Madras High Court
Gajji Gowdu (Died) vs Shanmugam on 18 July, 2025
Second Appeal No.671 OF 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 25.06.2025
Pronounced on 18.07.2025
Coram:
The Honourable Mrs.Justice K.GOVINDARAJAN THILAKAVADI
Second Appeal No.671 OF 2019
1. Gajji Gowdu (Died)
2. Chinna Ellammal
3.G.Saraswathi, D/o Late Gajji Gowdu,
4. G.Govindammal, D/o Late Gajji Gowdu,
5. G.Muruesan, S/o Late Gajji Gowdu
6. G.Sudaramurthy, S/o Late Gajji Gowdu .. Appellants
Appellant 3 to 6 brought on record as LRs of the deceased 1 st appellant,
vide Court order dated 09.07.2021 made in CMP No.3619/2021 in
S.A.No.671/2019
versus
1. Shanmugam
2. Pushpa .. Respondents
Prayer: Second Appeal is filed under Section 100 CPC, praying to set
aside the judgment and decree dated 11.04.2019 made in A.S.No.19 of
2017 on the file of Sub Court, Vaniyambadi, Vellore District, reversing
the judgment and decree dated 16.03.2017 made in O.S.No.111 of 2011
on the file of the Principal District Munsif Court, Ambur.
Page 1 of 30
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
For Appellants : Mr.N.Manokaran
For Respondents : Mr.R.Subramanian for
Mr.B.Ravi for R1 & R2
JUDGMENT
This Second Appeal arises out of the judgment and decree, dated
11.04.2019 passed by the learned Sub Judge, Vaniyambadi, Vellore
District in A.S.No.19 of 2017 reversing the judgment and decree dated
16.03.2017 passed by the learned Principal District Munsif, Ambur.
2. The plaintiffs, who are unsuccessful before the lower appellate
Court, are the appellants herein and the respondents herein are the
defendants.
3. For the sake of convenience, the parties herein after referred to
their nomenclature before the trial Court.
4. The case of the plaintiffs is that by virtue of a registered
partition deed dated 13.10.1964, the 1st plaintiff got 2 cents out of 12
cents in S.No.188/2 towards his 1/6th share and one of the co-sharers,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
namely, Chengkannan sold away 2 cents of his share by way of a
registered sale deed dated 05.06.1981 in S.No.188/2A in favour of the 2nd
plaintiff, who is the wife of the 1st plaintiff and thereby, the plaintiffs
have become the absolute owners of total 4 cents, which are described as
Item Nos.1 and 2 of suit schedule. Both suit survey numbers, viz., 188/2
and 188/2A were assigned with a new sub division Survey No.188/2A2.
It is also the case of the plaintiffs that they got a right to reach the suit
property by a foot path existing in S.No.188/2B-1 from Vellore-
Alangayam main road on eastern side to the western side of the suit
property under UDR plan. The 1st defendant is the cousin brother of the
1st plaintiff and he was allotted share near to the suit properties under the
same partition deed.
5. While so, according to the plaintiff, the defendants were
restraining the plaintiffs from entering into the the suit schedule
mentioned property and to harvest the same and thereby, causing
interruption to the plaintiffs' peaceful possession and enjoyment of the
suit property. The plaintiffs claimed that they had pathway to reach their
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
property existing in S.No.188/2B-1 from Vellore-Alangayam main road
on eastern side to the western side of suit property and except the said
foot path, there is no other pathway available for the plaintiffs to enter
into their lands since the suit properties were surrounded in all fours by
the lands of the defendants. Hence the suit.
6. The 1st defendant filed a Written Statement, inter alia, stating
that the plaintiffs were never in possession of the suit property and they
are not entitled to the relief of injunction against the defendants. The
plaintiffs have not given correct particulars of the suit property including
its extent, boundaries and physical features. Further, in his additional
written statement, the 1st defendant has stated that abutting Vellore to
Alangayam main road, on the western side, there is Aadiparasakthi
temple which is a private temple and on Southern side of the temple,
there is a land in S.No.188/2B1 belonging to the 1st defendant. In
between this piece of land and temple, there is no foot path and that there
is not even trace of foot path. While so, only in order to create a right to
passage, the plaintiffs sought the relief of declaration. The plaintiffs'
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
vendor had no right over the alleged foot path, hence the 2nd plaintiff
cannot derive any title or right over the said foot path way. In other
words, the vendor cannot transfer more than what he had and therefore,
the plaintiffs cannot claim the right over the foot path and the suit is not
maintainable.
