Madras High Court
Velusamy (Deceased) vs Palanisamy (Deceased) on 9 January, 2023
S.A.No.872 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.01.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.872 of 2006
in
M.P.No.2 of 2006
1.Velusamy (deceased)
2.Sengottu Velappan
3.Thangaraj (died)
4.Subramaniam (died)
5.T. Tamil Selvi
6.T.Vijay
7.V.Nallammal
8.T.Vanitha
9.V.Balu
10.Indhirani
11.S.Sharmila
12.S.Keerthana ...Appellants/Respondents/Plaintiffs
1/24
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S.A.No.872 of 2006
Vs.
1.Palanisamy (deceased)
2.Chenniappa gounder
3.Saraswathi @ Sarasu
4.S.Poongodi
5.P.Sumathi
6.S.Shanthi
7.A.Bhuvaneswari ...Respondents/Appellants/Defendants
(Appellants 5 and 6 brought on record as the legal representatives of
the deceased 3rd appellant vide Order of this Court dated 10.06.2015 in
M.P.No.1 of 2015 in S.A.No.812 of 2006).
(Appellants 7 to 9 brought on record as the legal representatives of the
deceased 1st appellant vide Order of this Court dated 16.08.2017 in
C.M.P.Nos.13016 to 13018 of 2017 in S.A.No.812 of 2006).
(Appellants 10 to 12 brought on record as the legal representatives of
the deceased 4th appellant vide Order of this Court dated 17.11.2021 in
in S.A.No.812 of 2006).
2/24
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S.A.No.872 of 2006
(Respondents 3 to 7 brought on record as the legal representatives of
the deceased 1st respondent vide Order of this Court dated 12.12.2014
in M.P.Nos.3 and 4 of 2014 in S.A.No.812 of 2006).
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 29.12.2005 in
A.S.No.92 of 2005 on the file of the learned I Additional Subordinate
Judge, Erode, reversing the Judgment and Decree dated 28.07.2005 in
O.S.No.1185 of 2004 on the file of the learned Principal District
Munsif, Erode.
For Appellants : Mr.Titus Enock
for M/s.I.C.Vasudevan
For Respondents : Mr.Arun Anbumani
for Mr.M.Guruprasad
for R2 to R7
R1 - died
JUDGMENT
The plaintiffs are the appellants before this Court challenging
the Judgment and Decree passed by the learned I Additional
Subordinate Judge, Erode, in and by which the learned Judge has
reversed the Judgment and Decree passed by the learned Principal
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S.A.No.872 of 2006
District Munsif, Erode in O.S.No.1185 of 2004. The reference to the
parties in this Second Appeal is in the same ranking as before the Trial
Court.
2.The suit in question is for a declaration that the plaintiffs are
entitled to use an itteri situate in R.S.Nos.12/1 and 14/1 of
Pavalathampalayam Village of R.D.Perundurai, Erode.
3.The facts as set out in the Plaint are as follows:
The suit property is comprised in R.S.No.12/1 (Old No.36)
measuring an extent of 0.01.5 Hectares and R.S.No.14/1 (Old
No.23A3) measuring an extent of 0.09.5 Hectares which is used as a
cart track (itteri) situate in R.S.Nos.9 and 8. It is the plaintiffs' case
that the itteri runs through R.S.Nos.12/1 and 14/1 branching out from
the North – South Nanjanapuram main Road. It is their case that the
1st and 4th plaintiffs own lands in R.S.No.9/1 measuring an extent of
2.80 ½ acres and the 2nd plaintiff owns 31 cents in R.S.Nos.9/8 and 9/7
which is situate South of the suit itteri in R.S.No.12/1. The 3 rd
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S.A.No.872 of 2006
plaintiff owns his lands in R.S.No.9/6. It is their case that the suit cart
track is their only access from the Nanjanapuram to Namiyanur Road.
The defendants are the sons of one Karuppanna Gounder who own the
lands in R.S.No.12 which lies immediately to the South of the cart
track. The defendants have now attempted to annex the cart track into
their lands and with an intention, they had dug pits to plant coconut
saplings in the cart track. Therefore, left with no other option, the
plaintiffs have come forward with the suit in question.
