Madras High Court
K. Kolandaidsami Gounder (Decd.) And ... vs Manickam on 30 August, 2001
ORDER
1. The unsuccessful defendant before the courts below has filed these second appeals.
2. The suit property among other properties originally belonged to one Thangammal. She settled her properties under Ex.A1 dated 6.1.1956 in favour of her three sons, namely, Sriranga Gounder, Ramasamy Gounder and the appellant. 'A' schedule properties as shown in Ex.A1 were given to the said Sriranga Gounder, and Ramasami Gounder. 'B' Schedule properties as shown in Ex.A1 were given to the 1st appellant/defendant. Sriranga Gounder and Ramasami Gounder divided the 'A' schedule properties mentioned under Ex.A1 in and by partition deed marked as Ex.A2 dated 6.7,1979. Under Ex.A3, dated 25.10.79, Sriranga Gounder sold his undivided portion to the plaintiff, as the said property was kept in common in spite of the partition deed under Ex.A2. By a document marked as Ex.A4 dated 31.10.79, the said property was divided between the plaintiff and Ramasami. On the basis of the said partition deed, the plaintiff claims that he got a pathway right to an extent of 6 ft. width from north-eastern corner of the cattle shed leading to Idayanthottam Street. According to the plaintiff, the said right has been mentioned in the settlement deed under Ex.A1 itself. Stating that the defendant started objecting to the user of 6 ft. width pathway, the plaintiff filed the suit in O.S.No.248 of 1980 on the file of the District Munsif Court, Erode, seeking for a declaration declaring the plaintiffs right in the pathway marked in blue colour in the plaint plan and for permanent injunction.
3. Stating that the plaintiff has to drain the drainage water through the said pathway on the north eastern comer which runs east of the house and turns towards north west of the house leased out by the defendant to a third party for running an automobile workshop, and the plaintiff has no other way to drain the water, he filed another suit in O.S.No.l 169 of 1980 on the file of District Munsif Court, Erode. He has also stated that he proposed to dig an underground drainage along the pathway marked blue in colour in the plaint plan, and it is an easement of necessity. On the basis that the defendant had objected to the digging of underground drainage by plaintiff, the plaintiff has filed the said suit in O.S.No.1169 of 1980 seeking for declaration declaring the plaintiffs right to drain the water along the pathway marked blue in colour in the plaint plan as an easement of necessity and for injunction.
4. The defendant filed a written statement contending inter alia that the plaintiff is not entitled to the use the blue marked portion as shown in the plaint plan, and he never exercised any right over the suit property. The defendant has also claimed that he is the absolute owner of the blue marked portion and had been in possession of the suit property, eversince the year 1956. He has also stated that pending suit, after obtaining an ex parte order of interim injunction, the plaintiff had put up the drainage, and the same has to be removed. He has specifically stated that the length and breadth of the blue marked portion was not furnished by the plaintiff either in the plaint plan or in the plaint. According to him, there is a regular drainage north of the suit property which runs south to north and joins a very big drainage running east-west. The plaintiff being a purchaser of the vacant site and having constructed a building therein has to drain the water only through the drainage, north-south, in the said drainage. The plaintiff's claim on the basis of easement of necessity cannot be sustained in law. On the basis of the abovesaid pleadings, the 1st appellant/defendant has prayed for dismissal of the suit.
5. The trial court decreed the suits as prayed for. So the 1st appellant filed appeal in A.S.Nos.22 and 5 of 1986 on the file of the Sub-Court, Erode. The lower appellate court also confirmed the judgments and decrees of the courts below. Hence these second appeals.
6. The substantial question of law that was framed for consideration in these second appeals are:-
"Whether the courts below have misunderstood the construction of Ex.A1 settlement deed."
7. After hearing the arguments on both sides, the following substantial question of law is formulated for consideration: -
"Whether the courts below are correct in decreeing the suit in O.S.No.l 169 of 1980 on the basis that the plaintiff is entitled to have drainage in the pathway as an easement of necessity."
8. In these second appeals, we have to decide whether the plaintiff is entitled to claim right in the pathway to the width of 6 ft. in the defendant's property, and whether the plaintiff is having any right to have a drainage in the said pathway.