7. It is further stated that the vendor of the plaintiffs, namely,
Chengkannan had no right to the alleged passage and the boundaries
given in the sale deed dated 05.06.1981 favouring the 2 nd plaintiff are
incorrect. There is no passage at all to the property purchased by the 2 nd
plaintiff as well as the share allotted to the 1st plaintiff. In other words,
the defendants are owning land in and around the land purchased by the
2nd plaintiff as well as the share of land allotted to the 1st plaintiff and
absolutely there is no access to the said land purchased by the 2 nd
plaintiff as well as share allotted to the 1st plaintiff. According to the 1st
defendant, the plaintiffs are owning 0.4 acre out of 0.12 acres in
S.No.188/2 and the defendants are owning 0.08 acre out of 0.12 acre in
the said survey and to reach 0.04 acre by the plaintiffs, there is no
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
passage/foot path at all and that the alleged passage was created in the
sale deed by the said Chengkannan in favour of the 2nd plaintiff though
the said vendor did not have any right over the alleged passage. Hence,
the plaintiffs cannot claim the same. With these averments, the 1st
defendant sought for dismissal of the suit.
8. On consideration of the pleadings of the respective parties, the
trial Court, framed the following issues for consideration:
1. Whether the plaintiffs are entitled for permanent injunction
as prayed for?
2. Whether the alleged cause of action is true?
3. To what other relief, the plaintiffs are entitled to?
Apart from the above, the following additional issues were also
framed, viz.,
1. Whether there is any fot path way exist as AB mentined in
the rough plan?
2. Whether the plaintiffs have right on the alleged AB
mentioned foot path?
3. Whether the plaintiffs are entitled to the declaration of title
to the suit property as claimed?
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
9. In order to prove their case, the plaintiffs examined Pws to 3 and
marked documents as Exs.A1 to A6, while the defendants examined Dws
1 to 4 and marked documents as Exs.B1 to B4. Advocate Commissioner
was examined as CW.1 and his report and sketch were marked Exs.C1 to
C4.
10. The trial Court, on consideration of both oral and documentary
evidence adduced by both parties, has made the following observations,
viz.,
i) Though the defendants denied the existence of any foot path
passage or even a trace of foot path in between Adhiparasakthi
Temple and survey No.188/2B1, the Commissioner's report has
falsified the said contention of the defendants. To overcome the
report of the Advocate Commissioner which reveals the existence
of the foot path, the defendants have put forth a new case that the
said foot path way depicted in the Advocate Commissioner's
report, pathway created and formed by the defendants in order to
reach to their cattle shed in survey No.188/2B1 and that it is
exclusive pathway only for the usage of the defendants and not for
anybody else;
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
ii) The existence of foot pathway in between Survey No.188/2B1
and Adhiparasakthi temple is admitted by DW.1 and DW.3 in their
evidence;
iii) In Ex.C2 sketch, the foot pathway is shown to run from Vellore
to Alangayam road upto the land in Survey No.188/2A1 which
belongs to the 1st defendant and Ex.C3 reveals that the said
pathway had taken a bend on the western and is shown to end
upto the plaintiffs land i.e. Survey No.188/2A2;
iv From the evidence of DW.3, it is evident that only through the
zig zag pathway, i.e. the one shown to exist in Ex.C4, the plaintiffs
could reach their lands, i.e. Surve No.188/2A2;
v) It is true that the plaintiffs are not entitled to use the foot
pathway, the defendants would have prevented the plaintiffs from
using the disputed pathway ever since 1981. But the defendants
have not prevented the plaintiffs till the year 2010 when the
dispute arose between the plaintiffs and defendants regarding the
usage of pathway;
vi) The plaintiffs land in Survey No.188/2A2 is surrounded by
defendants land on all sides. Therefore, since the land allotted to
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
the1st defendant abutting the Vellore to Alangayam main road, the
other allottees can reach to their lands only through the 1st
defendant's land which is in Survey No.188/2B1;
vii) There is no evidence to show that the suit pathway was
allotted to the vendor Chengkannan and hence, the sale of right
over the pathway by Chengkannan in favour of the 2nd plaintiff is
not proved;
viii) The plaintiffs have proved to be in possession and enjoyment
of suit property and also the disputed pathway. Even though the
plaintiffs have not proved their exclusive title over the disputed
pathway way, this Court has concluded that from the admissions
made by he defendants and their witnesses that except the disputed
pathway, there is no other pathway available to the plaintiffs to
reach their lands and the said usage has been ever since the
partition in the year 1964 and also since 1981 whereby 2 cents of
Chengkannan was purchased by the 2nd plaintiff;
11. Having observed the above, the trial Court has categorically
held that the plaintiffs are entitled to the relief of declaration of title over
Item 1 and 2 of the suit property, but not entitled to the relief of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
declaration over the suit pathway, however, they are entitled to use
pathway and thereby, granted the relief of permanent injunction in
respect of the alleged pathway. Accordingly, decreed the suit in part.
