The Bishop vs Arumaikiliammal
2022 Latest Caselaw 11188 Mad

                                                                              S.A(MD).No.832 of 2012

                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED: 27.06.2022

                                       CORAM: JUSTICE N.SESHASAYEE

                                            S.A(MD).No.832 of 2012
                                     and M.P(MD)Nos.1 of 2012 and 1 of 2015

                     1.The Bishop,
                       Cathedral Church
                       (Roman Catholic)
                       W.G.C.Road, Tuticorin.

                     2.The Parish Priest,
                       St.Joseph's Church,
                       Pudukkottai 628 103.

                     3.Thoothukudi Diocesan Association,
                       Through its Procurator and Secretary,
                       Tuticorin Office at
                       Great Cotton Road, Tuticorin.       ... Appellants/Appellants/Defendants

                                                        Vs.

                     Arumaikiliammal                      ... Respondent/ Respondent/Plaintiff

                     Prayer: Second Appeal is filed under Section 100 of Code of Civil
                     Procedure, against the decree and judgment dated 11.09.2012 rendered in
                     A.S.No.14 of 2012 on the file of the I Additional District Judge,
                     Thoothukudi confirming decree and judgment dated 29.04.2011 rendered in
                     O.S.No.419 of 2005 on the file of the Additional District Munsif,
                     Thoothukudi.
                                  For Appellants    : Mrs.Jessi Jeeva Priya
                                  For Respondent    : Mrs.Jeya Indira Patel


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https://www.mhc.tn.gov.in/judis
                                                                                  S.A(MD).No.832 of 2012



                                                    JUDGMENT

The defendants, who had successively suffered a decree in a suit for

declaration of title over schedule II suit-property and for other ancillary

reliefs of injunction including the relief for mandatory injunction to remove

certain structure both in O.S.No.419 of 2005 and then in their appeal

A.S.No.14 of 2012, are the appellants herein. For narrative convenience,

the parties are referred to as per their rank before the trial Court.

2.1 According to the plaintiff, she had purchased the southern 31 cents in

Old Sy.No.310/1 correlated to R.S.No.175/1 Vide Ex.A.1-sale deed, dated

19.06.1968. This property is described as Schedule I property. The

southern boundary of this property is shown to be the property of RC

Church. It is the first defendant herein. The dispute is over a narrow stretch

of land with a width of about 4m North- South for a length of 33.5 m East-

West. This strip of land is described as Schedule II property.

2.2 According to the plaintiff Schedule II property is part of the property

covered under Ext.A-1 sale deed in her favour. She would allege that the

Church had encroached into her property and put up a bell tower and hence

https://www.mhc.tn.gov.in/judis S.A(MD).No.832 of 2012

she has approached the court with a suit for declaration of her title over

Schedule II property, a decree for prohibitory injunction seeking to restrain

the defendants from putting up any compound wall around the Schedule II

property and also for a decree for mandatory injunction to remove the bell

tower.

3. The contention of the defendants is candid. According to the defendants,

schedule II property falls within S.No.174 belonging to the Church, and not

in Sy.No: 175/1, to the property within which alone the plaintiff is entitled.

4.1 The dispute went to trial and before the trial Court the plaintiff

examined herself as P.W.1 and produced Ext.A.1 to Ext.A.8, of them,

Ext.A.1 has already been introduced, Ext.A.7 and Ext.A.8 are the survey

plans of the property. She also examined three other witnesses as P.W.2 to

P.W.4 and they are stated to be the adjacent owners of the property. For the

defendants, a certain villager Paneerselvaraj had deposed. Through him, the

defendants produced Ext.B.1 to Ext.B.6. Of them, Ext.B.6 is a sale deed

dated in 1958, and it pertains to the property of one Rajagopal, who is the

adjacent owner of the plaintiff. Ext.B.3 is the photograph to show that the

Church was built even as early as in 1945. This apart, the trial Court has

https://www.mhc.tn.gov.in/judis S.A(MD).No.832 of 2012

appointed a Commissioner and he has filed his two sets of report, which

came to be marked as Ext.C.1 and Ext.C.2.