9. The pathway which is the subject matter in O.S.No.248 of 1980 can be claimed only on the basis of Ex.A1 under which the right was given to Sriranga Gounder and Ramasami Gounder to reach the Street, through the 'B' schedule properties. Ex.A1 is the settlement deed executed by Thangammal in favour of her 3 sons, Sriranga Gounder, Ramasami Gounder and the defendant. The defendant was allotted the 'B' schedule properties and the other two sons were allotted the 'A' schedule properties jointly. Under the said document Ex.A1, the right of pathway is given as follows:-
Though the defendant has come forward with the plea that there was no pathway, in view of the specific recitals under Ex.A1 under which document, the defendant had got the 'B' schedule properties, the defendant cannot now deny the said right given to Sriranga Gounder and Ramasami Gounder. The plaintiff purchased the property aliotted to Sriranga Gounder in the partition under Ex.A2. So, he is also entitled to use the said pathway as mentioned under Ex.A1.
10. But, the measurement of the said pathway has not been mentioned under Ex.A1. Only subsequently, at the time of partition between Sriranga Gounder and Ramasami Gounder under Ex.A2, it has been mentioned that the width of the pathway was 6 ft. Admittedly, the defendant was not a party of the said document. So, the learned counsel appearing for the appellants has submitted that the right given under Ex.A1 is only to use that portion of the land as a pathway, and so the plaintiff cannot claim the right of pathway, measuring 6 ft. width, since it will affect the defendant's right in the property. I find some force in the said argument. Though the learned counsel appearing for the appellants has submitted that there is no evidence available on record to show on what basis the respondent/plaintiff is claiming right in the said pathway measuring 6 ft. width, apart from Ex.A2 to A4 to which documents, the defendant was not a party, the learned counsel appearing for the respondent/plaintiff is not in a position to point out any evidence in this regard. The courts below have accepted the case of the respondent/plaintiff only on the basis of Ex.A2 to A4, and not on any other evidence. The courts below have proceeded as if the plaintiff was given such a right to have 6 ft. width pathway.
11. When the specific right was given to use the land of the defendant only as a pathway, the defendant cannot be burdened with more obligation, and the right given under Ex.A1 can be used to the extent necessary for such enjoyment by the other sharers. In the present case, except Ex.A2 to A4, the learned counsel appearing for the respondent/plaintiff has not pointed out any other evidence to show as to how the 6 ft. width of pathway is necessary for them to reach the Street. As stated above, additional burden cannot be imposed on the defendant. In view of the fact that under Ex.A1 only a right of pathway has been given to the other settlees, from whom the plaintiff derived title, the defendant cannot prevent the plaintiff from enjoying such right. But, at the same time, the respondent/plaintiff also cannot claim 6 ft., width of pathway, which was not given under Ex.A1 settlement deed. Though it has been mentioned in Exs.A2 to A4, the said recitals in the said documents will not bind the defendant. Taking into consideration the abovesaid fact and also on the suggestion made at the Bar, I am of the opinion that in the interest of justice, the respondent/plaintiff can use the said pathway in the defendant's property to a width of 3 ft., instead of 6 ft., as claimed by the respondent/plaintiff, and the judgment and decree of the courts below are modified to that extent.
12. With respect to the claim of the respondent/plaintiff to have the drainage along the said pamway, the learned counsel appearing for the appellants has submitted that the respondent/plaintiff has no right to have such a drainage in the suit pathway. Even with reference to the said claim, it is only on the basis of easement of necessity. The respondent/plaintiff can claim such a right only against the said Ramasami Gounder, and not against the defendant. This submission was made on the basis that the respondent/plaintiff purchased the undivided share of Sriranga Gounder, the brother of Ramasami Gounder, and, under Ex.A4, Ramasami Gounder and the plaintiff have divided the properties between them.
13. The learned counsel appearing for the appellants has also submitted that since the plaintiffs predecessors-in-title were not given any such right to take the drainage in the 'B' schedule property as mentioned under Ex.A1, the respondent/plaintiff cannot claim any such right, passing on the additional burden on the defendant.
