Madras High Court

Ramasamy vs Sellaperumal on 24 June, 2021

                                                                                   S.A.No.474 of 2021




                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                  Dated : 24.06.2021
                                                        Coram
                                    THE HONOURABLE MR. JUSTICE M.SUNDAR
                                                S.A.No.474 of 2021
                                                        &
                                               C.M.P.No.9076 of 2021

                  Ramasamy                                                  .. Appellant

                                                           Vs.

                  Sellaperumal                                              .. Respondent

                            Second Appeal filed under Section 100 of the Code of Civil Procedure,
                  1908 to set aside the judgment and decree in A.S.No.55 of 2019 on the file of
                  the 3rd Additional District and Sessions Court, Cuddalore at Virudhachalam
                  dated 07.01.2021 in confirming the judgment and decree in O.S.No.428 of
                  2008 on the file of the 2nd Addl. District Munsif Court, Virudhachalam dated
                  22.02.2017 .

                            For Appellant           :     Mr.G.Surya Narayanan

                                                    JUDGMENT

Lis out of which captioned second appeal arises is now more than 12

years old (suit having been filed in the Court of first instance on 08.09.2008

by the appellant before this Court) and in less than three months from now

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age of the lis will be 13.

2. Plaintiff, who has succeeded in getting a decree qua all three limbs

of plaint prayer except a small strip of land admeasuring less than 39 square

meters in one limb of plaint prayer, is the appellant in the captioned second

appeal. Lone 'appellant' and sole 'respondent' in the captioned second appeal

shall hereinafter be referred to as 'plaintiff' and 'defendant' in this judgment

(for the sake of convenience). As already mentioned supra, plaintiff filed a

suit i.e., O.S.No.428 of 2008 on the file of 'II Additional District Munsif's

Court, Virudhachalam' (hereinafter 'trial Court' for the sake of convenience)

on 08.09.2008 with three limbs of prayer. The first limb is regarding

declaration of title qua immovable property, the second limb is regarding

removal of encroachment made by the defendant and the third limb is

regarding permanent injunction qua possession of plaintiff's immovable

property. Though obvious, for the sake of completion of facts, it is necessary

to set out here that the usual residuary limb of prayer and one limb of prayer

for costs also form part of the plaint prayer.

3. Defendant entered appearance, filed a written statement followed by

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an additional written statement which was met with a reply statement by the

plaintiff. This completed the pleadings in trial Court, issues were framed by

the trial Court and parties went to trial on the issues. Suffice to say that the

predecessor-in-title for the plaintiff and defendant are common and the issue

arises largely in this aspect of the matter.

4. This Court is informed that first defendant, who suffered a decree in

the trial Court (except a strip of land / track admeasuring less than 39 sq mts

in all), which was confirmed by the first Appellate Court, has accepted the

decree of the trial Court and the defendant did not file first appeal. The

plaintiff filed a regular first appeal {Section 96 of 'The Code of Civil

Procedure, 1908' which shall hereinafter be referred to as 'CPC'} vide

A.S.No.55 of 2019 on the file of 'III Additional District and Session's Court,

Cuddalore at Virudhachalam' (hereinafter 'first Appellate Court' for the sake

of convenience), which (after full contest) confirmed the judgment and

decree of the trial Court and the captioned second appeal is only with regard

to a minuscule part of land admeasuring under 39 square meters or

thereabouts as already alluded to supra. Therefore, this Court deems it

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appropriate to restrict the discussion and dispositive reasoning in this

judgment to that minuscule portion of land admeasuring under 39 square

meters or thereabouts so as to avoid this judgment becoming verbose.

5. Before proceeding further it is necessary to record that the first

Appellate Court in its judgment and decree has mentioned that the appeal has

been partly allowed, but has actually confirmed the judgment and decree of

the trial Court. This Court is informed that this is an inadvertent error. This

submission is recorded. Therefore, this Court proceeds on the basis that the

first Appellate Court, on an appeal by the plaintiff, has after full contest

confirmed the judgment and decree of the trial Court.

6. As the entire matter pertains to a minuscule part of the prayer, which

was negatived and a small strip of land i.e., a track admeasuring under 39

square meters or thereabouts to which this discussion is going to be

restricted, it is deemed appropriate to scan and reproduce the commissioner's

sketch which is not disputed before this Court. The same is as follows:

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7.The small strip of land i.e., track which we are concerned with is B G A H.