4.2 On appreciating the evidence before it both the Courts below

concurrently decreed the suit, and aggrieved by the same the appellants are

here.

5. The Second Appeal is admitted for considering the following substantial

questions of law:

''(a)When there is a dispute relating to the identity and the location of the property, whether the provisions of Easements and License Act would be made applicable to such a dispute?

(b)When the plaintiff claiming a right of access by way of easement in respect to a portion of the property purchased from the common vendor, along with other adjoining owners in the same Survey Numbers, without claiming any such relief of easement from her other adjoining owners in the same Survey Number in the manner as provided under Section 13 of the Easements and License Act, any right of easement could be claimed against the owner of another different land?

https://www.mhc.tn.gov.in/judis S.A(MD).No.832 of 2012

(c)Whether the adjudication of the right of the plaintiff, without identifying the disputed property, by directing the Advocate Commissioner to locate the suit property with reference to the survey number, by taking the assistance of a qualified surveyor is legal?

(d)When the plaintiff does not claim any right over the property of another either for access or any other relief under the Easement and License Act, whether the suit for declaration of the right of passage in a property not belonging to the defendants is maintainable and any such relief could be granted in such a suit?

(e)Whether there is any distinction between a “common passage” “a right of way”, “pathway” and “easements” and the failure to apply the correct proposition has completely vitiated the judgment of the Court?”

6. Heard both sides. The learned counsel appearing for the defendants

contended that the Commissioner has not measured the property in terms of

the survey field in which disputed Schedule-II falls in. According to the

plaintiff, Schedule-II property falls within Sy.No.175/1, whereas according

to the defendants/Church, it falls in Sy.No.174. Secondly, while the

plaintiff has sought a declaration of her title over Schedule II property, it is

https://www.mhc.tn.gov.in/judis S.A(MD).No.832 of 2012

impermissible for the Court to grant an easement of necessity over Schedule

II property.

7. The learned counsel for the plaintiff submitted that the plaintiff's husband

was working in the very Church now under reference, and that the Church

has been less merciful to the plaintiff, and that the defendant not only

denied the right of the plaintiff over her Schedule-II property, but had even

built a compound wall along its northern boundary, and ensured that the

plaintiff is denied access for ingress into and egress out of her property. And

this compound wall deliberately constructed after the institution of the suit

and after the defendants had acquired knowledge about the institution of the

suit. It is in this contextual setting that the Court below had entered a

finding on easement of necessity.

8. There is partial merit on both sides. Apparently the dispute is over the

survey field in which Schedule-II property is blocked – if it is in Sy.No.

175/1 as contended by the plaintiff or if it is in Sy.No: 174 as is being

asserted by the defendants. This exercise is inevitable, if not indispensable

but both the Courts have not focused their efforts in that direction. This is

the first part. The second part is about the right of way for the plaintiff, if

https://www.mhc.tn.gov.in/judis S.A(MD).No.832 of 2012

Schedule-II property does not found to belong to the plaintiff wholly or

partly. This may create a situation for this Court to consider how to provide

right of access to her property. After all there cannot be a land-locked

property and the Church cannot escape the possibility of a burden of right of

way imposed on Schedule-II property. And, it is procedurally permissible

since the Court can mould the relief based on the facts proved, and that it

can grant a lesser relief if the relief sought could not be granted. The issue

is that the Lord has been merciful and loving, but will the men who serve

the Lord be? But when men fail, there remains the Court to do justice to

the victims of right-violation.