4.The defendants had filed a Written Statement inter alia
denying the claim of the plaintiffs. It was their categoric case that
there is no access available to any person including the plaintiffs
through R.S.Nos.12/1 and 14/1. In fact, there is no pathway as shown
in the Plaint on site and they had categorically denied that the alleged
pathway is the only access to reach the main road. The defendants
would submit that the suit property exclusively belongs to them and
they are in enjoyment of the same for several decades. The properties
stood in the name of the father of the defendants, Karuppanna
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S.A.No.872 of 2006
Gounder and after his demise, the defendants are enjoying of the
same. The revenue records would also stand in their name. It is their
case that the properties of the 1st and 4th defendants are situate
immediately abutting the main road and the defendants 2 and 3 have
their access through a well defined mud road immediately to the West
of their property. This pathway proceeds Southwards and joins the
road in Kumaran Nagar, which is the approved layout and proceeds
further Southwards and reaches Nanjanapuram Road to Namiyanur
Road. Therefore, the plea of easement of necessity does not exist and
the plaintiffs are not entitled to the decree as claimed by them.
5.The learned Principal District Munsif, Erode, had framed the
following issues:
vGtpdhf;fs;:
“(1)thjpfs; nfhUk; epue;ju cWj;Jf;
fl;lisg; ghpfhuk; mth;fSf;F
fpilf;fj;jf;fjh?
(2)jhth tz;og;ghijia thjpfs;
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S.A.No.872 of 2006
gad;gLj;jp tUfpd;wdh; vd;gJ rhpah?
(3)thjpfSf;F fpilf;fj;jf;f ntW
ghpfhuk; vd;d?
TLjy; vGtpdhf;fs;:
“(1)thjpfs; nfhUk; tpsk;g[ifg; ghpfhuk;
mth;fSf;F fpilf;fj;jf;fjh?
(2)thjpfs; nfhUk; epue;ju cWj;Jf;
fl;lisg; ghpfhuk; mth;fSf;F
fpilf;fj;jf;fjh?
(3)jhth tz;og;ghijia thjpfs;
gad;gLj;jp tUfpd;wdh; vd;gJ rhpah?
(4)thjpfSf;F fpilf;fj;jf;f ntW
ghpfhuk; vd;d?”
6.The plaintiffs had examined the 2nd plaintiff as PW1 and one
Ponnusamy, a third party as PW2. Mr.Mohanasundaram, Village
Administrative Officer as PW3 and one Mahalingam, Panchayat
President as PW4. To substantiate their case, the plaintiffs had
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S.A.No.872 of 2006
marked Ex.A.1 to Ex.A.11. On the side of the defendants,
Mr.Palanisamy, the 1st defendant had examined himself as DW1 and
one Thangamuthu as DW2. Ex.B.1 to Ex.B.10 were marked to
substantiate the case of the the defendants. The report of the Advocate
Commissioner and Plans were marked as Ex.C.1 to Ex.C.4.
7.The trial Court on a perusal of the evidence and other records
decreed the suit. The trial Court was persuaded to decree the suit on
account of the fact that the suit pathway has been described as a
epytpay; ghij and the learned Judge also held that the suit
pathway was the only access in respect of the properties of all the
plaintiffs to reach the main road and therefore, on the ground of
easement of necessity, the plaintiffs are entitled to a decree. The
learned Judge had also observed that the obliteration of the cart track
as evidenced by Ex.C.1 to Ex.C.4 – Commissioner's reports and Plans
would point fingers only at the plaintiffs. Therefore, the learned Judge
had decreed the suit.
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S.A.No.872 of 2006
Challenging the said Judgment and Decree, the defendants had
filed A.S.No.92 of 2005 on the file of the learned I Additional
Subordinate Judge, Erode. The learned Judge on considering the
evidence on record, arguments and the pleadings allowed the appeal
and set aside the Judgment and Decree passed by the trial Court. The
learned Judge observed that Ex.B.10 upon which the trial Court had
placed reliance did not relate to the defendants as Karuppa Gounder
referred to in the said Deed was the grandfather of the 3rd plaintiff and
not the father of the defendants. The learned Judge further observed
that Ex.B.6 and Ex.B.7 would clearly show that the property
exclusively belongs to the defendants. Further, after the sale by the
3rd plaintiff under Ex.A.11, the 3rd plaintiff has no share in the suit
property and therefore, he has no subsisting right to maintain the suit.
