Madras High Court
A.Subbraya Gounder vs K.Ponnusamy on 24 November, 2023
S.A.No.494 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.11.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.494 of 2017
and C.M.P.No.1713 of 2019
1.A.Subbraya Gounder
2.S.Muthusamy
3.S.Arjunan ...Appellants
Vs.
1.K.Ponnusamy
2.Chinnasamy ...Respondents
PRAYER : Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree of the learned Subordinate Judge,
Dharapuram in A.S.No.9 of 2014 dated 01.11.2016 in confirming the Decree
and Judgment of the learned District Munsif, Kangayam in O.S.No.251 of
2011 dated 01.02.2015.
For Appellants : Mr.S.Parthasarathy
Senior Advocate
for Mr.M.R.Thangavel
For Respondents : Ms.S.Yogalakshmi
for Mr.K.Rajasekaran
https://www.mhc.tn.gov.in/judis
1/18
S.A.No.494 of 2017
JUDGMENT
The unsuccessful defendants are the appellants. The respondents herein
filed a suit for bare injunction restraining the appellants from interfering with
their right to lay pipeline underneath the suit common pathway to take water
to their land and for other reliefs. The suit was decreed by the Trial Court and
the findings of the Trial Court were affirmed by the First Appellate Court.
Aggrieved by the concurrent findings, the defendants have come by way of
this second appeal.
2. According to the respondents/plaintiffs, the appellants/defendants
are their Southern neighbours. There is a East West pathway on the Southern
side of the defendants' property, which turns North on the Eastern side of
defendants' property and reach the respondents'/plaintiffs' property. The suit
property originally belongs to Karuppa Gounder's family and there was a
partition in his family on 25.09.1970, under Ex.A1. The property of the
respondents/plaintiffs was allotted to the share of One Ponnusamy Gounder
son of Molagounder and grandson of Karuppa Gounder under B Schedule to
the said Partition Deed. Thereafter, there was a partition under Ex.A2 on
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28.03.2007 and the property of the respondents was allotted to the share of
Ponnusamy Gounder's son Subramaniyan under B Schedule to the said
Partition Deed. Subsequently, the first respondent purchased the suit property
with an extent of 15 cents from Subramaniyan under Ex.A3 dated
25.07.2007. Thereafter, the first plaintiff sold 7 1/2 cents in the said property
in favour of second plaintiff under Ex.A4 dated 13.09.2007. Therefore, the
respondents/plaintiffs claimed right over the entire 15 cents together with
easement right to use the pathway on the Southern and Eastern side of the
appellants'/defendants' property. It was further averred by the respondents
that even in the Sale Deed executed by Subramaniyan in favour of the first
plaintiff under Ex.A3, the vendees/plaintiffs were given right to lay pipeline
underneath the pathway. When the respondents/plaintiffs attempted to lay
pipeline underneath the pathway and take water to their house and industry,
the same was opposed by the appellants. Therefore, the respondents were
constrained to file the suit for bare injunction as mentioned above.
3. The appellants/defendants filed the written statement and resisted
the suit on the ground that the suit for bare injunction filed by the
respondents was not maintainable in the absence of prayer for declaration of
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their alleged easement right to lay pipeline. It was further averred by the
appellants that as per the Partition Deeds dated 25.09.1970 and
28.03.2007which were marked as Ex.A1 and Ex.A2. The respondents were
not given any right to lay water pipeline underneath the suit pathway. In such
circumstances, the respondents were not entitled to seek injunction
restraining the appellants from interfering with their alleged right to lay
pipeline. It was also specifically averred by the appellants that the
respondents were not co-owners of the suit pathway and they were entitled to
enjoy the same only as a pathway and no right was conferred on them under
Ex.A1 and Ex.A2 to lay water pipeline underneath the suit pathway. On these
pleadings, the appellants sought for dismissal of the suit.
4. Before the Trial Court, the first respondent was examined as P.W.1
and two other witnesses were examined as P.W.2 and P.W.3. On behalf of the
respondents, 8 documents were marked as Ex.A1 to Ex.A8. The second
appellant was examined as D.W.1 and 7 documents were marked on behalf of
the appellants as Ex.B1 to Ex.B7.
