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2001 DIGILAW 279 (MAD)

G. Kesavan v. Ranga Reddy and another

2001-03-01

A.RAMAMURTHI

body2001
Judgment : The unsuccessful plaintiff in both the Courts below has preferred the above second appeal against the judgment and decree dated 22.9.1999 in A.S.28 of 1998 on the file of the Additional District Judge, Tiruvannamalai, confirming the Judgment and Decree dated 21.1.1999 in O.S.No.1048 of 1992 on the file of the I Additional District Munsif. 2. Thecase in brief is as follows: The plaintiff filed the suit for the relief of declaration of easementary right owner the suit property and for permanent injunction against the defendant and his men from in any manner interfering with his right. The plaintiff is the owner of the land bearing Survey Nos.97/3B, 97/5A1, 5A2, 5B1 and 98. The defendants are the owners of the land bearing S.Nos.97/2A, 97/SB, 97/3A and 97/7A. The plaintiffs house is situated in S.No.97/7A. The main road connecting Thurinjapuram and Vadakarumbalur is running East to west and North of S.No.97/2A. This road is in S.No.97/1. It is a public road. Thee is also a well laid road from the public road running towards south for reaching the houses of the plaintiff as well as the defendant and others. The suit road is in existence from time immemorial running through S.Nos.97/2A, 2B, 3A, 3B, 4 and 5 and it is marked as red colour in the plaint plan. This road runs to the entire length of the above said survey numbers with a breadth of about 17 ft. east to west. They are using the road for more than the statutory period and acquired the right of casement of way. There is no other way to reach the house of the plaintiff as well as his lands. The plaintiff has been using this road for transporting his agricultural produce, to take his cattles and to reach his house. Similarly, the defendant as well as Ellammal are also using the suit road. Recently dispute arose between the parties reading survey No.97/3B and the plaintiff obtained in injunction against the defendant in respect of the suit property. The defendant attempted to abstract the plaintiffs from using the suit road by putting stones at the entrance of the road. But the defendants have no right whatsoever and hence the suit. 3. The defendants resisted the suit, contending that the plaintiff is not the owner of the S.No.97/3B and it is belonging to the defendant. The defendant attempted to abstract the plaintiffs from using the suit road by putting stones at the entrance of the road. But the defendants have no right whatsoever and hence the suit. 3. The defendants resisted the suit, contending that the plaintiff is not the owner of the S.No.97/3B and it is belonging to the defendant. He got the same under a registered partition deed dated 17.8.1977 between himself and his brother as well as their father. The suit survey number was purchased by his father Ranga Reddiar from one Visalakshmi Ammal, Gurunathan and Seethurman and others under a registered sale deed dated 2.9.1957. there were two suits in respect of suit survey numbers in O.S.Nos.1026 of 1992 and 41 of 1993. According to them there was no well laid road from the public road running towards south for reaching the house of the plaintiff as well as others. The defendant denied the existence of any such road and one of the parties used the same as road. As the plaintiff had not acquired right of the easement of way. S.No.97/2A, 2B, 3A and 3B slope from east to west and it is higher in level on the eastern side by about 2ft. Only dry crops were raised all these years and towards the end of 1992, the defendant wanted to raise wet crops by leveling the aid lands and for which he levelled the lands and wanted to keep the same height all round in the said S.Nos. for which the defendants started leveling from the west and proceeded towards fast and he noticed big boulders of rock and he blasted the same and removed the mud boulders and rock and arranged them towards the eastern boundary in the alleged pathway. When the defendant came near the red portion the plaintiff had stopped and prevented him from leveling the land and pushed the rocks and bounders towards the extreme east. The defendant also filed a suit and obtained an order of interim injunction. In fact the defendant sold about 40 lorry loads of the boulders and rocks removed the said area and there were still 20 lorry loads of rocks and boulders removed from the said lands stored towards the eastern end of the red mark portion. Usually the plaintiff, the defendant and the families of one Kothandaraman and Srinivasan used to go by the ridges to their houses. Usually the plaintiff, the defendant and the families of one Kothandaraman and Srinivasan used to go by the ridges to their houses. Paddy and Sugarcane were taken from the thrashing floor to the main road by headloads only and then taken by lorries once in a year at the time of harvest. In fact lorries also came in the odai to carry the goods. It is further stated that the red mark portion is not noted in the field measurement plan also. By taking the carts recently the pathway has been formed and all had happened only in the end of 1992. This will not confer any right on the plaintiff and hence, the plaintiff is not entitled to any relief. 4. Based on the evidence and the documents produced by the parties, the learned I Additional District Munsif, Tiruvannamalai dismissed the suit and aggrieved against this the plaintiff preferred an appeal before the lower appellate Court and the same was dismissed. Aggrieved against this, the plaintiff has come forward with the present second appeal. 