Madras High Court
Padma vs Manickam on 19 October, 2024
S.A.No.1275 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 19.10.2024
CORAM:
THE HONOURABLE MR. JUSTICE K. RAJASEKAR
Second Appeal No.1275 of 2012
and
Miscellaneous Petition No.1 of 2012
Padma ... Appellant/Plaintiff
Versus
Manickam ... Respondent / 2nd
defendant
Second Appeal filed under Section 100 of the Civil Procedure Code
against the Judgment and the decree dated 13.09.2012 passed in A.S. No. 21
of 2012 on the file of the Subordinate Court, Harur, confirming the
Judgment and Decree dated 30.01.2012 passed in O.S. No. 278 of 2004 on
the file of the District Munsif, Harur.
For Appellant : Mr. R. Ezhilarasan
For Respondent : Mr. V. Nicholas
JUDGMENT
This Second Appeal has been filed by the plaintiff challenging the
concurrent Judgment and decree of the Trial Court and the Lower Appellate
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Court, rejecting the suit for relief of declaration and injunction filed by the
appellant herein.
2. For the sake of convenience, the parties are referred as per their
ranking in the Trial Court.
3. The plaintiff had purchased the land situated in the Southern side of
the defendants' land from the defendants' vendor, as per Sale deed dated
18.02.1987. In the Sale deed, the plaintiff’s vendor has granted permission
to use the cart track situated on the Western side corner of the defendant's
land, to reach their land shown as A, B, C, D in the Rough Plan. This cart
track was being used by the plaintiff for more than 40 years. The first
defendant now entered in to an Agreement of Sale with the second
defendant. Due to previous enmity, on instigation of defendant No.2,
defendant No.1 started preventing the plaintiff from using the cart track. The
plaintiff further stated in the plaint that he is having a right based on
easementary right of necessity and prescription thereby, filed the suit
praying for declaration that he is entitled to use the land of the defendant
and consequential injunction.
4. The defendants' filed written statement and contended that there is
no cart track in existence as stated in the Sale deed, dated 18.02.1987
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executed in favour of the plaintiff. The defendants' have purchased the land
situated on the Northern side of the plaintiff’s land, as per Sale deed dated
26.04.2004 and the entire land was used for agriculture purpose. The portion
of land claimed to be a cart track is filled with rocks, bushes and stones. The
claim is being made by suppressing the fact that the alleged cart track is
running on the defendants' land and by obtaining interim order, the plaintiff
was trying to lay the cart track in the plaintiff’s land.
5. Based on the pleadings made by both parties, the trial Court has
framed the following issues.
“1. Whether the plaintiff is entitled to relief as
claimed in the suit?
2. Whether the plaintiff is entitled for permanent
injunction as prayed for in the suit?
3. To what other relief the plaintiff is entitled
for?”
6. After recording the evidence of both sides, the trial Court rejected
the suit. The Appellate Court has also confirmed the same by dismissing the
appeal. Aggrieved over the same, the present Second Appeal has been filed
by the plaintiff.
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7. At the time of admission, this Court has framed the following
substantial question of law?
“1. Whether the subsequent sale by the common
vendor, when he had given a right of cart track prior to
that sale of the 1st defendant by way of Ex.A1 to the
plaintiff is bound to liable?
2. Has not the Courts below committed a grave
error in holding that the vendor had no right to give a
right of cart track, when the common vendor has given
the right of cart track in his land to the plaintiff in the
sale deed viz., Ex.A1?
3. Has not the Courts below committed an error
that not granting the relief as per Ex.A1 the plaintiff
has been granted the right of cart track?
4. Whether the Courts below correct in law in
holding that the plaintiff has not proved that except the
suit cart track no other cart track to reach his land,
when the plaintiff has granted the right of cart track by
common vendor in his land?”
