Madras High Court
K.A.Gothavariammal (Died) vs Ariya Gounder on 26 April, 2022
SA NO.452 OF 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26 / 04 / 2022
CORAM
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
SA NO.452 OF 2017
AND CMP NOS.11236 TO 11238 OF 2017
1.K.A.Gothavariammal (Died)
2.C.A.Dhanalakshmi Ammal
3.K.A.Pankaja Parameswari
4.K.A.Padmavathy
5.K.P.Radha Rukmini
(Appellants 2 to 5 brought on record as
LRs' of the deceased sole appellant
vide K.A.Gothavariammal vide
Court order dated 24.11.2021 made in
CMP Nos.18125, 18130 and 18132/2019
in SA No.452 of 2017) ... Appellants
VS.
1.Ariya Gounder
2.Palaniammal
3.Thangamuthu
4.Velayutham ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, 1908, against the judgment and decree dated 29.11.2011 in
A.S.No.64 of 2009 on the file of the learned Subordinate Judge,
1/18
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SA NO.452 OF 2017
Gobichettypalayam, reversing the judgment and decree dated 24.08.2006
of the Trial Court in O.S.NO.151 of 2004 on the file of the learned
District Munsif, Gobichettypalayam, granting the relief of permanent
injunction in favour of the appellant and dismissing the claim for
mandatory injunction of the respondents.
For Appellants : Ms.Puran Khemka
For Respondents : Mr.A.V.Arun
JUDGMENT
Aggrieved over the reversal of the judgment and decree
passed by the Trial Court, by the First Appellate Court, the appellant has
preferred the above Second Appeal.
2.For the sake of convenience, the parties are called as per
their ranking in the Suit. During the pendency of the Second Appeal, the
sole appellant/plaintiff died and her legal representatives are brought on
record.
3.According to the plaintiff, the plaintiff has derived title to
the suit property through the WILL executed by her husband on
27.12.1964. The new survey number of the property is S.F.2 and later
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SA NO.452 OF 2017
sub-divided as S.F.Nos.2/1, 2/2, 2/3 and 2/4. The plaintiff sold four acres
of land in S.No.2/1 in favour of the defendants by virtue of two
registered sale deeds dated 10.02.1982. Even before that, she sold four
acres of land in S.Nos.2/3 and 2/4 in favour of one Sennimalai Gounder.
The defendants and the said Sennimalai Gounder were using the Cart
Track lying between their properties and enjoying the same without any
issues. The Cart Track shown on the west of point “H” in the plan
annexed to the plaint extensively belongs to the plaintiff and the
defendants do not have any right over the Cart Track from the point “H”.
On 03.03.2004, the plaintiff filed an application for survey to determine
the boundaries. After issuing notice, the Surveyor measured the
properties and erected stone pillars and put wire fence on the boundaries,
which was marked as ABCD in the plan annexed to the plaint. The
plaintiff had fenced the boundaries with barbed wire and stone pillars.
On 26.03.2004, the defendants have threatened to damage the stones and
remove the barbed wire fence on the ill-advice of the enemies of the
plaintiff. Hence, she filed a Suit for permanent injunction restraining the
defendants form damaging or removing the fence from her land.
4.Denying the claim of the plaintiff, the defendants would
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SA NO.452 OF 2017
state that by virtue of the sale deed dated 10.02.1982, the plaintiff has
granted easementary right in respect of the Cart Track belonging to her
on the western side of their property to a width of 24 links running south
north track of the plaintiff. In violation of the grant, the fence has been
put up by the plaintiff. The plaintiff is estopped from denying the
easementary right of the defendants by grant.
5.The Trial Court appointed an Advocate Commissioner to
find out the physical features and the Advocate Commissioner in his
report would state that there exist a 15 feet width of land having Coconut
trees on both sides of the borders, but the surfaces were uneven and there
was no trace of usage in the near past 20 years.
