Madras High Court
Gopalakrishna Konar (Died) vs Narayana Gounder (Died) on 25 January, 2023
S.A.No.1140 of 2003
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.01.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1140 of 2003
and C.M.P.No.9883 of 2003
1.Gopalakrishna Konar (Died)
2.Saroja
3.Annamalai
4.Srinivasan
5.Dhanam ... Appellants
Vs.
1.Narayana Gounder (Died)
2.Govindasamy Gounder @ Manika
... Respondents
[1st Appellant is died, Appellant A.2 to A.5 brought on record as LRs of the
deceased 1st Appellant and Respondent 1 died, 2nd Respondent brought on
record as LR of the deceased R1 vide Court order dated ]
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgement and decree of the A.S.No.6 of 2001 on the
file of the Additional District Judge, Thiruvannamalai made in OS.No.361
1/13
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S.A.No.1140 of 2003
of 1996 on the file of the Additional District Munsif Cum Judicial
Magistrate, Chengam dated 14.11.2000.
For Appellant : Mr.S.Kanniah
For Respondents : M/s.G.Lavanya for M/s.T.Saikrishnan
[R.2]
: R.1 [Died]
JUDGMENT
The defendant in the suit O.S.No.361 of 1996 on the file of the
Additional District Munsif Cum Judicial Magistrate, Chengam is the
appellant before this Court challenging the judgement and decree in
A.S.No.6 of 2001 of the Additional District Judge, Thiruvannamalai in and
by which the learned Judge has reversed the judgement and decree of the
Additional District Munsif Cum Judicial Magistrate, Chengam. The facts of
the case are herein below narrated and the parties are referred to in the same
ranking as before the Trial Court.
2. The plaintiff had filed the suit OS.No.361 of 1996 to declare that
the plaintiff is entitled to reach the A schedule property through the B
schedule pathway and that the plaintiff has an easementary right to use the
said pathway and for a consequential injunction restraining the defendant,
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S.A.No.1140 of 2003
his men and agents from interfering with the plaintiff’s usage of this
pathway. The plaintiff would contend that the lands comprised in Survey
No.173/2 and 173/3 including the well in Survey No.173/2 originally
belonged to joint family of Kuppusamy Gounder and his sons Govindasamy
Gounder, Thanji Gounder and Kolandai Gounder. The brothers were jointly
enjoying the said property.
3. Thereafter, Kuppusamy Gounder and his 3 sons had sold half of
their interest in the said lands together with a 2/3rd share in the well to one
Ponnusamy Reddiar. Thereafter, Survey Nos.173/2 and 173/3 were sub-
divided and the lands purchased by Ponnusamy Reddiar was sub-divided as
173/2B and 173/3B. The land in which the well was situate was sub-divided
as Survey No.173/2A and 173/3A. After alienating the property to
Ponnusamy Reddiar, the said Kuppusamy Gounder and his sons were
accessing their lands in Survey No.173/2C, 173/2D, 173/2E and 173/3C
through this B schedule pathway. This pathway has been described as A B
C D in the plaint plan. The plaintiff is taking the water from the well
through the channel which is also shown in the plaint plan and Kuppusamy
Gounder and his sons were irrigating their lands with this water. On the
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S.A.No.1140 of 2003
South-Eastern side of the well, there is a water-bailing apparatus and on the
North-Eastern corner a separate water-bailing apparatus had been set up and
is operational through which the said Ponnusamy Reddiar irrigates the lands
bearing Survey Nos.173/2B and 173/3B.
4. Kuppusamy Gounder had filed a suit for partition of his 1/4th share
in the remaining property before the District Munsif Court, Tiruvannamalai
against his three sons. In the said suit, Kuppusamy Gounder was allotted the
land bearing Survey No.173/3C along with a share in the well in
S.No.173/2A apart from other properties. The said Govindasamy was
allotted the land bearing Survey No.173/2C measuring 97 cents along with a
share in the well in Survey No.173/2A apart from other properties. The said
Thanji Gounder on the other hand was allotted 52 cents in Survey
No.173/2D along with a share in the well in Survey No.173/3A. Kulandai
Gounder was allotted the land in Survey No.173/2E together with a share in
the well situate in Survey No.173/2A amongst other properties. For
irrigating the land in Survey No.173/3C, there is a separate channel running
from the said well from west to east.
