of first and second portions are using around the well for bath and vessel cleaning. The water from the well flows into C B channel and reaches to the point D, which is shown in the sketch.
There is a bathroom between the 2nd portion and 3rd portion which is used by the tenants of 3rd portion. The water from there to DPQR i.e., Point A to D. There is also another bath room on the Northern side of the Post Office, which is used by the tenants of the 4th portion. The water from there also reaches to the point at D. There is no other way for the waters for let out.
All the waters used by the plaintiffs' tenants stagnated at the place DPQR. The waters are giving rotten smell. QR is the wall of the defendants house. The wall is in two patches. QT is the one patch and TR is another patch, which is shown in red colour. It was constructed by the bricks. There is a staircase on the defendants house i.e., RS. From S to O there is also a channel, which leads into the main drainage cannal i.e., on the Northern side of the Bangalore road. There is also a small channel on the western side of the wall of the defendants i.e., (UV). This channel is in the Post Office house.
The tenants of the plaintiffs are going from the western side door as shown in the sketch 'Z' through the vacant site of the Ragappa Rangamma and others to the Bangalore road.
The owner of the house of the Eastern side complained about the small and the future damage of the wall, i.e., PQ, which is shown in the sketch. There is no other way for the water in DPQR to let out."
No doubt, even in the appellate Court another Commissioner was appointed for the purpose of inspecting the plaint schedule property to measure the site belonging to the defendants with reference to Ex.B6 and to draw a rough sketch. However, none of these Commissioner were examined. But however, the report of both the Commissioners form part and parcel of the record. Apart from the reports of the Commissioners, the learned Principal District Munsif himself had inspected and no doubt a Judge can make local inspection in person at his discretion and in fact on the basis of the personal inspection only the limited relief was granted by the learned Principal District Munsif, Madanapalle. In the decision referred supra, it was held by the Privy Council that interference with the result of a long and careful local investigation except upon clearly defined and sufficient grounds is to be deprecated and it is not safe for a Court to act as an expert and to overrule the elaborate report of a Commissioner whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report and who had not blindly adopted the assertions of either party. In the decision referred supra, it was held that the report of the Commissioner is a part of record and can be considered as an evidence irrespective of the fact whether the Commissioner was examined as a witness or not. In Chintapatla Arvind Babu v. K. Balakistamma, , it was held that the report of the Commissioner appointed under Order 26 Rule 9 CPC is evidence and it is generally more credible evidence. In State of U.P. v. Rama Sri, , it was held that the report of the Commissioner is a part of the evidence in a case. In Harbhajan Singh v. Shakuntala Devi, , it was held that the Commissioner's report is admissible as evidence, even as substantive evidence and however the examination of the Commissioner and the objections to the Commissioner's report also are to be considered while relying upon such a report.
17. In the present case, the fact remains that no doubt the Court of first instance had relied upon its own inspection notes instead of relying upon the report of the Commissioner. In the appellate Court, yet another Commissioner was appointed, no doubt, slightly for different purpose and it cannot be said that when another Commissioner was appointed at the appellate stage for a different purpose, the same is illegal. However the report of the second Commissioner had not been considered. But in view of the fact that findings had been recorded relating to the title, the report of the second Commissioner may not be of much consequence. However, the report of the first Commissioner is definitely relevant, especially in the light of certain specific observations made by him which had been extracted above. It is no doubt true that whether a Commissioner is examined or not, his report forms part and parcel of the record and the Court is bound to considered the same. But, when the report of the Commissioner is a material piece of evidence and not of general nature, though it may not be mandatory, it is always desirable if such a Commissioner is examined for the purpose of elucidating the further details relating to topographical features, geographical features or other peculiar features which can be decided by the Court only by eliciting such details. In such a context, the examination of the Commissioner also may become relevant upto some extent. As can be seen from the findings recorded by the appellate Court, the appellate Court mainly proceeded on the ground of absence of plea and the failure to establish the plea of adverse possession and the plea of easement being inconsistent with the plea of ownership. I had already observed that there cannot be any hard and fast rule in this regard and always the Courts can mould the relief depending upon the facts and circumstances of the case, granting limited relief though a larger relief is prayed for in the suit. In the light of the respective pleadings of the parties, inasmuch as no specific issue relating to easementary rights had been settled by the Court of first instance and no point for consideration had been framed and further in the light of the reports of the Gommissioners and also the notes of inspection of the Judicial Officer himself, I am of the considered opinion that the approach adopted by the appellate Court in deciding the matter and reversing the limited relief also cannot be sustained. However, in the light of the facts and circumstances, inasmuch-as a specific issue was not framed, I am inclined to frame the following issue:
Whether the plaintiffs are entitled to the easementary rights claimed by them in the facts and circumstances of the case?
18. In the light of the framing of this issue at the stage of second appeal, I am inclined to remit the matter back to the appellate Court for the purpose of affording opportunity to both the parties to let in further evidence to substantiate their respective contentions on the aspect of easementary rights. The parties are at liberty to examine the Commissioners also, if they are so advised, in this regard. Accordingly, the matter is remanded to the appellate Court for the purpose specified supra. The second appeal is allowed to the extent indicated above. No order as to costs.
19. Before parting with the case, this Court also records its appreciation for the able assistance which had been rendered by Sri Sunder Rajan , the learned Counsel for the appellant and also Sri M.N. Narasimha Reddy, the learned Counsel representing the respondents.