9. The learned counsel for the Church would now intervene to submit that if

the plaintiff confines her claim to a mere right of way over the Schedule-II

property, the Church will not stand on the way. But he still insisted that it

was wrong on the part of the Courts below to have granted a right of way to

the plaintiff over Schedule II property when the plaintiff had claimed a

declaration of title and not a declaration of her right of pathway. These

apparently are the statements made in contradicting tones and the message

is: “I may give the plaintiff a right of way if she wants it, but not the

Court.” This reflects an attitude that differentiates the Lord and the men

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who purport to serve the Lord and this Court asserts that its obedience to the

Constitution and the respect for the rights of the citizens do not

accommodate the kind of philosophy that was shared across the Bar. This

Court does not consider it appropriate to interfere with the right of way

granted to the plaintiff over Schedule-II property.

10. Having stated thus, this Court hastens to add that it does not approve

the approach of the Court below in rushing to grant the plaintiff a right of

way as against her claim of title over the Schedule-II property without

ascertaining where exactly Schedule-II lies either. Whether it lies in Sy.No.

175/1 or in Sy.No.174? As was mentioned earlier, if Schedule-II property is

in Sy.No.175/1, then, necessarily the plaintiff must just win her case hands

down. If, however, this property is found to fall within Sy.No.174, then the

plaintiff shall have right of access through Schedule II property.

11.1 Since it is not ascertained in which survey field Schedule-II property

is located, the case must have to be necessarily remanded back to the first

appellate Court. The first appellate Court is now required to appoint the

same Commissioner, if he is still available and willing, to identify the

Schedule-II property in terms of the survey field with the assistance of an

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official Surveyor, and if the Commissioner who was earlier appointed

expresses his unwillingness to undertake the responsibility, then the first

appellate Court is required to appoint any Advocate with a reasonable

standing on the civil side and is also regular in his appearance before the

Court as an Advocate Commissioner at such remuneration which the said

Court may consider appropriate and this is to be paid by the defendants.

11.2 The first appellate Court is also required to address both the Principal

District Judge, Thoothukudi as well as the District Collector to have the

assistance of the official Surveyor to assist the Commissioner at the very

earliest, since this case is atleast 17 years old now, and this Court does not

want to delay the process further.

12. Turning to the right of way of the plaintiff, it is established in evidence

that the Church has built the compound wall after the institution of suit and

this Court considers it unfair to the judicial process. When the litigation

commences, no matter whether there is an injunction or not, it is imperative

that the parties deal with the legal system fairly and enable the legal system

to deal with the litigants and their rights fairly. It is now required to break

open the compound wall constructed along the northern boundary of

https://www.mhc.tn.gov.in/judis S.A(MD).No.832 of 2012

Schedule-II property for a width of 10 feet within a period of eight weeks

from today.

13. The first appellate Court is now required to adjudicate the dispute based

on the Commissioner's report to be obtained. Both sides are entitled to file

objections to the Commissioner's report, if they are so desirous, and the trial

Court may permit the parties to cross-examine the Commissioner only to the

extent they raise objections. The parties will not be entitled to adduce any

oral or documentary evidence otherwise. The entire exercise is required to

be completed within a period of six (6) months from today (i.e.,

27.06.2022), and the defendants are required to report compliance of the

direction given by this Court in paragraph 12 above to break open the wall

put up by for a width of 10 feet latest by 22.08.2022, and report compliance.

14. Accordingly, the Second Appeal is allowed, the judgement and decree

of the first appellate Court in A.S. is set aside and the matter is remanded

back to the first appellate court. No costs. Consequently, connected

Miscellaneous Petitions are closed.

https://www.mhc.tn.gov.in/judis S.A(MD).No.832 of 2012

15. Post the matter on 22.08.2022 under the caption 'For Reporting

Compliance'.

27.06.2022

Index : Yes/No Internet: Yes/No rmk

To:

1. I Additional District Judge, Thoothukudi.

2. The Additional District Munsif, Thoothukudi.

3.The Section Officer, VR Section,Madurai Bench of Madras High Court,Madurai.

https://www.mhc.tn.gov.in/judis S.A(MD).No.832 of 2012

N.SESHASAYEE, J., rmk

S.A(MD).No.832 of 2012 and M.P(MD)Nos.1 of 2012 and 1 of 2015

27.06.2022

https://www.mhc.tn.gov.in/judis