12. Aggrieved over the judgment and decree of the trial Court, the
defendants have preferred an appeal. The lower appellate Court, on
analysis of the findings of the trial Court, has arrived at the following
conclusions, viz.,
i) ....Therefore, the crucial documents in this case are Exs.A1 and
A2, though the plaintiffs have focussed their case only on the basis
of the admission made by the DW.1, but the plaintiffs have to
prove their case and they cannot take the shelter or advantage on
the weakness of the dependants case. The plaintiff has to prove the
right over the AB portion through Ex.A1 and A2 and they cannot
given any oral evidence against the written document as per
Section 92 of the Indian Evidence Act because they are focussing
their case only Ex.A1 and A2;
ii) But as per evidence of PW.1 and his supporting witnesses PW.2
and PW.3 have claimed the right of way as easementary right
since there is no other way to reach 2nd item of the suit schedule
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
property except ab portion annexed in the plaint plan.
iii) It is clear from Section 4 of Easements Act, that the plaintiff
cannot be permitted to claim the easement ownership and
easement right with inconsistent plea and the plaintiff should stick
on to his specific claim, therefore, the trial Court should have
analyzed the case only based on Ex.A1 and A2 and not on the
basis of Commissioner's report;
iv) The Commissioner has deposed as CW1 and stated that after
his 1st visit, the foot path has been dumped with mud and therefore,
the direction of the foot path has been changed. But this Court is
not inclined to accept the evidence because by mere dumping the
mud, the direction of the foot path will not change and the
direction of foot path mentioned in Ex.C2 and mentioned in Ex.C4
are entire different direction;
v) Therefore, this Court finds that the Commissioner's report is
biased and it cannot be looked into for anypurpose;
vi) Therefore, this Court finds that the trial Court has failed to
consider the pleadings and documents produced by the plaintiffs
and wrongly considered and decreed the suit.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
13. Having reached the above conclusions, the lower appellate
Court set aside the judgment and decree of the trial Court and allowed
the appeal preferred by the defendants.
14. Questioning the same, now the plaintiffs have come forward
with the present Second Appeal.
15. While admitting the Second Appeal, vide order, dated
18.06.2019, this Court framed the following substantial questions of law,
viz.,
“a. Whether the First Appellate Court is correct
in dismissing the suit on the ground that there is no
mention in Exs.A1 and A2 enabling the plaintiffs to
use the suit pathway for access to their property,
especially when the plaintiffs have established their
property, especially when the plaintiffs have
established their implied grant in relation to suit
passage as an access to their property?
“b. Whether the plaintiffs are entitled to get the
relief under the concept of Easement by lost grant,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
since there is no other pathway was provided and no
objection was raised by the defendants to use the
pathway till the date of cause of action, to reach the
property of the plaintiffs?
“c. Whether the judgment of the First Appellate
Court is perverse and vitiated, for its failure to follow
the law laid down in “Sree Swayam Prakash Ashram
Vs. G.Ananda Valliammal” (2010 (2) SCC 689) ?”
