Madras High Court
Albert vs Devasigamony ( Died) on 29 April, 2022
1 S.A.(MD)No.872 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.872 of 2010
Albert ... Appellant / 1st Respondent /
Plaintiff
Vs.
1. Devasigamony ( Died)
2. Rajammal ... Respondents / Appellants /
Defendants 1 & 3
3. Shahila Jancy
4. Jeyasheelan
5. Jenila Jancy
(Respondents 3 to 5 were brought on record as LRs.
of the deceased of the first respondent vide Order dated
01.11.2016 in M.P.(MD)Nos.1 to 3 of 2012)
... Respondents 3 to 5
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree made in A.S.No.97 of
2007 dated 25.07.2009 on the file of the I Additional
Subordinate Court, Nagercoil, sitting at Padmanabhapuram,
reversing the Decree and Judgment made in O.S.No.258 of
1999 dated 30.03.2007 on the file of the Additional District
Munsif, Eraniel.
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1/13
2 S.A.(MD)No.872 OF 2010
For Appellant : Mr.B.Brijesh Kishore
For R-2 to R-5 : Mr.K.N.Thampi,
for Mr.K.Sreekumaran Nair.
***
JUDGMENT
The plaintiff in O.S.No.258 of 1999 on the file of the
Additional District Munsif, Eraniel, is the appellant in this
second appeal.
2. The suit was filed for declaring the plaintiff's right
to use ' B ' schedule property as an easement of pathway to
reach the plaintiff's ' A ' schedule property. Defendants 1 and
3 were the contesting defendants. The second defendant is the
plaintiff's brother. He sailed with him. The first defendant filed
written statement controverting the plaint averments. Based
on the divergent pleadings, the trial Court framed the
necessary issues. On behalf of the plaintiff, his father and
power agent Ponnu Pillai examined himself as P.W.1 and the
Village Administrative Officer was examined as P.W.2. Ex.A.1
to Ex.A.11 were marked. The third defendant examined
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herself as D.W.1 and one Manuvel was examined as D.W.2. An
Advocate Commissioner was appointed and his report and
plan were marked as Ex.C.1 and Ex.C.2. After considering the
evidence on record, the trial Court by judgment and decree
dated 30.03.2007 decreed the suit as prayed for. Challenging
the same, defendants 1 and 3 filed A.S.No.97 of 2007 before
the I Additional Sub Court, Nagercoil. By the impugned
judgment and decree dated 25.07.2009, the decision of the
trial Court was reversed and the appeal was allowed and the
suit came to be dismissed. Aggrieved by the same, this second
appeal came to be filed.
3. In the second appeal, originally notice was ordered
and on the last occasion it was formally admitted and the
following substantial question of law was formulated:-
“ Whether the first appellate Court
misread the evidence on record and whether the
decree passed by the trial Court should be
sustained on the ground of easement of
necessity? ”
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4. 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
question of law in favour of the appellant.
5. Per contra, the learned counsel appearing for the
respondents submitted that the impugned judgment and
decree do not call for any interference. He pointed out that
there is no pleading regarding necessity. The plaintiff had
purchased the suit ' A ' schedule property under Ex.A.2 and
Ex.A.3. But those documents also do not make any mention
regarding the easementary right. The plaintiff could not have
sought easement on the ground of prescription because
twenty years had not lapsed between the date of purchase of
' A ' schedule property and the date of filing of the suit. The
plaintiff did not even bother to enter the witness box. His
father alone testified as P.W.1. The plaintiff did not examine
his vendor Paulose Nadar. A mere look at the Commissioner's
report and plan would show that the plaintiff had an
alternative pathway and ' B ' schedule property was not the
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only way to reach ' A ' schedule property. Defendants 1 and 3
herein had earlier filed O.S.No.248 of 1999 before the District
Munsif Court, Eraniel, against the second defendant seeking
declaration of easementary right and permanent injunction.
Ex-parte decree was passed. Renjith filed a petition to set
aside the same. He was not successful. Therefore, as a
counterblast and to wreck vengeance, the present suit was
filed by his father. According to the learned counsel appearing
for the contesting respondents, no substantial question of law
arises for consideration. He called for dismissal of the second
appeal.
6. I carefully considered the rival contentions and
went through the evidence on record.
7. I must straightaway sustain the contention of the
learned counsel appearing for the contesting respondents that
the plaintiff could not have anchored his relief on the plea of
prescription. As per Section 15 of the Indian Easement Act
1882, enjoyment should have been without interruption and
for twenty years. In this case, the suit was filed in 1999. The
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purchase of ' A ' schedule property by the plaintiff was on
29.10.1992 and on 11.08.1997. The plaintiff also did not
examine his vendor. Since the enjoyment as an easement
without interruption for a period of twenty years was not
established, the plea based on prescription cannot hold.
8. The plaintiff is left with only claim based on
necessity. Section 13 of the Indian Easements Act, 1882 is as
under:-
“ Easements of necessity and quasi
easements.
