Document Fragment View

Matching Fragments

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.

"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.