Madras High Court
G.Pitchai vs Ganthimathi on 17 April, 2021
S.A.(MD)No.723 & 724 of 2006
THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)Nos.723 & 724 of 2006
and
C.M.P.(MD)Nos.1 & 1 of 2006
G.Pitchai ... Appellant in both S.As.
-Vs-
1.Ganthimathi ... Respondent in both S.As.
2.Natesan ... Respondent in S.A.(MD)No.
723 of 2006
3.Pitchai ... Respondent in both S.As.
4.Murugan ... Respondent in S.A.(MD)No.
723 of 2006
Prayer in S.A.(MD)No.723 of 2006: Second Appeal is filed under Section
100 of the Civil Procedure Code, against Judgment and Decree dated
01.12.2005 made in A.S.No.71 of 2003 on the file of the Court of the First
Additional Subordinate Judge, Thiruchirapalli in confirming the Judgment
and decree dated 17.02.2003 made in O.S.No.293/97 on the file of the
District Munsif Court cum Judicial Magistrate, Lalugudi.
Prayer in S.A.(MD)No.724 of 2006: Second Appeal is filed under Section
100 of the Civil Procedure Code, against Judgment and Decree dated
01.12.2005 made in A.S.No.70 of 2003 on the file of the Court of the First
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.723 & 724 of 2006
Additional Subordinate Judge, Thiruchirapalli in confirming the Judgment
and decree dated 17.02.2003 made in O.S.No.308/97 on the file of the
District Munsif Court cum Judicial Magistrate, Lalugudi.
For Appellant : Mrs.J.Maria Roselin
for Mr.V.Sri Balaji
For R1 & R3 : Mr.S.K.Mani
For R2 : No appearance
For R4 : given up
(in both S.As.)
COMMON JUDGMENT
G.Pitchai S/o. Gurusamy is the appellant in these two second appeals.
The contesting respondent is Ganthimathi. Ganthimathi filed O.S.No.293
of 1997 on the file of the District Munsif Court, Lalgudi seeking the relief
of permanent injunction and mandatory injunction in respect of the suit
pathway. The appellant filed O.S.No.308 of 1997 before the very same
Court seeking the relief of permanent injunction restraining Ganthimathi
and another Pitchai from interfering with his possession of the suit pathway.
Both the suits were tried together. Ganthimathi examined herself as P.W.1
and her husband as P.W.2. Ex.A1 to Ex.A11 were marked. The appellant
herein examined himself as D.W.1. Ex.B1 to Ex.B4 were marked. In the
suit filed by the appellant, an application was taken out for appointing an
advocate commissioner to note down the physical features of the property.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.723 & 724 of 2006
The advocate commissioner's report, sketch and plan were marked as court
exhibits X1, X4 & X5. The surveyor's sketch was marked as court exhibit
X3. The learned trial munsif by Judgment and decree dated 17.02.2003
decreed Gandhimathi's suit and dismissed the appellant's suit. Questioning
the same, the appellant filed A.S.Nos.70 and 71 of 2003 before the Sub
Court, Trichirappalli. The First Appellate Court, by Judgment and decree
dated 01.12.2005, dismissed the appeals. Challenging the same, these two
second appeals have been filed.
2.S.A.(MD)No.723 of 2006 arises out of O.S.No.293 of 1997 filed by
Ganthimathi. S.A.(MD)No.724 of 2006 arises out of O.S.No.308 of 1997
filed by the appellant. The second appeals were admitted by framing the
following common substantial questions of law.
“1.Whether the courts below are right in relying upon Exs.A1,
A2, A4 and B4 which are irrelevant documents as per Sections 11 and
13 of Indian Evidence Act?
2.Whether the courts below are right in ignoring the
commissioner's report, wherein it is specifically stated that there is a
10 feet cart track on the immediate north of the first respondent's
property?
3.Whether the courts below are right in decreeing the suit of
the first respondent herein for mandatory injunction in respect of 5
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.723 & 724 of 2006
feet suit lane when there is specific finding by the commissioner, that
there is only a 3 feet vacant space on the southern extremity of the
appellant's property?
4.Whether the courts below are right in decreeing the suit of
the first respondent herein in respect of 5 feet common lane when
there is a specific findings by the Courts below that Exs.A1 and A2
do not speak about the existence of 5 feet common lane on the
southern extremity of the appellant's property?
5.Whether the courts below are right in relying upon Ex.B3,
when it has been specifically deposed by the second respondent
herein that there is no recital therein about the existence of 5 feet
common lane on the southern extremity of the appellant's property?