8. The scope of interfering with the concurrent findings of both the
Courts below is well settled and the Hon’ble Apex Court in Hero Vinoth
(Minor) vs. Seshammal [AIR 2006 SC 2234] has reiterated the jurisdiction
of High Court to interfere in the concurrent findings of the Lower Courts
and has held in paragraph Nos.12 to 16 as follows:
“12. We shall first deal with the question relating
to jurisdiction of the High Court to interfere with the
concurrent findings of fact. Reference was made by
learned counsel for the appellant to Chandra Bhan v.
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Pamma Bai and Anr. (2002 (9) SCC 565) Sakhahari
Parwatrao Karahale and Anr. v. Bhimashankar
Parwatrao Karahale (2002 (9) SCC 608). So far as the
first decision is concerned, in view of the factual
findings recorded by the lower Court and the first
Appellate Court it was held that interference with the
concurrent findings of fact are not justified. The
question related to possession and two Courts
primarily considering factual position had decided the
question of possession. In that background, this Court
observed that jurisdiction under section 100 CPC
should not have been exercised. So far as the second
decision is concerned, the position was almost similar
and it was held that findings contrary to concurrent
findings of lower Courts and having no basis either in
pleadings, issues framed or in questions actually
adjudicated upon by any of the lower Courts cannot be
sustained. That decision also does not help the
appellant in any manner as the factual scenario is
totally different in the present case.
13. Though as rightly contended by learned
counsel for the appellant the scope for interference
with concurrent findings of fact while exercising
jurisdiction under Section 100 CPC is very limited, and
re-appreciation of evidence is not permissible where
the trial Court and/or the first Appellate Court
misdirected themselves in appreciating the question of
law or placed the onus on the wrong party certainly
there is a scope for interference under Section 100 CPC
after formulating a substantial question of law.
14. As was noted in Yadarao Dajiba Shrawane
(dead) by Lrs. v. Nanilal Harakchand Shah (dead)
and Ors. (2002 (6) SCC 404) if the judgments of the
trial Court and the first Appellate Court are based on
mis-interpretation of the documentary evidence or
consideration of inadmissible evidence or ignoring
material evidence or on a finding of fact has ignored
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admissions or concession made by witnesses or parties,
the High Court can interfere in appeal.
15. In Neelakantan and Ors. v. Mallika Begum
(2002 (2) SCC 440) it was held that findings of fact
recorded must be set aside where the finding has no
basis in any legal evidence on record or is based on a
misreading of evidence or suffers from any legal
infirmity which materially prejudices the case of one of
the parties. (See: Krishna Mohan Kul alias Nani
Charan Kul and Another v. Pratima Maity and others
[(2004) 9 SCC 468]).
16. It is now well settled that an inference of fact
from a document is a question of fact. But the legal
effect of the terms or a term of a document is a question
of law. Construction of a document involving the
application of a principle of law, is a question of law.
Therefore, when there is a misconstruction of a
document or wrong application of a principle of law
while interpreting a document, it is open to interference
under Section 100 CPC. If a document creating an
easement by grant is construed as an 'easement of
necessity' thereby materially affecting the decision in
the case, certainly it gives rise to a substantial question
of law.“
9. In this case, both the Courts have rendered its concurrent findings
after holding and admitting the recitals in Ex.A1-Sale deed dated
18.02.1987 which reads that the plaintiff is entitled to use the land of the
defendants' vendor to reach his land. The recitals in Ex.A1-Sale deed dated
18.02.1987 reads that, the vendor of the plaintiff namely Mariappan and
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Minor Veriappan were in possession and enjoyment of their ancestral
property to the extent of 2.46 acres in the total extent of 7.29 acres in
Survey No.189/1A in Poyyapatti Village, Harur Sub Registration,
Dharmapuri District and they have come forward to sell 1.20 acres of land
which is bounded on the North side of Mariappan’s land, East side of
Maran’s Land, South side of Kannu @ Perumal’s land and West side of
P.Mariappan’s land. In the Schedule of property, it is further stated that to
reach the land purchased by the plaintiff, he can use the customary North
South cart track running from the Northern side of the vendor’s land.
