Indian Kanoon - Search engine for Indian Law

1. These three second appeals arise out of a common judgment in A.S. No. 258 of 1993 and l3 and 14 of 1994 dated 27.3.1996 on the file of the Principal Subordinate Judge, Tiruchirappalli confirming the common judgment and decrees dated 30.9.1994 in O.S.Nos. 1967 of 1983, 1778 of 1982 and 1827 of 1983 on the file of the 1st Additional District Munsif, Tiruchirappalli.

2. In all the three suits, the relief claimed relates to pathway. In O.S.No. 1967 of 1983, the plaintiff claims the pathway running east to west from the Race Course Road, Tiruchirappalli having a width of 30' and length of 90' and 100' North to south with the same width of 30' in Survey Nos. 29/1 and 29/3. The relief in the suit is for injunction restraining the common defendant in all the three suits from interfering with the possession and enjoyment of the pathway by the plaintiff in any manner. In O.S.No. 1778 of 1992 and O.S.No. 182 of 1983 the relief claimed is for declaration and injunction relating to the western extension of the east-west pathway mentioned in the first suit measuring an extent of 174' East to West and 11' North to South. The short facts to appreciate the rival claims are as follows :-

9. The trial court after considering the evidence and documents has decreed the suit as prayed for i.e. it has granted the decree of declaration in O.S.No. 1778 of 1982 and 1827 of 1983 and injunction with reference to B and D schedule properties. As regards, O.S.No. 1967 of 1983 the trial court has granted decree of injunction alone, which is the only relief claimed in the said suit with reference to the suit property i.e. the pathway that means the decree granted for injunction in O.S.No. 1967 of 1983 therefore relates to the entire width of 30' of the pathway and not limited to 11' 'width.

16. It is also found that apart from 11' width pathway from Race Course road, there is no other entrance or passage to the houses of the plaintiffs in O.S.No. sl778 of 1982 and 1827 of 1983.

17. The learned counsel for the appellant Mr. Jayaraman contended that the courts below have relied upon the fact that there is no other pathway and hence granted relief of the right in the pathway as of easment of necessity. When there is no pleading or evidence on the easement of necessity, the courts below ought not to have granted relief. This contention is wrong. The plaintiffs have not claimed their right as of easement of necessity. They based their claim upon the grant under Exs. A-l, A-3 and A-4.

26. However, one point needs some clarification. As regards O.S.No. 1967 of 1983, the decree has been granted as prayed for. The claim is for the pathway with the measurement of 30' width east to west and north to south. From the commissioner's reports and sketches Cl and C-4 and the evidences, we are not in a position to see that the width of the pathway is 30' but 11' only. In Ex.A-9 also width of the same is 11' only. PW4 has not said about 30' width. The trial court has decreed the suit O.S.No. 1967 of 1983 granting the relief of injunction as prayed for. This cannot be sustained. The plaintiff in the said suit will be entitled only 11' width in the pathway running east to west and North to South. For the foregoing reasons, I am of the view that the judgment and decree of the courts below need not be interfered with excepting to the extent mentioned above in the decree in O.S.No. 1967 of 1983. The Second appeals, are therefore, dismissed. However, there will be no orders as to costs.