6.Whether the courts below are right in ignoring the admission
of the second respondent herein that there is 10 feet cart track on the
immediate north of her property and south of Ayyakannu's property?
7.Whether the trial Court is right in decreeing the suit of first
respondent in respect of the suit property on the basis of customary
rights, when the plaintiff has claimed common ownership rights in
respect of the suit property?”
Notice was issued to the contesting respondent and the respondent has also
entered appearance through counsel.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.723 & 724 of 2006
3.Before I take up the rival contentions for consideration, it is
necessary to make a brief reference to the antecedent facts:-
A piece of land measuring 66 cents of lands abutting Ariyalur to
Kallakkudi road belonged to three persons namely Ayyakkannu Udayar,
Chidambarathudayar and Karuppudayar. There was a partition of the
property among the three brothers. Ayyakkannu Udayar took 22 cents of
lands on the northern side, while Karuppudayar took 22 cents of lands on
the southern side. The middle portion of 22 cents was taken by
Chidambarathudayar. Chidambarathudayar had three sons namely
Gurusamy Udayar, Ponnusamy Udayar and Karuppudayar. There was a
partition among three sons of Chidambarathudayar. The partition among
the three sons was in equal shares. Gurusamy Udayar took the western
portion abutting Ariyalur to Kallakkudi Main Road. Karuppudayar took
eastern portion. Ponnusamy Udayar took the middle portion. Later,
Karuppudayar sold his share to Ponnusamy Udayar vide Ex.B3, dated
04.07.1967. From Ponnusamy Udayar and his son Pitchai who is
figuring as fourth defendant in O.S.No.293 of 1997 and first defendant in
O.S.No.308 of 1997, Ganthimathi the contesting respondent herein
purchased a portion on the eastern side vide Ex.A1, dated 18.08.1977.
She purchased another portion vide Ex.A2 dated 15.07.1982. Ex.A2 was
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.723 & 724 of 2006
executed by Pitchai Udayar. Put together, the total extent of land
purchased by Ganthimathi vide these two sale deeds would come to nine
cents of land. According to Ganthimathi, she could reach her house only
through the suit lane from Ariyalur to Kallakkudi Main Road. While so,
the appellant Pitchai obstructed the pathway by erecting stone pillars.
That necessitated filing of O.S.No.293 of 1997 seeking the relief of
permanent injunction. Ganthimathi had obtained an order of temporary
injunction initially and according to her, in defiance of the same, he had
put up construction. Therefore, the plaint had to be amended and prayer
for mandatory injunction also came to be later made during the pendency
of the suit. On the other hand, the case of Pitchai was that the suit
pathway is not really five feet wide but three feet wide. It is true that he
had permitted the defendant namely Pitchai S/o Ponnusamy Udayar and
Ganthimathi to use the pathway but that was by way of leave and licence.
In other words, Ganthimathi used the suit pathway only at the sufferance
of the appellant. Since such leave and licence had been explicitly
revoked, Gandhimathi as well as Pitchai S/o Ponnusamy Udayar no
longer enjoyed the right to use the pathway. Be that as it may, the Courts
below have concurrently found in favour of the contesting respondent
Ganthimathi and against the appellant. Questioning the same, these
second appeals have been filed.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.723 & 724 of 2006
4.The learned counsel appearing for the appellant Pitchai reiterated
all the contentions set out in the memorandum of grounds. She pointedly
contended that the Courts below have decreed the suit by rendering a
finding that only through the suit lane, Ganthimathi can reach her property.
In other words, according to the Courts below, Ganthimathi is entitled to
pathway rights over the suit lane by way of easement of necessity. The
appellant's counsel drew my attention to the pleadings of Gandhimathi in
this regard. Gandhimathi had, in paragraph No.5 of her plaint, claimed that
the suit lane is a common lane. In other words, Ganthimathi was seeking
to exercise her proprietary rights over the suit lane. That is her specific case.
The Courts below erred in granting relief by anchoring it on easement of
necessity. In this regard, the learned counsel placed reliance on the decision
of the Hon'ble Supreme Court in Civil Appeal Nos.5798-5799 of 2008
(Bachhaj Nadar Vs. Nilima Mandal and another), dated 23.09.2008.