14. In the decision in Sinnana v. Veerappa, AIR 1925 Mad. 681, while considering the right of the dominant owner to claim new right of easement which was not available before partition, it has been held as follows: -
"It is further clear that prior to the partition there was no particular easement right to take water through that one point R. It is possible and indeed probable from the lie of the land that the water from the plaintiff's site did drain all towards the north across the defendants' site. That easement is of a different nature to collecting all that water into one spot and directing it on to the defendant's land in a concentrated form as is sought to be done now. Before the partition it is unlikely that water flowed in any channel across the defendants' land and it would be likely to be absorbed as it would be spread over the whole area. Now that the hole amount of this water is concentrated into a narrow channel five inches across, it imposes a burden upon the defendants of a very different nature to that which was in existence before the partition. It cannot therefore be said that it is now necessary for enjoying the plaintiff's share as it was enjoyed when the partition took effect. The burden cast upon the defendants is undoubtedly a more onerous burden now than it was before".
15. Even in the decision in Md. Beari v. Badava Bear, AIR 1931 Mad.128, while considering the issue whether the use of bullock carts over passage leading to godown will throw additional burden on the servient tenant, it is held as follows:-
"In this case it was argued by the learned advocate for the appellants that, as the defendants would be entitled to a right of way through the passage D at all times of the day even if their property was used only for residential purposes there is really no addition of any burden by their property being used for trade purposes because the learned advocate argued the passage will have to be kept open practically at all times and there is no specific evidence as to how any additional burden is imposed upon the servient tenement. The learned Subordinate Judge has found as a matter of fact that the defendants now use bullock carts as well as hand carts for carrying goods through the passage D. That surely is a circumstance which would add to the burden and if I understood the argument of the learned advocate properly did not contest that so far as the use of the bullock carts and hand carts carrying goods through the passage D is concerned the defendants are by their present user adding a further burden on the servient tenement and they would not be justified in doing so. I think that the learned Subordinate Judge was entitled on the materials before him to come to the conclusions with reference to the use of the passage D by the defendants for trade purposes that its use even for purposes other than for the passage of bullock carts and handcarts but for trade purposes and not for residential purposes would add to the burden on the servient tenement. He has discussed the evidence and come to the conclusion that "certainly if P is used as a godown for storing merchandise instead of its being used for residential purposes it will throw additional burden on the servient tenement of the plaintiff."
The cases I have mentioned in my prior order calling for findings decide that the question whether additional burden is imposed or not is essentially ordinarily one of faci and I think that the learned Subordinate Judge had materials before him on which he was entitled to come to the conclusion which he arrived at, namely that the defendants were by their user throwing additional burden on the servient tenement of the plaintiff.
16. From the abovesaid decisions it is clear thai the plaintiff cannot impose additional burden on the defendant saying that they are going to take drainage only through the existing pathway. When right was given only to use that portion of the land of the defendant as a pathway, additional burden would be thrown on the servient tenement by taking drainage over the pathway or by laying underground pipeline through the said pathway.
17. While construing similar facts of the case, the learned Judge of the Patna High Court in the decision in Hamida Khatoon v. Baryapore Panchayat, AIR 1947 Pat. 122, has held as follows:-
(4) In my opinion, the courts below have rightly held that the rights of the Biswases, if any, over the common passage can only arise by way of a presumed grant arising out of the severance of the tenement. On such a severance the easements that arise are easements of necessity or continuous and apparent easements, which are necessary to the reasonable enjoyment of the property granted, and which, as quasi easements, being used by the grantor for the benefit of the part granted. A right of way is not a continuous easement and the right of maintaining a drain on the land was grantors. It is admitted that the right is not being claimed as an easement of necessity. Hence no such right accrued to the Biswases and consequently could not have been transferred by them to the plaintiff. Reference has been made on behalf of the appellant to Shantaram Balkrishna v. Woman Gopal, A.I.R. 1923 Bom. 85 in which Shan, Ag.C.J., had laid down that under the Mitakshara and the Vyavahara Mayukha land reserved as a common passage at a previous partition between the parties is not divisible subsequently. The parties in this case are Bengalis and are presumably governed by the Dayabhaga, and it cannot be said without further examination whether the proposition there laid down in applicable in the present case. That is a matter however to be taken up at the instance of a party who has an existing interest in the common passage. Here, the plaintiff appears to have to interest in it, and the gift to defendants 1 to 6 is said to have been made by all the parties to Ihe partition."
