Dismissed

Karuppa Gounder(Died) v. Nanjammal

Madras HC9 Jul 2021SA/939/2007

Case brief

AI extract

What is this about?

In this second appeal challenging the reversal of a suit dismissal, the High Court of Madras addressed claims for a right of way easement by prescription versus easement by grant. The Court rejected the appellant's arguments, holding that both easement theories can coexist and that documentary evidence provided the right of way. The appeal was dismissed.

What did the court decide?

Second Appeal dismissed. No costs awarded.

Karuppa Gounder(Died) Vs Nanjammal — Property and Title | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 06.07.2021

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PRONOUNCED ON : 09.07.2021

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CORAM

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THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE

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S.A. No.939 of 2007

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Karuppa Gounder (Died) 2.Palanisamy

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(2^nd Appellant brought on record as LR of the deceased vide order dated 24.01.2020 made in CMP.Nos.21843, 21844 & 21861 of 2019)

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... Appellant/Respondent/Defendant

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Nanjammal

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...Respondent/Appellant/Plaintiff

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PRAYER: Second Appeal filed under Section 100 C.P.C. against the Decree and Judgement dated 23.11.2006 made in A.S.No.7 of 2006 on the Sub Court Tiruppur reversing the Judgment and Decree dated 21.12.2005 made in O.S.No.42 of 2002 on the file of the District Munsif cum Judicial Magistrate Court, Avinashi.

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For Appellant : Mr.N.Manokaran For Respondent : Mr.S.Kaithamalai Kumaran

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JUDGMENT

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This second appeal has been filed challenging the reversal findings of the lower appellate court by its judgment and decree dated 23.11.2006 passed in A.S.No.7 of 2006.

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The Appellant is the defendant in the suit O.S.No.42 of 2002 on the file of the District Munsif Court, Avinashi. The suit was filed by the respondent/plaintiff seeking for a declaration that she is entitled to use the suit pathway and she has also sought for permanent injunction restraining the Appellant/defendant from interfering with her right to use the suit pathway. It is the case of the respondent/plaintiff that

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the suit property is a foot pathway and it is her case that her mother had purchased S.F.No.271 on 04.11.1955 under a registered sale deed along with the right to use the subject pathway which was latter settled in her favour under the settlement deed dated 10.01.2001. Hence, according to the respondent/plaintiff, under the aforementioned document, she is having the right to the usage of the suit pathway.

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The case of the Appellant/defendant as seen from his written statement is that there is no such pathway in existence as pleaded by the respondent/plaintiff. It is the case of the Appellant/defendant that the respondent/plaintiff has all along been using the east-west passage lying on the south of their respective properties of the respondent/plaintiff and the Appellant/defendant to reach her suit property. According to the Appellant/defendant, the suit has been filed in respect of a non-existing foot path.

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The Trial Court framed issues and thereafter the respondent/plaintiff examined himself as PW1 and seven documents were filed on his side which were marked as Ex.A1 to Ex.A7 before the Trial Court. On the side of the Appellant/defendant, the defendant examined himself as DW1 and no document was filed on his side before the Trial Court. During the pendency of this suit, an Advocate Commissioner was appointed and his report and the plan attached were marked as Ex.C1 and Ex.C2 respectively before the Trial Court.

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The Trial Court by its Judgment and Decree dated 21.12.2005 passed in O.S.No.42 of 2002 dismissed the suit filed by the respondent/plaintiff on the following grounds:

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(a) Ex.A3-Patta standing in the name of the respondent/plaintiff is dated 17.05.2000 which is prior to the settlement deed (Ex.A2) dated 10.01.2001,

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(b) House tax receipts Ex.A4 and Ex.A5 do not contain any facsimile of the village panchayat and hence, they are fabricated documents.

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(c) The respondent/plaintiff (PW1) has admitted the existence of east to west passage on the southern side to reach her house.

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(d) The respondent/plaintiff (PW1) has also admitted that no such pathway has been in existence, in and over the front yard of the Appellant/defendant house.

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(e) Admission of PW1 is the best piece of evidence against her.

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(f) The Advocate Commissioner's reports Ex.C1 and Ex.C2 also does not reveal the existence of any pathway.

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(g) The sale deed Ex.A1 dated 04.11.1955 and the settlement deed Ex.A2 dated 10.01.2001 refers to about only the east-west

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mamool pathway and does not depict the property of the Appellant/defendant.

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(h) The respondent/plaintiff has not established her continuous usage and enjoyment of the suit pathway for more than 20 years to justify her claim of easement by prescription.