6.The Trial Court framed the following issues:-
(1) whether the plaintiff is entitled to permanent
injunction as prayed for ?
(2) whether the Suit is bad for non-joinder of the
necessary party ?
(3) Whether the plaintiff is estopped from denying
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SA NO.452 OF 2017
the easementary right?
(4) Whether the defendants have got easementary
right of path over the suit property?
(5) Whether the defendants are entitled to
mandatory injunction prayed for both of them.
7.After holding that as Exs.B1 and B4, the sale deeds
executed by the plaintiff in favour of the defendants, the right of
easement is granted by the plaintiff in favour of the defendants, it was
found that the easement is extinguished due to the non-user for past near
20 years as per Section 47 of the Indian Easements Act, 1882. Hence, the
Trial Court decreed the suit in favour of the plaintiff and rejected the
counter claim by the defendants. On appeal, the First Appellate Court
reversed the finding on the ground that the easement by grant will not get
extinguished merely because the co-sharer has an alternative way. It was
held that the defendants are entitled to the easementary right forever and
granted the relief of mandatory injunction in favour of the defendants.
8.Aggrieved over the same, the plaintiff has preferred the
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SA NO.452 OF 2017
above Second Appeal on the following substantial questions of law:-
"1.Whether the learned Appellate Court is right in
thrusting the burden of proof on the appellant, then the
Respondents have come forward with prayer of
Mandatory Injunction in respect of suit property.
2.In absence of objection to Commissioner's report
by the Respondents, which Commissioner was appointed
at the instance of respondents, can the Lower Appellate
Court unilaterally ignore the evidence of Commissioner
and arrive at a contrary findings.
3.Whether the interference of the Appellate Court
based on the recitals of the Boundary in Exhibit B1 and
B4 to conclude its represents suit Cart Track is perverse
that too when the Commissioner's Report has not been
challenged by the Respondents.
4.Whether when the extinguishment of the
easement by non user under 47 is attracted with all fours
in the instant case, whether the Appellate Court is right
in rejecting the defense of non user by holding there can
be no extinction of easement by grant.
5.Whether the Appellate Court otherwise justified
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SA NO.452 OF 2017
in granting mandatory injunction when the appeal itself
has been not diligently prosecuted by the Respondents.
6.Whether the Lower Appellate Court is right in
discard the evidence of Commissioner, when the same has
not been challenged by the Respondents by way of
objection.
7.Whether the conclusion of Lower Appellate
Court in favour of the Respondents, in respect of
easement by grant, based on B1 and B4 in absence of
evidence of usage of suit property as "Cart Tract" is
sustainable in law. "
9.By consent of both sides, the Second Appeal was taken up
for final hearing on the substantial question of law no.4 as to whether
when the extinguishment of the easement by non-user under 47 of the
Indian Easements Act, 1882, is attracted with all fours and whether the
Appellate Court is right in rejecting the defense of non-user by holding
there can be no extinction of easement by grant.
10.Now that, it has to be seen as to whether the easement by
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SA NO.452 OF 2017
grant gets extinguished in view of Section 47 for non-user for the past 20
years. Admittedly, the plaintiff derived title to the suit property by virtue
of the WILL executed by her husband on 30.11.1964, which is marked as
Ex.A1. In the said WILL, there was no mentioning of any Cart Track
between the lands sold by the plaintiff in S.Nos.2/1, 2/3 and 2/4. If at all
there was a Cart Track and the defendants are entitled to use the Cart
Track, that should have been mentioned in the WILL vide Ex.A1. But
there is no mention to the Cart Track. Secondly, even assuming that the
Cart Track was created and the property was sold to the said Sennimalai
Gounder and the defendants, even then the boundaries of the property
should mention the existence of the Cart Track and the easementary
right. Whereas, the sale deed executed in favour of the defendants vide
Exs.B1 and B4 clearly mentions that the eastern boundary of the property
belongs to Sennimalai Gounder. There was no mention of the Cart Track
on the eastern boundary. Even in the Advocate Commissioner's report,
there is no mention about the Cart Track on the eastern boundary of the
defendants property which was sold by the plaintiff and her daughter
vide Exs.B1 and B4.