16. Questioning the judgment and decree passed by the lower
appellate Court, Mr.N.Manokaran, learned counsel appearing for the
appellants/plaintiffs, at the outset, would vehemently contend that it is an
admitted fact even as per the averments of the written statement filed by
the 1st defendant and also from the evidence of DWs.1 and 3 and by way
of Reports and sketches of the Advocate Commissioner, Exs.C1 to C4,
that the plaintiffs have no other pathway to reach their lands except the
suit pathway, the plaintiffs and their predecessors were using the same
for decades till the date of cause of action. He would point out that it is
not in dispute that the plaintiffs got 4 cents, viz., 2 cents by virtue of
partition deed ExA1, dated 13.10.1964 and another 2 cents by the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
registered sale deed Ex.A2, dated 05.06.1981, situated in S.No.188/2A2,
which is not disputed by the defendants. They are only disputing that
there is no existence of suit pathway at all. The trial Court, however,
based upon the evidence of DWs.1 and 3 and Advocate Commissioner's
reports and sketches, Exs.C1 to C4, has rightly held that there is a suit
pathway and till 1978, the father of DW.2 was also enjoying his 2 cents
only through the subject pathway and except the suit pathway, there is no
other pathway to reach the lands of the plaintiffs. He would also contend
that even though the trial Court has declined to declare the suit pathway,
but rightly granted permanent injunction over the suit pathway and
thereby, the plaintiffs are entitled to use the suit pathway on the basis of
the doctrine of easement by lost grant.
17. He would also contend that the appellate Court without
appreciating the evidence available on record as regards the existence of
suit pathway in proper perspective, unfortunately, only by taking into
consideration Exs.A1 and A2 which do not convey any right or title
towards suit pathway and also the vendor of the 2nd plaintiff had not
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
conveyed any suit pathway, except 2 cents, held that the plaintiffs cannot
claim right or title over the suit pathway. The learned counsel would
contend that the lower appellate Court ought to have analysed the
evidence which would clearly establish that the suit pathway has been in
usage from the year 1964 and that the plaintiffs are not having any other
alternative pathway to reach their lands and even in the absence of
specific plea as regards implied grant of easementary right, the lower
appellate Court, on consideration of peculiar circumstances where the
plaintiffs have no access, except the suit pathway, ought to have held that
by virtue of partition that had taken place in the year 1964, the parties to
the partition have been enjoying their respective shares and as such, the
plaintiffs were also enjoying by using the suit pathway to reach their
lands, which would establish that there was a grant by implication and
such implied grant of easementary right in relation to suit pathway ought
to have been held in favour of the plaintiffs even in the absence of plea
of easement. In this regard, the learned counsel relied upon a decision
reported in “Sree Swayam Prakash Ashramam and another versus
G.Anandavally Amma and others” reported in (2010) 2 SCC 689.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
18. The learned counsel for the appellants also relied upon the
decisions of this Court in “Koolan @ Munusamy versus Chennammal”
reported in 2019 (2) CTC 397 and “Kuruvilla Joseph (minor) and
others versus Devagiri Plantation Ltd. rep. By M.D., and another”
reported in CDJ 2021 MHC 098 to support of his contentions that right
of easement does not depend on the concessions made by the parties to a
sale deed, but it exists independent of it and if the suit pathway is not
there, there is no way to reach the plaintiffs' property and further, Section
13 of the Easement Act provides for easement of necessity and right of
way will invite itself to ensure that none of those who are the parties to
the partition is disadvantaged due to want of a right of access. Therefore,
he would point out that the 1st plaintiff is one of the co-sharers by virtue
of the partition under Ex.A1, he should not be put to disadvantage for
want of a right of access.
19. He also relied upon a decision of the Hon'ble Supreme Court in
“S.B.Noronah versus Prem Kumari Khanna” reported in (1980) 1 SCC
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
52 wherein, it is held that common sense approach should be taken to
technical defects in the pleadings and law should not be stultified by
Courts by sanctifying little omissions as fatal flaws.