Plaintiff's property has been shown as A and B . Declaration of title except B G

A H, which shall hereinafter be referred to as 'said strip of land' was granted,

permanent injunction qua possession (except said strip of land) was also granted.

These are limbs 1 and 3. Regarding the second limb for removal of encroachment,

encroached portion, being E F I or in other words C marked portion, mandatory

injunction prayer has been acceded to in its entirety and a decree has been granted.

8. Though there is a mass of oral and documentary evidence before the trial

Court, which has been examined by the first Appellate Court also (three witnesses

i.e., PW1 to PW3 on the side of plaintiff, the plaintiff examining himself as PW2;

two witnesses on the side of the defendant i.e., DW1 and DW2, the defendant

examining himself as DW1, 8 exhibits on the side of the plaintiffs i.e., Ex.A1 to A8

and 10 exhibits on the side of the defendants i.e., Exs.B1 to B10, two Court exhibits

i.e., Exs.C1 and C2 being sketch and surveyors sketch).

9. As already alluded to supra, discussion and dispositive reasoning in this

judgment will be restricted to the said strip of land. The primary contention of

Mr.G.Surya Narayanan, learned counsel for plaintiff (appellant before this second

appeal Court) is, pleading of the defendant in the trial Court is about access to a

river and not access to the public road and this access is also predicated on

easement of necessity. Learned counsel went on to submit that whenever there is a

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plea of easement of necessity, Sections 13, 14 and 21 of 'The Indian Easement Act ,

1882' (hereinafter 'Easement Act' for brevity and convenience) come into play and

going by Section 21 of Easement Act, more particularly illustration (a) thereat,

plaintiff cannot claim easementary right for access to some other land (river in this

case) which is not necessary for the beneficial enjoyment of the dominant heritage.

10. In this regard, learned counsel drew the attention of this Court to

Paragraphs 5 and 6 of the additional written statement of the plaintiff. In paragraph

5 there is a reference to access to the river.

11. This Court now proceeds to discuss the findings returned by the trial

Court and first Appellate Court in the light of arguments of plaintiff / appellant and

give its dispositive reasoning.

12. At the outset, this Court is unable to sustain the submission that

defendant has pleaded easement of necessity with regard to said strip of land qua

the river alone. The reason is, though paragraph 5 of the additional written

statement reads as follows:

                                   '5. nkw;go    37-7o    g[y      vz;zpy;     cs;s    ghijapid
                            kiwj;J thjp tHf;Fiuapy; Twpa[ss
                                                          ; ehd;F vy;iyfs;
                            jtwhFk;/            tHf;F      g[y       vz;zpy;     nkw;g[wk;       cs;s

,g;gpujpthjp cl;gl ,ju thjpfs; aht[k; g[y vz;/ 37-7o apy; cs;s ghijiana j';fsJ fpiua fhyk; Kjy;

nkw;go g[y vz;zpd; fPH;g[wk; cs;s Mw;Wf;F bry;Yk;

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ghijapid mila ghijahf gad;gLj;jp tUfpwhh;fs;/ nkw;go ghijapid jtpu gpujpthjp cl;gl midtUf;Fk;

ntW ghij ,y;iy/ nkw;go 37-7o apd; ghijahd ,g;gpujpthjp 1985 Mz;L fpiua fhyk; Kjy; mDnghfk;

                            bra;JtUtjhy;            nkw;go       37-7o      g[y   vz;        bghUj;J
                            mj;jpahtrpa ghij chpika[k;. rpj;jpj;Js;sJ/                         nkw;go
                            mk;r';fs;       kiwj;J           thjp     jtwhd          jg;g[       jhth
                            bra;Js;shh;/'
                                            (underlining made by this Court for ease of
                                                           reference).

Paragraph 7 of the same additional written statement reads as follows:

'7/,g;gpujpthjpf;F ghj;jpakhd g[y vz; 37-7gp apd;

                           Mizah;           mwpf;ifapy;         Twg;gl;Ls;s          Tiu           tPL
                           ,g;gpujpthjpapd;     fpiua        fhyj;jpy;    cldoahf        fl;lg;gl;L
                           mDnahfk; bra;ag;gl;L tUfpwJ/                     nkw;go tPl;od; Tiu
                           thuzkhdJ         nkw;go     tPL     fl;lg;gl;l    fhyk;    Kjy;       thjp
                           cl;gl         midtUf;Fk;            bjhpe;ne       btspg;gilahft[k;.
                           epuhl;nrgidahft[k;.          bjhlh;rr
                                                               ; pahft[k;         ,g;gpujpthjpahy;
                           mDnghfKk;          bra;J          tUtjhy;        mjid             bghUj;J

