Madras High Court
T.Ezhil ... 1St Defendant / vs N.Sasikumar on 6 April, 2022
S.A.(MD)No.840 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.840 of 2010
and
M.P.(MD)No.1 of 2010
T.Ezhil ... 1st Defendant / Appellant / 3rd Respondent / Appellant
-Vs-
1.N.Sasikumar
2.S.Nagappan
3.Retna Bai ... Plaintiffs & 2nd Defendant / Respondents 1 to 3/
Appellant & Respondents 1 & 2/ Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 08.04.2010 of the learned
Subordinate Judge, Padmanabhapuram made in A.S Nos.15 of 2009 & 66 of
2009 on his file confirming the judgment and decree dated 11.08.2008 of
the learned Principal District Munsif Court, Padmanabhapuram made in
O.S.No.293 of 2005 on his file.
For Appellant : Mr.K.N.Thampi
For R1 & R2 : Mr.M.Sreekumaran Nair
For R3 : No appearance
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S.A.(MD)No.840 of 2010
JUDGMENT
The first defendant in O.S.No.293 of 2005 on the file of the Principal
District Munsif Court, Padmanabhapuram is the appellant in this second
appeal.
2.The suit was filed by R1 & R2 herein for the relief of declaration
that they have easementary right of pathway over the suit property and for
consequential mandatory injunction to remove the encroachment committed
thereon and for permanent injunction. The defendants filed written
statement controverting the plaint averments. Based on the divergent
pleadings, the trial court framed the necessary issues. The first plaintiff
Sasikumar examined himself as P.W.1. One Srikumar was examined as
P.W.2. Ex.A1 to Ex.A8 were marked. The first defendant examined
himself as D.W.1. Two other witnesses were examined on the side of the
defendants. Ex.B1 to Ex.B5 were marked. An Advocate Commissioner was
appointed and his interim report, final report & plan were marked as Ex.C1
to Ex.C3. After considering the evidence on record, the trial court by
judgment and decree dated 11.08.2008 granted the relief of permanent
injunction and mandatory injunction. Aggrieved by the same, the first
defendant filed A.S.No.15 of 2009, while the second defendant filed
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S.A.(MD)No.840 of 2010
A.S.No.66 of 2009 before the Sub Court, Padamanabhapuram. By the
impugned judgment and decree dated 08.04.2010, the appeals were
dismissed and the decision of the trial court was confirmed. Challenging
the same, this second appeal came to be filed by the first defendant. The
second appeal was admitted on 13.02.2013 on the following substantial
questions of law:-
“1.Whether the judgment and decrees of the courts below
granting to the plaintiffs the reliefs of permanent injunction and
mandatory injunction based on alleged easementary right of pathway
are correct and sustainable, since the claim of the plaintiffs in the plaint
is based on pleadings of an alleged agreement for pathway and not on
any any easementary right to pathway?
2. Whether the judgments and decrees of the courts below are
correct and sustainable, since they have granted to the plaintiff's
consequential reliefs of permanent injunction and mandatory
injunction, while rejecting their main prayer for declaration?
3. Whether the judgments and decrees of the courts below based
on an alleged agreement, namely Ex.A1 are correct and sustainable,
when the said alleged agreement does not disclose any recipient of
consideration under it?
4. Whether the judgments and decrees of the courts below are
correct and sustainable in view of the lower appellate court's failure to
formulate and determine proper points for determination, as mentioned
by Order 41 Rule 31 of C.P.C ? ”
3.The learned counsel appearing for the appellant reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to answer the substantial questions of law in favour of the appellant
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S.A.(MD)No.840 of 2010
and set aside the impugned judgment and decree and dismiss the suit in
toto.
4.Per contra, the learned counsel appearing for the plaintiffs /
contesting respondents herein submitted that the impugned judgment and
decree do not call for any interference.
5.I carefully considered the rival contentions and went through the
evidence on record. The learned counsel appearing for the appellant
submitted that the plaintiffs sought the relief of declaration and
consequential reliefs of mandatory injunction and permanent injunction.