18. The Apex Court also in the decision in Saraswathi v. S. Ganapathy, , considered this aspect and has held that no person has a right to have water from his property flow on to the land of his neighbour and no such right was granted under the sale deed, and so no such easementary right can be claimed in law. It is also held therein that all that the appellants can claim is to see that water from the roof of his house is allowed to flow on to his own land.
19. Recently, the learned Judge of this Court, while considering the scope of easement of necessity in the decision in Murugesa Moopanar v. Sivagnana Mudaliar, ., has held as follows:-
"13. Section 13 of the Indian Easements Act deals with easement of necessity. An easement of necessity can arise only when there is a cessation of common ownership. It arises where both the servant and dominant tenement were in common ownership and by disposition, there was disintegration of the tenements. It is also well settled that easement of necessity arises only where by a transfer, bequest or partition, a single tenement is divided into two or more tenements and any of those is to be situated that it cannot be enjoyed at all without certain privilege on another such tenement. When there is an impossibility of enjoyment an implied grant or reservation will be presumed in favour of the person holding the former tenement. It is also settled law that the creation of easement of necessity is an outcome of the prior relationship between the tenements. The disposition which terminates the common ownership and gives rise to an easement by implication of taw, may be of either tenement, or may be a simultaneous disposition of both tenements. "Easement" is also defined as a right which the owner or occupier of certain land possess, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to do thing being done, in or upon, or in respect of certain other land not his own. It is a curtailment on the enjoyment of the absolute owner and, therefore, unless it is priced by the appellants that they are entitled to curtail the rights of the plaintiff in the enjoyment of his land, they cannot claim a right of easement."
20. So, the respondent/plaintiff cannot claim the relief on the basis that he is not having any other way to take the drainage except through the common passage, since a creation of easement of necessity should be an outcome of a prior relationship between the tenements. The respondent/plaintiff got the undivided share in the property under Ex.A3, and in view of the partition between the plaintiff and the said Ramasami under Ex.A4 under which specific property was allotted to him. As stated already, the defendant is not a party to the said documents. Mere convenience or inconvenience is not the test of an easement of necessity.
21. An easement has been said to be a privilege which the owner of one tenement has a right to enjoy over the tenement of another. Easement of necessity is an easement, which under particular circumstances the law creates by virtue of the doctrine of implied grant to meet the necessity of a particular case. It is an easement which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one without which that tenement cannot be used at all. Such easement of necessity arises where normally both the dominant and servient tenements have been in common ownership so that the creation of an easement by implication of law, may be said to be the outcome of the former jointness of the two tenements. The disposition which causes a cessation of the common ownership that gives rise to the creation of easement, may be of either tenement or simultaneous disposition of both the tenements.
22. In the present case, the property has been divided between the plaintiff and one Ramasamy under Ex.A4. So, the plaintiff can claim such a new right only against the said Ramasami and not against the defendant.
23. From the averments made by the plaintiff in the plaint, it is clear that the plaintiff was taking steps to put up the drainage in the common passage. Only after obtaining the interim order, and taking advantage of the same, the plaintiff had put up such a drainage. No easementary right would have been acquired by the plaintiff within the said short period. This view has been approved by the Apex Court in the decision Saraswathi v. S. Ganapathy, .
24. The fact is that the plaintiff had put up the drainage which is the subject matter in O.S.No.1169 of 1980 pending the suit, after obtaining the order of interim injunction. This fact is not in dispute. On the basis of the same, the learned counsel appearing for the appellants has submitted that the plaintiff cannot take advantage of the fact that he had already put up the drainage, though the plaintiff is not entitled to have such a right. Relying on Sec. 144 of the Code of Civil Procedure, the learned counsel has also submitted that the respondent/plaintiff has to be directed for restitution of the suit property.
25. The Apex Court in the decision in Kavita Trehan v. Balsam Hygenene Products, , while considering exactly the similar facts, has held as follows:-
"16. The Law of Restitution encompasses all claims founded upon the principle of unjust enrichment. 'Restitution claims are to be found inequity as well as at law'. Restitutions law has many branches. The law of quasi-contract is "that part of restitution which sterns from the common indebitalus counts for money had and received and for money paid, and from quantum merit and quantum valebant claims". (See The Law of Restitution A1 Goff & Jones, 4th Edn., page 3) Halsbury's Laws of England, 4th Edn., page 434 states:
"Common Law. Any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi- contract or restitution.