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S.A.No.1140 of 2003
5. It is the case of the plaintiff that the lands described supra i.e;
173/2C, 2D, 2E, 3B and 3C including the well situate in Survey Nos.173/2A
and 173/3A originally belonged to Kulanthai Gounder and on his death
devolved on his son Kuppusamy Gounder. To reach the lands bearing
Survey Nos.173/2C, 2D and 2E from the Vedanakulam Battai, there is a
pathway marked as ABCD in the plaint plan which is the only access.
Except for this pathway there is no other access to reach the lands. It is the
further case of the plaintiff that after alienating the lands in Survey
No.173/2B and 3B, the said Kuppusamy Gounder and his sons had been
continuously, openly, peacefully and uninterruptedly using the ABCD
pathway to reach their lands.
6. Even after the partition between Kuppusamy Gounder and others
the three sons of Kuppusamy Gounder had been reaching their respective
lands and taking their cattle only through the suit pathway. The northern
lands in Survey No.173/2C, 2D and 2E cannot be enjoyed without access
through the 'B' schedule pathway. The plaintiff’s eldest brother in his
capacity as a Manager of the joint family had purchased the A schedule
property from Govindasamy Gounder under a registered sale deed dated
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S.A.No.1140 of 2003
20.07.1967 for a sale consideration of Rs.3,400/- and from the date of the
purchase the plaintiff and his brothers are enjoying the A schedule property
and have access through the suit B schedule pathway. They had been
drawing water from the suit well through the channel that is passing by
alongside BCD pathway. The plaintiff is entitled to a 1/4th share in the A
schedule properties.
7. The plaintiff's elder brother Thambu Gounder had died leaving
behind him surviving his only son Perumal. The plaintiff thereafter
purchased the remaining 3/4th share in the suit A schedule properties from
his brothers and nephew and thereby became entitled to the entire extent of
the A schedule properties together with a right of way only through B
schedule pathway. Likewise, the purchaser from the other brother Thanji
Gounder is also using the pathway to reach his land. Poonusamy Gounder
who had purchased the other half died leaving behind him his son
Venkatakrishna Reddiar to succeed to the lands bearing S.Nos.173/2B and
173/3B. From the said Venkatakrishna Reddiar, the defendant and his
brother Kannan Kona jointly purchased the lands bearing Survey
Nos.173/2B and 3B. The defendant and his brother exchanged their
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S.A.No.1140 of 2003
properties as a result Kannan had given up his interest in Survey No.173/2B
and 3B in exchange for other properties to his brother, the defendant.
8. It is the further case of the plaintiff that as the common well was
not having sufficient water to irrigate all the lands, the plaintiff had dug a
separate well in his land in Survey No.173/2C nearly 4 years ago and has
installed an oil engine in the said well. After the plaintiff has dug a separate
well in his land, the defendant had demanded that the plaintiff should sell all
his share in the common well situate in the Survey Nos.173/2A and 173/3A
in favour of the defendant which was rejected by the plaintiff. The
defendant thereafter filed OS.No.325/1985 on the file of the District Munsif
Court, Tiruvannamalai against the present plaintiff and his son by making
false allegations with reference to the channel and the common well. On
16.05.1988, the defendant attempted to obstruct the plaintiff from passing
through and from taking his cattle through the B schedule pathway. The
defendant is also attempting to put up a fence in the suit pathway.
Therefore, the suit had been filed.
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S.A.No.1140 of 2003
9. The defendant had filed a written statement inter alia stating that B
schedule pathway is not in existence and it is an imaginary one. The
defendant had further submitted that the contention that the B schedule
pathway is the only access to the lands of the plaintiff is absolutely false.
The defendant would further deny the allegation that he and his sons had
attempted to form a new channel in the lands of the present plaintiff. The
defendant had taken out an application in the suit OS.No.325 of 1985 for an
interim injunction in IA.No.571 of 1989 which was dismissed, against
which CMA No.5 of 1986 was filed and the same was allowed and
injunction had been granted, subject to the right of the present plaintiff to
enjoy the common well. Therefore, it is the contention of the defendant that
the plaintiff has a right to enjoy only the common well.