The Appellate Court observed that the trial Court has not appreciated
the Advocate Commissioner's reports and the Appellate Court had also
taken note of the fact that the 2 nd plaintiff, who had no direct
knowledge of any of the earlier transaction alone had adduced
evidence and the other plaintiffs had not entered the witness box to
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S.A.No.872 of 2006
adduce evidence. The Appellate Court taking into account the
Commissioner's report and Plan which were filed initially (Ex.C.1 and
Ex.C.2) and filed after injunction had been granted in favour of the
plaintiffs as Ex.C.3 and Ex.C.4 observed that the first Commissioner
has clearly found that there was no pathway in existence and on the
contrary, the defendants have been cultivating in that portion of the
property. Therefore, the Appellate Court had proceeded to allow the
appeal. Challenging the same, the plaintiffs have filed the above
Second Appeal.
9.The Second Appeal was admitted on the following Substantial
Questions of Law:
“(a)Whether the Judgment of the Lower Appellate
Court is vitiated in its failure to consider the material
admission of DW2 that suit cart track has been used for
long time especially when the trial Court relied on his
evidence to decree the suit?
(b)Whether the respondents/defendants are entitled
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S.A.No.872 of 2006
to plead non user and non existence of suit track when
the suit cart track has been described in Ex.A.11, their
parent document?
(c)Whether the Judgment of the Lower Appellate
Court is vitiated by perversity in its stating that Advocate
Commissioner had pointed out an alternative cart track
when no such alternative pathway had been mentioned in
the Commissioner's report?
(d)Whether the Lower Appellate Court erred in
Law in negativing the plea of perspective easement on
the ground that alternative pathway is available and
whether Lower Appellate Court finding is the result of
misreading of Plaint pleadings?”
10.Mr.Titus Enock, learned counsel appearing on behalf of the
appellants would base his preliminary argument on the fact that the
suit property has been described as epytpay; ghij in Ex.A.6 and
Ex.A.7 which are the survey sketches for R.S.Nos.9 and 12 and
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S.A.No.872 of 2006
Ex.A.5 - FMB sketch. The learned counsel appearing for the
appellants/Plaintiffs would further submit that in Ex.A.1 – Sale Deed
under which the 1st plaintiff's father purchased a property, there is a
reference to the mamool pathway. Even in the partition under Ex.A.2
under which the 2nd plaintiff's father had obtained a share there is a
mention to the itteri. In Ex.A.11 which is the Sale Deed executed by
the 3rd defendant to one Sankaran the said cart track had been clearly
delineated and this property has been ultimately purchased by the
defendants and therefore, the defendants cannot question the existence
of the cart track. Therefore, it is the contention of the plaintiffs that
Ex.A.1, Ex.A.2, Ex.A.11 and Ex.B.10 – Partition Deed put together
show the existence of the pathway. PW3, who is the Village
Administrative Officer has spoken about the right of way. He would
also submit that the report of the Commissioner, particularly, the first
Commissioner's report will not in any manner go to show that there is
no pathway since grass has grown on account of there being no
agricultural activities. He would further draw the attention of this
Court to the evidence of DW2 in this regard wherein the witness has
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S.A.No.872 of 2006
admitted that the property that has been sold by the 3 rd plaintiff under
Ex.A.11 is the very same property that the defendant had purchased.
The witness has also admitted that the recitals in Ex.A.11 which
would state that from the road the pathway proceeds through
R.S.No.12/1 over which carts, men and cattle could proceed.
Therefore, the learned counsel would submit that the Appellate Court
has clearly committed an error in allowing the appeal filed by the
defendants.
11.Per contra, Mr.Arun Anbumani, learned counsel appearing on
behalf of M/s.M.Guruprasad for the respondents 2 to 7 would submit
the following crucial dates for consideration of this Court:
23.07.2004 - Plaint filed and Advocate Commissioner
appointed.
23.07.2004 - Advocate Commissioner inspects the property.
24.07.2004 - Interim injunction granted.
29.07.2004 - First report is filed.
30.07.2004 - I.A.No.1019 of 2004 is filed by the defendants
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S.A.No.872 of 2006
for the second inspection and the police complaint
has also been lodged alleging that the plaintiffs had
trespasseed into the property after the
injunction order was obtained in their favour.
