Madras High Court
P.Palanisamy vs S.Jawahar on 18 October, 2023
S.A.(MD) No.592 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.10.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.(MD) No.592 of 2023
and
C.M.P.(MD) No.13744 of 2023
P.Palanisamy ..Appellant
Vs.
1.S.Jawahar
2.S.Chinnammal (1st wife)
3.Amaravathi (2nd wife) ...Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C., to call for the
records and set aside the judgment and decree dated 24.07.2018 in A.S.No.33 of
2016 on the file of the Principal Sub Court, Dindigul confirming the judgment and
decree dated 06.07.2016 in O.S.No.684 of 2008 on the file of the Principal
District Munsif Court, Dindigul.
For Appellant : Mr.H.Lakshmi Shankar
For Respondents : Mr.D.Deva Arul Samuel Gibson
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S.A.(MD) No.592 of 2023
JUDGMENT
This second appeal is filed challenging the judgment and decree in
A.S.No.33 of 2016 on the file of the learned Principal Subordinate Judge,
Dindigul, confirming the judgment of the learned Principal District Munsif,
Dindigul, in O.S.No.684 of 2008.
2.The appellant/plaintiff filed a suit in O.S.No.684 of 2008 seeking the
relief of declaration that the portion marked in Red in the rough sketch is a
common pathway, for mandatory injunction for the removal of encroachment
made by the defendants in the common pathway and for costs.
3.The case of the plaintiff as seen from the plaint averments in brief is
that on the north of Mullipadi village, Aathimarathupatti village situates. On the
south of the village, Santhanavarthini River flows from east and goes towards
north. There is a water channel from Santhanavarthini River to Padiyoor Kanmai.
In the water channel, from Santhanavarthini River to Aathimarathupatti, there is a
100 ft., breadth common pathway. This has been used as a north-south common
pathway and also for reaching the crematorium.
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S.A.(MD) No.592 of 2023
4.The land owners of the property situate on the west of this pathway
have been using this pathway from time immemorial. In the middle of the
common pathway, Kannimar and Satha temple situate. Behind these temples, the
lands of the plaintiff and the defendants situate. Abutting the temple, S.No.354/2
and 355/1 situate and on the west, S.No.354/1 situates. The plaintiff purchased the
land in S.No.354/1, measuring an extent of 1.7 acres. Then, that was sub-divided
into S.No.354/3. The remaining portion in S.No.354/2 was purchased by the
defendants. The plaintiff has been using the common pathway, measuring 5 ft.,
breadth and 200 ft., length to reach his lands in S.No.354/3. The 5 ft., breadth and
200 ft., length situates in S.No.354/2. The first defendant encroached this pathway
and planted 12 coconut trees. Again he planted 17 coconut trees. This pathway
was used by the plaintiff to reach his lands in S.No.354/3, 354/1 and 355/1. The
defendants have been disturbing the plaintiff's use of this pathway from 2007. The
plaintiff sent a representation to the District Collector about this encroachment.
No action was taken. Therefore, the suit is filed for the aforesaid reliefs.
5.The case of the defendants is that they denied the existence of 100 ft.,
width common pathway on the western bund of water channel coming from
Santhanavarthini River. The property in S.No.354/2 was purchased by the first
defendant's mother and his aunt. They have been enjoying the property and
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S.A.(MD) No.592 of 2023
planted coconut trees. There is no pathway in S.No.354/3. Plaintiff has not
produced any documents to show the existence of the common pathway. The fact
that no document as well as revenue records and plans produced to show the
existence of pathway shows that there is no such pathway available on ground.
There is a pathway to reach the plaintiff's land abutting the water channel running
from Aathimarathupatti to Padiyoor Kanmai. That has been used by the plaintiff
and other land owners to reach their lands. There is no pathway in the land of the
defendants. There is also no common pathway between the land of the defendants
and S.No.355/1. Defendants' mother, who is the owner of S.No.354/2, is not
impleaded as defendant. The suit is filed only with a view to usurp the defendants
property. Thus, the suit is liable to be dismissed.
6.On the aforesaid pleadings, the trial Court framed the following
issues:
“a) Whether the plaintiff is entitled for the relief of
declaration as prayed for?
b) Whether the plaintiff is entitled for the relief of mandatory
injunction as prayed for? and
c) To what relief, if any, the plaintiff is entitled to?”
7.During the course of trial, P.W1 to P.W3 were examined and Ex.A1 to
Ex.A3 were marked on the side of the plaintiff. D.W1 and D.W2 were examined
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S.A.(MD) No.592 of 2023
and Ex.B1 to Ex.B4 were marked on the side of the defendants. Ex.C1 and Ex.C2
were marked as Court exhibits.