Paragraph Nos.14 to 17 of the said decision read as under:-
14. Easements may relate to a right of way, a right to light and air, right
to draw water, right to support, right to have overhanging eaves, right of
drainage, right to a water course etc. Easements can be acquired by different
ways and are of different kinds, that is, easement by grant, easement of
necessity, easement by prescription, etc. A dominant owner seeking any
declaratory or injunctive relief relating to an easementary right shall have plead
and prove the nature of easement, manner of acquisition of the easementary
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.723 & 724 of 2006
right, and the manner of disturbance or obstruction to the easementary right.
The pleadings necessary to establish an easement by prescription, are different
from the pleadings and proof necessary for easement of necessity or easement
by grant. In regard to an easement by prescription, the plaintiff is required to
plead and prove that he was in peaceful, open and uninterrupted enjoyment of
the right for a period of twenty years (ending within two years next before the
institution of the suit). He should also plead and prove that the right claimed
was enjoyed independent of any agreement with the owner of the property over
which the right is claimed, as any user with the express permission of the owner
will be a licence and not an easement. For claiming an easement of necessity,
the plaintiff has to plead that his dominant tenement and defendant's servient
tenement originally constituted a single tenement and the ownership thereof
vested in the same person and that there has been a severance of such
ownership and that without the easementary right claimed, the dominant
tenement cannot be used. We may also note that the pleadings necessary for
establishing a right of passage is different from a right of drainage or right to
support of a roof or right to water course. We have referred to these aspects
only to show that a court cannot assume or infer a case of easementary right, by
referring to a stray sentence here and a stray sentence there in the pleading or
evidence.
15. A right of easement can be declared only when the servient owner is
a party to the suit. But nowhere in the plaint, the plaintiffs allege, and nowhere
in the judgment, the High Court holds, that the first or second defendant is the
owner of the suit property. While concluding that the plaintiffs were not the
owners of the suit property, the High Court has held that they have a better right
as compared to the first defendant and has also reserved liberty to the plaintiffs
to get their title established in a competent court. This means that the court did
not recognize the first defendant as the owner of the suit property. If the High
Court was of the view that defendants were not the owners of the suit property,
it could not have granted declaration of easementary right as no such relief
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.723 & 724 of 2006
could be granted unless the servient owner is impleaded as a defendant. It is
also ununderstandable as to how while declaring that plaintiffs have only an
easementary right over the suit property, the court can reserve a right to the
plaintiffs to establish their title thereto by a separate suit, when deciding a
second appeal arising from a suit by the plaintiffs for declaration of title. Nor is
it understandable how the High Court could hold that the apart from plaintiffs,
other persons living adjacent to and north of the suit property were entitled to
use the same as passage, when they are not parties, and when they have not
sought such a relief.
16. The observation of the High Court that when a plaintiff sets forth the
facts and makes a prayer for a particular relief in the suit, he is merely
suggesting what the relief should be, and that it is for the court, as a matter of
law, to decide upon the relief that should be granted, is not sound. Such an
observation may be appropriate with reference to a writ proceeding. It may even
be appropriate in a civil suit while proposing to grant as relief, a lesser or
smaller version of what is claimed. But the said observation is misconceived if
it is meant to hold that a civil court may grant any relief it deems fit, ignoring
the prayer. It is fundamental that in a civil suit, relief to be granted can be only
with reference to the prayers made in the pleadings. That apart, in civil suits,
grant of relief is circumscribed by various factors like court fee, limitation,
parties to the suits, as also grounds barring relief, like res judicata, estoppel,
acquiescence, non-joinder of causes of action or parties etc., which require
pleading and proof. Therefore, it would be hazardous to hold that in a civil suit
whatever be the relief that is prayed, the court can on examination of facts grant
any relief as it thinks fit. In a suit for recovery of Rs.one lakh, the court cannot
grant a decree for Rs. Ten lakhs. In a suit for recovery of possession of property
`A', court cannot grant possession of property `B'. In a suit praying for
permanent injunction, court grant a relief of declaration or possession. The
jurisdiction to grant relief in a civil suit necessarily depends on the pleadings,
prayer, court fee paid, evidence let in, etc.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.723 & 724 of 2006
17. In the absence of a claim by plaintiffs based on an easementary right,
the first defendant did not have an opportunity to demonstrate that the plaintiffs
had no easementary right. In the absence of pleadings and an opportunity to the
first defendant to deny such claim, the High Court could not have converted a
suit for title into a suit for enforcement of an easementary right. The first
appellate court had recorded a finding of fact that plaintiffs had not made out
title. The High Court in second appeal did not disturb the said finding. As no
question of law arose for consideration, the High Court ought to have dismissed
the second appeal. Even if the High Court felt that a case for easement was
made out, at best liberty could have been reserved to the plaintiffs to file a
separate suit for easement. But the High court could not, in a second appeal,
while rejecting the plea of the plaintiffs that they were owners of the suit
property, grant the relief of injunction in regard to an easementary right by
assuming that they had an easementary right to use the schedule property as a
passage.”