The courts below denied the relief of declaration. Therefore, the
consequential relief of injunction could not have been granted. He also
submitted that as per Section 15 of the Indian Easements Act, 1882, a
period of 20 years must lapse and only thereafter, the right of easement can
be claimed. In this case, even according to the plaintiffs, cause of action
arose in the year 1994. The suit came to be filed in the year 2005 itself.
The period of 20 years set out in Section 15 of the Indian Easements Act,
1882 is not met. He also submitted that as on date, the plaintiffs have yet
another route for accessing the main road. Therefore, the easement of
necessity also cannot be claimed. He would point out that the courts below
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S.A.(MD)No.840 of 2010
appear to have been swayed by the agreement, to which, the first defendant
is said to be a party. However, the said agreement dated 12.12.1994 is
bereft of any consideration. Therefore, it is void as per Section 25 of the
Indian Contract Act, 1872. He also would point out that after notice to the
parties, it was cancelled on 03.11.2003. The cancellation deed had been
marked as Ex.B2. In the light of these submissions, the learned counsel
wanted this Court to reverse the judgment and decree passed by the courts
below.
6.Let me take up the contentions in seriatim. It is true that the decree
passed by the trial court is silent as regards the relief of declaration. But
from the said silence, one should not infer that the declaratory relief sought
for by the plaintiffs was rejected. In fact, in Paragraph No.17 of the
judgment of the trial court, the trial court upheld the right of the plaintiffs
to use the suit pathway. The decree has not been drafted in consonance
with the judgment. Hence, it is not correct to state that the relief of
declaration sought for by the plaintiffs was negatived. After a careful
reading of the judgments of the courts below, I hold that the main prayer for
declaration was actually granted. I, therefore, answer the second substantial
question of law against the appellant.
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S.A.(MD)No.840 of 2010
7.Next comes the question whether the agreement dated 12.12.1994
marked as Ex.A1 is void. It is true that the said agreement does not talk of
any consideration. It is, however, a registered one. The parties to Ex.A1
are owners of contiguous pieces of land. Yesudhas owned the land
comprised in Survey No.709/21, Eraniel owned the land comprised in
Survey No.709/22 and Francis owned the land comprised in Survey No.
709/16. Since they wanted to have goodwill among each other, the suit
pathway was carved out. Based on the said agreement, Francis had dealt
with the property owned by him. Francis sold a piece of land to the first
plaintiff Sasikumar under Ex.A2 dated 29.03.2000. He sold the other piece
in favour of one Murugan who in turn sold it to the second plaintiff under
Ex.A4 dated 29.07.2002. In both these sale deeds, there is a clear reference
to the suit agreement dated 12.12.1994. Only thereafter, the appellant
cancelled the same on 03.11.2003. Thus, by the time, Ex.A1 dated
12.12.1994 was cancelled, it had already been acted upon by Francis.
Therefore, this is a case where estoppel by conduct would come into play.
That Ex.A1 suffered from lack of consideration has ceased to be of
relevance because it was acted upon. The third substantial question of law
is answered accordingly.
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S.A.(MD)No.840 of 2010
8.After taking note of these aspects, the courts below held that the
plaintiffs are entitled to right of way over the property and that no
encroachment should be committed thereon. Of-course, there is
considerable force in the contention of the learned counsel for the appellant
that a person who claims easement should have enjoyed the right in
question without interruption for a period of 20 years. In this case, the said
condition is not met. The plaintiffs had erroneously labelled their claim as
easementary right. They should have asked for a right of way without the
adjective “easementary”. Merely because the plaintiffs gave a wrong
description of their right, that is not a ground for interfering with the well
considered decisions of the courts below. The other substantial questions of
law are answered against the appellant. The judgment and decree passed by
the courts below are confirmed. The second appeal is dismissed. No cost.
Consequently, connected miscellaneous petition is closed.
06.04.2022
Internet : Yes/No
Index : Yes/No
rmi /skm
To
1.The Subordinate Court, Padmanabhapuram.
2.The Principal District Munsif Court, Padmanabhapuram.
Copy To : The Section Officer, Vernacular Records,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.840 of 2010
G.R.SWAMINATHAN, J.
rmi/skm
Judgment made in
S.A.(MD)No.840 of 2010
06.04.2022
https://www.mhc.tn.gov.in/judis