For historical reasons, quasi-contract has traditionally been treated as part of, or together with, the law of contract. Yet independently, equity has also developed principles which are aimed at providing a remedy for unjustifiable enrichment. It may be that today these two strands are in the process of being women into a single topic in the law, which may be termed 'restitution'."
17. Recently the House of Lords had occasion to examine some of these principles in Woolwich Equitable Building Society v. IRC, 1993 AC 70.
18. In regard to the law of restorafion of loss or damage caused pursuant to judicial orders, the Privy Council in A1exander Rodger Charles Carnie v. Comptoir D'Escompte De Paris, 1871 LR (3) PC 465, 475 : 7 Moo PCC NS 314: 17 ER 120 stated:
.... one of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the Sutors, and when the expression 'the act of the court' is used, it does not mean merely the act of the Primary Court, or of any intermediate court of appeal, but the act of the court as a whole, from the lowest court which entertains jurisdiction over the matter up to the highest court which finally disposes of the case."
19. In Jai Berham v. Kedar Nath Marwari, AIR 1922 PC 269, 271: 49 IA 351: 27 CWN 582, the Judicial Committee referring to the above passage with approval added:
"It is the duty of the court under Section 144 of the Civil Procedure Code to 'place the parties, in the position which they would have occupied, but for such decree or such part thereof as has been varies or reversed'.
Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of ihe court to act rightly and fairly according to the circumstances towards all parties involved.
20. In Binayak Swain v. Ramesh Chandra Panigrahi, , this court stated the principle thus: (SCR p.27) "The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree; and the court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the court by its erroneous action had displaced them from."
21. Section 144, CPC incorporates only a part of the general law of restitution. It is not exhaustive. (See Gangadhar v. Raghubar Dayal, (FB) and State Government of A.P. v. Manickchand Jeevraj & Co., .
22. The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where Ihe case did not strictly fall within the ambit of Section 144. Section 144 opens with the words: "Where and insofar as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, ....". The instant case may not striclly fall within the terms of Section 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every court."
26. So, the respondent/plaintiff cannot take advantage of the fact that he has already constructed the drainage on the basis of the interim order. The law imposes an obligation on the plaintiff who received the benefit of the interim order, to make restitution to the defendant for what he had lost.
27. The learned counsel appearing for the respondent/plaintiff has further submitted that in view of the recitals under Ex.A1, the defendant is not having any right in the common pathway, and so he cannot prevent the plaintiff either to use the same to the width of 6 ft., and also to take the drainage. As a matter of fact, such a plea was not raised in the plaint and no specific evidence regarding the same is pointed out by the learned counsel. It is also relevant to mention that the plaintiff is claiming right in the pathway only on the basis of easement of necessity against the interest of the defendant. Even on merits, the said submission of the learned counsel on the basis of Ex.A1, cannot be countenanced. He wants to rely on one sentence, under Ex.A1 which is as follows:-
This, according to the learned counsel appearing for the respondent/plaintiff, will apply even to the suit pathway. But, as rightly submitted by the learned counsel appearing for the appellants, the said recital will apply only to the pathway, given to the property in ward No.13 and not with respect to the suit pathway. The other recitals in the document would clearly establish that the submission of the learned counsel for the appellants cannot be accepted.
28. For all the reasons stated above, in modification of the judgments and decrees of the courts below, the respondent/plaintiff is entitled to a decree in O.S.No.248 of 1980 to the suit pathway only to the width of 3 ft., as discussed above, in the 'B' schedule property, and the plaintiff is not only entitled for any relief as prayed for in O.S.No.1169 of 1980, but also the respondent/plaintiff is directed to restore the suit pathway after removing the drainage put up by the plaintiff within three months from this date, failing which the appellants can move the trial court for removal of the same through the court. With the above modification, the Second Appeal in S.A.No.1401 of 1988 is partly allowed; S.A.No.1402 of 1988 is allowed. No costs.