5. The plaintiff/ appellant has raised the following substantial questions of law: • (a) Whether the judgments of the Courts below, ignoring the Commissioners Report and refusing to take the same in an evidence, on the ground that the Commissioners inspection and report had taken place pursuant to a ex parte order, is sustainable in law: • (b) Whether the report of the Commissioner, who is an officer of a Court, can be ignored on the ground that the said report is an ex parte reporte • (c) Whether the findings of the Courts below that the appellant has not prescribed Easementary right by prescription is sustainable in law, having regarding to the report of the Commissioner, taken along with the evidence let in by the appellante • (d) Having regard to th dispute involved in the suit, whether the dismissal of the claim of the appellant on the ground of non-joinder of necessary party is sustainable in lawe • (e) Whether the findings of the Court below that the appellant is not entitled to relief on the basis of easementary right and necessity is sustainable in lawe 6. Heard the learned counsel for the parties. 7. Heard the learned counsel for the parties. 7. The plaintiff as appellant filed the suit for declaration of easementary right of way as well as permanent injunction on the ground that for more than statutory period the pathway was running through S.Nos.97/2A, 2B, 3A, 3B, 4 and 5. Admittedly, there is a suit and counter suit between the parties relating to S.No.97/3B. The Plaintiff claims right of way only through the suit pathway and according to him this is the only pathway available not only to reach the house but also to reach the land and shift agricultural products. The learned counsel for the plaintiff contended that the pathway is in existence from item immemorial and it has been used by all the parties and they have also prescribed the said right. However, the existence of the said pathway is denied by the defendant and according to them the plaintiff has been using only for the purpose of reaching the house besides agricultural products will be carried as headloads and thereafter it will be loaded in the lorries. During the end of 1992, the defendant attempted to level the land for raising wet crops and only at that point of time, the plaintiff has prevented the defendant from doing he work claiming easementary right of way. The burden is only upon the plaintiff to prove the existence of the pathway and also user of the same, for more than 22 years. 8. The learned counsel for the plaintiff/ appellant contended that both the Courts below erred in coming to the conclusion about the existence of the pathway as well as user of the same for more than the statutory period. The Commissioners report would clearly establish that the appellant has been enjoying the easementary right for more than 20 years. Apart from this suit way, the appellant has no other access to reach his own house. 9. Number of documents were filed on either side. The Commissioner was also appointed and he had filed the report and plan and they were marked as Exs.C-1 and C-2. 10. The learned counsel for the plaintiff mainly relied upon the recital ‘patti’ in the revenue records. According to the Government the word Pattai would mean pathway thereby indicating that it must have been in existence for more than the statutory period. 10. The learned counsel for the plaintiff mainly relied upon the recital ‘patti’ in the revenue records. According to the Government the word Pattai would mean pathway thereby indicating that it must have been in existence for more than the statutory period. The plaintiff also relied upon the recital in Ex.A-14 sale deed about reference of ‘Mamool Pathway’. But, there is no specific reference about cart track in this document. Exs.A-16 to A-20 are the Adangal extracts for the Fasali years 1385 to 1389 i.e., for the year 1976 to 1980 and the present suit has been filed on 14.12.1992. The burden is upon the plaintiff to show the existence of pathway from 1976 in order to succeed in the case. Even assuming that there are entries in the plaint records relating to the cart track, there is nothing to show that it is there for more than 22 years. 11. Ex.B-1 is the village Field Measurement Book. It is pertinent to state that no cart pathway is shown in this document. In Ex.B-8 dated 9.5.1963 document also it was indicated as cultivable lands wherein groundnut, blackgram, redgram have been raised. The partition took place in the year 1977 and the existence of the cart track has not been mentioned. Even in 1983 groundnut and black gram have been raised. Ex.B-6 is also another sale deed and there is also no reference about the suit cart track. Ex.B-7 is a partition deed between the respondent and his father and brother. In Ex.B-7 also the cart pathway was not mentioned. In Ex.B-8 also the art pathway was not mentioned. In view of the aforesaid recitals only both the Courts below came to the conclusion that there is no sufficient evidence to come to the conclusion that the pathway was in existence for more than 22 years and the same was used by the parties and there is no other pathway also. 12. The learned counsel for the appellant mainly relied upon the report given by the advocate Commissioner and contended that there is sufficient material to come to the conclusion that the pathway is an existence for the last several years. The Commissioner has inspected the property only on 20.12.1992 and no notice was given to the respondent and it is an ex parte visit. The Commissioner has inspected the property only on 20.12.1992 and no notice was given to the respondent and it is an ex parte visit. The report filed by the Commissioner only indicated the possibility of using the same as a pathway. But if the evidence adduced by the parties in the case is considered, it will lead to the conclusion that much weight cannot be given to the ex parte visit of the Commissioner. 