5. The Trial Court on appreciation of evidence available on record
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came to the conclusion that both the appellants and the respondents were co-
owners of the suit pathway and hence, the respondents were entitled to lay
water pipeline underneath the common pathway and consequently granted a
decree for injunction as prayed for. Aggrieved by the same, the appellants
herein preferred an appeal in A.S.No.9 of 2014 on the file of Subordinate
Court, Dharapuram. The First Appellate Court also concurred with the
findings of the Trial Court dismissed the appeal. Aggrieved by the same, the
appellants have come by way of this second appeal.
6. At the time of admission, this Court formulated the following
substantial questions of law vide order dated 22.01.2019, which read as
follows;
"(a) Whether a relief of permanent injunction based on
title and a claim for easement right be raised simultaneously?
(b)Whether the suit for bare injunction is maintainable
without seeking for a relief of declaration when the defendants
had denied the title of the plaintiffs?
(c)Whether the court could extend the usage of the
pathway to lay pipeline beyond the right to ingress under the
guise of easement right?
(d)Whether the suit for bare injunction is maintainable
without impleading the co-sharers of the suit property?"
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7. The learned senior counsel appearing for the appellants by drawing
the attention of this Court to recitals found in parent documents of the
respondents, namely Ex.A1 and Ex.A2 submitted that in the parent
documents, the respondents were given right only to use the suit pathway as
access to the property lying on the Northern side and in the absence of any
specific recital in Ex.A1 and A2 conferring right to lay pipeline underneath
the suit pathway in favour of the respondents' predecessor in interest, the
respondents are not entitled to claim such right by virtue of subsequent
documents. The learned counsel further submitted that the recital introduced
in Ex.A3 conferring right to lay water pipeline under the suit pathway would
amount to enlargement of original easement conferred on the respondents'
predecessor in interest under Ex.A1 and Ex.A2. The learned senior counsel
further submitted that the Courts below proceeded on the mistaken
assumption that both the appellants and the respondents were co-owners of
the suit pathway. The easement right conferred under Ex.A1 and Ex.A2
would suggest that the respondents' predecessor were given easementary right
to have access through the suit pathway and they have not been given any
right of ownership over the suit pathway. In support of the said contention,
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the learned senior counsel relied on the followings decisions;
(1) K.Kolandaisami Gounder and others v. Manickam reported in
2001-3-L.W.832
(2) Parvathy v. Ponnusamy reported in 2002(2) CTCOL 21(Mad)
8. Per contra, the learned counsel appearing for the respondents
submitted that right to lay pipeline underneath the suit pathway is only a right
which is necessary to secure full enjoyment of easementary right of access
conferred on the respondents' predecessor under Ex.A1 and Ex.A2.
Therefore, even assuming that no such right is expressly conferred to the
respondents under Ex.A3 and Ex.A4, still by virtue of Section 24 of Indian
Easements Act, the respondents /plaintiffs are entitled to lay pipeline
underneath the suit pathway. The learned counsel further submitted that the
right to lay pipeline has been expressly conferred on the first respondent
under Ex.A3 Sale Deed in his favour. Therefore, the appellants are not
entitled to object the exercise of said right by the respondents.
