Appeal by plaintiffs claiming exclusive title over cart track against defendants who hold rights via Will permitting common access. Court upheld lower appellate court finding that single daughter could not convey exclusive right over common pathway against other successors-in-interest.
Second Appeal dismissed; judgment and decree of lower appellate court confirmed.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment reserved on : 18.03.2022 Judgment pronounced on : 21.03.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Second Appeal No. 41 of 2014
and
M.P. No. 1 of 2014
Vs.
Prayer :- Second Appeal filed under Section 100 of C.P.C., against the Judgment and decree dated 23.10.2013 made in A.S.No.32 of 2010 on the file of the Subordinate Judge, Tiruppattur, Vellore District, modifying the judgment and decree dated 15.12.2009 made in O.S.No.156 of 1998 on the file of the District Munsif, Tiruppattur, Vellore District.
For Appellants : Mr.T.Dhanasekaran
For Respondents: Mr.A.Sundaravadanan for
Mr. D.Balachandran for R1 and R2 No appearance for R3 to R10
JUDGMENT
The plaintiffs are the appellants in the Second Appeal.
track and to that extent, the suit deserves to be dismissed.
following substantial question of law :- a) In the absence of any specific plea as to whether the defendants are claiming any easementary right either by way of grant, prescription or necessary if the lower appellate court correct and justified in assuming that there is a common pathway?
each daughter. On their demise, the Will came into force and the respective properties vested in favour of daughters.
they bequeathed the properties in favour of their seven daughters through the Will Ex.B1, they had specifically provided for the right of usage of the cart track for all the properties. The sale in favour of plaintiffs and the defendants had taken subsequently and was purchased from the daughters, who became entitled to the respective shares under the Will. While being so, no one had the right to exclusively convey the cart track in favour of plaintiffs, since it will run contrary to the intention expressed by the original owner of the property through Ex.B1 Will.
track was situated. That apart, even according to the report of the Advocate Commissioner, there was a cart track available upto Survey No.492/1C and thereafter, it abruptly stops and this is the portion, which was purchased in the name of 1st plaintiff through Ex.A1. The said purchase has been held to be unsustainable by the lower appellate court, since one of the daughters cannot get a exclusive right over the cart track, which was supposed to be used in common by all of them as per Ex.B1 Will. Even if Ex.B6 Muchalika is not taken into consideration, the evidence of P.W.1 makes it clear that there was availability of the cart track and even if the plaintiffs had not agreed before the panchayat to permit the defendants to use the cart track, that does not make any difference, since the plaintiffs do not have exclusive right and title over the cart track. In view of the same, all the substantial question of law are answered accordingly against the appellants.
S.A. No. 41 of 2014 SR(CO) SB(07/04/2022)
3 issues framed by the court
Whether lower appellate court was justified in assuming existence of common pathway for defendants despite lack of specific easement claim?
Whether lower appellate court correctly modified decree to confirm existence of common pathway despite plaintiffs claiming exclusive right via Schedule A1?
Whether reliance on Muchalika (Ex.B6) xerox copy was correct when original was admittedly with defendants and not all signatories signed?
1 provisions across 1 enactments
R.Madhavan
Ram Chettiar
Karunanithi
Sekar
N. ANAND VENKATESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
