The High Court dismissed a second appeal against a decree withdrawing an appeal in a suit for declaration of easementary right. The Court held that the easement for a right of way belonged to the houses of the vendor and did not pass to the plaintiffs who purchased only the agricultural land.
The Second Appeal is dismissed. No costs.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 22.10.2018
PRONOUNCED ON: 24.10.2018 CORAM THE HON'BLE MR.JUSTICE P.RAJAMANICKAM S.A.No.954 of 2000
1.Karuppaboyan
2.Manickam
3.Subramaniam
4.Thangamuthu @ Muthusamy ... Appellants/Plaintiff Vs.
Komarasami Gounder ... Respondent/Defendant
PRAYER: Second Appeal filed under Section 100 of C.P.C., against the Judgment and decree passed by the Subordinate Judge, Gobichettipalayam, made in A.S.No.47 of 1998 dated 14.12.1998 confirming the judgment and decree of the District Munsif court, Gobichettipalayam, made in O.S.No.301 of 1993 dated 19.09.1996.
For Appellants : Mr.A.Veerasamy for Mr.N.Narayanasamy
This Second Appeal has been filed against the judgment and decree passed by the Sub-Judge, Gobichettipalayam in A.S.No.47 of 1998 dated 14.12.1998, confirming the judgment and decree passed by the District Munsif, Gobichettipalayam in O.S.No.301 of 1993 dated 19.09.1996.
2.The appellants herein have filed a suit in O.S.No.301 of 1993 on the file of the District Munsif, Gobichettipalayam to declare the easementary right of path way as marked in plaint plan as 'm. M. ,. <. c. C. v. and to restrain the defendant from interfering with their right of taking men and cattle in the said path way. The learned District Munsif, Gobichettipalayam has dismissed the said suit by the judgment and decree dated 19.09.1996. Aggrieved by the same, the plaintiffs have filed an appeal in A.S.No.47 of 1998 on the file of the Subordinate Judge, Gobichettipalayam. The learned Subordinate Judge by the judgment and decree dated 14.12.1998 has dismissed the said appeal, confirming the judgment and decree passed by the trial Court. Feeling aggrieved, the plaintiffs have filed the present Second Appeal. For the sake of convenience, the parties are referred to as described before the trial Court.
3.The averments made in the plaint are, in brief, as follows:
(a) The properties situated in Inam S.Nos.219 and 220 and other survey numbers of Siruvalur Village, originally belonged to three brothers viz., Subramania Gounder, Palanisamy Gounder and Nataraja Gounder. The aforesaid persons had divided their properties under a registered partition deed dated 12.05.1966. In the said partition, the said Subramania Gounder, Palanisamy Gounder and Nataraja Gounder were allotted A, B and C schedule properties respectively. The portion which is shown in red colour in the plaint plan allotted to Nataraja Gounder; the portion which is shown in yellow colour allotted to Subramania Gounder and the portion which is shown in blue colour allotted to Palanisamy Gounder. In the plaint plan, the common well is shown as 'fp 1'. In the aforesaid common well, all the brothers entitled to 1/3rd share each. On the west of the aforesaid common well, the plaintiffs house and cattle shed is situated. Likewise Palanisamy Gounder's house is also situated on the west of the aforesaid well and the same is shown in blue colour in the plaint plan. The first defendant's house is situated as shown in the plaint plan. On the east and south of the first defendant's house, the said Nataraja Gounder got two houses and the said Nataraja Gounder had sold those houses to one Rajan @ Rangasamy and Eswaran Chettiyar respectively.
(b) In the plaint plan a path way is shown as 'm. M. ,. <. c. C. v.. The width of the said path way is about 4 feet and the same is hereinafter referred to as suit path way. The said path way was in existence even before the partition took place between the aforesaid brothers. In the partition deed also, it is specifically mentioned that the owners of the 'A', 'B' and 'C' schedule properties are entitled to use the said path way. The plaintiffs' vendor namely Nataraja Gounder had used the suit path way openly and continuously for more than 25 years and thereby easement by prescription also acquired. So, the plaintiffs are entitled to use the suit pathway for taking men and cattle. Since the defendant has attempted to prevent plaintiffs from using the suit path way, the plaintiffs were constrained to file the above suit for aforesaid reliefs.