20. The learned counsel would further contend that Advocate
Commissioner's report and sketches are crucial pieces of evidence that
can be very well relied upon by the Courts when there were no objections
filed by the other party and in the present case, even though no
objections were filed by the defendants, however, the lower appellate
Court declined to rely upon the Advocate Commissioner's report and
sketches. He would contend that the Advocate Commissioner's report
and sketches, viz., Exs.C1 to C4 would clearly reveal the existence of the
suit pathway. But the defendants contrary to their written statement, had
taken a different stand that suit pathway is created for their exclusive
usage to reach the cattle shed, is nothing but an afterthought to overcome
the learned Advocate Commissioner's report. He would also contend that
even in the absence of specific pleadings regarding easementary right
over the suit pathway, since in their oral evidence, DW.1 and DW.3 had
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
admitted the existence of foot pathway, the Court is empowered to
pronounce judgment based on the admissions made by the parties by
virtue of Order 12 Rule 6 CPC.
21. With the above contentions and also in the peculiar
circumstances where the plaintiffs have no access to their lands except
the suit pathway without which, absolutely, there is no possibility for the
plaintiffs to reach their lands and enjoy the property, the learned counsel
would urge this Court to set aside the judgment and decree of the lower
appellate Court and in factual circumstances coupled with evidence, this
Court can even to mould the relief and grant the same, which would meet
the ends of justice.
22. Per contra, Mr.R.Subramanian, learned counsel appearing for
the respondents would contend that the plaintiffs sought the relief of
declaration in respect of their suit property including the suit pathway
based on Exs.A1 and A2 and the vendor of the plaintiffs under Ex.A2, in
fact, was not allotted the alleged suit pathway and therefore, he cannot
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
convey what he does not have to the plaintiffs. He pointed out that the
relief of declaration over the suit pathway was negatived by the trial
Court, but the plaintiffs have not challenged the same by way of appeal
and once the relief of declaration goes, the consequential relief of
injunction cannot be sustained. In this regard, he relied upon a decision
of this Court in “D.Anjappa & others versus Marappa” reported in
(2014) 3 LW 442, wherein, it has been held that once the relief of
declaration of title is rejected, grant of consequential relief of injunction,
cannot be sustained. Therefore, he would contend that once the trial
Court based upon both documentary and oral evidence, rightly rejected
the relief of declaration in respect of the suit pathway, but erroneously
granted the consequential injunction, which the lower appellate has
rightly set aside the same, which does not require any interference.
23. He would also contend that even for claiming easementary
right, there should be a pleading in the plaint and once the plaintiffs
failed to establish their right and title over the suit pathway, they cannot
turn up and claim easementary right. In this regard, he relied upon a
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
decision of the Hon'ble Supreme Court in “Bachaaj Nagar versus
Nilima Mandal and another” reported in (2008) 17 SCC 491, wherein,
it has been held that in a civil suit, relief to be granted can be only with
reference to the prayers made in the pleadings and that no amount of
evidence, on a plea that is not put forward in the pleadings, can be looked
into to grant any relief.
24. Therefore, the learned counsel would contend that the lower
appellate Court has rightly set aside the judgment and decree of the trial
Court, which requires no interference and hence sought for dismissal of
the suit.
25. Heard the learned counsel appearing for the parties and
perused the entire materials placed on record.
26. The appellants, as plaintiffs, have filed O.S.No.111/2011
before the District Munsif Court, Ambur, against the respondents for
declaration of title and permanent injunction. According to the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
plaintiffs, the 1st plaintiff got Item No.1 through a registered partition
deed and the 2nd plaintiff purchased item No.2 on 05.06.1981 from one
Chengkannan. The plaintiffs case is that as per the above partition deed
and sale deed, the plaintiffs are having a pathway to enter into the suit
properties. But the defendants resisted the same and therefore, the suit
came to be filed.
26.1. The claim of the plaintiffs was resisted by the defendants
stating that there is no foot pathway as alleged in the plaint and the 2 nd
plaintiff's vendor had no right to transfer the alleged pathway. The
defendants alone are absolute owners of the property and at no point of
time the plaintiffs used the alleged pathway.