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Aggrieved by the Judgment and Decree dated 21.12.2005 passed in O.S.No.42 of 2002 whereby the suit was dismissed, the respondent/plaintiff preferred an appeal before the lower appellate court namely Sub Court, Tiruppur in A.S.No.7 of 2006. The lower appellate court reversed the findings of the Trial Court by allowing the appeal filed by the respondent/plaintiff and held that the suit pathway is nothing but a small passage lying in the front yard of the Appellant/defendant's property. The lower appellate court held that the respondent/plaintiff is entitled to use the suit pathway to enable her to reach the north-south panchayat road.

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Aggrieved by the judgment and decree dated 23.11.2006 passed by the lower appellate court in A.S.No.7 of 2006, the Appellant/defendant has preferred this second appeal.

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At the time of admission of this second appeal on 05.07.2007, this Court has formulated the following substantial questions of law:

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“1.Whether the findings of the First Appellate Court in decreeing the suit on the basis of Ex.A1 and A2 is correct in law especially when the plaintiff has claimed only the right of easement by prescription, therefore, she has to prove her continuous enjoyment of such right over the period of 20 years, and such right is totally different from the easement by grant claimed under Ex.A2?

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Whether the first appellate court has committed an error in decreeing the suit unmindful of the admission made in the evidence of PW1 which would go against her own claim made in the suit as per Sec. 17, 21 and 58 of the Indian Evidence Act?”

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Heard Mr.N.Manokaran, learned counsel for the Appellant and Mr.Kaithamalai Kumaran, learned counsel for the defendant. During the pendency of this second appeal, the first Appellant is dead and the second Appellant was brought on record as legal representative for the deceased first Appellant.

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Mr.Manokaran, learned counsel for the Appellant would at the outset submit that the suit has been filed based on easement by prescription and not on easement by grant. Hence, according to him, the courts below ought not to have relied upon Ex.A1 and

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Ex.A2. According to him, the plea of easement by prescription and easement by grant will never dwell together because the ingredients of both the easementary rights are different and distinctive.

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Learned counsel for the Appellant drew the attention of this Court to the pleadings in the plaint filed by the respondent/plaintiff and would submit that the respondent/ plaintiff has not pleaded in the plaint that he has been using the suit pathway for more than 20 years continuously and without any interruption. Learned counsel for the Appellant also drew the attention of this Court to the cross examination of the respondent/plaintiff (PW1) before the Trial Court and would submit that the respondent/plaintiff has himself admitted that she has not been using the three feet suit pathway. According to him, the admission made by the respondent/plaintiff during her cross examination, is fatal to her case as per sections 17, 21 and 58 of the Indian Evidence Act, 1872. He would further submit that the admission made by the respondent/plaintiff, during her cross examination, has also not been explained by way of reexamination.

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Learned counsel for the Appellant then drew the attention of this Court to the Advocate Commissioner's report as well as the plan which were marked as Ex.C1 and Ex.C2 respectively before the Trial Court. According to him, Ex.C1 and Ex.C2 would clinchingly show that there is no passage in the front yard of the defendant's house whereas the Advocate Commissioner has pointed out a six feet alternative passage on the south of the respective houses of the respondent/plaintiff as well as the Appellant/defendant. He drew the attention of this Court to the Judgment of the lower appellate court and would submit that the lower appellate court has without any pleadings, documents and proof has fixed the suit pathway as a five feet pathway. He would further submit that no revenue records such as FMB to prove the existence and usage of the disputed pathway by the respondent/plaintiff has been filed by the respondent/plaintiff.

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Learned counsel for the Appellant would further submit that mere reference to mamool pathway in Ex.A1 and Ex.A2 are not binding on the Appellant/defendant who was not a party to those documents. He would further submit that the Judgment of the lower appellate court is cryptic and there is no discussion with regard to the oral and documentary evidence placed by the respective parties. Therefore, according to him, the lower appellate court being a final court of facts has not appreciated the mandate of order XLI Rule 31 and 33 of CPC

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In support of his submission, learned counsel for the Appellant drew the attention of this Court to the following authorities namely:

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(a)Justiniano Antao and others vs. Bernadette B. Pereira reported in (2005) 1 SCC 471;

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(b) Natesa Gounder vs. Raja Gounder and Others reported in (2012) 7 MLJ 813;

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Per contra learned counsel for the respondent would submit as follows:

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(a) The respondent/plaintiff is the owner of the house bearing Door No. 14/34 having access through the suit property running from west to east in front of the Appellant/defendant's house shown as AB in plaint plan.

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(b) The suit property is a foot path situated in front of the Appellant/defendant's house. Plaintiff house is facing east. The respondent/plaintiff's mother by a sale deed dated 04.11.1955 (Ex.A1) purchased a 3 Anganam east facing house. On 10.01.2001, the respondent/plaintiff's mother executed a settlement deed (Ex.A2)in favour of the respondent/plaintiff. Eversince the date of purchase i.e., on 04.11.1955, the respondent/plaintiff's mother and thereafter, the

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respondent/plaintiff are using the suit pathway.