,g;gpujpthjpf;F mj;jpahtrpa trjpa[hpik rpj;jpj;Js;sJ/'

13. Further more, the burden of song qua pleadings in the written statement

is articulated in paragraph 5 thereat and relevant portion of paragraph 5 reads as

follows:

'5/ thjpa[k; ,t;btjph;thjp jdf;F ghj;jpaKk;

mDnghfKkhd fpua brhj;jpypUe;J fPH;g[wkhf brd;W

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ghijapid mile;J mDnghfk; bra;J tUtjid jil bra;a Kaw;rp bra;Jk;. gp bc&l;a{y;brhj;jpd;

                            fPH;g[wkhf ,t;btjph;thjpf;F ghj;jpakhd                   ,t;btjph;thjp
                            mDnghfj;jpy;           cs;s.         1      mo        mst[s;s         fhyp
                            kidapida[k;         thjp     Mf;fpukpg;g[     bra;a     Kaw;rp      bra;J

mjid ,t;btjph;thjp jLj;Jtpl;ljd; fhuzkhf thjp jtwhd tHf;FK:uj;Jld; jhth bra;Js;shh;///////////// '

14. A careful perusal of the undisputed sketch (scanned and reproduced

supra) brings to light that the said strip of land is obviously the only access for the

defendant to reach the road. In this regard, the submission of learned counsel for

plaintiff is, the defendant has lands lying on the western side of his house which

also goes upto the river on the eastern side and he can always reach the public road

through the river as the river is dry. In the considered view of this Court, this is

hardly an argument as it cannot be gainsaid that a river can be used as the access

track because it is dry and therefore easement of necessity plea stands neutralized.

It follows as a sequittur that the said strip of land is therefore the only access for

the defendant to reach the public road. This aspect of the matter has been dealt with

by the first Appellate Court and has captured the submissions which read as

follows:

'17......................mg;goapUf;Fk;nghJ. gpujpthjp jhth brhj;Jf;F fPH;g[wj;jpy; cs;s ghijia mila ntz;Lbkd;why; jhth brhj;jpd; tHpahfj;jhd;

                            bry;y     Koa[k;     mJ       kl;Lk;jhd;      xnu     tHp    ntw      tHp


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                                                                                               S.A.No.474 of 2021




                            vJt[k;            ,y;yhj             r{H;epiyapy;.           fw;wwpe;j
                            vjph;nky;KiwaPll
                                           ; hsh;          jug;g[     tHf;fwp"h;       jd;Dila
                            thjj;jpd;nghJ/               Mw;iwa[k;.           Mw;w';fiuiaa[k;
                            ghijahf gad;gLj;j                 mDkjpf;f        KoahJ           vd;Wk;.
                            Mjdhy;       jhth      brhj;Jf;F        bjd;g[wk;     cs;s        Mw;wpd;
                            tHpahf      gpujpthjp       jhth      brhj;Jf;F       fPH;g[wk;     cs;s
                            ghijia         mila         ntz;oa      mtrpak;      ,y;iy        vd;Wk;.
                            Jhth       brhj;jpy;        gpujpthjpf;F      tHpa[hpik           cs;sJ
                            vd;Wk;      thjpl;L.        jd;Dila        thjj;jpw;F        Mjuthf

Murugesa Moopanar Versus Sivagnana Mudaliar Second Appeal No.1632/1967 dated 16.08.1996 njjpa jPu;g;gi [ uia Rl;of;fhl;o thjpl;lhh;/ nkw;fz;l jPh;g;g[iuapYk; jhth brhj;jpd; xU gf;f rf;Fge;jp fhnthp Mw;w';fiuahf fhz;gpf;fg;gl;Ls;sJ/ mjpy; tHpa[upik cs;sJ vd;W brhy;tJ Vw;g[ilajy;y vd;W brhy;yg;gl;Ls;sJ//////// '

15. After capturing the submission, first Appellate Court Court has held as

follows:

'17......................mnjnghd;W Second Appeal No.824/2011 Jayabal Versus Chitra and others vd;w tHf;fpd; Kd;ndho jPh;g;gi [ uiaa[k; Rl;of;fhl;o Vhpf;fiuia ghijahf gad;gLj;j mDkjpf;f KoahJ vd;Wk;. mJ khw;Wghij vd;W jPh;khdpf;f ,ayhJ vd;Wk;