10. The case of the plaintiff is that she was using this cart track for the
past 40 years thereby, she was also having the right of easementary by
prescription. Even though both the Courts have accepted the recital and the
right granted under the Sale deed, dated 18.02.1987 by the vendors of the
plaintiff and defendants, after accepting the right of using the cart track
granted under Ex.A1-Sale deed dated 18.02.1987, both the Courts have
considered the evidence placed on record, with regard to the existence of
cart track. It has been recorded that originally two Advocate Commissions
were issued for noting down the physical features more particularly,
physical features of the cart track, as claimed by the parties. The first
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Advocate Commissioner has filed his Report stating that there is a cart track
running from North to South and hence the land of the plaintiff was clearly
visible. Subsequently, the second Advocate Commissioner has filed his
Report and it has been recorded that this cart track, which was in existence
has 15' feet width and 100' feet length and it starts from the road on the
Northern side of the Plaintiff’s land and also on the land of the plaintiff.
11. By relying on the boundaries mentioned in the Advocate
Commissioners’ Reports, it has been held that there is inconsistency in the
Reports while describing the boundaries of the suit cart track. Further, both
the Courts below have held that the plaintiff has claimed her right based on
easementary by necessity and prescription, whereas, no evidence was
adduced in support of the statement.
12. On a careful perusal of the pleadings and the rough plan attached
with the plaint it only shows that the plaintiff has not properly described the
cart track in her plaint. However, in Ex.A1-Sale deed dated 18.02.1987,
there is a categorical grant issued in favour of the plaintiff which provides
her right to use the cart track. It also shows that this cart track is being used
not only for the plaintiff but also for the plaintiff’s vendor. It was also
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mentioned that it is a customary cart track, which means, that it was in use
for several decades.
13. Section 8 of the Easements Act states that an easement may be
imposed by anyone in the circumstances and to the extent, to which the
servient owner may transfer his interest in the heritage on which liability to
be imposed. Section 9 deals with the power of the servient owner to impose
any easement on the servient heritage but that imposition shall not be
lessening the utility of any existing easement. For better appreciation
Section 8 and 9 of the Easements Act are extracted below:
“Section 8 Who may impose easements:- An
easement may be imposed by any one in the
circumstances, and to the extent, in and to which he
may transfer his interest in the heritage on which the
liability is to be imposed.
Section 9 Servient owners:- Subject to the
provisions of section 8, a servient owner may impose
on the servient heritage any easement that does not
lessen the utility of the existing easement. But he
cannot, without the consent of the dominant owner,
impose an easement on the servient heritage which
would lessen such utility.”
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14. The plaintiff herein has pleaded the easement of grant in her
pleadings and also stated that based on this grant, she was using the cart
track for nearly 40 years. The defendants who have purchased the lands
subsequent to the plaintiff cannot deny the already existing easement of
grant imposed by the first defendant’s vendor on the plaintiff. Section 9 of
the Easements Act declares that once the easement of grant is created in
favour of dominant owner, the servient owner is not entitled to withdraw the
same without the consent of the dominant owner.
15. The recitals in Ex.A1-Sale deed executed in favour of the plaintiff
only shows that the intention of the vendor is to create easement by grant
not an easement by necessity. When considering the similar circumstances,
the Hon’ble Apex Court in Hero Vinoth (Minor) vs Seshammal case cited
supra has held that easement by grant may be expressed or even by
necessary implications. In either case, it will not amount to an easement of
necessity under Section 13 of the Indian Easements Act, 1882. Similarly, the
legal implications of Section 13 or Section 41 will not applicable to the
easement by grant. In paragraph Nos.28 and 29 it has been observed as
follows:
“28. The question whether an easement is one
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acquired by grant (as contrasted from an easement of
necessity) does not depend upon absolute necessity of
it. It is the nature of the acquisition that is relevant.
Many easements acquired by grant may be absolutely
necessary for the enjoyment of the dominant tenement
in the sense that it cannot be enjoyed at all without it.