12.The learned counsel would submit that in Para IV and Para V
of the Plaint, the plaintiffs have contended that the suit cart track is the
only access in respect of the properties of all the plaintiffs to reach the
main road. Therefore, he would submit that the plaintiffs have come
to Court on the ground that they require the pathway as an easement of
necessity. He would next point out the difference in the reports of the
Commissioner prior to the grant of injunction and post the granting of
injunction. During the inspection conducted on 24.07.2004 (report
which is submitted on 29.07.2004), the Advocate Commissioner has
clearly shown that the property which has been described as the suit
property has about 45 numbers of small pits dug through the area to
plant coconut saplings and there is a mention that a portion of the
property was also cultivated with corn (nrhsk;). After the Advocate
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S.A.No.872 of 2006
Commissioner's report was submitted, the learned Principal District
Munsif, Erode, had proceeded to grant an interim injunction to the
plaintiffs. Being armed with the injunction order, the plaintiffs had
forcefully trespassed into the suit property and obliterated the entire
Northern portion of the defendants' lands and formed a pathway.
13.During the second visit, the Advocate Commissioner had
submitted a report stating that what he had earlier noted as physical
features is not available on site. The Commissioner has clearly stated
that a pathway has been formed after the first visit. Therefore, he
would submit that the suit pathway as pleaded by the plaintiffs was
never in existence and after obtaining the injunction the pathway has
been created. He would next draw the attention of this Court to Ex.B.7
which is the Sale Deed executed by the defendants to one Jaganathan
wherein the Southern boundary has been clearly described as
Jaganathan's land and the property on the North as the land of a third
party and it was nowhere stated in the document that there is an itteri.
That apart, the plaintiffs who claim that the suit property is a public
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S.A.No.872 of 2006
road, have not made any reference in his pleadings that the pathway
has been used by the general public.
14.The learned counsel would submit that the suit itself is an
engineered one for creating an access to the neighbouring layout since
the defendants want to form house sites and two accesses would
ensure an enhanced sale consideration. PW4 in his Chief examination
has no clue about the mamool cart track in R.S.No.12/1. He would
further submit that the defendants have made it appear as if the suit
property is being jointly enjoyed by the plaintiffs and the defendants,
which is not the case. He would further submit that the trial Court has
committed a grave error in construing that Ex.A.10 is the partition
between the predecessor of the plaintiffs and the defendants and come
to the conclusion that the defendants and the plaintiffs have a common
owner. He would submit that the Lower Appellate Court has
extensively considered the evidence, re-appreciated it, distinguished
the findings of the trial Court and ultimately allowed the appeal.
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S.A.No.872 of 2006
15.Heard the learned counsels appearing on either side and
perused the papers.
16.The plaintiffs have come forward with the suit for a
declaration and permanent injunction in respect of a cart track stating
that this cart track is in their use for over several decades. A perusal
of the pleadings at this juncture woud be relevant. In Para VI of the
Plaint, the plaintiffs have mentioned as follows:
“VI.The defendants 1 and 2 are making all hectic
efforts to annex the suit cart track itteri with their
agricultural land situate on the South. With bad motive
in mind, on 23.07.2004, the defendants and their
henchmen dug pits to erect coconut saplings in the suit
cart track itteri....”
17.A reading of the above pleadings it would show that on the
date of the filing of the suit, the suit cart track was not described as
cart track since the area described as the suit property has been
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S.A.No.872 of 2006
covered with several pits to plant coconut saplings. The plaintiffs
without seeking for a mandatory injunction to restore the property as a
pathway has filed a suit for bare injunction. The plaintiffs have
primarily based the suit on the ground of easement of necessity in
terms of access to the main road in respect of the properties of all the
plaintiffs. Therefore, the plaintiffs have to first prove that they have
no alternate pathway. The defendants have in categoric terms stated
that the plaintiffs have alternate pathway on either side, namely, the
East and the West. A perusal of Ex.C.1 – Advocate Commissioner's
report and Plan would clearly show that in the suit property, the
defendants had dug pits to plant coconut saplings. The lands of the
defendants are situate to the South of the plaintiffs' land. The
Commissioner's report would show that the 1st and 4th plaintiffs have
direct access to the main road and in the case of the 2nd and 3rd
plaintiffs, they have an access to the mud road on the East which leads
ultimately to the main road. A perusal of Ex.C.2 would clearly
indicate that the alleged suit pathway has not been used since on the
date of the first inspection by the Advocate Commisisoner, the
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S.A.No.872 of 2006
pathway was not in existence and only pits for planting coconut
saplings were there.
