Indian Kanoon - Search engine for Indian Law

1. The plaintiff is the appellant in this second appeal. The question for decision is whether in the lane marked V in the rough sketch. (Exhibit A-7) attached to the plaint, which belongs to the plaintiff, the defendants are entitled to a right of way. It is necessary to have an idea of the location of the properties as given in Exhibit A-7. There are five plots, designated by the letters I, II, III, IV and V in the sketch. Plot I is the westernmost plot and it abuts Kandasami Koil Street, which is west of Plot I and runs north to south. The north-south measurement of plot I is 30'. Plot II is just east of Plot I and it also measures 30' north to south. Plot III is just east of plot II, but its north-south measurement is only 22' (the east-west measurement being 30'). Thus the western boundary of Plot III is only to a length of 22' along the eastern boundary of plot II and that 22' is counting from the northern point of the common boundary. Plot IV is just east of Plot III and the north-south measurement thereof is also 22'(the east-west measurement being 60). Just east of Plot IV there is a public street called Satchidanandam Street. Plot V is immediately south of Plots III and IV aforesaid. Its north south measurement is 8; the east-west measurement is 30'+ 60=90'. In other words, the western boundary of Plot V is the sourthern portion of 8' of the eastern boundary of Plot II and the northern boundary of Plot V is the southern boundary of Plots III and IV. The following is a rough sketch of the properties described above:

On the western side of Nalpulam Street (another name for Satchidanandam Street) west of the land purchased by Kanniah Naidu (under Exhibit B-2) east of the house and site of Munusami Pillai (vendor) (that is to say, plot II), north of the house and site of Sambanda Naicker and the lane which I have left in common for egress and ingress and south of Ekambaram Pillai's house and site : east-west measurement 30'; north-south measurement 22' .

4. As we shall see, the first defendant is the successor-in-title of the vendee under Exhibit B-3, and she contends that the common lane referred to is Plot V, the disputed plot in this appeal, and that a right of passage to and from the street in the east was granted to the vendees under Exhibit B-3 by the original owner, Munusami.

16. Besides documentary evidence in the case, oral evidence was adduced on each side. M. Gururajan, the learned III Assistant Judge of the City Civil Court, Madras, who tried the suit, had no difficulty in holding that the description in the sale deed (Exhibit B-3) relating to Plot III by Munusami to Raju Pillai and Subbaraya Pillai and the then existing circumstances clearly showed that the disputed plot was set apart as a common passage to and from Satchidanandam Street not merely for the benefit of the vendor, Munusami Pillai, but also for the benefit of the vendees, because at that time there was no other means of access to and from the said street to Plot III the easternmost plot having been already sold to another party (Kanniah Naidu) under Exhibit B-2, in 1933 itself. He further points out that, when Kanniah Naidu purchased Plot III also under Exhibit B-4 in 1937, the said plot was described as 8' common lane. The learned trial Judge points out that, because Exhibits B-3 and B-4 were executed long before disputes arose, the recitals contained therein have great weight. But in his view, by setting apart the suit plot as a common passage, the vendor Munusami Pillai did not grant a right of way to Raju Pillai and Subbaraya Pillai, vendees under Exhibit B-3, but only recognized that they had an easement of necessity, under Section 13 (a) of the Easements Act. That provision runs thus:

21. The first question for determination is whether a right of way over the suit plot was granted to the vendees under Exhibit B-3, and the second question is whether, if that right of way had been granted, it would become extinguished under Section 41 of the Act. I have no hesitation is agreeing with the learned appellate Judge. On the first point, it is clear from the description in Exhibit B-3, construed in the light of the facts then existing, that Munusami Pillai, left the disputed plot as a common passage, common in the sense that it was common both for himself (as owner of Plot II which he still retained) and the vendees under Exhibit B-3. If he had not meant this, there was no need to use the word 'common' in describing it as a common lane.