Madras High Court
V.Kandaswami vs Vemb Anna Gounder (Died) on 4 January, 2023
S.A.No.877 of 1998
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.01.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A.No.877 of 1998
V.Kandaswami ...Appellant
(Appellant is recorded as LR of the deceased
first respondent vide order dated 24.07.2003
made in C.M.P.No.15847 of 2002)
-Vs-
1.Vemb Anna Gounder (died)
2.Muthuswami (died)
(Second respondent is recorded as LR of the deceased
first respondent vide as per order of the Court dated 24.07.2003
made in C.M.P.No.15847 of 2002)
(Memo in USR 5908/2018 is recorded as per order
dated 19.12.2018)
3.Chellammal (died)
(R3 brought on record as LR of the deceased R1
vide order dated 13.09.2011 made in
C.M.P.No.15846 of 2002 in S.A.No.877 of 1998)
(Memo filed in USR No.1308, dated 08.03.2017 to the effect that R3 died
and R2 & Sole appellant are recorded as LRs of the deceased R3 vide Court
order dated 08.03.2017 made in S.A.No.877 of 1998)
1/12
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S.A.No.877 of 1998
4.Selvaraj
5.Ravichandran ... Respondents
(R4 & R5 are brought on record as LRs of the deceased second respondent
as per the order dated 23.04.2019 in C.M.P.No.2437 to 2439 of 2019)
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 18.12.1996 of the Principal
District Judge, Dindigul Anna District, in A.S.No.55 of 1995 confirming the
judgment and decree dated 13.12.1994 of the learned District Munsif, Palani, in
O.S.No.334 of 1983.
For Appellant : Mr.G.Sridharan
for Mr.T.M.Hariharan
For Respondents : No appearance
JUDGMENT
The plaintiff in the suit is the appellant. The appellant filed a suit for
declaration of his title to the suit property, injunction restraining the respondents
from interfering with his possession and also sought for mandatory injunction
directing the respondents to restore the cart track along with red marked portion
in Survey No.750/1 in the plaint plan. He also sought for mandatory injunction
directing the respondent to restore the channel course 'AB' along with western
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S.A.No.877 of 1998
extremity of red marked cart track in Survey No.750/1. The suit was partly
decreed by the Trial Court granting the relief of declaration and injunction. The
Trial Court also declared that the appellant is entitled to use the water channel in
Survey No.750/1 with the width of two feet together bunds with the width of one
feet on either side. The trial Court also issued a mandatory injunction directing
the respondents to restore the water channel and the bunds as declared by it. In
respect of other prayers of the appellant/plaintiff, the suit was dismissed.
Aggrieved by the same, the appellant filed first appeal in A.S.No.55 of 1995, on
the file of Principal District Court, Dindigul and the same was dismissed.
Challenging the said judgment and decree, the appellant is before this Court.
2. According to the appellant/plaintiff, the first respondent is his father
and the second respondent is his brother. The suit property was originally
belonged to the Hindu joint family consisting the appellant, first respondent and
second respondent. There was a partition in the family on 07.12.1979
whereunder the properties of the family was partitioned among the family
members. Under the said document, 'C' schedule was allotted to the share of the
appellant. 'A' schedule was allotted to the first respondent and 'B' schedule was
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S.A.No.877 of 1998
allotted to the second respondent. It was further pleaded by the appellant that the
second respondent herein obliterated the water channel and the common cart track
running from the common well situated in the portion of the property allotted to
the first respondent leading to the property of the appellant, which lies on the
southern side. It was specifically pleaded by the appellant that the cart track is
the only way of access to his agricultural lands and in the absence of the cart
track, he may not be in a position to take his agricultural implements to his lands
on the southern side. The cart track, which was obliterated by the second
respondent, was shown by red marked portion in the plaint plan. The appellant
also pleaded that the respondents obliterated the water channel leading to his
lands from the common well. Therefore, he also sought for mandatory injunction
directing the respondents to restore the water channel.
3. The first respondent herein filed a written statement denying the very
existence of the water channel and cart track as alleged by the appellant. It was
further pleaded by the first respondent that there was a cart track lying on the
eastern side of the appellant's property and he had been using the same as an
access to his agricultural land. It was further pleaded that on the southern side
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S.A.No.877 of 1998
also, there is a cart track along with the water channel. The existence of water
channel from the common well to the property of the appellant was also denied by
the first respondent. The second respondent also filed a written statement on the
very same lines supporting the written statement of the first respondent.
4. Before the trial Court, the appellant was examined as P.W.1 and the
paternal uncle of appellant and the brother of the first respondent, namely,
Kuppanna Gounder was examined as P.W.2. On behalf of the appellant, five
documents were examined as Ex.A.1 to Ex.A.5. On behalf of the respondents, the
second respondent was examined as D.W.1 and the first respondent was examined
as D.W.2. On behalf of the respondents, no documentary evidences were let in.
The Advocate Commissioner's report and plan were marked as Ex.C.1 and
Ex.C.2.
