Madras High Court
Ravi vs Pitchammal @ Mookkammal ... 1St on 2 June, 2025
S.A.(MD)No.286 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.06.2025
CORAM
THE HON'BLE MR.JUSTICE G.ARUL MURUGAN
S.A.(MD)No.286 of 2018
and
C.M.P.(MD)No.8029 of 2018
Ravi ... Appellant/2nd Appellant/
3rd Defendant
Vs.
1.Pitchammal @ Mookkammal ... 1st Respondent / 1st Appellant /
2nd Defendant
2.Seenivasaragavan, ... 2nd Respondent / 1st Respondent/
Plaintiff
3.Mallika
4. Shanthi ... Respondents 3&4/
Respondents 2&3 / Defendants 4 &5
PRAYER : Second Appeal filed under Section 100 Cr.P.C., against the
judgment and decree dated 16.04.2018 passed in A.S.No.11 of 2013 on
the file of the Principal Subordinate Judge, Tirunelveli, confirming the
judgment and decree dated 15.06.2011 passed in O.S.No.191 of 2008 on
the file of the Principal District Munsif Court, Tirunelveli.
1/16
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S.A.(MD)No.286 of 2018
For Appellant : M/s. K.Shwathini
for Mr.G.Prabhu Rajadurai
For Respondents : Mr.T.Selvan for R2
: No appearance for R1
: R3& R4 Dispensed with
JUDGMENT
This second appeal has been filed challenging the judgment and
decree dated 16.04.2018 passed in A.S.No.11 of 2013 on the file of the
Principal Subordinate Judge, Tirunelveli, confirming the judgment and
decree dated 15.06.2011 passed in O.S.No.191 of 2008 on the file of the
Principal District Munsif Court, Tirunelveli.
2. The legal heirs of the deceased first defendant, who have been
impleaded as defendants 2 to 5 in the suit, are on appeal.
3. The parties are referred, as per the litigative status before the
trial Court.
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4. It is the case of the plaintiff that his father, viz.
Mr.Poovalingam, had purchased the suit 1 and 2 schedule properties
through a registered sale deed, dated 11.03.1942, in Ex.A1. The father of
the plaintiff died in the year 1979 and among the six legal heirs, a
partition deed was executed on 23.03.2000 in Ex.A2, whereby, the suit
schedule 1 and 2 properties were allotted in favour of the plaintiff.
Pursuant to the partition, the plaintiff had demolished the old house and
had built a house for his own use in Door No.27 and again, he
constructed two commercial properties in Door Nos.27/1 and 27/2 in the
year 2005.
5. It is the case of the plaintiff that earlier his father and thereafter,
himself had been in peaceful possession and enjoyment of the properties
in Schedule 1 and 2 for the past 60 years from the date of purchase in
Ex.A1 and they have been using the C- Schedule property to whitewash
and maintain the B – Schedule property for the past 60 years. It is their
further case that they have got right through prescription to go through
the third item of the property to maintain the 2nd schedule of the property.
According to the plaintiff, the defendants have fixed pipelines to drain
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waters in the 3rd schedule towards 2nd schedule property and further they
have installed hand pump and taps in the 2nd schedule property. As such,
the plaintiff had come up with the suit, claiming declaration, permanent
injunction and mandatory injunction.
6. The first defendant resisted the suit by filing a written statement
contending that the 2nd item of the suit schedule property is a common
property of both the plaintiff and the defendants. Since it is a common
property, the plaintiff cannot claim an exclusive title or enjoyment over
the 'B' schedule property. Since 'B' schedule property is a common
property belonging to both the plaintiff and the defendants, the claim of
any easementary right to use B schedule property through C schedule
property does not arise. It is their further case that since the C schedule
property absolutely belongs to them, they have every right to lay the
pipeline or install hand pump and the relief of mandatory injunction to
remove the pipeline cannot be sustained and sought for dismissal of the
suit.
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7. During trial, the plaintiff examined himself as P.W.1, one
Sankarakutralam as P.W.2 and Mani Asari as P.W.3 and have marked
Ex.A1 to Ex.A4. The third defendant examined himself as D.W.1 and
examined two other witnesses as D.W.2 and D.W.3 and have marked
Ex.B1. During trial, an Advocate Commissioner was appointed and the
report of the Advocate Commissioner along with plan and surveyor plan
were marked as Court Exhibits, viz., Ex.C1 to Ex.C3.
