Madras High Court
Natesa Udayar ...1St ... vs Sundaram (Deceased) ... on 19 July, 2021
S.A.No.594 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.07.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.594 2009
and
M.P.No.1 of 2009
Natesa Udayar ...1st defendant/1st respondent
/Appellant
Vs.
1.Sundaram (deceased) ...Plaintiff/Appellant/Respondent
2.Ayyadurai ...2nd defendant/2nd respondent
/Respondent
(2nd respondent remained ex parte in the Courts below and hence
notice is dispensed with)
3.S.Saradambal
4.Jothi
5.Tamilmani
6.Thangam
7.S.Sakthinatham ...Respondents
(R3 to R7 brought on record as legal representatives of the deceased
1st respondent vide order of Court dated 06.07.2015 made in
M.P.Nos.1 to 3 of 2014 in S.A.No.594 of 2009 by PSNJ)
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1/13
S.A.No.594 of 2009
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree of the learned
Subordinate Judge, Perambalur in A.S.No.19 of 2008 dated
29.12.2008 reversing the Judgment and Decree of the learned
District Munsif, Perambalur in O.S.No.840 of 1995 dated
27.11.2002.
For Appellant : Mr.A.K. Kumaraswamy
Senior Counsel
for Mr.Kaithamalaikumaran
For Respondents : Ms.Jothivani
for R3 to R7 – No appearance
R1 – died
R2 - ex parte
JUDGMENT
The 1st defendant is the appellant before this Court
challenging the Judgment and Decree in A.S.No.10 of 2008 on the
file of the learned Subordinate Judge, Perambalur in and by which
the learned Judge has reversed the Judgment and Decree of the
learned District Munsif, Perambalur in O.S.No.840 of 1995. The
parties for the ease of understanding are referred to in the same
array as in the suit.
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S.A.No.594 of 2009
2.The plaintiff herein had filed a suit O.S.No.840 of 1995 for
a declaration of his easementary right to take cattle through the suit
property and for a consequential relief of permanent injunction from
restraining the user of the suit property.
3.It is the case of the plaintiff that he, his elder brother
Shanmugham and their father Panchanathi Asari owned property in
S.No.171/2. The elder brother of the plaintiff was allotted his house
in the North and the plaintiff was allotted the middle portion and the
father was allotted the land in the South. The property was West of
the North South lane and South of East West Street. West of the
plaintiff's and Panchanathi Asari's houses are vacant sites belonging
to them. This site was used by them for tethering cattles. Between
the houses of the plaintiff and his father there was an 5 human feet
wide East West Lane to reach the Western side belonging to the
plaintiff. Panchanathi Asari to whose share this land belonged had
permitted the plaintiff to use the same to reach his cattle shed.
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S.A.No.594 of 2009
4.After the death of Panchanathi Asari, the 2nd defendant who
is the son of Panchanathi Asari through his second wife was allotted
the said portion. Even after he had taken possession, the plaintiff
had been using the lane in question. On 27.04.1995, the 2nd
defendant sold the property to the 1st defendant who started
obstructing the use of the suit property. The plaintiff had claimed a
right to the pathway on the basis of the easement of grant,
prescription and necessity.
5.The 1st defendant had filed the Written Statement inter alia
contending that in the year 1955, there was a registered Partition
Deed between the parties in which the plaintiff was allotted the
middle portion, his brother Shanmugham in the Northern portion
and his father in Southern portion. Originally, there existed a small
pathway before the house of the plaintiff which under the Partition
Deed was allotted to the plaintiff's father. The plaintiff was not
given any pathway right over the same. Thereafter, the plaintiff and
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S.A.No.594 of 2009
his father had demolished their respective thatched houses and by
consent constructed a terraced and tiled building keeping a common
wall. Thereby, the usage of the lane in between the house of the
plaintiff and his father had come to an end.
6.It was also their case that on the Southern side of the
plaintiff's father house, there was a lane over which the plaintiff had
no right. Similarly, he has no right over the vacant site on the
Western portion of his father's property which was allotted to his
father.
7.The 1st defendant would submit that the plaintiff has an
access to his backyard from his Street through his house and that he
has not prescribed title to the suit property. The right to use the
vacant space on the West was not granted to the plaintiff.
Therefore, he sought for dismissal of the suit.
8.The learned District Munsif, Perambalur by Judgment and
Decree dated 27.11.2002 was pleased to dismiss the suit.
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S.A.No.594 of 2009
Challenging the same, the plaintiff had filed A.S.No.10 of 2008 on
the file of the learned Subordinate Judge, Perambalur. The learned
Subordinate Judge by her Judgment and Decree dated 29.12.2008
was pleased to allow the appeal and reversed the Judgment and
Decree of the trial Court. Challenging the same, the 1st defendant is
before this Court.
9.The Second Appeal has been admitted on the following
Substantial Question of Law on 30.06.2009:
“Whether the Lower Appellate Court is
justified in decreeing the suit when the plaintiff
has proved the user of the suit pathway for 15
years alone?”
10.Mr.A.K. Kumaraswamy, learned Senior Counsel appearing
for the 1st defendant would submit that the right is claimed only
under the Partition Deed which has been marked as Ex.B1. The
plaintiff who has come to Court seeking the relief of declaration and
injunction had not produced a shred of evidence except for a Sketch.
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S.A.No.594 of 2009
He would submit that the plaintiff has not referred to the partition
entered into between him, his brother and his father in his pleadings.
He would submit that the trial Court had rightly dismissed the suit.