5. The trial Court, on appreciation of evidences available on record,
came to the conclusion that as per the partition deed between the parties, which
was marked as Ex.A.1, the appellant/plaintiff is entitled to a share in the common
well, which is lying in the property allotted to the first respondent. Based on the
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S.A.No.877 of 1998
said right, the trial Court came to the conclusion that the appellant is entitled to
take the water from the common well to his agricultural lands on the southern
side and for that purpose, there shall be a water channel. The trial Court also
based on the admissions of D.W.1 came to the conclusion that the appellant is
entitled to use the bunds of the channel as a pathway and consequently, granted a
decree directing the respondents to restore the water channel with pathway with a
width of one feet each on either side of the water channel. Aggrieved by the said
judgment, the appellant had filed first appeal in A.S.No.55 of 1995 and the same
was dismissed by the first appellate Court confirming the findings of the trial
Court. Challenging the same, the appellant is before this Court.
6. At the time of admission, the following substantial questions of law
were framed :
(i) Whether on the very finding that the appellant is
entitled to a right of way, as an easement of necessity the Courts
below are right in restricting it only to a footpath?
(ii) Whether the right of the appellant to the suit cart
track as an easement of necessity that arises on the disruption of
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S.A.No.877 of 1998
joint possession can be negatived on the ground that Ex.A1
partition deed does not refer to the same when admittedly Ex.A.1
partition deed reserves the right of the appellant to use the east-
west cart track to the north of the property of the first respondent
which cannot be reached except through the suit cart track
pleaded by the appellant?
7. Elaborating the substantial questions of law framed at the time of
arguments, the learned counsel for the appellant submitted that there is a
reference about the cart track even in the partition deed, Ex.A.1, entered between
the parties. It is the submission of the learned counsel that when the suit
cart track is referred to in Ex.A.1, the trial Court ought not to have restricted the
width of the cart track to two feet. The learned counsel further submitted that
there is a poramboke cart track on the northern side of the properties of the parties
and in between the cart track on the northern side and the lands allotted to the
appellant, the lands allotted to the first respondent is situated. Therefore, to reach
the cart track on the northern side, the suit cart track is the only access for the
appellant. The learned counsel had also taken this Court to the evidence of D.W.
2, wherein he admitted about the existence of the water channel and the right of
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S.A.No.877 of 1998
the appellant to use the bunds of the water channel as a pathway to reach his
lands.
8. Pending the second appeal, the first respondent passed away and his
wife was brought on record as third respondent and the appellant and the second
respondent, who are sons of the first respondent were also recorded as his legal
representatives. Subsequently, the third respondent also died and hence, the
appellant and the second respondent were recorded as legal representatives of the
third respondent. Pending the second appeal, the second respondent also died
subsequently and hence, the respondents 4 and 5, namely, his sons were brought
on record as his legal representatives. Though the respondents 4 and 5 are served,
there is no representation for them.
9. The trial Court, on appreciation of oral and documentary evidences
available on record, came to the conclusion that the appellant is entitled to
restoration of water channel to take water from the common well to his
agricultural lands. As far as the right of way is concerned, the trial Court
restricted the width of the pathway to two feet by holding that the appellant is
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S.A.No.877 of 1998
entitled to use the bunds of the water channel on either side of the channel as an
access to his agricultural lands. The paternal uncle of the appellant and the
brother of the deceased first respondent was examined as P.W.2. He is also an
attestor to Ex.A.1- partition deed. In his evidence, he referred to easementary
right of appellant to take water from the common well to the portion of the lands
allotted to him under the partition. He also speaks about the existence of
cart track leading to the lands allotted to the appellant. P.W.2 is the paternal uncle
of the appellant and the second respondent and brother of the first respondent. He
also referred to the east-west cart track on the northern side of the properties of
the parties. D.W.2 also in his evidence admits about the right of the appellant to
use the bunds of the water channel on either side to use as an access to the
agricultural lands allotted to him.
10. P.W.2 is a common relative to the appellant as well as the
respondents and absolutely there is nothing on his part to speak against the
respondents. The evidence of P.W.2 that there was a cart track in the suit property
prior to filing of the suit, cannot be ignored. Even the Courts below on assessing
the evidences available on record came to the conclusion that there is no other
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S.A.No.877 of 1998
access to the appellant's property and hence, he is entitled to use the bunds of the
water channel as the pathway to reach his lands. Therefore, it is clear that there is
no other cart track to reach the lands of the appellant, except the access which
runs parallel to the water channel. In the absence of cart track, the appellant may
not be in a position to take his agricultural implements to his lands. The
properties of the parties belong to a common ancestor and it was enjoyed by them
as a joint family property. Only under Ex.A.1 the properties were partitioned
among the parties. Therefore, the cart track enjoyed by them before the partition
should be made available to all the sharers. It is settled law splitting of tenements
results in easementary right by necessity.
11. In view of the discussion made above, there is no justification for
the Courts below to restrict the right of way available to the appellant to a width
of two feet. Therefore, the judgments and decrees passed by the Courts below
requires modification with a declaration that the appellant/plaintiff is entitled to a
cart track with a width of six feet. With these modification, the second appeal
stands allowed.
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S.A.No.877 of 1998
12. In fine,
(i) the Second Appeal is allowed by modifying the judgments and
decrees passed by the Courts below that the appellant is entitled to a cart track
on the eastern side of water channel with a width of six feet parallel to the water
channel running from the common well to the lands of the appellant; and
(ii) In the facts and circumstances, there will be no order as to costs.
04.01.2023
NCC : Yes/ No
Index : Yes / No
Internet : Yes / No
cp
To
1.The Principal District Judge,
Dindigul.
2. The District Munsif, Palani.
3.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.No.877 of 1998
S.SOUNTHAR, J.
CP
S.A.No.877 of 1998
04.01.2023
https://www.mhc.tn.gov.in/judis