13. P.W.1 in the course of evidence stated that suit pathway is in existence for the last 40 or 50 years and they were using the same. Exs.B-3 and B-4 as well as other documents falsify the evidence of P.W.1 regarding the existence of the pathway for number of years. 14. The evidence of P.W.2 is also rejected by the Courts below on the ground that he is also one of the persons using the pathway to reach his house. P.W.3 also admitted that the suit road is not he panchayat road. P.W.4 also admitted that in the Government records, there is no entry to show the existence of the said pathway. On the other hand P.W.5 stated that the suit road was a Panchayat road and his testimony is in conflict with the testimony of the other witnesses examined on the side of the plaintiff. 15. D.W.2 is the tractor driver, who had reclaimed the land. Only if the appellant is able to establish the existence of the pathway and the same was used for more than the statutory period, then the burden will shift on the defendant. The defendants have come forward with a specific stand that the ridge is used as pathway and the same has not been seriously disputed. There is no sufficient material to come to the conclusion about the existence of the pathway for more than the statutory period. There is also no evidence to show that the plaintiff and others had been using the pathway for more than 22 years. Both the Courts below came to the conclusion concurrently that there is no suit pathway and as the finding is based on legal evidence, it cannot be stated to be perverse or arbitrary calling for interference. The plaintiff has also failed to establish that this is the only pathway available to them. 16. Both the Courts below came to the conclusion concurrently that there is no suit pathway and as the finding is based on legal evidence, it cannot be stated to be perverse or arbitrary calling for interference. The plaintiff has also failed to establish that this is the only pathway available to them. 16. A perusal of the rough sketch indicated that the cart track runs North South from the main road. D.W.1 admitted in the course of cross-examination that the land in which the pathway is running is the private property of the defendants. He had also disposed of one of his properties after the filing of the suit and in the sale deed, no reference about the suit property is mentioned. He further admitted in the course of cross-examination that pipeline had been laid underneath the suit pathway and a Channel is also running. If really the suit pathway was in existence for more than 20 years then the plaintiff and other persons would not have permitted the defendants to lay the pipeline underneath and also to put up a channel in the alleged pathway. P.W.3 also to put up a chief examination that the width of the pathway is about 17 ft. and its length his about 1,500 ft. He is also one of the persons said to be using the alleged pathway. P.W.4 even in the chief-examination admitted the existence of Odai and a pathway is also running, but the same is not used. P.W.5 in the cross-examination stated that the suit road belonged to panchayat and there are records to prove the same. The evidence of P.W.5 is quite inconsistent with the evidence of P.Ws.1 to 4. D.W.1 on the other hand stated that the pathway is in existence only for the last 6 years. As adverted to the suit was filed in the year 1992 and evidence was given in October, 1998. He further sated that prior to the filing of the suit, the plaintiff and other persons were using only the Odai as a passage. It is therefore clear from the oral evidence adduced by the parties that there is other pathway in the Odai and it was used by the parties. When once the alternate pathway is available, the plaintiff alone cannot claim the alleged pathway under easementary right. It is therefore clear from the oral evidence adduced by the parties that there is other pathway in the Odai and it was used by the parties. When once the alternate pathway is available, the plaintiff alone cannot claim the alleged pathway under easementary right. According to the plaintiff, not only himself but also other persons are using the pathway, but they were not made parties to the suit and the suit was also not filed in a representative capacity. The report filed by the Commissioner also indicated that the level of the land is not uniform. It only corroborated case of the defendants that while levelling the land, there were boulders and they have been disposed by lorry loads. Only at that point of time, the plaintiff attempted to interfere in the work of the defendants. 17. The Courts below have rightly appreciated the evidence as well as the documents in the perspective manner. Simply because in some of the Adangal extract, there is reference about Pattai this does not mean that there is a regular pathway. At the same time in some of the documents filed by the plaintiffs themselves, there is no reference about the pathway at all, besides the plaintiff also miserably failed to establish that they were using the pathway for more than 20 years. When the Commissioner inspected the property, he had noticed the existence of the pathway, but this alone is not sufficient to give a decree in favour of the plaintiff as his claim is based on prescription of easementary right. There is no illegality or infirmity in the order passed, calling for any interference. Hence, these points are answered accordingly. 18. For the reasons stated above, the second appeal fails and the same is dismissed. Consequently, the connected C.R.P. is also dismissed.