In a Second Appeal against subordinate courts confirming a decree declaring easementary rights over a pathway to the sea, the High Court of Madras held that prescription ran from the predecessors in title, not the purchaser, and dismissed the appeal.
Second Appeal dismissed; No costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
S.A.No.1290 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.12.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1290 of 2006
Union of India
Rep. by Secretary Auroville Foundation Auroville Vanur Taluk
... Appellant
Vs.
2.Savithri Nanda as mentally infirm Rep. by next friend and Father Sathyanarayana Nanda
3.Jurgen Holst Quiet Community Auroville Foundation Aurovile.
... Respondents
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PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgement and decree made in A.S.No.152 of 2004 dated 28.02.2006 on the file of Additional Sub Judge, Tindivanvam, confirming the Judgement and Decree made in OS.No.75 of 1997 dated 15.03.2004 District Munsif cum Judicial Magistrate, Vanur.
For Appellant : Mr.D.Ravichandran For Respondents : M/s. Prithivi for M/s Kaithamalai Kumaran [R.1]
R.2- Rep. by R.1
R.3 -No Appearance
JUDGMENT
The defendant has filed the above Second Appeal challenging the concurrent judgment and decree of the Courts below. The facts in brief are being narrated herein below with the parties being referred to in the same rank as before the Trial Court.
Plaintiff’s case:-
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numbered as OS.No.75 of 1997. The suit has been filed for declaring the plaintiffs' easementary rights of pathway to the beach, air and right to the plaint schedule mentioned property shown as A B C D in the suit plan over the defendants' land shows as G H I J in the suit plan and to restrain the defendants and their agents permanently from interfering with the aforesaid rights of the plaintiff.
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got an assurance from the 1st defendant that he would not put up the construction. However, after he and his family returned from a holiday at Kodaikanal, the 1st plaintiff was shocked to find that the 1st defendant had commenced construction work contrary to the assurance given to him. Therefore, the plaintiff has come forward with the current suit.
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judgement as follows:-
1. Whether the plaint plan details are correct?
2. Whether the pathway shown in the plaint plain as
GHIJ has been in use as path way leading to the beach by
the plaintiff and his predecessors is in title is true?
3. Whether the plaintiffs have not got any
easementary right of way in GHIJ area?
4. Whether the plaintiffs are entitled to the relieves
as prayed for ?
5. What are the other relieves plaintiffs are entitled
to ?
and the 1st defendant who had remained ex parte had adduced evidence as D.W.2. They had marked Ex.B.1. Pending the suit, an Advocate Commissioner had been appointed who had filed his report and plan which
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was marked as Ex.C.1 and Ex.C.2 respectively.
Challenging the same the defendants had filed AS.No.152 of 2004 on the file of the Additional Sub Court Tindivanvam. The learned Additional Sub Judge had also confirmed the judgement and decree of the Trial Court. Only
the 2nd defendant has challenged the judgement and decree in the First Appeal and filed the above Second Appeal.
"a) Is the learned Subordinate Judge right in granting
decree on the basis of easement by prescription when the plaintiff failed to satisfy the requirement under Section 15 of
the Easement Act namely enjoyment of the right over twenty
years and within two years from the date of plaint?
b) In the absence of any documentary evidence and
independent oral evidence to prove the enjoyment of right of
way, light or air for over a statutory period required under
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the law of easement, is the learned Subordinate Judge right
in decreeing on the basis of easement?
c) Is the learned Subordinate Judge right in granting
a decree on the basis of prescriptive easement especially when the land in question is admittedly an agriculture land and beyond the scope of easement Act regarding light and air? "
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of prescription coupled with the fact that the suit property was an agricultural land would surely show that the suit as framed is not maintainable. In this regard, the learned counsel would rely upon the following judgments reported in 2005 1 SCC 471 - Justiniano Antao and Ors. Vs. Bernadette B. Pereira, 2009 3 CTC page 442 - Arangasamy Vs. Valarmathy and Ors , 2008 (1) CTC 137 - N.Boriah Vs. The Nilgiri Cooperative Printing Press & 2009 (1) CTC 753 - Chellam Iyer Vs. J.Ranganathan . He would further submit that the plaintiffs have an alternative pathway and therefore there is no easement of necessity.
