Madras High Court
A.Murugesan vs S.Vijayakumari on 29 November, 2023
S.A.No.867 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.11.2023
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A.No.867 of 2017
1.A.Murugesan
2.M.Arun Arumugham ... Appellants
vs.
1.S.Vijayakumari
2.S.Sivasankaran
3.A.Angamuthu
4.A.Senthil
5.A.Ravichandran
6.Pankajam
7.Hemalatha
8.Sasikala ... Respondents
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code, to set aside the Judgment and Decree dated 31.07.2017 made in
1/12
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S.A.No.867 of 2017
A.S.No.8 of 2016 on the file of First Additional District Court, Erode by
upholding the Judgment and Decree dated 12.10.2015 made in O.S.No.431
of 2012 on the file of Principal Sub-Ordinate Court, Erode.
For Appellants : Mr.V.P.Sengottuvel
Senior Advocate
M/s.K.Indu Priya
For R1 and R2 : Mr.N.Manokaran
For R3 to R8 : Given up
JUDGEMENT
The plaintiffs are the appellants. They filed a suit for partition
claiming 1/4th share in the suit property. The Trial Court decreed the suit as
prayed for. Aggrieved by the same, the respondents 1 and 2/defendants 6
and 7 preferred an appeal. The First Appellate Court reversed the findings
of the Trial Court and dismissed the suit. Aggrieved by the same, the
appellants/plaintiffs are before this Court.
2. According to the appellants/plaintiffs, the suit properties are
family properties of appellants and respondents. One Arumugam Pillai was
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the common ancestor of the parties. He had four sons by name Angamuthu,
late Krishnan, late Shanmugasundaram and 1st appellant-A.Murugesan. The
2nd appellant is the son of 1st appellant. The appellants herein earlier filed a
suit for partition in O.S.No.67 of 1982 on the file of Principal Subordinate
Court, Erode against the respondents 3 to 5 herein, late Krishnan and
Shanmugasundaram. In the said suit, a compromise decree was passed and
the same was marked as Ex.A1. As per the compromise decree, 'A' schedule
to the compromise decree was allotted to the share of 1st appellant-
A.Murugesan. 'B' schedule to the said decree was allotted to the share of
Krishnan, father of defendants 4 and 5. 'C' schedule to the said decree was
allotted to the share of Shanmugasundaram, father of defendants 6 to 8. 'D'
schedule to the said decree was allotted to the share of 1 st defendant-
Angamuthu. The schedule 'E' to the said decree was retained as a common
property of all the four brothers namely A.Murugesan, Krishanan,
Shanmugasundaram and Angamuthu. It was the specific case of the
appellants that they were entitled to 1/4th share in 'E' schedule to the
compromise decree along with pathway right to reach the said property
shown as 'F' schedule to the said decree. The present suit has been filed in
respect of property in 'E' schedule to the compromise decree. While giving
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description of the present suit property, the appellants also included
easementary right to reach the above said 'E' schedule property from above
said 'F' schedule pathway through fifteen feet pathway over the land allotted
to Shanmugasundaram.
3. The suit was resisted by the respondents by denying pathway rights
claimed by the appellants to reach above said 'E'schedule property from F-
schedule property through the land allotted to Shanmugasundaram. It was
averred that suit was filed with intention to usurp the property allotted to
Shanmugasundaram, which was in existence after end of common road
marked as 'F' schedule in the compromise decree plan. It was specifically
claimed by the respondents that appellants were not entitled to claim any
pathway right over the properties of defendants 6 to 8. However, the
respondents admitted 1/4th share of the appellants over 'E' schedule to the
compromise decree.
4. On these pleadings, the parties went to trial. The 1st plaintiff was
examined as PW.1 and two other witnesses were examined as PW.2 and
PW.3. On behalf of appellants, 5 documents were marked as Exs.A1 to A5.
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The 6th defendant was examined as DW.1 and one Dharmalingam was
examined as DW.2. On behalf of the respondents, no documentary evidence
was let in. The Trial Court appointed an Advocate Commissioner. His report
and plan were marked as Exs.C1 and C2. The photographs and CD
submitted by the Advocate Commissioner were marked as Exs.C3 and C4.
5. The Trial Court on appreciation of evidence available on record,
came to the conclusion that the appellants were entitled to preliminary
decree for partition of 1/4th share and accordingly, decreed the suit.
Aggrieved by the same, the respondents 1 and 2/defendants 6 and 7
preferred an appeal in A.S.No.8 of 2016 on the file of I Additional District
Court, Erode. The First Appellate Court found that though appellants
entitled to 1/4th share in suit property, the pathway right claimed by them in
the property of Shanmugasundaram 'C' schedule property allotted to the
share of Shanmugasundaram, father of defendants 6 to 8, in the compromise
decree, to reach 'E' schedule property was not available for the appellants.
The First Appellate Court observed that instead of seeking declaration of
pathway right over the land allotted to Shanmugasundaram, the appellants
cleverly sought for partition of 1/4th share by including alleged pathway
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right over the property allotted to Shanmugasundaram in the description of
the property. The First Appellate Court also observed that appellants are
claiming easementary right over the land allotted to the share of
Shanmugasundaram without necessary pleadings and prayer for declaration
of alleged pathway. It further held that the suit for partition filed by the
appellants over the property described in 'E' schedule to the compromise
decree including pathway right over 'C' schedule property allotted to
Shanmugasundaram was not maintainable. The First Appellate Court found
that description of the property in the schedule to the plaint was not
properly given as pathway right over the Shanmugasundaram property was
also included in the schedule. Hence, dismissed the suit in toto. Aggrieved
by the same, the plaintiffs have come by way of this second appeal.