9. It is not in dispute originally the suit property was owned by one
Karuppa Gounder's family. The partition entered into between the members
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of Karuppa Gounder family is marked as Ex.A1 under the document, the said
pathway and its adjacent land on the side of said pathway i.e., property of the
respondents were originally allotted to the share of one Ponnusamy Gounder
son of Molagounder. Thereafter, there was another partition in the family of
Ponnusamy Gounder on 28.03.2007, under Ex.A2. Under the said document,
the respondents' property was allotted to the share of Subramaniyan son of
Ponnusamy Gounder. The respondents herein are claiming right over their
property under a Sale Deed executed by said Subramaniyan in favour of the
first respondent under Ex.A3. Subsequently, portion of the property
purchased by the first respondent was sold to the second respondent. Thus, it
is clear that the respondents are claiming right over the property only under
Subramaniyan. In these circumstances, the easement right conferred on
Subramaniyan under Ex.A1 and Ex.A2 assumes significance. The relevant
recitals in Ex.A1 read as follows;
"rptd;kiy fpuhkj;jpa 859 be/fh/ capy;
bjw;Ff;nfhlhf khKy; jlj;jpy; fpHf;nf
btl;Lf;fhL fpHf;Ff;nfhL tiu brd;W nkl;oy;
tlf;nf jpUk;gpj; j';fs; ghfk; tiu
epyghf!;jh;fs; bry;y 15 mo mfyj;jpy;
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ghf!;jh;fs; jlk; tpl;Ltpl ntz;oaJ/"
10. A perusal of Ex.A1 would make it clear that A Schedule property
was allotted to the share of Ponnusamy Gounder and he was given easement
right to use 15 feet pathway. Therefore, it is clear that the predecessor of
respondents' namely Ponnusamy Gounder was given easementary right of
access over the suit pathway with 15 feet width. No right has been conferred
on the said Ponnusamy Gounder to lay pipeline underneath the pathway . The
said recitals in Ex.A1 is reiterated in Ex.A2 wherein the respondents' property
was allotted to 1st respondent's vendor Subramaniyan. However, when
Subramaniyan sold 15 cents property to the 1st respondent under Ex.A3 a
recital has been included as if the vendee in the document, namely the first
respondent was entitled to lay pipeline underneath the pathway. It is settled
law that a person can convey only a right which he has and he cannot convey
more right than what he had. Under Ex.A1 and A2, above said Ponnusamy
Gounder and the vendor of respondents namely Subramaniyan got only
easement right of access over the suit pathway. They were not given any right
to lay water pipeline underneath the suit pathway. However in Ex.A3,
subsequent document, Subramaniyan included a new right to the 1st
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respondent by including a recital as if the 1st respondent is entitled to lay
pipeline underneath the suit pathway. Certainly, introduction of such recital in
the subsequent document would amount to enlargement of the right of
respondents' vendor, which is not permissible in law.
11. In this regard it would be appropriate to refer the decision of this
Court in the case of K.Kolandaisami Gounder and others v. Manickam
reported in 2001-3-L.W.832. The relevant observations of this Court in this
regard read as follows;
"11.When the specific right was given to use
the land of the defendant only as a pathway, the
defendant cannot be burdened with more
obligations, and the right given under Ex.A1 can
be used to the extent necessary for such enjoyment
by the other sharers. In the present case, except
Ex.A2 to A4, the learned counsel appearing for the
respondent/plaintiff has not pointed out any other
evidence to show as to how the 6ft. width of
pathway is necessary for them to reach the street.
As stated above, additional burden cannot be
imposed on the defendant. In view of the fact that
under Ex.A1, only a right of pathway has been
given to the other settlees, from whom the plaintiff
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derived title, the defendant cannot prevent the
plaintiff from enjoying such right. But, at the same
time, the respondent/plaintiff also cannot claim
6ft., width of pathway, which was not given under
Ex.A1 settlement deed."
12. In the case of Parvathy v. Ponnusamy reported in 2002(2)
CTCOL 21(Mad) while considering the similar question this Court observed
as follows;
"25. In the absence of any declaration
declaring the joint owner or co-ownership of the
vendor of the plaintiff, the plaintiff cannot claim a
right as a co-owner and hence, I find that in view of
the recitals contained in Ex.A1 and the civil decree
between the father of the defendant and the father of
the vendor of the plaintiff under Ex.B2, the plaintiff is
not a co-owner of the disputed property and she can
claim only easementary right and not as that of the
co-owner of the property and hence, I find that the
decision reported in K.Kolandaisamy Gounder case is
applicable to the facts and circumstances of this case,
in view of the facts, as discussed supra."