26.2. The trial court and the first appellate court has rendered a
concurrent finding holding that the vendor of the plaintiffs himself had
no title over the foot pathway and so the plaintiffs cannot claim any right
or title over the suit pathway.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
26.3. The plaintiffs claim title over the suit pathway based on a
partition deed (Ex.A1) and sale deed (Ex.A2), wherein the 2nd plaintiff's
vendor had conveyed the pathway in favour of the 2nd plaintiff. The trial
court and the first appellate court has rightly held that since there is no
document to show that the plaintiffs' vendor was allotted the suit
pathway, he cannot convey what he does not have. By holding so, the
trial court rightly rejected the prayer for declaration of title to the suit
pathway. However, the trial court has granted the relief of permanent
injunction, which was reversed by the first appellate court by holding
that when the relief of declaration of title is rejected, the trial court ought
not to have granted the relief of permanent injunction, by referring to the
judgment in D. Anjappa & others Versus Marappa reported in 2014
(3) LW 442, in which it was held that once the relief of declaration is
negated, the consequential relief of injunction cannot be granted. No
perversity or infirmity is found in the said findings. No appeal was
preferred by the plaintiffs in this regard. Now it has to be seen whether
the plaintiffs are entitled for any alternative relief without any pleadings.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
26.4. A perusal of the plaint clearly shows that the entire case of
the plaintiffs was that they were the owners of the suit pathway and
therefore sought for the relief of declaration over the suit pathway. The
plaintiffs had not pleaded, even as an alternative case, that they were
entitled to easementary right of passage over the schedule property. The
learned counsel for the defendants would rely on the judgement of the
Hon'ble Supreme Court in the case of Bachhaj Nahar vs. Nilima
Mandal and another reported in (2008) 17 Supreme Court Cases 491
wherein it has been held that the relief can be granted only with reference
to the prayer made in the pleadings. The relevant paragraphs of the
aforementioned judgment is extracted here under:
19. Easements may relate to a right of way, a right to light and
air, right to draw water, right to support, right to have
overhanging eaves, right of drainage, right to a watercourse, etc.
Easements can be acquired by different ways and are of different
kinds, that is, easement by grant, easement of necessity, easement
by prescription, etc. A dominant owner seeking any declaratory
or injunctive relief relating to an easementary right shall have to
plead and prove the nature of easement, manner of acquisition of
the easementary right, and the manner of disturbance or
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
obstruction to the easementary right.
20. The pleadings necessary to establish an easement by
prescription, are different from the pleadings and proof necessary
for easement of necessity or easement by grant. In regard to an
easement by prescription, the plaintiff is required to plead and
prove that he was in peaceful, open and uninterrupted enjoyment
of the right for a period of twenty years (ending within two years
next before the institution of the suit). He should also plead and
prove that the right claimed was enjoyed independent of any
agreement with the owner of the property over which the right is
claimed, as any user with the express permission of the owner
will be a licence and not an easement. For claiming an easement
of necessity, the plaintiff has to plead that his dominant tenement
and the defendant's servient tenement originally constituted a
single tenement and the ownership thereof vested in the same
person and that there has been a severance of such ownership
and that without the easementary right claimed, the dominant
tenement cannot be used. We may also note that the pleadings
necessary for establishing a right of passage is different from a
right of drainage or right to support of a roof or right to
watercourse. We have referred to these aspects only to show that
a court cannot assume or infer a case of easementary right, by
referring to a stray sentence here and a stray sentence there in
the pleading or evidence.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
21. A right of easement can be declared only when the servient
owner is a party to the suit. But nowhere in the plaint, the
plaintiffs allege, and nowhere in the judgment, the High Court
holds, that the first or the second defendant is the owner of the
suit property. While concluding that the plaintiffs were not the
owners of the suit property, the High Court has held that they
have a better right as compared to the first defendant and has
also reserved liberty to the plaintiffs to get their title established
in a competent court. This means that the Court did not recognise
the first defendant as the owner of the suit property. If the High
Court was of the view that the defendants were not the owners of
the suit property, it could not have granted declaration of
easementary right as no such relief could be granted unless the
servient owner is impleaded as a defendant. It is also
ununderstandable as to how while declaring that the plaintiffs
have only an easementary right over the suit property, the court
can reserve a right to the plaintiffs to establish their title thereto
by a separate suit, when deciding a second appeal arising from a
suit by the plaintiffs for declaration of title. Nor is it
understandable how the High Court could hold that apart from
the plaintiffs, other persons living adjacent to and north of the
suit property were entitled to use the same as passage, when they
are not parties, and when they have not sought such a relief.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
22. The observation of the High Court that when a plaintiff sets
forth the facts and makes a prayer for a particular relief in the
suit, he is merely suggesting what the relief should be, and that it
is for the court, as a matter of law, to decide upon the relief that
should be granted, is not sound. Such an observation may be
appropriate with reference to a writ proceeding. It may even be
appropriate in a civil suit while proposing to grant as relief, a
lesser or smaller version of what is claimed. But the said
observation is misconceived if it is meant to hold that a civil
court may grant any relief it deems fit, ignoring the prayer.