6. Mr.V.P.Sengottuvel, learned Senior Counsel appearing for the
appellants/plaintiffs submitted that as far as 1/4th share of the appellants
over the 'E' schedule to the compromise decree concerned, the same was not
disputed by the respondents. However, what was disputed by the
respondents was only easementary right to reach suit property ('E' schedule
in compromise decree) from 'F' schedule to the compromise decree through
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'C' schedule to the compromise decree, which was allotted to the share of
Shanmugasundaram. The learned Senior Counsel by taking this Court to the
plan appended to the compromise decree, submitted that unless the
appellants are given pathway right to reach 'E' schedule property from 'F'
schedule property through “C' schedule allotted to the share of
Shanmugasundaram under compromise decree, the appellants/plaintiffs
cannot reach 'E' schedule property, therefore, the said pathway right is a
necessity to enjoy his share in E-schedule property.
7. On the basis of the submission made by the learned Senior Counsel
appearing for the appellants, the following substantial question of law is
formulated for consideration in this second appeal,
“Whether the First Appellate Court is justified in
dismissing the suit in toto including the claim of 1/4th share by
the appellants over the E-schedule property described under
compromise decree Ex.A1 overlooking the admissions of
contesting respondent admitting the right of the appellants to
1/4th share in the said E-schedule property?”
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8. Mr.N.Manokaran, the learned counsel appearing for the
respondents 1 and 2 was heard on the said substantial question of law. The
learned counsel by taking this Court to the pleadings of respondents 1 and 2,
submitted that respondents even in their pleadings made it clear that
appellants and respondents 1 and 2 along with other sharers were entitled to
1/4th share each in the property described as 'E' schedule to Ex.A1-
compromise decree. However, the learned counsel submitted that the claim
of the appellants seeking right of pathway over the land allotted to share of
Shanmugasundaram, father of respondents 1 and 2 under 'C' schedule to
Ex.A1 is untenable in law, when no such right was conferred under
compromise decree. The learned counsel also submitted that appellants did
not plead any easement right by necessity and simply inserted the right of
pathway in the schedule to the plaint and therefore, the First Appellate
Court is justified in negativing the appellants' claim of pathway over the
land allotted to share of Shanmugasundaram.
9. The appellants have not pleaded easement of necessity over the
land allotted to the share of Shanmugasundaram. They also failed to seek
declaration of their alleged easementary right over the land allotted to share
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of Shanmugasundaram. In such circumstances, the appellants are not
justified in simply including the easementary right of pathway in the
description to the suit schedule. As far as 1/4 th share of the appellants over
the suit properties ('E' schedule to the compromise decree) is conerned, the
same is undisputed. The respondents have no objection for granting a
preliminary decree for partition in respect of 'E' schedule to the compromise
decree. They said so even in their written statement. However, they are only
objecting to the pathway right claimed by the appellants over the land
allotted to Shanmugasundaram under 'C' schedule to the compromise
decree.
10. In such circumstances, in the absence of specific plea regarding
easement of necessity and prayer for declaration of said easementary right,
the appellants are not entitled to claim pathway right over the property
allotted to the share of Shanmugasundaram by including the said pathway in
the schedule to the present plaint. Therefore, the judgement and decree
passed by the First Appellate Court to the extent of negativing the
appellants claim of pathway right over the 'C' schedule property allotted to
the share of Shanmugasundaram under Ex.A1 is confirmed. Since the
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respondents 1 and 2/defendants 6 and 7 said no objection, even in their
pleadings for granting a decree for partition in respect of 'E' schedule to
Ex.A1, the appellants are entitled to decree for partition in respect of 'E'
schedule alone. To that extent, the judgement and decree passed by the First
Appellate Court is set aside and second appeal is partly allowed.
In Nutshell:-
(a) The Second Appeal is partly allowed by setting aside the judgement
and decree passed by the First Appellate Court in so far as it
negatived the claim for partition in 'E' schedule to the compromise
decree marked as Ex.A1.
(b) The appellants/plaintiffs are entitled to 1/4th share in the suit property
(described as 'E' schedule under Ex.A1-compromise decree),
excluding right of pathway claimed over property allotted to
Shanmugasundaram under 'C' schedule to Ex.A1 compromise
decree.
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(c) The Second Appeal is dismissed by confirming the findings of the
First Appellate Court that the appellants/plaintiffs are not entitled to
claim any pathway right over the property allotted to
Shanmugasundaram (father of respondents 1 and 2) under 'C'
schedule to Ex.A1-compromise decree without prayer for
declaration of alleged easementary right.
(d) In the facts and circumstances of the case, there shall be no order as
to costs.
29.11.2023
Index : Yes/No
Speaking order : Yes/No
Neutral Citation : Yes/No
dm
To
1.The First Additional District Court,
Erode.
2.The Principal Sub-Ordinate Court,
Erode.
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S.SOUNTHAR, J.
dm
29.11.2023
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