Where one person transfers or bequeaths
immovable property to another,
(a) if an easement in other immovable
property of the transferor or testator is necessary
for enjoying the subject of the transfer or bequest,
the transferee or legatee shall be entitled to such
easement; or
(b) if such an easement is apparent and
continuous and necessary for enjoying the said
subject as it was enjoyed when the transfer or
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bequest took effect, the transferee or legatee shall,
unless a different intention is expressed or
necessarily implied, be entitled to such easement;
or
(c) if an easement in the subject of the
transfer or bequest is necessary for enjoying other
immovable property of the transferor or testator,
the transferor or the legal representative of the
testator shall be entitled to such easement; or
(d) if such an easement is apparent and
continuous and necessary for enjoying the said
property as it was enjoyed when the transfer or
bequest took effect, the transferor, or the legal
representative of the testator, shall unless a
different intention is expressed or necessarily
implied, be entitled to such easement. ... ''
In this case, the plaintiff had purchased ' A ' schedule property
from one Paulose Nadar. Interestingly, the first defendant
Devasigamony also purchased the property only from the very
same Paulose Nadar vide sale deed dated 04.04.1977
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(Document No.431 of 1977). The second defendant Renjith
and the third defendant Rajammal had purchased the
properties from one Ayyanapillai. The property of the third
defendant is abutting the main road. The property of Renjith is
immediately behind it. The property purchased by the first
defendant from Paulose Nadar is behind the property of
Renjith. It appears that Renjith did not permit defendants 1
and 3 to go across his property. Therefore, they filed O.S.
No.248 of 1999 on the file of the District Munsif-cum-Judicial
Magistrate, Eraniel and the same was also decreed. The
Commissioner's report marked in the said suit sheds
considerable light on the issue on hand. The property of the
present plaintiff is situated to the east of the first defendant's
property. Ex.A.11 is the Commissioner's report and plan in
O.S.No.248 of 1999. A mere look at the same would show that
there is a path way. It forms a substantial part of the present
' B ' schedule property. Obviously, Paulose Nadar would have
reached the present ' A ' schedule only through the suit path
way. It is bounded on the one side by compound wall. It is very
much available on ground. Of course in the Commissioner's
report and plan Ex.C.1 and Ex.C.2, it is mentioned that there
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is an alternative pathway available. Even in the said report, it
has been clearly stated that it does not reach the main road
directly. ' A ' schedule property was originally a paddy field.
From the evidence of P.W.2 Village Administrative Officer, one
can conclude that the footpath mentioned in the
Commissioner's plan is a path that are normally used to reach
the fields. That is why, the trial Court rightly had come to the
conclusion that the said pathway cannot be considered as an
alternative pathway. It is true that the plaintiff did not enter
the witness box. But then, P.W.1 Ponnu Pillai was not only the
power holder of the plaintiff but also the father of the plaintiff.
He was very much in the know of things. Therefore, no
adverse inference can be drawn against the plaintiff that he
did not enter the witness box.
9. It is evident from the record that the plaintiff and
the first defendant had purchased their respective pieces of
lands from one common vendor, namely, Paulose Nadar. The
second defendant Renjith and the third defendant Rajammal
also purchased the respective pieces of lands from one vendor,
namely, Ayyanapillai. The land of the third defendant is
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abutting the main road. The land of the second defendant is
immediately behind it. The property of the first defendant is
lying behind the property of the second defendant. The land of
the plaintiff is situated on the east of the first defendant's
property. From the plan drawn in the previous suit, one can
clearly infer that a pathway of a particular dimension is
running across the lands of the third defendant and the
second defendant so as to reach the first defendant's property.
The first defendant had purchased his piece of land from
Paulose Nadar in the year 1977. Paulose Nadar sold the
present ' A ' schedule property in favour of the plaintiff some
twenty five years later. During this period obviously Paulose
Nadar would have reached the main road through the
property of the first defendant and then through the pathway
referred in the previous suit. It is this pathway that is figuring
as ' B ' schedule property in the present proceedings also.
Section 13 of the Indian Easements Act 1882 states that the
right which was enjoyed by the vendor would pass to the
purchaser and that there is no need to expressly mention the
same.
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10. The trial Court rightly came to the conclusion
that there is no alternative pathway for the plaintiff to reach
the main road and upheld his easement right over the ' B '
schedule property. However, the first appellate Court misread
the records. Of course, the case of the plaintiff can be
sustained only on the ground of necessity and not on the
ground of prescription.
11. The property of the plaintiff's brother / second
defendant is lying in between the properties of the first
defendant and the third defendant. The first defendant and the
third defendant are husband and wife. They wanted a right of
way over the second defendant's property. But the second
defendant refused to give pathway right. They filed a suit and
obtained decree. But when it came to the plaintiff, they
refused to give the right of pathway. It is this double standard
adopted by the first defendant and the third defendant that
was exposed by the trial Court. The first appellate Court
misread the Commissioner's report and the evidence on
record and reversed the well reasoned decision of the trial
Court. The substantial question of law is answered in favour of
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the appellant. The impugned judgment and decree passed by
the first appellate Court is set aside and the decision of the
trial Court is restored.
12. This second appeal is allowed. No costs.
29.04.2022
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The I Additional Subordinate Judge,
Nagercoil at Padmanabhapuram.
2. The Additional District Munsif,
Eraniel.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.872 of 2010
29.04.2022
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