11.Therefore, the existence of a Cart Track between the
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SA NO.452 OF 2017
lands of the defendants and the Sennimalai Gounder is not proved by the
plaintiff. The said Sennimalai Gounder was also not impleaded as a party
to speak about the existence and joint enjoyment of the Cart Track by
him and the defendants. In the absence of any independent evidence, the
contention of the plaintiff that the defendants are using the Cart Track
existing between the defendants land and Sennimalai Gounder's lands
fails.
12.The boundaries mentioned in Ex.B1 reads as under:
On the west, Sennimalai Gounder's property
On the north, forest land
On the south, the property sold vide Ex.B4; and
On the west, 24 links width Cart Track running south north.
13.From the boundaries, it is noted that the property is land
locked on three sides, namely east, south and north. The only access
available is on the west, the Cart Track owned by the vendor, the plaintiff
herein. That Cart Track runs from point “AH” till the northern boundary,
which is forest lands. It is imperative to note that there is a specific
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SA NO.452 OF 2017
recital in Ex.B1 that easementary right was granted in favour of the
defendants from the south pit to the Cart Track running south north.
14.The plaintiff in para 5 of the plaint would clearly mention
that the S.Nos.2/3 and 2/4 situate west of south north pit. In that
description, if it is seen the south to north pit situate at the point of “AH”.
The easement is granted from south pit to the Cart Track having width of
24 links on the western boundary of the defendants. Therefore, it is
crystal clear that the Cart Track which is mentioned in Exs.B1 and B4 is
a suit property. There is no other Cart Track existing as claimed by the
plaintiff.
15.Both the Courts below had concurrently found that the
Suit property is a Cart Track and the defendants were granted
easementary right over the same. The Trial Court has held that the
easement by grant got extinguished by non user as there is no evidence
on the side of the defendants to prove that they were using the Cart Track
for 20 years.
16.The Hon'ble Supreme Court in HERO VINOTH
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SA NO.452 OF 2017
(MINOR) VS. SESHAMMAL [2006 (4) CTC 79] has categorically held
as follows:
"24.The principles relating to Section 100 CPC,
relevant for this case, may be summerised thus:-
(i) An inference of fact from the recitals or
contents of a document is a question of fact. But the
legal effect of the terms of a document is a question of
law. Construction of a document involving the
application of any principle of law, is also a question of
law. Therefore, when there is misconstruction of a
document or wrong application of a principle of law in
construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the
case involves a substantial question of law, and not a
mere question of law. A question of law having a
material bearing on the decision of the case (that is, a
question, answer to which affects the rights of parties to
the suit) will be a substantial question of law, if it is not
covered by any specific provisions of law or settled legal
principle emerging from binding precedents, and, involves
a debatable legal issue. A substantial question of law
will also arise in a contrary situation, where the legal
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SA NO.452 OF 2017
position is clear, either on account of express provisions
of law or binding precedents, but the court below has
decided the matter, either ignoring or acting contrary to
such legal principle. In the second type of cases, the
substantial question of law arises not because the law is
still debatable, but because the decision rendered on a
material question, violates the settled position of law.
(iii) The general rule is that High Court will not
interfere with concurrent findings of the Courts below.
But it is not an absolute rule. Some of the well
recognized exceptions are where (i) the courts below have
ignored material evidence or acted on no evidence;
(ii) the courts have drawn wrong inferences from
proved facts by applying the law erroneously; or (iii) the
courts have wrongly cast the burden of proof. When we
refer to 'decision based on no evidence', it not only refers
to cases where there is a total dearth of evidence, but also
refers to any case, where the evidence, taken as a whole,
is not reasonably capable of supporting the finding.