18.That apart, in the Southern boundary of the 1st and 2nd
plaintiffs, coconut trees are planted and grown from the plaintiffs'
house right up to the Eastern boundary of the defendants 3 and 4 and
they form a kind of a boundary line and the alleged pathway is covered
with pits. However, on the second visit by the very same Advocate
Commissioner, this portion in which pits were dug up has been totally
obliterated and a pathway like formation has been created by the
plaintiffs. That apart, the first Commissioner's report would clearly
show that on site there is no pathway and the Advocate
Commissioner's report also tallies with the pleadings of the defendants
at Para VI as extracted supra. However, during the second visit,
the Advocate Commissioner found that the property of the defendants
had undergone a change. That apart, the plaintiffs have access on
either side of their lands, namely, on the West they have the
Nanjanapuram Road to Namiyanur Road and on the East by a mud
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S.A.No.872 of 2006
road which runs into the adjacent approved layout and then later up to
the main road. Therefore, the plea of easement of necessity stands
extinguished under Section 41 of the Indian Easements Act. Once the
necessity ceases to exist the plea of easement is no longer available to
the party in the instant case. The 2nd plaintiff had examined as PW1
as an independent witness to speak about there being no other access
to reach the suit property. However, during his cross examination, he
has admitted the alternate pathway.
19.PW1, the 2nd plaintiff, during his cross examination would
admit that the well is situate in the property of the 2nd plaintiff and this
well is commonly owned by both the 2 nd and 3rd plaintiffs which
clearly indicates that the 2nd plaintiff has an access into the 3rd
plaintiff's property and therefore can also access the North - South
pathway on the East from the 3rd plaintiff's property as well. He has
also not contended that the first Commissioner's report is wrong. He
has in fact admitted that he has been coached to give evidence. The
witness would also admit the existence of the mud road to the East of
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S.A.No.872 of 2006
the 3rd plaintiff's property which leads to Kumaran Nagar layout and
ultimately to the main road. PW3, the Village Administrative Officer,
would submit that R.S.No.12/1 has been declared as a epytpay;
ghij. Further, PW3 would himself admit that the pathway is in the
patta land and was standing in the name of the defendants' father. The
patta in respect of the properties also stands in the name of the
defendants' father and the defendants. Considering the fact that the
defendants have not established that they do not have an alternate
pathway or that they are only dependent on the suit pathway, the
Substantial Question of Law (a) is answered against the plaintiffs.
20.The existence of the alleged pathway is found only in Ex.A.1
which is the Sale Deed that had come into existence just two years
prior to the filing of the suit on 23.07.2004 and that on the date of the
1st Commissioner's visit, the suit pathway was not in existence. It
has been stated that the defendants had dug pits for planting coconut
saplings through out the property described as a cart track. Therefore,
on the date of filing of the suit, there was no pathway in existence. A
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perusal of Ex.C.2 would clearly show that a portion of the alleged
epytpay; ghij was cultivated with nrhsk; apart from the pits
dug through out the property. There is no explanation from the
plaintiffs as to how before the visit of the second Commissioner a cart
track had come into existence. These two reports would definitely go
to show that the plaintiffs have attempted to form the pathway so as to
substantiate their case. Further, the Commissioner's report also clearly
shows that there is an alternative pathway on either side of the
property of the plaintiffs who have jointly filed the suit. Therefore, the
Apellate Court has rightly allowed the appeal. As regards the
Substantial Question of Law (b), Ex.A.11 is of the year 2002 in 2004,
when the plaintiffs have filed the suit they have themselves stated that
the defendants have dug pits through out the property. Therefore, for
argument's sake if the plaintiffs' case is accepted the cart track has
been obliterated on the date of filing of the suit the plaintiffs ought to
have sought for a mandatory injunction. The trial Court has decreed
the suit only on the ground that the plaintiffs have no alternate
pathway. However the records, including the Commissioner's report,
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are otherwise. Therefore, the Substantial Questions of Law b, c, and d
are answered against the plaintiffs.
The Second Appeal is dismissed and the Judgment and Decree
of the Appellate Court in A.S.No.92 of 2005 is confirmed. No costs.
Consequently, connected Miscellaneous Petition is closed.
09.01.2023
Index : Yes/No
Internet : Yes/No
Speaking order / Non speaking order
mps
To
1.The I Additional Subordinate Judge,
Erode.
2.The Principal District Munsif,
Erode.
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S.A.No.872 of 2006
P.T. ASHA, J,
mps
S.A.No.872 of 2006
in
M.P.No.2 of 2006
09.01.2023
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