8.On considering the oral and documentary evidence, the learned trial
Judge recorded a finding that the plaintiff has failed to establish the existence of
common pathway as claimed in the plaint and when that is not established, the
relief cannot be granted and thus, dismissed the suit. The first appellate Court
concurred with the finding of the trial Court and dismissed the appeal.
Challenging the judgments of the Courts below, this second appeal is filed.
9.It is the submission of the learned counsel for the appellant that from
the oral and documentary evidence produced, especially the sale deeds produced
and marked as Ex.A1 and Ex.A2, it is very clear that the plaintiff has access to his
land through pathway and for other usual right. This recital goes to show that the
plaintiff has a pathway to reach his lands. Originally, larger extent of S.No.354
was owned by plaintiff's vendor. Subsequently, S.No.354 was sub-divided into
S.Nos.354/1 and 354/2 and then, S.No.354/1 was sub-divided into S.No.354/3.
The only way to the plaintiff to reach his lands in S.No.354/1 and S.No.354/3 is
through the common pathway available in S.No.354/2. This common pathway has
been enjoyed by the plaintiff ever since from the date of purchase. Only from
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S.A.(MD) No.592 of 2023
2007, there is obstruction from the defendants and then, the defendants obliterated
the pathway in 2007.
10.The Commissioner's report and plan also show that the plaintiff can
reach his lands only through the lands of the defendants. There is no access
available from the common pathway on the east to reach the lands of the plaintiff
in S.Nos.354/1, 354/3 and 355/1. When the defendants claim that there is
alternative pathway available as pleaded in the written statement, they have not
made any efforts to show the existence of alternative pathway. That means, there
is no alternative pathway available. Thus, without the suit common pathway, the
plaintiff's land would become a landlocked property and the plaintiff would not be
in a position to reach his lands. When S.No.354 was a common tenement before
the purchase made by the plaintiff and the defendants, there was a direct access
from the common pathway on the east. The plaintiff purchased S.No.354/1 in
1974 and then, S.No.354/3 in 1979. As per Section 13 of the Indian Easements
Act, 1882, the plaintiff is entitled to the right of easement of necessity in the lands
of the defendants to reach his lands through the common pathway. However,
without considering these aspects, the Courts below have negatived the plaintiff's
relief.
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S.A.(MD) No.592 of 2023
11.In response, the learned counsel appearing for the respondents
submitted that the suit has been filed making a claim of proprietary right in the
suit property. The plaintiff claims the suit property on the basis of the title deed.
However, the plaintiff's title deed does not indicate that there is a common
pathway in S.No.354/2 and in that common pathway, the plaintiff is entitled for a
right to use. As on ground, there is no pathway, much less a common pathway
available in S.No.354/2. The Commissioner's report and plan shows that there are
coconut trees aged more than 10 years situate in the defendants' property and there
is no way available.
12.With regard to the submissions made by the learned counsel for the
appellant seeking the relief under Section 13 of the Indian Easements Act, 1882, it
is countered by stating that the suit is not filed based on the easementary right and
no relief based on the easementary right was sought for. Thus, he submitted that
the Courts below have rightly refused to grant the relief prayed by the plaintiff and
dismissed the suit.
13.Considered the rival submissions and perused the records.
14.From the pleadings set out and the evidence made available, it is not
in dispute that the plaintiff is the owner of the lands in S.No.354/1 and 354/3 and
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S.A.(MD) No.592 of 2023
the defendants are the owners of S.No.354/2. The plaintiff framed the suit stating
that there existed a common pathway measuring 5 ft., breadth and 200 ft., length
in S.No.354/2 from the date of purchase of his lands and he has been using this
pathway to reach his lands. The prayer is to declare this pathway as a common
pathway and to remove the alleged encroachments made by the defendants in the
common pathway. Obviously, the claim of common pathway is made on the basis
of the recitals found in the plaintiff's sale deeds, namely Ex.A1 and Ex.A2.
15.As already stated, the specific case of the defendants is that there is
no pathway in S.No.354/2. The plaintiff has examined P.W2 and P.W3 in support
of his case, however, as rightly pointed out by the defendants in the written
statement, there is no documentary evidence to show the existence of pathway in
S.No.354/2. The Commissioner's report and plan marked as Ex.C1 and Ex.C2 do
not show that there is a pathway in S.No.354/2.
16.The trial Court on the basis of the oral and documentary evidence
produced, recorded a finding that the plaintiff claims pathway right in the land of
the defendants. If really there is a pathway in the land of the defendants, that
would have been reflected in the plaintiff's title deeds, Ex.A1 and Ex.A2.
