Madras High Court
I.M.Palanisamy vs The District Collector on 26 April, 2012
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 26.04.2012 Coram:- The Hon'ble Mr. Justice T.RAJA Second Appeal Nos.294 & 295 of 2007 I.M.Palanisamy, S/o.late Mariappan, Prammadesam Road, Thavittupalayam, Anthiyur Village, Bhavani Tk., Erode Dt. .. Appellant in S.A. No.294/2007 Family Manager Chinnasamy, S/o.late A.M.Munusamy, Chinnamariamman Koil Street, Anthiyur Village, Bhavani Tk., Erode Dt. .. Appellant in S.A. No.295/2007 vs. 1. The District Collector, Collectorate, Erode. 2. The Superintendent, Regulated Marketing Committee, Anthiyur, Erode District. 3. The Secretary, Regulated Marketing Committee, Erode. 4. The State of Tamil Nadu, Rep. by its commissioner / Secretary to Government, Agriculture Department, Fort St. George, Chennai-9. .. Respondents in both the S.As. Appeals against the judgment and decree, dated 09.11.2006 made in A.S. Nos.70 and 71 of 2006 on the file of the Additional District Court/FTC No.IV, Bhavani, reversing the judgment and decree dated 20.09.2005 passed by the Principal District Munsif Court (in-charge)/I Addl. DM Court, Bhavani, in O.S. Nos.28 and 33 of 2005. For Appellant in both S.As : Mr.N.Manokaran For R1 & R4 : Mr.S.Pattabiraman, in both S.As Govt. Advocate (CS) For R2 & R3 : Mr.G.Sanakaran in both S.As. COMMON JUDGMENT
The appellant in Second Appeal No.294 of 2007, as plaintiff, filed O.S. No.28 of 2005 on the file of the Principal District Munsif Court (in charge)/First Additional District Munsif Court, Bhavani, seeking to pass a decree by declaring the plaintiff's easementary right over the suit property/cart track by necessity and prescription, to grant consequential permanent injunction against the defendants from disturbing the plaintiff's peaceful enjoyment and use of the suit cart track and to direct the defendants to demolish and remove the constructed wall shown as portion-D.E. in the plaint plan within the time stipulated by the court. It is pleaded that the plaintiff owns landed property in R.S. No.1628/2 at Anthiyur Village having purchased the same by virtue of sale deed dated 11.11.1982 and that, for ingress and egress of men, cattle and vehicles to the property, the cart track mentioned as ABCDE in the plaint plan with reference to the land in R.S. No.1628/1-B, 1628/4 and 1629 belonging to the government authorities/defendants-2 to 4 is used for about four decades. The plaintiff's land cannot be enjoyed/used without using the suit property/cart track. The said passage is being used as the only available way by the plaintiff's predecessors-in-title and thereafter, the plaintiff, who continues to enjoy the easementary right over the suit cart track by actual, open, peaceful and uninterrupted enjoyment with the knowledge of the defendants for more than 30 years; thus, the plaintiff acquired the easementary right over the suit property by necessity and prescription. While so, during 1988, the defendants/authorities took steps to acquire the suit property to extend the space of marketing society and the writ proceedings initiated by the plaintiff were withdrawn as the defendants conceded for the price offered by the plaintiff 10 years ago, however, there was some let-up in further process. Thereafter, on 24.01.2005, the defendants came up with a sudden proposal to put up a compound wall which would result in closing the way at the DE portion which is the only way available for men, vehicles and cattle to have access to the plaintiff's land. In the said background, the plaintiff filed the suit for the reliefs as mentioned above.
2. The appellant in S.A. No.295 of 2007 filed O.S. No.33 of 2005 on the file of the same court seeking the same prayer as in the case of O.S. No.28 of 2005 by pleading that the plaintiff's father and brother owned punja land to an extent of 1.20 acres in R.S. No.1628/2 of Anthiyur Village by virtue of sale deed dated 11.11.1982. While 'E' schedule mentioned in the sale deed was allotted to the father of the plaintiff, the remaining extent of 0.48.5 hectares was purchased in common by one M.Palanisamy/plaintiff in O.S. No.28 of 2005. After purchase, both the plaintiff's father and the said Palanisamy were enjoying their respective properties comprised in one unit by using the suit cart track running through R.S. Nos.1628/1-B, 1628/4 and 1629 and barring the said suit cart track, there is no other alternative way to the plaintiff to enjoy the landed property. Since the defendants are taking steps to acquire the land and such process ultimately resulted in attempts to construct a wall in DE Portion, with an apprehension that if the scheme for construction is implemented, the plaintiff cannot take his cattle and vehicles to his landed property, the plaintiff after the demise of his father, being the eldest son in the family, filed the suit.