8. After analyzing the documents and evidences, the trial Court
decreed the suit in respect of declaration and also partly decreed the suit
insofar as the mandatory injunction to remove the hand pump and pipes,
except the water outlet pipes and consequential permanent injunction
were also granted. The trial Court also came to the conclusion that when
both the documents in Ex.A1 and Ex.A2 do not refer to the items 1 and 2
as common property, the defence or claim made by the defendants that it
is a common property cannot be sustained and they have not established
their claim through evidence that they have any right over the B
Schedule property. The trial Court has also come to the conclusion that
once the declaration is granted in respect of item Nos.1 and 2 schedule
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properties, then the permanent injunction and the easementary right to
maintain the property through C Schedule is incidental to the relief
granted.
9. Aggrieved by the decree of the trial Court, the defendants
preferred an Appeal. The First Appellate Court by judgment dated
16.04.2018 confirmed the judgment and decree of the trial Court, placing
reliance on the cross examination of D.W.1 and also the documents in
Ex.A1 and Ex.A2 and also Ex.B1. The First Appellate Court had also
placed reliance mainly on the specific admission of D.W.1 that even
prior to the purchase of the property, the 2nd Schedule of the property was
inexistence. Assailing the concurrent findings of fact, the third defendant
is before this Court on appeal.
10. The Second Appeal has not been admitted and this Court by
order dated 24.10.2018 had only issued notice to the parties.
11.Ms.K.Shwathini, learned counsel appearing for the appellant
submitted that even though the declaration, mandatory injunction and
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permanent injunction have been granted, the appellant is specifically
aggrieved only by the easementary right granted in favour of the plaintiff
insofar as allowing them to use 3rd suit schedule property, for two days in
a year to whitewash the 2nd Schedule property. The learned counsel
asserted that if a relief of declaration in respect of easementary right is to
be granted, then it is for the plaintiff to specifically plead and prove that
they have been in possession and enjoyment of the right through the
property of the defendants, whereby, they acquired the right by
prescription for the statutory period of 20 years. The Courts below have
not considered the legal provision for grant of easementary right, as the
plaintiff has not established or proved the usage as per the provision
under Section 15 of the Indian Easements Act, 1882 and therefore, the
decisions of both the Courts below are perverse and are liable to be set
aside.
12. Mr.T.Selvan, learned counsel appearing for the second
respondent argued that the property has been originally purchased by the
plaintiff's father as early as in the year 1942, which was allotted to the
plaintiff through the partition effected in 2000 and the plaintiff has
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specifically pleaded the fact that they have been using the C- Schedule
property to whitewash the B Schedule property for the past 60 years, ie.,
from the date of purchase. When a party has been using a right over the
other person's property, for a period of 20 years, then the parties are
entitled to claim the right of easement by prescription and in the instant
case, when the plaintiff has been using the right through C- Schedule
property for the past 60 years, the Courts below have rightly appreciated
the evidence and have granted decree for easementary right to have an
access through the C Schedule property for a period of two days in a year
for the sole purpose of whitewashing the B Schedule property.
13. The learned counsel further contended that all along it was the
defence of the defendants that B schedule property is only a common
property and only in such circumstances, they have claimed that the relief
of easementary right through the C- Schedule property cannot be granted.
But once the Court had granted declaration in respect of the B schedule
property in favour of the plaintiff, then the relief of permanent injunction
and the easementary right to whitewash the B Schedule property is
incidental. The learned Counsel contended that both the Courts below
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have arrived at a finding of fact based on the pleadings and documents,
needs no interference and sought for dismissal of the appeal.
14. Heard the respective counsels and perused the materials
available on record. Admittedly, the suit A and B Schedule properties
have been purchased by the plaintiff's father through a sale deed, dated
11.03.1942 in Ex.A1. The boundaries to the sale deed in Ex.A1 contains
that on the southern side, it is bounded by the Manthiram Asari pathai,
which shows that a way is in existence on the southern side of the
property purchased by the plaintiff's father. It is also admitted that after
the plaintiff's father died in the year 1979, there had been partition
effected among the legal heirs of Poovalingam and in the partition deed,
dated 23.03.2000 in Ex.A2, Schedule A and B suit property were allotted
in favour of the plaintiff. Even in the partition deed in Ex.A2, the
boundaries to the properties had been shown that is bounded with
Balakrishnan's (first defendant) pathway.