However, there is no specific mention about the existence of pathway in S.No.
354/2 in Ex.A1 and Ex.A2. The Commissioner's report and plan also do not show
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S.A.(MD) No.592 of 2023
the presence of pathway in S.No.354/2. On these reasonings, the learned trial
Judge dismissed the suit. That finding was also confirmed by the first appellate
Court.
17.When there is a specific plea made that the suit pathway is in
existence in S.No.354/2 from the date of purchase of the properties by the plaintiff
through Ex.A1 and Ex.A2, it is the duty of the plaintiff to prove this claim.
Though the submission was made that the pathway was obliterated in 2007, this
Court finds that no such pleading is available in the plaint. It was just said in the
plaint that the defendants had obstructed the common pathway by planting trees
and placing thorns. Therefore, there is no iota of evidence available to show that
there was a common pathway in existence in S.No.354/2 and that was obliterated
in 2007 or obstructed by placing thorns.
18.With regard to the submission of the learned counsel appearing for
the appellant that as per Section 13 of the Indian Easements Act, 1882, when a
person purchased a portion of a larger extent of land, he is entitled as a matter of
right to reach his land through the lands of the defendants. Section 13-a of the
Indian Easements Act, 1882, reads as under:
“13.(a). If an easement in other immovable property of the
transferor or testator is necessary for enjoying the subject of the
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S.A.(MD) No.592 of 2023
transfer or bequest, the transferee or legatee shall be entitled to such
easement;”
19.No doubt that as per this Section, when a person transfers or
bequeaths an immovable property to another, if an easement in other immovable
property of the transferor is necessary for enjoying the subject of the transfer, the
transferee is entitled to such easement. Here is a case, it is not in doubt that the
plaintiff purchased S.Nos.354/1 and 354/3, which situates on the west of the
defendants' land. On the east of the defendants' land, there exists a common
pathway. On the face of it, the submission of the learned counsel appearing for the
appellant with regard to the right available under Section 13 of the Indian
Easements Act, 1882, appears to have some force. However, the plaintiff should
have seen to it that this right is incorporated in the sale deeds, when he purchased
the property in 1974 and 1979. But it is not done. At least immediately after the
purchase made by the defendants in 1983, he should have taken legal recourse for
enforcing the right under Section 13 of the Indian Easements Act, 1882. That is
not done.
20.On the careful analyses of the facts of the case, it is found that there
is no pathway in existence in S.No.354/2. Therefore, it is not legally permissible
and possible for the plaintiff, after this distant point of time from 1974 and 1979
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S.A.(MD) No.592 of 2023
till now, now to set up a claim of easement of necessity under Section 13 of the
Indian Easements Act, 1882. Though there is no clear evidence available with
regard to the alternative pathway available to the plaintiff's land in S.No.354/1,
from the Commissioner's report, it appears that there is access from the western
common pathway to reach the lands in S.No.355.
21.From the consideration of oral and documentary evidences available
in this case, it is found that there is no pathway much less common pathway
available in S.No.354/2. There is no relief claimed on the basis of the easementary
right under Section 13 of the Indian Easements Act, 1882. Plaintiff tries to set up a
new and unfounded right of common pathway in defendants' land. In the said
circumstances, this Court is of the view that the findings recorded by the Courts
below do not call for any interference.
22.In Sir Chunilal V. Mehta and Sons v. The Century Spinning Co.
Ltd., 1962 reported in AIR 1962 SC 1314, the Hon'ble Supreme Court formulated
what amounts to a substantial question of law, as follows:
1.Whether it is of general public importance (or)
2.Whether it directly and substantially affects the rights of parties and if so,
3.Whether it is either an open question (in the sense not finally settled by
this Court or Privy Council or Federal Court) (or)
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4.The question is not free from difficulty and calls for discussion of
alternative views.
23.In the case before hand, the appellant has not made out any of the
aforesaid grounds to formulate substantial question of law. There is no substantial
question of law arises for consideration in this second appeal.
24.In this view of the matter, this Second Appeal is dismissed. No costs.
Consequently, connected Miscellaneous Petition is closed.
Speaking : Yes / No 18.10.2023
NCC : Yes / No
Internet : Yes / No
Index : Yes / No
mm
To
1.The Subordinate, Judge,
Dindigul.
2.The Principal District Munsif,
Dindigul.
3.The Section Officer (2 Copies),
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD) No.592 of 2023
G.CHANDRASEKHARAN, J.
mm
S.A.(MD) No.592 of 2023
18.10.2023
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