3. The 2nd defendant/Superintendent of the Marketing Committee filed individual written statements wherein, it is mainly stated that no decree, as sought for by plaintiffs can be granted in respect of the suit cart track marked in a rough plan without the same being mentioned properly with length and breadth and the survey fields through which it is running. The specific case of the defendant/marketing committee is that when the original owners from whom the plaintiffs purchased the present properties were reaching the lands through the odai, the plaintiffs/subsequent purchasers cannot claim any right over a non-existing cart track in the land belonging to the marketing committee. If really any cart track as claimed by the plaintiff was ever in existence, it would have found place either in the FMB sketches or other revenue records. While emphatically denying the claim of the plaintiffs that they had acquired right over the suit cart track by necessity and prescription, it is added by the defendants that the suit property absolutely belonging to the marketing committee, they have every legal right to put up the compound wall to fence the property owned by it. Therefore, there being no cause of action at all to launch the litigation, the suits filed as an abuse of process of court may be dismissed with costs.
4. The trial court tried both suits together and, after examining the rival claims in the light of oral and documentary evidence, decreed the suits as prayed for by its common verdict dated 20.09.2005, however, on appeals by the defendants in A.S. Nos.70 and 71 of 2006, the lower appellate court/Additional District Court - FTC IV, Bhavani, reversing the judgments of the trial court, allowed the appeals by common judgment dated 09.11.2006; hence, the present Second Appeals by the plaintiffs.
5. At the time of admission, this Court framed the following substantial questions of law for consideration:-
a) Whether the first appellate court is correct in law in dismissing the suit on the ground the plaintiff has not established the right of easement by prescription and necessity, especially when the plaintiff has been using the land as of right, peacefully and openly without any interruption from the date of his purchase ie., 11.11.1982?
b) whether the first appellate court has considered the plea of acquisition of right of way by prescription, and easement of necessity in the light of section 13 to 15 and 47 of the Easements Act, 1882 more particularly when the plaintiff had no access to his property except through the property of the defendants?
6. While addressing on the substantial questions of law, learned counsel appearing for the appellants, at the first instance pointed out that the landed property of the appellants/plaintiffs being a locked area, the same cannot be used without the suit cart track which is the one and only source of ingress and egress for men, cattle and vehicles to reach the plaintiffs/appellants' land. After enjoyment by their predecessors-in-title, such access was being enjoyed by the appellants without any interruption for over 40 years as an easement both by way of necessity and prescription and that being the core factual aspect, very unfortunately, the lower appellate court purposely omitted to apply the provisions of the Easements Act in favour of the appellants that there cannot be any extinction of easement that has been used by way of necessity. In other words, when the appellants have been using the access as an easement by way of necessity for over decades together, taking note of the fact that there is no other access to their lands except through the suit cart track of the defendants, the lower appellate court ought to have straight away dismissed the appeal, but, very strangely, without assigning any sound reasoning for reversal, the said court erroneously disturbed the well considered judgment of the trial court. In fact, the materials placed in the form of Commissioner's Reports and Plans marked as Exs.C1 to C6 clearly substantiated the case of the appellants that there is a well marked cart track in existence to reach the land of the plaintiffs and barring the same, there is no other access to reach the land and that the said passage has been unlawfully obstructed by the defendants by way of putting up a compound wall even during pendency of lis before the trial court. The lower appellate court, without taking note of these vital aspects, misreading the evidence out of the context and completely losing sight of the fact that in the light of the provisions of the Easements Act in particular Sections 13 to 15, the plaintiffs' case as accepted by the trial court should not have been dismissed, erroneously allowed the appeals and therefore, interference is absolutely called for as otherwise great prejudice would result in.
7. Per contra, learned counsel appearing for the respondents argued that there was no passage as claimed by the appellants ever in existence for use by them to reach their lands as such claim is not substantiated through any material in the form of FMB Sketch or revenue records. In fact, the plaintiffs have been using only the odai to reach their land and in the second time inspection by the Commissioner, it is reported that there were no foot prints in the disputed land to suggest use of the cart track by the plaintiffs. Further, the plaintiffs did not mark the adangal extracts to suggest that they were cultivating the land by doing agricultural operations. Added to that, the predecessors-in-title of the appellants did not mention anywhere in their documents about the right over the cart track. Since the sole claim that the passage in question is the only available source for ingress and egress for the landed properties of the appellants/plaintiffs not being acceptable in the light of the evidence made available, thereby the main question regarding easement by way of necessity and prescription not being relevant at all for consideration, rightly, the lower appellate court allowed the appeals by reversing the verdict of the trial court and hence, there is no scope for interference.