He would draw the attention of this Court to the evidence of the
plaintiff as P.W.1 wherein he has clearly and categorically admitted
in his cross examination that the suit property / suit lane which is
lying between their houses belongs to his father under Ex.B.1 –
Partition Deed. He would further admit that both the plaintiff and
his father had constructed a house retaining common wall to both
the properties. He would also admit that Ex.B.1 – Partition Deed
was executed and there was bad blood between him, his father and
his brother. He would further submit that the evidence of P.W.2
who has been examined to support the case of the plaintiff cannot be
relied upon since the witness had come to the suit Village only two
years back and his evidence cannot be relied upon.
11.The learned Senior Counsel would draw my attention to
the Ex.B.1 - Partition Deed and to the schedules thereunder and a
perusal of the same would clearly indicate that there was no right of
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S.A.No.594 of 2009
way given to the plaintiff on the Western side of the plaintiff's
father's property. The learned Senior Counsel would submit that the
Appellate Court has totally failed to appreciate that the plaintiff who
has claimed an easement of grant, necessity and prescription raised
contradictory claims. The claim of an easement of grant has not
been proved on a further perusal of Ex.B.1 – Partition Deed, it is
clearly seen that the plaintiff does not have any right to any portion
on the West of his father's property. Further, the plaintiff has not
been able to prove the continuous usage of the suit pathway for over
20 years. Even the witness examined on the side of the plaintiff
would only state that the use is for a period of 15 years even that has
not been proved by the plaintiff. Therefore, the easement of
prescription does not arise. Lastly, the easement of necessity also
does not arise. The plaintiff's property is abutting the road on the
South therefore there is a demarcated access to the plaintiff's
property. Even without any iota of evidence in support of the
plaintiff, the Appellate Court had erroneously reversed the
Judgment and Decree of the trial Court.
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S.A.No.594 of 2009
12.Per contra, Ms.Jothivani, learned counsel appearing for the
plaintiff would contend that the plaintiff has been using this suit
pathway even after the partition in the year 1955 and it is only after
the 1st defendant had purchased the property from the 2nd defendant
that the problem had started. She would submit that the plaintif's
father and after him, the 2nd defendant has not objected to the
plaintiff using the same. Therefore, she would plead that the
plaintiff had prescribed a right to the suit lane. She would draw the
attention of this Court to the evidence of D.W.2 who has himself
admitted to this fact and which has been taken note of by the Lower
Appellate Court. She would therefore submit that the Judgment of
the Appellate Court need not be disturbed.
13.Heard the learned counsels on either side and perused the
records.
14.The case of the plaintiff is that the suit lane was being used
with the consent of her father and thereafter, the 2nd defendant, his
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S.A.No.594 of 2009
half brother. However, a perusal of Ex.B.1 which was the Partition
Deed entered into in the year 1955 clearly shows that the suit lane
has not been so described and that apart, that portion has fallen to
the share of the plaintiff's father from whom the 2nd defendant had
inherited the property. The plaintiff has not let in any evidence to
show the continuous usage of the lane for over 20 years for having
prescribed a right of easement over the suit lane.
15.That apart, it is the admitted case of the parties that the
properties had undergone a change with the thatched house giving
way to the terraced/tiled house in the properties of both the plaintiff
as well as the property of his father, which now belongs to the 1st
defendant. Even when the properties had undergone a change there
was no written Agreement between the parties permitting the use of
the suit lane by the plaintiff. Admittedly, the plaintiff's property is
situate abutting the road and therefore, there is an access already
available to the plaintiff. The trial Court has considered the
evidence of DW2, the half brother of the plaintiff and the vendor of
the 1st defendant, who has stated in no uncertain terms that the
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S.A.No.594 of 2009
plaintiff was not using the suit pathway for taking his cattle and on
the contrary, has deposed that he has been taking them only through
his house and this procedure has been continuing by him over 15
years. The plaintiff has only one witness on his side, PW2. Even
this witness's evidence cannot be considered since he has come to
the suit Village only two years ago. He is not competent to speak
about the use of the suit property by the plaintiff. The Appellate
Court has totally overlooked the fact and except for the oral
evidence of the plaintiff, he has not been able to independently
prove the usage of the suit property by him. The only document
that has been produced on the side of the plaintiff is a Sketch. The
Appellate Court has also overlooked the admission of the plaintiff
that the suit property has been allotted to his father under Ex.B.1
-Partition Deed. In fact, the Plaint is totally silent about the
Partition Deed entered into between the plaintiff, his father and his
brother. The Appellate Court has proceeded to reverse the
Judgment of the trial Court primarily looking at the Commissioner's
Plan which show the existence of the vacant site on the Western
side of the 1st defendant's property. The Lower Appellate Court has
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S.A.No.594 of 2009
not taken into consideration the Partition Deed which is the
document under which the parties claimed their rights to their
respective shares.
In view of the above, the Substantial Question of Law is
answered in favour of the 1st defendant and the Second Appeal is
allowed. The Judgment and Decree of the learned Subordinate
Judge, Perambalur in A.S.No.10 of 2008 is set aside and the
Judgment and Decree of the learned District Munsif, Perambalur, in
O.S.No.840 of 1995 is confirmed. There shall be no order as to
costs. Consequently, connected Miscellaneous Petition is closed.
19.07.2021
Index : Yes/No
Internet : Yes/No
mps
To
1.The Subordinate Judge,
Perambalur.
2.District Munsif,
Perambalur.
https://www.mhc.tn.gov.in/judis/
S.A.No.594 of 2009
P.T. ASHA, J,
mps
S.A.No.594 2009
and
M.P.No.1 of 2009
19.07.2021
https://www.mhc.tn.gov.in/judis/