5.According to the learned counsel for the appellant, the ratio laid
down in the aforesaid decision of the Hon'ble Supreme Court squarely
applies to the case on hand. She would further point out that both in Ex.A1
as well as Ex.A2 which are the title deeds of Ganthimathi, there is no
reference to the so called five feet lane. She also would point out that in
Ex.B3 executed by Karuppudayar in favour of Ponnnusamy Udayar, there
is again no reference to the alleged lane. On the other hand, to the north of
Ganthimathi's property, there is a ten feet wide cart track which has been
specifically referred to by the advocate commissioner in his report.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.723 & 724 of 2006
The contention of the appellant's counsel is that these material aspects have
been totally lost sight by the Courts below. She therefore wanted this Court
to reverse the impugned Judgment and answer the substantial questions of
law in favour of the appellant and allow these second appeals.
6.Per contra, the learned counsel appearing for the respondent
submitted that the impugned Judgments do not call for any interference and
wanted me to sustain the same and dismiss these second appeals.
7.I carefully considered the rival contentions and went through the
evidence on record. I have already noted that the larger extent of land
measuring 66 cents belonged to three brothers namely Ayyakkannu Udayar,
Chidambarathudayar and Karuppudayar. The partition among three
brothers appears to have been oral. There is no dispute that the share
allotted to Chidambarathudayar was sandwiched between the lands of
Ayyakkanu Udayar and Karuppudayar. Chidambarathudayar had three
sons, namely, Gurusamy Udayar, Ponnusamy Udayar and Karuppudayar.
The appellant's father is Gurusamy Udayar. The partition among three sons
of Chidambarathudayar again was oral. It is also not known as to when the
said partition had taken place. Gurusamy Udayar/father of the appellant
had taken the portion contiguous to Ariyalur to Kallakkudi Main Road.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.723 & 724 of 2006
Ponnusamy Udayar took the middle portion, while Karuppudayar took the
eastern portion. Ponnusamy Udayar had purchased the Karuppuudayar's
property in the year 1967 vide Ex.B3. It is not in dispute that Ponnusamy
Udayar as well as the appellant had put up construction. Originally, they
were tiled houses. The doors of both the houses opened on the southern
side. In other words, the doors of both the houses were facing the suit lane.
The appellant does not deny that the suit lane was used as pathway both by
Ponnusamy branch as well as Gandhimathi. His only claim is that it was by
virtue of his leave and licence and not by way of any easementary right.
8.However, as rightly pointed out by the learned counsel appearing
for the respondents, the appellant, who examined himself as D.W.1, in his
cross-examination, had admitted that the land lying to the north of his
property as well as Ganthimathi's property belonged to Ayyakkannu Udayar.
He also admitted that on Ayyakkannu Udayar's property, none from the
Chidambarathudayar's branch will have any right. It may be that
Ayyakkannu Udayar had left ten feet wide pathway, which, Ganthimathi or
even Pitchai Udayar S/o Ponnusamy Udaiyar are using. As rightly found by
the First Appellate Court, Ganthimathi has no right whatsoever on the piece
of land lying to the north of her house. Now the question is as to how
Ganthimathi can access her property. If even according to the appellant,
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.723 & 724 of 2006
Chidambarathudayar's branch will not have any right over the piece of land
lying to the north of their share, then Ganthimathi as well as Ponnusamy
branch can reach their respective houses only through the suit pathway and
there is no other way. That is the categorical finding of the Courts below.
9.In the cross-examination of the appellant by the fourth defendant
namely Pitchai S/o Ponnusamy Udayar, the appellant had admitted that the
fourth defendant can go through the suit pathway. As rightly contended by
the learned counsel appearing for the respondent, Section 13(e) of
Easements Act, 1882 will come into play. The said provision reads that
where a partition is made of the joint property of several persons, if an
easement over the share of one of them is necessary for enjoying the share
of another of them, the latter shall be entitled to such easement. This
benefit or right would pass on the transferee also.