23 [Ed. : Para 23 corrected vide Official Corrigendum No.
F.3/Ed.B.J./89/2009 dated 17-7-2009.] . It is fundamental that in
a civil suit, relief to be granted can be only with reference to the
prayers made in the pleadings. That apart, in civil suits, grant of
relief is circumscribed by various factors like court fee,
limitation, parties to the suits, as also grounds barring relief, like
res judicata, estoppel, acquiescence, non-joinder of causes of
action or parties, etc., which require pleading and proof.
Therefore, it would be hazardous to hold that in a civil suit
whatever be the relief that is prayed, the court can on
examination of facts grant any relief as it thinks fit. In a suit for
recovery of rupees one lakh, the court cannot grant a decree for
rupees ten lakhs. In a suit for recovery possession of property ‘A’,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
court cannot grant possession of property ‘B’. In a suit praying
for permanent injunction, court cannot grant a relief of
declaration or possession. The jurisdiction to grant relief in a
civil suit necessarily depends on the pleadings, prayer, court fee
paid, evidence let in, etc.
Therefore, in the absence of a claim by the plaintiffs based on a
easementary right,without giving an opportunity to the defendants to
deny such claim, a suit for declaration of title cannot be converted into a
suit for enforcement of easementary right. The facts to be pleaded and
proved for establishing title are different from the facts that are to be
pleaded and proved for making out an easementary right. A suit for
declaration of title and possession relates to the existence and
establishment of natural rights which inhere in a person by virtue of his
ownership of a property. On the other hand, a suit for enforcement of an
easementary right relates to a right possessed by a dominant
owner/occupier over a property not his own, having the effect of
restricting the natural rights of the owner/occupier of such property.
26.5. Therefore, It is settled law that easement and title do not go
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
together. This Court in 2004(4)CTC 414 (Arunachalam Pillai vs.
Sorimuthu Pillai) has held that easementary right and ownership are
mutually exclusive concepts. Easement over property can be claimed
only if the person admits the title of the other person. Therefore, the
plaintiffs having claimed ownership cannot revive his plea for
easementary right.
26.6. In the case relied on by the appellants/plaintiffs reported in
2010(2) SCC 689 (Sree Swayam Prakash Ashramam and another vs.
G. Anandavally Amma and others), the plaintiff therein claimed both
easement of necessity and easement of grant. But, in the instant case,
there is no prayer for declaration of easementary right. Therefore, the
first appellate court has rightly dismissed the suit filed by the plaintiffs
which does not warrant interference by this Court. Accordingly, the
substantial questions of law framed above are answered in negation
against the appellants/plaintiffs and in favour of the
respondents/defendants. The Second Appeal is devoid of merits and the
same is liable to be dismissed.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
27. In the result,
I. The Second Appeal is dismissed. No costs.
II. The judgment and decree dated 11.04.2019 made in A.S.No.19 of
2017 on the file of Sub Court, Vaniyambadi, Vellore District, is
upheld.
18.07.2025
bga
Internet:Yes/No
Index:Yes/No
Speaking/Non-speaking order
To
1. The Subordinate Judge, Vaniyambadi, Vellore District.
2. The Principal District Munsif, Ambur.
3. The Section Officer, VR Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
Second Appeal No.671 OF 2019
K.GOVINDARAJAN THILAKAVADI, J.
bga
Pre-delivery Judgment made in
18.07.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/07/2025 07:05:59 pm )