15.Admittedly, after the properties were allotted to the share of the
plaintiff, the plaintiff has demolished old structure available in the A and
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B Schedule and thereafter, had constructed a house with Door No.27 and
also constructed two other structures for commercial purposes with Door
Nos.27/1 and 27/2 in the year 2005. From the above documents, it is
evident that the plaintiff's father and thereafter, the plaintiff are the
owners and in enjoyment of the Schedule 1 and 2 of the properties for the
past 60 years from the date of purchase by the plaintiff's father in Ex.A1
dated 11.03.1942. It is the specific case of the plaintiff that there was an
old house available in the Schedule A and B and they have been using
the pathway in C - Schedule to whitewash B Schedule property. The
plaintiff has specifically pleaded that they have been using the property
in the C – Schedule for the past 60 years to whitewash the properties in B
Schedule. It was only the claim of the defendants that the B Schedule
property is not an absolute property belonging to the plaintiff and it is a
common property and both the plaintiff and the defendants have right
over the B - Schedule property. It was their further claim that the B -
Schedule property was only a common wall and therefore, they were
entitled to instal the pipelines and hand pump, which they have done so
and when it is a common wall, the question of declaration for exclusive
ownership or any easementary right through the C – Schedule property to
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maintain B – Schedule property does not arise.
16. The plaintiff examined himself as P.W.1 and had specifically
given evidence that B – Schedule is the absolute property of the plaintiff
and the plaintiff's father and the plaintiff had been using the C- Schedule
for the past 60 years for the purpose of whitewashing B- Schedule
property. The defendants even in the cross-examination had only sought
to justify the claim that the B-Schedule property is only a common
property and they have not resisted or suggested any specific
examination in respect of non-usage of the C- Schedule property for the
past periods.
17. Further, the third defendant had examined himself as D.W.1,
who had admitted that the 2nd Schedule property had been in existence
even prior to the purchase of the C- Schedule property by his father.
When it is a specific assertion on the part of the defendants that even
prior to the purchase by the defendants, the plaintiff's father and the
plaintiff were having the property in the A and B Schedule, then the
claim that the B- Schedule property is a common property belonging to
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both the plaintiff and the defendants is without any legal basis. Further,
as rightly found by the Courts below through the documents in Ex.A1
and Ex.A2, which are the sale deed and the partition deed executed in
favour of the plaintiff's father and the plaintiff would amply demonstrate
that it is an exclusive property of the plaintiff and the B- Schedule has
not been shown as common property or any rights were given to any
third party. By documents, it has been established that the plaintiff is the
absolute owner of the B Schedule property and the Courts below have
rightly declared the title of the A and B Schedule property to the
plaintiff.
18.To claim an easementary right by prescription, as per Section
15 of the Indian Easements Act, 1882, the party can claim a right of
way or any other easement if it has been peacefully and openly enjoyed
by any person claiming title thereto, as an easement, and as of right,
without interruption, and for a period of twenty years. In the case on
hand, the plaintiff has specifically pleaded that they have been in usage
of the C – schedule property to whitewash the building in the B-Schedule
property and the plaintiff has also given specific evidence asserting the
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right for a period of 60 years. In fact, the defendants had not even
chosen to suggest that the plaintiff had not used the property in the C-
Schedule property to whitewash the property in B- Schedule property for
the past 60 years or even after their purchase or after re-construction was
made. All along it was the claim of the defendants that the B- Schedule
property is only a common property, which is a common Wall, that has
been negatived and established by the plaintiff that it is an exclusive
property.
19. When the appellant has not resisted the Appeal insofar as
granting of declaration, permanent injunction and mandatory injunction
in respect of B- Schedule property and also the pipelines installed in the
C- Schedule property, the only argument raised in the appeal that the
easementary right granted in the C- Schedule property to have access for
whitewashing B- Schedule property for a period of two days in a year is
without any basis and cannot be sustained. Both the Courts below have
appreciated the pleadings and evidences let in and having found that the
plaintiff is the absolute owner of the A and B Schedule property and also
the C- Schedule property has been used to carry out whitewashing B
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Schedule property. The findings of the fact arrived at by the Courts
below are based on available evidences.
20. In view of the findings of the fact arrived at by both the Courts
below, this Court does not find any illegality or perversity in the decision
arrived at. There is no question of law, much less than the substantial
question of law that arises in the appeal for the consideration in this
Appeal.
21. In fine, the Second Appeal is dismissed. However, there shall
be no order as to costs. Consequently, connected Miscellaneous Petition
is closed.
NCC : Yes / No 02.06.2025
Internet : Yes / No
Index : Yes / No
LS
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To
1.The Principal Subordinate Judge,
Tirunelveli.
2.The Principal District Munsif,
Tirunelveli.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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G.ARUL MURUGAN,J.
LS
02.06.2025
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