10.Now the core contention raised by the learned counsel appearing
for the appellant will have to be answered. The appellant would point that
if a proprietary right had been originally claimed by the plaintiff, then, the
Court has to either uphold the same or reject the same. The Court will not
be justified in giving relief anchored on the premise of an easementary
right. In support of the said contention, the learned counsel appearing for
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.723 & 724 of 2006
the appellant placed reliance on the decision in Bachhaj Nahar Vs. Nilima
Mandal and another. The proposition advanced by the learned counsel for
the appellant is beyond cavil. Now what has to be seen is the nature of
pleading putforth by Gandhimathi. In Paragraph No.5 of her plaint,
Ganthimathi though employed the expression 'common lane', actually
means that only through the said lane, it is possible to reach Ponnusamy
Udayar's portion. In Paragraph No.6 of the plaint, it has been specifically
pleaded that there is no pathway to reach the plaintiff's house, except the
suit lane.
11.From this, one can safely come to the conclusion that Ganthimathi
was asserting only easementary right over the suit lane and she was not
claiming any proprietary right. The Courts below, after an elaborate
consideration of the oral as well as the documentary evidence, have found
that even though there is a 10 feet wide cart track to the north of
Ganthimathi's house, she has no right whatsoever over the same and that, it
is through the suit lane, she can access her property. In Exs.A1 & A2-sale
deeds executed in favour of Ganthimathi, it is stated that conveyance
includes all the attendant pathway rights of the vendor. Ganthimathi claims
right through the two sale deeds. While the first sale deed was executed by
Ponnusamy Udayar as well as his son Pitchai, the second sale deed was
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.723 & 724 of 2006
executed by the son namely Pitchai alone. Since Ganthimathi claims right
only through the very same Chidambarathu Udayar's property, Section 13(e)
of the Indian Easement Right, 1882, will squarely come into play.
12. However, I must note that the exact dimensions of the suit
pathway are not quite clear. The report of the advocate commissioner
mentions that the suit pathway is three feet wide. However, the Courts
below have given a finding that Ganthimathi is entitled to the relief of
injunction in respect of the five feet wide lane. The advocate commissioner
had categorically found that the suit lane does not measure five feet in
width throughout. The said fact has not been dislodged. Therefore, the
third substantial question of law is answered in favour of the appellant.
Exs.A1, A2, A4 and B4 cannot be said to be irrelevant documents. Exs.A1
and A2 are the title documents of Ganthimathi and therefore, the Courts
below rightly relied on them. The first substantial question of law is
answered against the appellant.
13.The Courts below have not ignored the advocate commissioner's
report. The Courts below had specifically taken note of the fact that there is
a ten feet cart track on the immediate north of the Ganthimathi's property.
Finding has been given that Ganthimathi has no right whatsoever over the
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.723 & 724 of 2006
ten feet wide cart track. Therefore, it is not correct to contend that the
Courts below have ignored this part of the commissioner's report. The
second substantial question of law is answered against the appellant.
14. Even though in Exs.A1 and A2 as well as Ex.B3, the dimensions
or presence of the suit lane may not have been mentioned, since the
antecedent partitions were oral in nature, the Courts below were justified in
taking into account the overall facts and circumstances to come to the
conclusion about the existence of the suit lane. In fact, the appellant
himself had admitted the existence of the suit lane. The controversy is more
regarding right and width. While the advocate commissioner's report stated
that it is three feet wide at some places, the respondent's counsel stated that
it is five feet wide. Again the appellant would state that others have no
right whatsoever. Except these controversies, the existence of the lane as
such cannot be in dispute. This is more so because, all the three houses are
having doors opening on the southern side. Question Nos.4, 5, 6 & 7 are
also answered against the appellant.
15. Since I have found that the third substantial questions of law is in
favour of the appellant, the decree passed by the Courts below is modified
and injunction granted in favour of the Gandhimathi is confirmed by
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.723 & 724 of 2006
holding that the suit lane is not five feet wide but as set out in the report of
the Advocate Commissioner. S.A.(MD)No.723 of 2006 is partly allowed.
S.A.(MD)No.724 of 2006 is dismissed. I make it clear that the right of
Ganthimathi is by way of easement of necessity and she is not having any
proprietary right over the suit lane. No costs. Consequently, connected
miscellaneous petitions are closed.
17.04.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The District Munsif Court cum Judicial Magistrate, Lalugudi.
2.The First Additional Subordinate Judge, Thiruchirapalli.
3.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.723 & 724 of 2006
G.R.SWAMINATHAN, J.
rmi
Judgment made in
S.A.(MD)Nos.723 & 724 of 2006
and
C.M.P.(MD)Nos.1 & 1 of 2006
17.04.2021
https://www.mhc.tn.gov.in/judis/