28.The question whether an easement is one
acquired by grant (as contrasted from an easement of
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necessity) does not depend upon absolute necessity of it.
It is the nature of the acquisition that is relevant. Many
easements acquired by grant may be absolutely necessary
for the enjoyment of the dominant tenement in the sense
that it cannot be enjoyed at all without it. That may be
the reason for the grant also. But easement of grant is a
matter of contract between the parties. In the matter of
grant the parties are governed by the terms of the grant
and not anything else. Easement of necessity and quasi
easement are dealt with in Section 13 of the Act. The
grant may be express or even by necessary implication. In
either case it will not amount to an easement of necessity
under Section 13 of the Act even though it may also be an
absolute necessity for the person in whose favour the
grant is made. Limit of the easement acquired by grant is
controlled only by the terms of the contract. If the terms
of the grant restrict its user subject to any condition the
parties will be governed by those conditions. Any how the
scope of the grant could be determined by the terms of the
grant between the parties alone. When there is nothing in
the term of the grant in this case that it was to continue
only until such time as the necessity was absolute. In fact
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even at the time it was granted, it was not one of
necessity. If it is a permanent arrangement uncontrolled
by any condition, that permanency in user must be
recognized and the servient tenement will be recognized
and the servient tenement will be permanently burdened
with that disability. Such a right does not arise under the
legal implication of Section 13 nor is it extinguished by
the statutory provision under Section 41 of the Act
which is applicable only to easement of necessity arising
under Section
29.An easement by grant does not get extinguished
under Section 41 of the Act which relates to an easement
of necessity. An easement of necessity is one which is not
merely necessary for the reasonable enjoyment of the
dominant tenement, but one where dominant tenement
cannot be used at all without the easement. The burden
of the servient owner in such a case is not on the basis of
any concession or grant made by him for consideration or
otherwise, but it is by way of a legal obligation enabling
the dominant owner to use his land. It is limited to the
barest necessity however inconvenient it is irrespective of
the question whether a better access could be given by the
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servient owner or not. When an alternate access becomes
available, the legal necessity of burdening the servient
owner ceases and the easement of necessity by implication
of law is legally withdrawn or extinguished as
statutorily recognized in Section 41. Such an easement
will last only as long as the absolute necessity exists.
Such a legal extinction cannot apply to an acquisition by
grant and Section 41 is not applicable in such case.
17.This Court in V.K.RAMASAMI GOUNDER AND
OTHERS VS. P.RAMASAMI GOUNDER AND OTHERS [1997 (2)
MLJ 223] has held that the right of easement acquired by grant cannot be
said to have been extinguished on the ground stated in Section 41 of the
Easements Act and it is even held to be immaterial whether the easement
by grant was by way of an express grant or a grant by necessary
implication on a true construction of the deed.
18.From the above judgments, it can be noted that the
easement by grant is a matter of contract between the parties. In the
matter of grant, the parties are governed by the terms of the grant and not
anything else. It is immaterial that the grant was expressed or implied.
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Only because alternative access is available, the acquisition of grant will
not get extinguished. Therefore, the reversal of the judgment of the Trial
Court on the ground that easement got extinguished by non user under
Section 47 of the Indian Easements Act, 1882 is not attracted to easement
by grant is absolutely correct. In view of the above finding, the
substantial question of law is answered against the appellants.
19.In the result, the Second Appeal stands dismissed. No
costs. Consequently, connected Civil Miscellaneous Petitions are closed.
26 / 04 / 2022
Index : Yes/No
Internet : Yes/No
TK
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SA NO.452 OF 2017
To
1.The Subordinate Judge
Subordinate Court
Gobichettypalayam.
2.The District Munsif
District Munsif Court
Gobichettypalayam.
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SA NO.452 OF 2017
M.GOVINDARAJ, J.
TK
SA NO.452 OF 2017
26 / 04 / 2022
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