8. With reference to the first substantial question of law, at the first instance, it must be highlighted that the character of different easements, the manner of imposition and acquisition of easementary rights, the incidents of easements and the remedies in case of interference or disturbance with easements are governed by the provisions of the Indian Easements Act, 1882. Easements Act refers to different methods by which easements are acquired or imposed, viz., easements by grant, easements of necessity, easements by prescription and customary easements. Acquisition of an easementary right, by any of the aforesaid modes requires fulfilment of the conditions prescribed under the Easements Act. A private easement including a right of way to a person's land or right to take water from a source to his land cannot be acquired in a manner not contemplated or prescribed by the Easement Act. Easements by grant require a grant by the owner of the servient heritage. Easements of necessity are based on implied grants or reservations made by the owner of a servient heritage, at the time of disposition such as transfers and partitions. Easements by prescription can be acquired only by peaceable and open enjoyment, without interruption for twenty years. Customary easement can be are acquired by virtue of a local custom. In the present case, while examining the aspect as to whether the appellants were in continuous, open and peaceful enjoyment of the suit cart track for twenty years so as to treat it as "easement by way of necessity and prescription", it is seen that the plaintiffs purchased the common property in two halves respectively on 11.11.1982 and such fact was not disputed by the defendants. In other words, at the time of filing the subject matters of these appeals viz., Original Suits of the year 2005, 20 years period was already over. To find out whether the suit track was actually used by the plaintiffs, a Commissioner was appointed by the trial court and, in his Sketch Ex.C2 and Ex.C1 Preliminary Report, he noted down that there were clear traces of cattle and vehicles passing through the suit track to reach and return back from the land of the plaintiffs. During the second inspection, the Commissioner found that such passage was converted as a tar road by the defendants and in the course of the third inspection, he found that even during the pendency of the suit before the trial court, the authorities erected a wall. Commenting on the high-handed act of the defendants/authorities, the trial court observed that only with an intention to deliberately alter the nature of the cart track so as to project the claim of the plaintiffs over the cart track as baseless, the authorities indulged in such act and concluded that the reports of the Commissioner only substantiated the claim of the plaintiffs regarding existence of the suit cart track which has been in continuous enjoyment of the plaintiffs for the purpose of ingress and egress to their landed property. Though the defendants took an assertive stand that the plaintiffs used the odai to reach their land, the Commissioner after physical verification made a noting that the odai with a depth of 15 ft. and 100 to 150 ft. breadth was a waste tank stagnant with drainage water and there was not even a single trace to suggest that it was ever used to have access to the land of the plaintiffs. In fact, D.W.2 himself deposed before court that the only source of access to the land of the plaintiffs was the suit property and that there is no access to the land via odai. The trial court carefully examined various factors that cultivation was on-going in the land of the plaintiffs for which the only source of access/suit property was being used and that even the electricity connection to the land was running through the suit property and ultimately arrived at the conclusion that, from the date of purchase, the plaintiffs have been using the suit property as the only access for more than twenty years. Therefore, when a clear inference could be drawn in the factual scenario vis-a-vis the documents marked by the defendants much criticised by the trial court as 'created documents' for the purpose of the case and the repressive conduct of the defendants in interfering with the property even while the litigation was pending before the court, rightly, the trial court found that the plaintiffs are entitled to the relief since they have been using the suit cart track by way of necessity for over twenty years peacefully, openly and without any interruption well known to the knowledge of the defendants. After careful examination of the judgments of the courts below, I find that the lower appellate court completely misread the factual and legal aspects and by erroneously appreciating the evidence out of the context, proceeded to upset the well considered order of the trial court. In fact, there is no sound reasoning based on proper discussion as mandated under Order 41 Rule 31 CPC. to conclude against the plaintiffs who have made out a clear case regarding their genuine grievance against the defendants. Therefore, the first question of law is answered in favour of the appellant.
9. Coming to the only remaining question of law, it is the settled legal position that a right of way may be acquired by prescription where the same has been peacefully and properly enjoyed by any person claiming title thereto as an easement, and as of right, without any interruption and for 20 years. As discussed earlier, both in terms of necessity and prescription, the plaintiffs proved that the disputed path way was being used by them openly and peacefully for 20 years, therefore, the present question of law should also be answered in favour of the appellants.
In the result, the Second Appeals are allowed, setting aside the judgment and decree of the lower appellate court and restoring that of the trial court, however, there will be no order as to costs.
JI.
To
1. Additional District Court/FTC No.IV, Bhavani.
2. Principal District Munsif Court (in-charge)/I Addl. DM Court, Bhavani.
3. The District Collector, Collectorate, Erode.
4. The Secretary to Government, Agriculture Department, Fort St. George, Chennai 9