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prayed for.
property is the only access from the property of the plaintiffs to the sea. This is a right which has been enjoyed by the plaintiffs and prior to them by their predecessors in title. Therefore, the right to use of the pathway has enured to
the plaintiffs through their predecessor in title. Therefore, the contention that the plaintiffs cannot claim a prescriptive right is rather fallacious.
pathway is the direct access to the beach and the water and any other way would be a circuitous one. The Commissioner in his report has stated that there is a well defined pathway from the plaintiffs' gate to the beach gate which has been marked as A and B respectively. The pathway is only a foot pathway. The Commissioner has found new construction being put up on the suit pathway which clearly shows that prior to the construction, the pathway was clear and the plaintiffs could access the beach. From the
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Commissioner’s plan it is clearly evident that if any construction is put up in the suit pathway the access to the beach as well as the view of the same would be totally cut off. There is no reason as to why the defendants have chosen the suit pathway to put up construction when there is a lot of vacant space on either side of the suit pathway. Therefore, this would clearly show the malafides on the part of the defendants. Since the plaintiffs and prior to them, their predecessors in title have been enjoying this pathway, the plaintiffs are entitled to a decree for declaration particularly when the defendants have not been able to rebut the claim of the plaintiff that they and prior to them their predecessor in title were enjoying the use of the suit property. The existence of the pathway and the lie of the land particularly the gate in the plaintiffs' property which is shown as A and the gate at the beach front which is shown as B would clearly show that this pathway is being used by the plaintiffs as an access to reach the beach. Therefore, the judgement of the Courts below which are based on the evidence cannot be countenanced.
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predecessors in title were in enjoyment of the same and they have purchased the property only on this basis and therefore, it can be safely concluded that the plaintiffs and their predecessors in title have been in enjoyment of the suit pathway for more than 20 years and within 2 years from the date of the plaint. as the plaintiffs had purchased the property in 1986 and have been enjoying the way till attempts had been made to close it in the year 1997. Therefore, substantial question of law number A is answered in favour of the plaintiffs. The Commissioner’s report would clearly show the plaintiffs' right to enjoy the right of way, light and air and that apart, the admissions of the defendant’s witnesses would also clearly prove the case of the plaintiffs. Therefore, Substantial question of law number B and C are also answered in favour of the plaintiffs. The judgment relied upon by the plaintiffs are not relevant to the facts of the case on hand and further the plaintiffs have pleaded the ingredients of an easement. Consequently, the Second Appeal is dismissed. No costs.
22.12.2022
Index : Yes/No Internet : Yes/No shr
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To
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P.T. ASHA, J,
shr
S.A.No.1290 of 2006
22.12.2022
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3 issues framed by the court
Whether the learned Subordinate Judge was right in granting decree on the basis of easement by prescription when the plaintiff failed to satisfy the requirement under Section 15 of the Easement Act.
Whether the learned Subordinate Judge was right in decreeing on the basis of easement in the absence of any documentary evidence and independent oral evidence to prove the enjoyment of right of way, l
Whether the learned Subordinate Judge was right in granting a decree on the basis of prescriptive easement especially when the land in question is admittedly an agriculture land and beyond the scope o
Colour shows how this judgement treated each authority
Justiniano Antao and Ors. Vs. Bernadette B. PereiraDistinguished¶85
2005 1 SCC 471 - Justiniano Antao and Ors. Vs. Bernadette B. Pereira · Who else cites this
Arangasamy Vs. Valarmathy and OrsDistinguished¶85
2009 3 CTC page 442 - Arangasamy Vs. Valarmathy and Ors
N.Boriah Vs. The Nilgiri Cooperative Printing PressDistinguished¶85
2008 (1) CTC 137 - N.Boriah Vs. The Nilgiri Cooperative Printing Press
Chellam Iyer Vs. J.RanganathanDistinguished¶85
2009 (1) CTC 753 - Chellam Iyer Vs. J.Ranganathan
3 provisions across 2 enactments
Union of India Rep. by Secretary Auroville Foundation
Sathya Narayana Nanda
Savithri Nanda
Jurgen Holst
Quiet Community Auroville Foundation
Aurovile
P.T. ASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