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13. A cursory look at the above case laws would make it clear
easementary right conferred by a parent document cannot be enlarged by a
subsequent document so as to burden the servient tenement with more
obligation. Therefore this Court comes to the conclusion that under Ex.A1
and Ex.A2 parent documents vendor of respondents were given only right of
access over the suit pathway and they were not given any right to lay pipeline
underneath the pathway. In such circumstances, the respondents are not
entitled to maintain a suit for bare injunction claiming right to lay pipeline
underneath the suit pathway. The learned counsel for the respondents also
pressed into service Section 24 of Indian Easements Act in support of her
contention. She submitted that even in the absence of specific recital in the
parent documents the right to lay pipeline is important right which is
necessary to secure full enjoyment of easementary right of access.
14. Section 24 of Indian Easements Act reads as follows;
"24 Right to do acts to secure enjoyment -The
dominant owner is entitled, as against the servient
owner, to do all acts necessary to secure the full
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enjoyment of easement; but such acts must be done at
such time and in such manner as, without detriment to
the dominant owner, to cause the servient owner as little
inconvenience as possible; and the dominant owner
must repair, as far as practicable, the damage (if any)
caused by the act to the servient heritage. Accessory
rights.-Rights to do acts necessary to secure the full
enjoyment of an easement are called accessory rights"
15. Illustration C & E to Section 24 of Indian Easements Act read as
follows;
"(c) A, as owner of certain house, has a right of
way over B's land. The way is out of repair, or a tree is
blown down and falls across it. A may enter on B's land
and repair the way or remove the tree from it.
(e)A, as owner of certain house has a right or
way over B's field. A may remove rocks to make the
way."
16. A reading of above provision and illustrations extracted above
would make it clear that a person who is conferred with the right of easement
of access over a pathway is entitled to enjoy other ancillary right which are
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necessary to secure full enjoyment of easement right conferred on him. When
respondents are conferred with easementary right of access under parent
documents namely Ex.A1 and Ex.A2, in case of any obstruction to their
access the respondents are entitled to enter the said pathway and remove the
obstruction so as to facilitate full enjoyment of easement right conferred on
them. However, laying of pipeline underneath the said pathway would not
facilitate right of access to the respondents. It is clearly a different right, even
without laying any water pipeline in the said pathway the respondents are
entitled to use the same as access to reach their land. Therefore, the claim
made by the respondents seeking right to lay pipeline underneath the suit
pathway would clearly amount to enlargement of easement right conferred
on their predecessor in interest under parent documents Ex.A1 and Ex.A2.
Therefore, the contention raised by the learned counsel for the respondents
based on Section 24 of Indian Easements Act is not acceptable to this Court
and the same is rejected.
17. As rightly contented by the learned senior counsel for the
appellants both the Courts below proceeded on the assumption that the
appellants and the respondents are co-owners of the suit property. The recital
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in parent document Ex.A1 clearly established that the respondents'
predecessor in interest was only given easement right of access over the suit
pathway they have not been given any right or title over the suit pathway. In
such circumstances, the conclusion reached by the Courts below based on the
assumptions as if the respondents are co-owners of suit pathway is without
any acceptable evidence on record and consequently, the same is liable to be
set aside.
18. The learned counsel for the respondents submitted that the right to
take water to their land on the Northern side of suit pathway is a necessity for
proper enjoyment of respondents' land. This is not the case where the
respondents sought for declaration of their alleged easement right of
necessity. In such circumstances, this Court is not inclined to make any
observation with regard to the alleged right of easement by necessity
available to the respondent. It is always open to the respondents to file a suit
for declaration of alleged easement of necessity and seek other consequential
relief.
19. In view of the discussions made earlier, all the substantial questions
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of law raised at the time of admission are answered in favour of the
appellants and against the respondents. Accordingly, the second appeal stands
allowed by setting side the judgment and decree of the Subordinate Judge,
Dharapuram in A.S.No.9 of 2014 dated 01.11.2016, confirming the judgment
and decree of the District Munsif, Kangayam in O.S.No.251 of 2011 dated
01.02.2014. No costs. Consequently, connected miscellaneous petition is
closed.
24.11.2023
Index : Yes/No
Internet : Yes/No
nti
https://www.mhc.tn.gov.in/judis
To
1. The Subordinate Court, Dharapuram.
2. The District Munsif, Kangayam.
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S.SOUNTHAR, J.
nti
24.11.2023
https://www.mhc.tn.gov.in/judis