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(c) Since the Appellant/defendant obstructed the respondent/plaintiff from the use of the suit pathway, a suit was filed on 16.06.2002 for a declaration of her right to use the suit pathway.

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(d) The Appellant/defendant (DW1) has admitted in his defence that there exists a foot path in front of his house leading to the respondent/plaintiff's house from north to south road.

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(e) The Appellant/defendant has also admitted that the respondent/plaintiff's property and the Appellant/defendant's property originally belong to one common owner.

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(d) The Advocate Commissioner's report and plan (Ex.C1 and Ex.C2) would also go to show that the suit foot path is existing from main road to the respondent/plaintiff's house.

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(e) There are no inconsistencies in the pleadings of the respondent/plaintiff. The respondent/plaintiff has been enjoying the suit pathway, eversince the sale deed dated 04.11.1955 (Ex.A1). There is no bar to claim rights both under easement by prescription as well as easement by grant.

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(f) The lower appellate court has appreciated the evidence available on record and only thereafter, has reversed the findings of the trial court.

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Discussion:

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The concept of easement has been defined under Section 4 of the Indian Easements Act, 1882. According to the provisions of Section 4, an easementary right is a right possessed by the owner or occupier of the land on some other land, not his own, the purpose of which is to provide the beneficial enjoyment of the land. This right is granted because without the existence of this right an occupier or owner cannot fully enjoy his own property.

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It includes the right to do or continue to do something or to prevent or to continue to prevent something in connection with or in respect of some other land, which is not his own, for the enjoyment of his own land.

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The word ‘land’ refers to everything permanently attached to the earth and the words ‘beneficial enjoyment’ denotes convenience, advantage or any amenity or any necessity. The owner or occupier referred to under section 4 of the Easements right is known as the Dominant Owner and the land for the benefit of which the easementary right exists is called Dominant Heritage. Whereas the owner upon whose land the liability is imposed is known as the Servient Owner and the land on which such a liability is imposed to do or prevent something, is known as the Servient Heritage.

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In the plaint filed in O.S.No.42 of 2002, the respondent/plaintiff has pleaded that the respondent/plaintiff and the Appellant/defendant are neighbours. She has also pleaded that her mother Masakkal purchased S.F.No.271 Natham, a three anganam house facing east with a right of way in east-west pathway on the front yard of the defendant from one Ramasamy and after the purchase, the said Masakkal was using the suit east -west foot path on the front yard of the Appellant/defendant to reach the North-South itteri as per the plaint plan.

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The respondent/plaintiff has also pleaded in the plaint that for the past 45 years, the said Masakkal was using the said footpath without any interruption and therefore, by prescription, she became entitled to use the said suit pathway. There is also a pleading in paragraph 4 of the plaint that subsequently, the said Masakkal settled the said house property with a right of way in the east west foot path AB as shown in the plaint plan in favour of her daughter Nanjammal, the respondent/plaintiff herein under a settlement deed dated 10.01.2001.

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The sale deed dated 04.11.1955 standing in the name of the respondent/plaintiff's mother Masakkal as well as the settlement deed dated 10.01.2001 executed in favour of the respondent/plaintiff have been marked as Ex.A1 and Ex.A2 respectively before the Trial Court. Both the exhibits reveal that there is a pathway in front of the Appellant/defendant's house. The Appellant/defendant (DW1) has admitted in his defence that there exists a foot path in front of his house leading to the respondent/plaintiff's house from north to south road. The Appellant/defendant (DW1) has also admitted that the respondent/plaintiff's property and the Appellant/defendant's property originally belong to one common owner.

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The Advocate Commissioner's report and plan which was marked as Ex.C1 and Ex.C2 respectively before the Trial Court would also go to show that there is a small opening from the main road to the respondent/plaintiff's house.

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Easementary right can be claimed by way of (a) grant, (b) prescription or (c) by necessity. The Indian Easements Act, 1882 does not prohibit any party from claiming easementary right either under (a) grant, (b) necessity or (c) by prescription or through all of them or by any two of them. Eventhough, the basis for the easementary suit is by way of prescription, there is no legal bar for the respondent/plaintiff to rely upon the sale deed dated 04.11.1955 (Ex.A1 ) and the settlement deed dated 10.01.2001 (Ex.A2) which grants right of way for the purpose of proving her case. Therefore, the contention of the learned counsel for the Appellant that the plea of easement by prescription and easement by grant will never dwell together is rejected by this Court.