That may be the reason for the grant also. But
easement of grant is a matter of contract between the
parties. In the matter of grant the parties are governed
by the terms of the grant and not anything else.
Easement of necessity and quasi easement are dealt
with in Section 13 of the Act. The grant may be express
or even by necessary implication. In either case it will
not amount to an easement of necessity under Section
13 of the Act even though it may also be an absolute
necessity for the person in whose favour the grant is
made. Limit of the easement acquired by grant is
controlled only by the terms of the contract. If the terms
of the grant restrict its user subject to any condition the
parties will be governed by those conditions. Any how
the scope of the grant could be determined by the terms
of the grant between the parties alone. When there is
nothing in the term of the grant in this case that it was
to continue only until such time as the necessity was
absolute. In fact even at the time it was granted, it was
not one of necessity. If it is a permanent arrangement
uncontrolled by any condition, that permanency in user
must be recognized and the servient tenement will be
recognized and the servient tenement will be
permanently burdened with that disability. Such a right
does not arise under the legal implication of Section 13
nor is it extinguished by the statutory provision under
Section 41 of the Act which is applicable only to
easement of necessity arising under Section 13.
29. An easement by grant does not get
extinguished under Section 41 of the Act which relates
to an easement of necessity. An easement of necessity is
one which is not merely necessary for the reasonable
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enjoyment of the dominant tenement, but one where
dominant tenement cannot be used at all without the
easement. The burden of the servient owner in such a
case is not on the basis of any concession or grant
made by him for consideration or otherwise, but it is by
way of a legal obligation enabling the dominant owner
to use his land. It is limited to the barest necessity
however inconvenient it is irrespective of the question
whether a better access could be given by the servient
owner or not. When an alternate access becomes
available, the legal necessity of burdening the servient
owner ceases and the easement of necessity by
implication of law is legally withdrawn or extinguished
as statutorily recognized in Section 41. Such an
easement will last only as long as the absolute
necessity exists. Such a legal extinction cannot apply to
an acquisition by grant and Section 41 is not
applicable in such case.”
16. This Court in Koshe vs. A.Natarajan [2011 MWN 374] has
considered the case of easement by grant has followed the Judgment of the
Hon’ble Apex Court in Hero Vinoth vs. Seshammal Judgment cited supra
and also two other Judgments of this Court has held that the scope of
easement of grant shall be determined by the terms of grant between the
parties alone. It is also further held that this grant may also depend upon the
absolute necessity to enjoy the dominant heritage. An easement by grant is a
matter of contract between the parties and the same is governed by the terms
of grant and not by anything else. In paragraph No.12 which reads as
follows:
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“12. Further, in the Judgement reported in 1999
(3) L.W. 526 (M.Singamma Reddiar v. S.Eramallu
Gounder), the same principle was reiterated and in the
Judgement reported in 2006 (5) CTC, 573 (Ponnan &
Others v. Peraman & another), this Court has held as
follows:
" It has to be pointed out that the question
whether an easement is one acquired by grant (as
contrasted from an easement of necessity) does not
depend upon absolute necessity of it. It is the nature of
the acquisition that is relevant. Many easements
acquired by grant may be absolutely necessary for the
enjoyment of the dominant tenement in the sense that it
cannot be enjoyed at all without it. That may be the
reason for the grant also. But easement of grant is a
matter of contract between the parties. In the matter of
grant the parties are governed by the terms of the grant
and not by anything else. Easement of necessity and
quasi-easement are dealt with in Section 13 of the Act.