10. He would also contend that there is an alternate pathway to the
north of the plaintiff’s property and that apart the plea of having prescribed
the right of easement was denied. The defendant therefore sought for a
dismissal of the suit.
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S.A.No.1140 of 2003
11. The Trial court after considering the evidence on record both oral
as well as documentary dismissed the suit against which the plaintiff had
filed A.S.No.6 of 2001 on the file of the Additional District Judge,
Thiruvannamalai. The learned Judge returned a finding that the plaintiff and
his predecessors in title have been using only the north Odai Poramboke as
an access and considering the fact that they had an alternate pathway
proceeded to allow the appeal against which the defendant had preferred the
above Second Appeal.
12. The above Second Appeal has been admitted on the following
Substantial Questions of law:-
i) Whether the Decree and Judgment of Appellate Court
is liable to be reversed for non-considering relevant evidence
available on record?
ii) Whether the Appellate Court failed to consider and
appreciate the documentary evidence of the Defendant in
exhibit ‘B’ and wrongly came to the conclusion that the
plaintiff is having easementary rights over the ‘B’ Schedule
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S.A.No.1140 of 2003
property?
iii) Whether it is open to the Courts below to accept any
evidence contrary to documents the contents of the produced
against the 61 of the Evidence Act of 1872?
13. Heard both the counsels.
14. The Advocate Commissioner who has inspected the suit premises
has observed as follows:-
“ Ex.C.1 that the Odai, running east to west direction
is lying at a distance of 68 feet on the north of ‘A’ Schedule
land, at a height of approximately 4 feet, that the said Odai
is covered with the thorny bushes, that the depth of the
Odai is 5.5 feet and that ‘nobody can have success through
the said Odai to ‘A’ Schedule lands’. The same learned
Advocate Commissioner has also indicated on unequivocal
lines that there is a ‘continuous ridge, with a width of
about 1.3 feet’, marked a ABCDEFGH in his rough Plan
viz. Ex.C.2, in between the southern Vedankulam Pattai
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S.A.No.1140 of 2003
and Appellant’s northern ‘A’ Schedule lands, passing
through dry Survey number 173/2B. According to the
Appellant’s side, the said ridge, pointed out by the learned
Commissioner had been used by the Predecessors in title as
a pathway and subsequently, being used by the Appellant to
reach the Northern lands Vedankulam Pattai.”
15. A mere reading of the above would clearly show that the alternate
pathway which has been relied upon by the Trial Court cannot be effectively
used by the plaintiff. The finding of the Appellate Court in this regard
therefore has to be confirmed. Further both the defendant and the plaintiff
are claiming a right to their respective properties from a common owner
who had been accessing the well in Survey Nos.172/2A and 3A through this
B schedule pathway and had also accessed the Vedankulam Pattai through
this pathway which is the only pathway available to them. The plaintiff has
clearly proved his easement of necessity to use the suit B schedule pathway.
Further, Ex.A.2 to Ex.A.4 which are the sale deeds also make reference to
this pathway. The Judgement relied upon by the counsel for the respondent
reported in (1984) 4 SCC 376 - Ayyaswami Gounder and others Vs.
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S.A.No.1140 of 2003
Munnuswamy Gounder and Others does not advance the case of the
defendants since in that case the Hon'ble Supreme Court had observed that a
common channel can be used to take the water from the exclusive Well of
one of the co-owners to irrigate their lands. The learned Judges held that
such a use of the channel cannot be considered an additional burden to the
prejudice of the defendants thereon.
16. Therefore, the Substantial Question of laws are answered against
the defendant. Consequently, the Second Appeal stands dismissed and the
judgment and decree of the Courts below is confirmed. No. Costs.
Consequently, the connected Miscellaneous Petition is closed.
25.01.2023
Index : Yes/No
Internet : Yes/No
Neutral Citation :Yes/No
shr
To
1.The Subordinate Judge, Tirupattur.
2.The District Munsif, Tirupattur.
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S.A.No.1140 of 2003
P.T. ASHA, J,
shr
S.A.No.1140 of 2003
and
C.M.P.No.9883 of 2003
25.01.2023
https://www.mhc.tn.gov.in/judis