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The object for appointment of the Advocate Commissioner is not to assist a party to collect evidence. In the case on hand, the Advocate Commissioner's report and plan (Ex.C1 and Ex.C2) reveal the existence of an opening adjoining the Appellant/defendant's property from the main road to the respondent/plaintiff's house. Ex.A1 sale deed dated 04.11.1955 and Ex.A2, the settlement deed dated 10.01.2001 also reveal that the transferees under the respective documents were given right of way in front of the Appellant/defendant's house. Before the Trial Court, the Appellant/defendant has also not produced any documentary evidence, to show that the respondent/plaintiff is not entitled to use the suit pathway. During his cross examination, the respondent/plaintiff has also not admitted that she does not have any right to use the suit pathway but only thing she has admitted is that no vehicle can be passed through

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the said suit pathway. Therefore, the contention of the learned counsel for the Appellant/claimant that the admission made in the evidence of PW1 is fatal to the case of the respondent/plaintiff as per sections 17, 21 and 58 of the Indian Evidence Act, 1872 is rejected by this Court.

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As observed earlier, an Advocate Commissioner's report cannot be relied upon for the purpose of collecting evidence. In the case on hand, Ex.A1 & Ex.A2 clearly reveal that there is a passage in front of the Appellant/defendant's property and the right of way through the said passage has been conveyed under Ex.A1 and Ex.A2. When it is also an admitted fact that both the Appellant/defendant as well as the respondent/plaintiff purchased their respective properties only through a common owner, that too, when there is no contra evidence produced by the Appellant/defendant, the findings given by the lower appellate court that the respondent/plaintiff is entitled to use the suit pathway is a correct finding.

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Admittedly, as seen from the evidence available on record, more particularly, Ex.A1 and Ex.A2, the respondent/ plaintiff and predecessor in title namely his mother have been using the suit pathway eversice 1955 when the respondent/ plaintiff's mother purchased the property, that is, for more than 20 years. There is also no iota of evidence available on record to show that the use of the pathway by the respondent/ plaintiff or by his mother eversince 1955 was interfered with by the Appellant/defendant. The respondent/plaintiff has also pleaded in the plaint that she and her predecessor-in-title have been using the suit pathway for more than 45 years. Therefore, it can be presumed that the respondent/plaintiff has been using the right of way peacefully and openly and without any interruption for more than 20 years.

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Even in the written statement, the Appellant/defendant has also not pleaded that the respondent/plaintiff is having another access to reach the main road from his property. The Advocate Commissioner's report also reveals that there is only a Mud road behind the respondent/plaintiff's property through which, the respondent/plaintiff can have access. The pathway which the respondent/plaintiff was enjoying for more than 20 years peacefully and without any interruption cannot be blocked just because he may be having access to the main road through a mud road which may not be a proper access.

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The Trial court has misdirected itself by relying upon the patta Ex.A3 dated 17.05.2000 as well as house tax receipts Ex.A4 & Ex.A5 which has nothing to do with the suit pathway which is being claimed as an easementary right by the respondent/plaintiff and not by way of title. When the schedule to Ex.A1-Sale deed dated 04.11.1955 and the schedule to Ex.A2settlement deed dated 10.01.2001 clearly reveal that there is a pathway in front of the Appellant/defendant's house and right of way has been given to the respective transferees under the respective documents, the lower appellate court has rightly held that the respondent/plaintiff is entitled for the use of the suit pathway.

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The Judgments relied upon by the learned counsel for the Appellant reported in (a) 2005 (1) SCC 471, (b) 2012 (7) MLJ 813 and (c) 2001 (1) CTC 505 which lay down the conditions under which easementary rights can be established, has been fully satisfied by the respondent/plaintiff. The respondent/plaintiff and her predecessor-in-title, peacefully, openly and without any interruption have been using the suit foot path for more than 20 year as seen from Ex.A1 and Ex.A2. The respondent/plaintiff has been able to establish her easementary right both through grant namely through Ex.A1 and Ex.A2 as well as through prescription. No contra evidence has been produced by the Appellant/defendant to disprove the claim of the respondent/plaintiff. Hence, the respondent/plaintiff having satisfied the requirements to prove her easementary rights, as laid down in the decisions referred to supra by the learned counsel for the Appellant/defendant, the contention of the Appellant/defendant in this second appeal will have to be necessarily rejected. The issues raised by the Appellant/defendant in this second appeal are all factual issues which have been adequately considered by the Courts below based on the materials and evidence available on record.

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There is absolutely no substantial question of law involved in this Appeal. Hence, the substantial questions of law formulated by this Court at the time of admission of this second appeal is answered against the Appellant/defendant. Accordingly, the Second Appeal is dismissed. No costs.

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Sd/Deputy Registrar(P&A) //True Copy//

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Sub Assistant Registrar

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