                             Rl;of;fhl;o        thjpl;lhh;/            nkw;fz;l          Kd;ndho
                             jPh;g;gi
                                    [ uapy;     gpujpthjpapDila          tHf;fpw;F       Mjuthf

Rl;of;fhl;o thjpl;l R{H;epiyapy; ,t;tHf;fpy; ePjpkd;w Mizah; jhf;fy; bra;j tiuglj;ij ftdkhf

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ghprPuid bra;a[k;nghJ bjd;g[wj;jpy; MW cs;sJ/....... '

16. This Court finds the approach of the trial Court and first Appellate Court

to be correct and not erroneous, much less perverse. Be that as it may, with regard

to the argument of the learned counsel for appellant predicated on Section 21 of

Easement Act and more particularly, illustration (a) thereat (which according to

learned counsel has to be read along with Section 13), a perusal of the sketch in the

light of the discussion thus far makes it clear that the defendant is actually not

claiming access to some other piece of land, but he is claiming access to land which

is subject matter of lis. This is more so as the argument that access is through the

river as the river is dry is hardly acceptable. In this regard, to buttress this

submission, public road on the eastern side to which the access is required is

described as 'Mwf;F nghFk; ghij'. Therefore, the river cannot be used as

access. This Court also noticed that the plaintiff has comprehensively succeeded in

both the Courts below as all the three limbs of the prayer of the plaintiff have been

acceded to and decrees have been made with the exception of a minuscule part i.e.,

said strip of land admeasuring under 39 square meters or thereabouts.

17. As the argument predicated on Section 21 of Easement Act and more

particularly, illustration (a) thereat has also been negatived in the discussion supra,

this Court has no hesitation in coming to the conclusion that no substantial question

of law arises in the captioned second appeal. In this regard, this Court reminds

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itself that the expression 'substantial question of law' occurring in Section 100 of

CPC has been elucidatively explained in a long line of authorities starting from Sir

Chunilal Mehta's case [Sir Chunilal V.Mehta and Sons Ltd., Vs. Century

Spinning and Manufacturing Co. Ltd., reported in AIR 1962 SC 1314] wherein

Hon'ble Constitution Bench of Supreme Court affirmed the view / principles laid

down by a Hon'ble Full Bench of this Court in Rimmalapudi Subba Rao's case

[Rimmalapudi Subba Rao Vs. Noony Veeraju And Others reported in AIR 1959

Madras 969]. This second appeal Court refrains itself from extracting and

reproducing relevant paragraphs from the said celebrated judgments to avoid this

judgment becoming unnecessarily lengthy and verbose. Suffice to say that this

elucidation of the expression 'substantial question of law' occurring in Section 100

CPC is the obtaining position as the same has been reiterated by Hon'ble Supreme

Court even as of 27.08.2020 in Nazir Mohamed case [Nazir Mohamed Vs.

J.Kamala reported in 2020 SCC OnLine SC 676]. In Nazir Ahmed case Hon'ble

Supreme Court has also gone on to hold that the paramount overall consideration is

the need for striking a judicious balance between the indispensable obligation to do

justice at all stages and impelling necessity of avoiding prolongation in the life of

any lis. Hon'ble Supreme Court has also held that this principle finds support from

an earlier judgment of Hon'ble Supreme Court in Santosh Hazari case being

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Santosh Hazari Vs. Purushottam Tiwari reported in (2001) 3 SCC 179.

Relevant paragraph in Nazir Mohamed case is paragraph 35 and the same reads

as follows:

'35. Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. This proposition finds support from Santosh Hazari Vs. Purushottam Tiwari.'.

18. In a recent judgment of the Hon'ble Supreme Court in Kirpa Ram

[Kirpa Ram Vs. Surendra Deo Gaur and others reported in 2020 SCC

Online SC 935], Hon'ble Supreme Court has held that a second appeal Court

can dismiss a second appeal at the admission stage without formulation of

substantial question/s of law when none arise/s in a case. Case on hand

being one such case i.e., a case where no substantial question of law arises,

this Court dismisses the captioned second appeal at the admission stage.

This Court refrains itself from extracting and reproducing the four questions

proposed as substantial questions of law in the memorandum of grounds of

second appeal as they essentially turn on Section 13, 14 and 21 of Easement

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Act, all of which have been discussed supra and dispositive reasoning has