Madras High Court
Peter Prem Kumar David vs Jagabar Sadhique .. Plaintiff / on 5 April, 2022
SA.No.220/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
SA.No.220/2022
1.Peter Prem Kumar David
2.Saly Grace Peter .. Defendants / Appellants /
Appellants
Vs.
Jagabar Sadhique .. Plaintiff / Respondent /
Respondent
Prayer:- Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree dated 19.03.2021 passed by the
learned Principal Sub Judge, Puducherry in A.S.No.19/2020 confirming the
judgment and decree dated 29.03.2017 passed by the learned I Additional
District Munsif, Puducherry in O.S.No.277/2007.
For Appellants : Mr.R.Thiagarajan
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JUDGMENT
(1) The defendants in the suit in O.S.No.277 of 2007 on the file of I
Additional District Munsif Court, Puducherry, are the appellants in
the above appeal.
(2) The respondent herein, as plaintiff, filed the suit in O.S.No.277 of
2007 for declaration of easement right in respect of suit 'B' schedule
property for egress and ingress to the plaint 'A' schedule property.
The suit 'B' schedule property is described as east west pathway to
the south of suit 'A' schedule property which is the property of the
plaintiff. It is the case of the plaintiff that he is having right over suit
'B' schedule property (common pathway). It is not in dispute that the
plaintiff is the owner of the suit 'A' schedule property. Stating that
the defendants have no right to prevent the plaintiff from using the
common pathway, it is contended by the respondent that he was
constrained to file a suit. From the plaint, it is seen that the suit 'B'
schedule property is claimed as a common pathway and that the
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right was acquired by the plaintiff along with the suit 'A' schedule
purchased by him. The claim of the plaintiff is that the suit property
is a common passage which cannot be obstructed by the defendants.
(3) It is admitted by the defendants that the suit 'A' schedule property
was purchased by the plaintiff under a Sale Deed dated 06.08.2003
from one Ramachandran S/o.Narayanasamy Padayatchi. It is stated
that the predecessor in interest of the plaintiff has not acquired the
right over the common passage and therefore, according to the
defendants there is no common passage or pathway as described in
the suit 'B' schedule property. It is also admitted by the defendants
that the defendant had purchased the suit 'B' schedule property for a
valid consideration by virtue of a registered Sale Deed dated
09.01.2004 from one Ramachandran S/o.Narayanasamy Padayatchi
from whom the plaintiff also purchased the suit 'A' schedule
property.
(4) Though the written statement refers to the different transactions by
which the defendants got title to the adjacent property including suit
'B' schedule, it is seen that the defendants had purchased the suit 'B'
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schedule property from the plaintiff 's vendor. It is also stated that
the plaintiff had acquired subsequently a property which lies
between the property of the plaintiff and the road and that therefore
the suit property is not required by the plaintiff who have access to
the main road.
(5) The Trial Court after framing necessary issues held that the plaintiff
has established his right of easement by grant referring to the Sale
Deed under Ex.A1. After referring to the boundary description of the
document Ex.A1, the Trial Court held that the property conveyed to
the plaintiff namely the suit 'A' schedule was the dominant tenement
and that passage right over the suit 'B' schedule was given to the
plaintiff by his vendor for the convenient enjoyment of 'A' schedule
property by the plaintiff. Therefore, the suit was decreed declaring
the plaintiff easement right and by granting permanent injunction.
The Trial Court also found that the plaintiff 's claim for right of
easement by grant cannot be denied, merely because there is an
alternative pathway. Aggrieved by the judgment and decree of the
Trial Court, the appellants preferred an appeal in A.S.No.19/2020
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before the Principal Sub Court, Puducherry.
(6) The Lower Appellate Court also came to the same conclusion that
the suit 'B' schedule property is a common pathway even though the
suit 'B' schedule property was purchased by the defendants along
with other properties. The Lower Appellate Court further held that
the plaintiff having regard to the recitals in the document under
Ex.A1 and evidence is entitled to get a declaration of his right of
easement by grant and consequential injunction. With regard to the
availability of alternative pathway, the Lower Appellate Court has
found that the alternative pathway is not convenient as there is
construction of a shop which is in RS.No.197/1 and that the property
cannot be used a pathway for regular egress and ingress to reach the
plaintiff property in 'A' schedule.
(7) As against the concurrent judgments and decrees of the Courts below
the above Second Appeal is preferred by the appellants/defendants.
The appellants have raised following substantial questions of law in
the Memorandum of Grounds of Second Appeal.
1. Whether the plaintiff entitled to Easement of
necessity under Section 13 of the The Indian
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Easement Act, 1882 when the plaintiff has
alternative pathway/access from the main road to
reach suit A schedule property?
2. Whether findings of the Courts below was right
in holding that the plaintiff has prove the
ingredients of the legal provisions under Section 13
of the Easements Act for claiming Easement of
necessity?
3. Whether the judgment and decree of the Courts
below is bad in law since it was based on
misreading of material documentary evidence and
also oral evidence in concluding that Suit B
Schedule property is the only access to reach the
suit A Schedule property?
4. Whether the suit for easements of necessity is
maintainable when admittedly the plaintiff has
alternate pathway?
5. Whether there is perversity in the appreciation
of the evidence of the Court below when the plaintiff
has alternate pathway despite pleaded easement of
necessity under Section 13 of the Easements Act,
1882 in the plaint?
(8) From the pleading and evidences, it is evident that the property
described under 'A' schedule was acquired by the respondent along
with his right over the 'B' schedule property under Ex.A1. It is
evident from the document that the plaintiff 's vendor purchased the
property both described as 'A' and 'B' schedule properties under
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different documents and the property in 'B' schedule was acquired
and conveyed by the plaintiff 's vendor to be used as a common
pathway leading to plaintiff 's property in RS.No.197/10 and
RS.No.197/4. When the suit 'A' schedule property in RS.No.197/4
was sold in favour of the plaintiff the plaintiff/respondent could
reach the property only through, 'B' schedule property. The pleading
reveals that the plaintiff/respondent's claim for declaration of
easmentary right by grant and such a right cannot be denied to the
plaintiff/respondent, merely because the defendant/appellant have
later purchased the property through which the plaintiff/respondent
may have access. Even the properties subsequently purchased refers
to the existence of the building and the Lower Appellate Court has
rightly pointed out that the said property cannot used to have access
to the plaintiff in his property in 'A' schedule from the main road.
The law is settled, that an easement by grant cannot be lost merely
because the person claiming the right of easement by grant has an
alternative pathway. In view of the specific findings of the Courts
below, the other questions of law raised by the appellants have no
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substance.
(9) In the result, the Second Appeal is devoid of merits and hence,
dismissed.
05.04.2022
cda
Internet : Yes
S.S.SUNDAR, J.,
cda
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SA.No.220/2022
To
1.The Principal Sub Judge, Puducherry.
2.The Additional District Munsif, Puducherry.
3.The Section Officer, VR Records,
High Court, Chennai.
SA.No.220/2022
05.04.2022
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