Dismissed

Rajammal v. Manonmani

Madras HC6 Apr 2018SA/570/2004

Case brief

AI extract

What is this about?

In a second appeal regarding a property dispute over an alleged right of way, the High Court dismissed the appeal, upholding the lower court's rejection of claims for easement by necessity and prescription due to lack of evidence and availability of alternative access.

What did the court decide?

The second appeal was dismissed with costs; the judgment and decree of the first appellate court were affirmed.

What the court decided

AI extract

Rajammal Vs Manonmani — Property and Title | Madras HC (2018)

¶24

In this matter, the Advocate Commissioner has inspected the properties of the parties concerned and filed his report and plan marked as Exs.C1 and C2. As rightly determined by the first appellate Court as well as the admission of the plaintiff's husband, examined as PW1, during the course of his evidence, it is found that there is an access to the plaintiff's house from the main road and this has been clearly elucidated by the Advocate Commissioner in his report and plan and it is found that unable to resist the same, PW1 has also admitted the existence of the said access to reach the house and it is found that the said access is passing through the Government property and further, according to PW1, the plaintiff could have access to her house from the main road through the pathway running on the southern side of Palanisamy naicker's house. However, according to PW1, the plaintiff's husband, though the said way had been used as an access, if the same is used, he has to pass through about 500 feet and on the other hand, if the suit pathway is used, the distance would be shorter and hence, as rightly determined by the first appellate Court, when the materials placed on record would go to show clearly that there is an access to the main road from the plaintiff's house, it is found that the case of the plaintiff that she has easementary right by way of necessity to the alleged suit pathway shown as ABCD in the plan is found to be not justified. Accordingly, it is noted that the first appellate Court after taking into consideration the various authorities cited before it finding that the easementary right by way of necessity would come into play only in the case of the absolute necessity and accordingly noting that easement any right by way of necessity could not be granted purely on the ground of convenience and advantage, accordingly rightly rejected the claim of the plaintiff for seeking right to the alleged suit pathway as easementary right by way of necessity.

¶31

by way of prescription as well as necessity are found to be contradictory. In this connection, reliance is placed upon the decision reported in I.L.R. (1997) 3 MADRAS 1425 (Nanjammal and others Vs. Marappa Gounder and another) by the defendant's counsel. However, the plaintiff's counsel would rely upon the decision reported in 1999-1-L.W.422 (R.Sengoda Gounder and 5 others Vs. Sengoda Gounder and 5 others) for contending that the abovesaid pleas are not inconsistent and can be made by a party for establishing her right. No doubt, there is an observation in the said decision that the party could not be deprived of claiming both the easementary right. However, in so far as the case covered in the said decision, it is found that though both the easementary right by way of prescription as well as necessity had been claimed, the right has been restricted only to the easementary right by way of prescription and accordingly, on that basis, the case covered in the said decision had come to be rendered. Such being the position, it is found that as rightly contended by the defendant's counsel, the abovesaid observation of the learned Judge cannot be held to be authoritatively holding that the party is entitled legally to take up the easementary right both by way of prescription as well as necessity. On the other hand, when it is found that such divergent rights could not be taken, as they being mutually contradictory and destructive, it is seen that on the above ground also, the plaintiff's suit has to fail. That apart, in so far as this case is concerned, the plaintiff having miserably failed to establish her claim of easementary right both by way of prescription as well as by way of necessity, as above discussed, it is seen that the first appellate Court is justified in non suiting the plaintiff on the basis of proper appreciation of the materials placed on record in the right perspective both factually and legally and in such view of the matter, it is seen that the judgment and decree of the first appellate Court do not warrant any interference. The substantial questions of law formulated in the second appeal are accordingly answered against the plaintiff and in favour of the defendant.

Rajammal v. Manonmani

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Rajammal v. Manonmani

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

T.Krishnan Vs B.Shivarajan

The State of Tamil Nadu Rep Vs S.K.Parasamsivan

Kuppusamy Vs Kuppayee

Songappa Gounder, Vs T.P.Arumugham

M.Ramasamy Vs v.K.Ramanathan (Deceased)

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