Madras High Court
Sellakannu vs Mahalingam on 18 April, 2023
S.A.(MD)No.107 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.107 of 2019
Sellakannu ... Appellant
/Vs./
Mahalingam ... Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the judgment and decree passed in A.S.No.10 of 2014,
on the file of the Subordinate Judge-Camp Court, Tirumangalam, dated
25.01.2017 confirming the judgment and decree passed in O.S.No.729 of
2004 on the file of the District Munsif, Tirumangalam, dated 19.12.2013.
For Appellant : Mr.N.Vallinayagam
For Respondent : Mr.J.Barathan
1/8
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S.A.(MD)No.107 of 2019
JUDGMENT
This second appeal has been filed challenging the concurrent
findings of the Courts below. The plaintiff in the suit in O.S.No.729 of
2004 on the file of the District Munsif Court, Thirumangalam is the
appellant herein. The respondent is the defendant in the suit. In the
forthcoming paragraphs, the parties are described as per their litigative
status in the suit.
2. The suit was filed for permanent injunction to restrain the
defendant from interfering with the plaintiff's usage of the suit pathway.
The plaintiff claims easement of necessity for the usage of suit pathway
on the ground that the suit pathway is the only access to his property,
which is neighbouring the defendant's property. However, as seen from
the written statement, the defendant has categorically contended that the
plaintiff does not have any right to use the suit pathway, as the suit
property absolutely belongs to him. According to him, there is also no
easement of necessity, as claimed by the plaintiff in the plaint.
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S.A.(MD)No.107 of 2019
3. Before the trial Court, the plaintiff filed seven documents,
which were marked as Exs.A1 to A7 and two witnesses were examined
on his side, namely, the plaintiff himself as P.W.1 and a third party, by
name Karuppaiah as P.W.2. On the side of the defendant, three
documents were filed, which were marked as Exs.B1 to B3 and two
witnesses were examined, namely, the defendant himself as D.W.1 and a
third party, by name Palani as D.W.2. The trial Court dismissed the suit
of the plaintiff by giving the following reasons:
(a) Under the registered sale deed dated 02.09.1941 (Ex.A2),
which is the basis of the plaintiff's claim, there is no reference to the suit
pathway;
(b) Under the registered sale deed dated 30.01.1967 (Ex.A4)
executed by Periyakaruppan Ambalam and others in favour of
Kandhasamy Ambalam, there is no reference to the suit pathway;
(c) The sale deed dated 30.01.1967 (Ex.A4) executed by
Periyakaruppan Ambalam and others in favour of Kandhasamy Ambalam
would also show that an extent of middle 31 cents has been sold and in
the said sale deed also, there is no reference to the suit pathway;
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S.A.(MD)No.107 of 2019
(d) P.W.2, in his cross examination, has admitted that there is an
alternate access available to the plaintiff, which is extracted herein:
“...........69 brz;ow;F fpHf;nf cs;s bghwk;nghf;F
epyk; jw;nghJ bjd;tly; tz;og;ghij khwptpl;lJ
vd;why; rhpjhd;.........”
(e) Similarly, P.W.1, in his cross examination, had admitted that
there is an alternate access available to the plaintiff's property as
extracted herein:
“...........fpHf;F gf;fk; nrhiz kfd; bghpafUg;gd;
ghijapy; ele;J tUfpnwhk;..........”
(f) Once there is an alternate pathway, the plaintiff cannot seek the
easementary right in the defendant's property.
4. The learned counsel appearing for the appellant relied upon
Section 13 (e) and (f) of the Indian Easements Act, 1882.
5. Admittedly, as seen from the cross examination of P.W.1 and
P.W.2, there is an alternate access available to the plaintiff's property.
Admittedly, the documents relied upon by the plaintiff, which have been
marked as exhibits, which have been referred to supra do not refer to the
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S.A.(MD)No.107 of 2019
suit pathway. The plaintiff has also not purchased his property from the
defendant, who claims that the suit property is his absolute property and
the defendant has also filed documents to prove the same, which has not
been rebutted by the plaintiff by way of any oral and documentary
evidence. Section 13 of the Indian Easements Act, 1882, deals only with
easements of necessity.
6. The learned counsel appearing for the respondent relied upon
Section 41 of the Indian Easements Act, 1882 for contending that an
easement of necessity will get extinguished, when necessity comes to an
end. According to him, when P.W.1 and P.W.2 have themselves admitted
in their cross examination that there is an alternate access to the
plaintiff's property, easement of necessity claimed by the plaintiff has got
extinguished by virtue of Section 41 of the Indian Easements Act, 1882.
7. Section 41 of the Indian Easements Act, 1882 reads as follows:
“41. Extinction on termination of necessity.—An
easement of necessity is extinguished when the necessity
comes to an end”
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S.A.(MD)No.107 of 2019
8. The learned counsel appearing for the appellant had also relied
upon the decision of the Single Judge of this Court in the case of
Murugesa Moopanar vs. Sivagnana Mudaliar reported in 1997 (1)
CTC 348 to substantiate the plaintiff's claim. However, as seen from the
said judgment, it has no applicability to the facts of the instant case, as
the said decision dealt with a case, where it is impossible for the parties
to enjoy the property without easementary rights sought for in the plaint,
whereas in the case on hand, it is not so. As admittedly there is an
alternate access available to the plaintiff, even as per the admission made
by P.W.1 and P.W.2 in their respective cross examinations, the claim of
the plaintiff has been rightly rejected by the Courts below.
9. The reasons for rejection of the plaintiff's claim is also
supported by the decision of the another Single Judge of this Court in the
case of K.Kalianna Gounder vs. Sundararaj reported in 2019 (5) CTC
80 relied upon by the learned counsel appearing for the respondent. In
the said decision, it has been made clear that the Doctrine of Easement of
Necessity is applicable only if the Dominant Tenement establishes that
(a) no other access to reach except through Servient Tenement; (b) for the
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S.A.(MD)No.107 of 2019
property in usage, if right of passage is deprived. In the case on hand,
the aforementioned conditions have not been satisfied by the plaintiff and
rightly the Courts below have rejected the plaintiff's claim seeking for
easement of necessity in respect of the suit pathway.
10. This Court has also perused and examined the Judgment of the
lower appellate Court, namely, Sub Court, Thirumangalam, in A.S.No.10
of 2014 dated 25.01.2017 and after careful perusal of the same, this
Court is of the considered view that the lower appellate Court has also
rightly confirmed the findings of the trial Court by dismissing the first
appeal filed by the plaintiff. The issues raised by the plaintiff in this
second appeal are all issues, which have been rightly considered by the
Courts below against the plaintiff. There are no substantial questions of
law to be considered by this Court under Section 100 of C.P.C., and there
is no merit in this Second Appeal. Accordingly, this Second Appeal
stands dismissed. There shall be no order as to costs.
18.04.2023
Index : Yes / No
NCC : Yes / No
Sm
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S.A.(MD)No.107 of 2019
ABDUL QUDDHOSE, J.
Sm
TO:
1.The Subordinate Judge-Camp Court, Tirumangalam.
2.The District Munsif, Tirumangalam.
3.The Section Officer,
VR Section, Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.107 of 2019
Dated:
18.04.2023
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