4.The averments made in the written statement filed by the defendant are, in brief, as follows:
The plaint plan is not correct. The plaintiffs are not entitled to the easementary right. The defendant had purchased his property under a registered sale deed dated 25.08.1966 and from that date onwards, he is in possession and enjoyment of his property. The defendant has put up a wooden gate in the point mentioned as 'v' in the plaint plan. At that time, neither the
plaintiffs' vendor nor his brothers raised any objection. The plaintiffs have stolen the said gate on 26.05.1993 and keeping them in their house. The common well is not in use for several years and the same is in a damaged condition. After partition, from the month of August 1966, the respective sharers have dug bore wells separately and they are taking water from the said bore wells. So, the plaintiffs are not having any easementary right. Even if there was any easementary right, it was extinguished for not using the same for several years. The plaintiffs' properties situated just adjacent to the main road and they can go to their land from the said main road directly and therefore, there is no necessity for them to use the suit path way. The plaintiffs have not come to the Court with clean hands and therefore, the defendant prayed to dismiss the above suit.
6.The learned District Munsif, Gobichettipalayam after considering the materials placed before him, dismissed the suit with cost. Aggrieved by the same, the plaintiffs have filed an appeal in A.S.No.47 of 1998 on the file of the Sub-Judge, Gobichettipalayam. The learned Sub- Judge has dismissed the said appeal, confirming the judgment and decree passed by the trial Court. Feeling aggrieved, the plaintiffs have preferred the present Second Appeal.
'' Whether the Courts below are correct in dismissing the suit when the respondent/defendant's case is against the recitals of the registered partition deed Ex.A1 and which defence is clearly hit by Section 92 of the Evidence Act?''
The learned counsel for the appellants / plaintiffs has
submitted that the Courts below erred in not taking into consideration the recitals in Ex.A1 partition deed which clearly proves the existence of the path way. He further submitted that the Courts below erred in not taking into consideration the Commissioner's Report and plan which clearly established the existence of 4 feet path way and was used by the plaintiffs for a long time. He further submitted that the Courts below erred in not holding that the defence is clearly hit by Section 92 of the Evidence Act. He further submitted that merely because the right to use the suit pathway has not been specifically mentioned in Ex.A2 and Ex.A3 sale deeds, it cannot be said that the plaintiffs are not entitled to use the suit pathway. He further submitted that the Courts below failed to consider that an easement being an appurtenance to the dominant tenement, passes with the property and it cannot be destroyed or extinguished by a casual omission of a draftsman while drawing up a conveyance deed. In support of his contentions, he relied upon the decision of this Court in Palaniswami Naicker Vs. Chinnaswami Naicker, 1968 (1) MLJ 502, 1968 - 81 – LW 95.
The lands which are situated in Inam S.Nos.219 and 220 and other survey numbers originally belonged to three brothers viz., Subramania Gounder, Palanisamy Gounder and Nataraja Gounder. The said three brothers have partitioned their properties under a registered partition deed dated 12.05.1966 (Ex.A1). In the said partition deed the aforesaid brothers were allotted A, B and C schedule properties respectively. The property which was allotted to Nataraja Gounder is shown in red colour in the plaint plan; the property which was allotted to Subramania Gounder is shown in yellow colour and the property which was allotted to Palanisamy Gounder is shown in blue colour. In the said partition deed, 1/3rd share was given in the common well for each of the brothers. Further one house was
allotted to Subramania Gounder and the same is shown in yellow colour in the plaint plan. One house was allotted to Palanisamy Gounder and the same is shown in blue colour and two houses were allotted to Nataraja Gounder and they are shown in the plaint plan adjacent to the defendant's house. The defendant had purchased the share of Subramania Gounder under a registered sale deed (Ex.B4) dated 25.08.1966 both the agricultural land and also house. The plaintiffs have purchased the agricultural land under Ex.A2 and Ex.A3 dated 05.05.1970, which was allotted to the said Nataraja Gounder under Ex.A1 partition deed.
right of way was given for taking water from the common well to the houses of the plaintiffs' vendor namely Nataraja Gounder. Admittedly, the aforesaid houses were sold to the third parties. The plaintiffs have not purchased the said houses. So, the right of way of easement passes with the transfer of the houses of the said Nataraja Gounder. Therefore, the aforesaid decision will not help the plaintiffs.
S.A.No.954 of 2000 cnr(co) nr 14/05/2019
2 issues framed by the court
Whether the trial courts erred in dismissing the suit claiming easementary right of way against a registered partition deed recital.
Whether the easementary right of way passed to the plaintiffs when they purchased agricultural land without the residential houses entitled to the way.
Colour shows how this judgement treated each authority
Palaniswami Naicker Vs. Chinnaswami NaickerDistinguished¶40
Palaniswami Naicker Vs. Chinnaswami Naicker, 1968 (1) MLJ 502, 1968 - 81 – LW 95
Karuppaboyan
Manickam
Subramaniam
Thangamuthu
Komarasami Gounder
P. Rajamanickam
As recorded by the court registry
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