The grant may be expressed or even by necessary
implication. In either case it will not amount to an
easement of necessity under Section 13 of the Act even
though it may also be an absolute necessity for the
person in whose favour the grant is made. Limit of the
easement acquired by grant is controlled only by the
terms of the contract. If the terms of the grant restrict
its user subject to any condition the parties will be
governed by those conditions. Anyhow the scope of the
grant could be determined by the terms of the grant
between the parties alone. "
17. In this case, having received the easement of grant from his
vendors, the plaintiff had used the land for almost 40 years. The only
defence taken by the defendants' is that there is no cart track. However, the
facts proven, shows that the only way to reach the plaintiff's land is the cart
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track granted under Ex.A1-Sale deed. This is also confirmed by the
Advocate Commissioners in the two Reports. Even though, the plaintiff has
not properly described in the rough plan attached with the plaint to show the
exact location of the cart track, she had succeeded in establishing the
existence of cart track by way of Advocate Commissioner's report. Having
accepted the fact that there is a cart track, even though, it is not a proper cart
track i.e., the cart track is filled with rocks and stones, the findings of the
Courts below is misconceived. In many places in the Village, having a rocky
terrain, people used to commute only in such rocky terrain, which is un-
cultivable portion and used as a cart track. Both the Courts have misread the
Advocate Commissioners Report and also based on improper description of
the customary cart track in the rough plan filed by the plaintiff.
18. This Court is of the view that both the Courts ought to have
moulded the relief, since there is categorical easement by grant in Ex.A1-
Sale deed and there is no denial of the fact that the vendors of the first
defendant even prior to selling his land in favour of the first defendant has
granted right of using the customary cart track, which is running in the then
unsold portion, on the North South direction, which is running from the
Northern side road to the plaintiffs land. The first Advocate Commissioner
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has clearly indicated that the existing cart track was damaged by the
defendants with a view to prevent the plaintiff from using the same. It is
also an admitted case that the contempt proceedings were initiated against
him and there is a categorical evidence that on the Western corner of the
first defendant’s land, the cart track is running on the North South direction
at the end of plaintiff’s land. That being so, both the Courts have failed to
consider this material evidence regarding destruction of the existing
customary cart track. Further their findings suffer from misinterpretation of
the documentary evidence i.e., Ex.A1-Sale deed and by ignoring the
admission of the second defendant. Hence, this Court is inclined to modify
the relief claimed to the extent that the plaintiff is entitled to use the cart
track as described in the First Advocate Commissioner's Report and Rough
Sketch marked as Ex.C1 and Ex.C2.
19. The Lower Appellate Court had rejecting the Commissioner
Report No.2, based on the fact that, it contains measurements of cart track.
However, the Court has not rejected the report of the Advocate
Commissioner regarding the existence of cart track. In view of the
discussions made above, the plaintiff is entitled for declaration that she is
entitled to use the cart track as stated in Ex.C1 and Ex.C2 of Commissioner
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Report No.1 and the Report shall from part of the Decree and Judgment.
Accordingly, the substantial questions of law are answered in favour of the
plaintiff. Ex.C1 and Ex.C2 shall from part of the Decree and Judgment.
20. In the result, the Second Appeal is partly allowed. The Judgment
and Decree dated 13.09.2012 passed in A.S.No. 21 of 2012 on the file of the
Subordinate Court, Harur, confirming the Judgment and Decree dated
30.01.2012 passed in O.S. No. 278 of 2004 on the file of the District
Munsif, Harur is hereby set aside. The relief claimed by the plaintiff is
granted to the extent that the plaintiff is entitled for declaration that she is
entitled to use the cart track as described in the Advocate Commissioner's
Report and Rough Sketch marked as Ex.C1 and Ex.C2. Consequently, the
plaintiff is also entitled for permanent injunction as prayed in the suit for the
suit cart track shown in the Advocate Commissioners Report marked as
Ex.C1 and Ex.C2. No order as to costs. Consequently, the connected
miscellaneous petition stands closed.
19.10.2024
ssi
Index : Yes / No
Speaking Order :Yes/No
Neutral Citation Case : Yes/No
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To:
1. The Subordinate Judge,
Harur.
2. The District Munsif,
Harur.
3. The Section Officer,
VR Section,
High Court of Madras.
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K.RAJASEKAR,J.,
ssi
19.10.2024
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