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2001 DIGILAW 903 (MAD)

Ramaswamy Naicker v. M. Kandaswamy Gounder

2001-08-13

A.KRISHNAMURTHY

body2001
Judgment :- 1. The unsuccessful plaintiff in both the courts below is the appellant. 2. The case in brief is as follows: — The plaintiff filed a suit for declaration that he has got the right to use the cart track and also for mandatory injunction directing the authorities to remove the electric post, to remove the fence and also to remove the cut trees from the cart track. Item one of the property was purchased by the plaintiff from the first defendant and others under the document dated 21.04.1972. Item 2 of the property was purchased from one Chellammal, wife of Etti Gounder under a re gistered document dated 01-07-1970. Similarly, item 3 of the property was purchased from one Ponnaiyan Gounder under a registered document dated 12.06.1970. There is clear description in the boundary referring to the use of mamool cart crack. The plaintiff has been using the said cart crack from the date of purchase. He had been taking cattle and also manure to his lands through this cart track. Excepting the suit cart track, the plaintiff is not having any other cart track. During March 1983, defendants 1 to 4 with the connivance of the electricity Department attempted to put up an electric post and cause obstruction to the user of the cart track. The plaintiff objected the same. The plaintiff also sent a telegram to the 5th respondent not to put up the electric post. On 16-08-1983 morning, the electric post was fixed in the cart track, but however, the Connection was not given. They have left only a space of 2 feet and removed the fence. Defendants 1 to 4 also cut Vadhanarayana trees and placed on the cart track preventing the plaintiff from using the same. Hence, the suit. 3. Defendants 2 to 4 contended that the recitals in the documents referred by the plaintiff are not correct. There is no cart track as alleged in the said place. These recitals have been introduced in the documents only to claim unlawfully. To reach Survey No. 180/1 and 180/2, there was cart track through S. No. 180/3, 4, 5 and 6. This was never used by the plaintiff and his predecessors-in-interest. On the other hand, there was only a foot path to reach S. No. 180/1 and 180/2. The plaintiff and his predecessor-in-interest were using only the foot path. To reach Survey No. 180/1 and 180/2, there was cart track through S. No. 180/3, 4, 5 and 6. This was never used by the plaintiff and his predecessors-in-interest. On the other hand, there was only a foot path to reach S. No. 180/1 and 180/2. The plaintiff and his predecessor-in-interest were using only the foot path. Even prior to the filing of the suit, the electric post was installed in the said place. This had not caused any obstruction for using the same as foot path. They did not cut any Vadhanarayana tree as stated by the plaintiff. 4. Respondents 5 to 7 Defendants 5 to 7 filed separate written statement and stated that even prior to 30.07.1983, electric posts were installed in the said place and connection was also given to the nearby houses. Defendants 1 to 4 claimed that the property belonged to them and because of that only, electric posts were fixed. There was no obstruction to use the pathway because of the electric post. The plaintiff did not raise any objection to the Electricity Board. The Electricity Board has got power to install the electric posts wherever necessary to give connection to the consumer as provided under the Electricity Supply Act. 5. The trial Court framed 9 issues and on behalf of the plaintiff, P.W.1 was examined and Exs.A-1 to A-9 were marked. On the side of the defendants, the third defendant was examined as D.W.1 and Exs.B-1 to B-4 were marked. The trial Court dismissed the suit and aggrieved against this the plaintiff preferred A.S. 84 of 2989 on the file of District Court. Trichy and the learned Judge after hearing the parties, dismissed the appeal and aggrieved against this, the plaintiff has come forward with the present Second Appeal. 6. At the time of admission, the following substantial question of law was framed by this Court. Whether the lower Appellate Court is right in denying the right of the appellant to the suit pathway having regard to the discussion it had made in paragraphs 15 and 16 of the judgment? 7. Heard the learned counsel of all the parties. 8. The points that arise for consideration are (1) Whether the plaintiff is entitled to the relief declaration relating to the suit cart track? (2) Whether the plaintiff is entitled to mandatory injunction as claimed? (3) To what relief? 9. 7. Heard the learned counsel of all the parties. 8. The points that arise for consideration are (1) Whether the plaintiff is entitled to the relief declaration relating to the suit cart track? (2) Whether the plaintiff is entitled to mandatory injunction as claimed? (3) To what relief? 9. Points: It is admitted that S. No. 180 in periapalli Village was sub-divided into 180/1, 180/2, 180/3, 180/4, 180/5 and 180/6. Ex.B-1 is the Village Measurement Plan relating to S. No. 180. The plaintiff claimed that there was a cart track to reach S. No. 180/1 and 180/2 through the other sub divisions. The plaintiff has also filed Ex.A-1, the plaint plan showing the demarcation of the alleged cart track. The plaintiff had purchased his property under Exs.A-1 to A-4 during the years 1970 and 1972, According to the plaintiff, there is a specific reference in these documents for using the mamool cart track. Now, according to the learned counsel for the appellant, the defendants had obstructed the use of the cart track by allowing the Electricity Board to install electric posts and they have also cut vadhanarayana trees and placed the same obstructing the cart track. The plaintiff is bound to prove that there was a cart track as alleged by the plaintiff and it was used by his as well as his predecessors-in-interest for a very long time. 10. Learned counsel for the appellant contended that the Courts below ought to have held that there is easement of necessity attached to the suit property, since the right to use the cart track is a covenant running with the land; the Courts below also failed to consider the report and plan filed by the Commissioner which clearly revealed the cart track and the obstruction made by the defendants by way of felling vadhanarayana trees in the cart track. There need not be express pleading with regard to the easement of necessity or its acquisition by prescription since it can be inferred from the sale deeds Exs. A-2 to A-4. The act of respondents 5 to 7 in fixing the electric poles in the cart track amounts to gross interference in the rights of the plaintiff/appellant. 11. Exs.B-2 to B-4 are the documents of title relied on by the defendants to prove the title to the property. A-2 to A-4. The act of respondents 5 to 7 in fixing the electric poles in the cart track amounts to gross interference in the rights of the plaintiff/appellant. 11. Exs.B-2 to B-4 are the documents of title relied on by the defendants to prove the title to the property. The plaintiff claims as if there is an east-west cart track on the northern side. As adverted to, the plaintiff relied upon the recitals in Exs.A-2 to A-4, but significantly, there is no mention about the cart track in Exs, B-2 to B-44. It is pertinent to state that Ex.B-2 is of the year 1966 earlier in point of time to the documents relied on by the plaintiff. On the other hand, under Exs.B-2 to B-4, there is a reference about the user of the pathway only and not cart track. When the earlier documents do not make mention of any cart track, the entries in the subsequent documents cannot be given much credence. It is pertinent to state that the entire sub division is S. No. 180 did not belong to a common person originally so as to presume about the existence of a cart track and allow the same to use it by all the persons, now the claim of the plaintiff is based upon the recitals only in his document and it will not be binding on the defendants. The lands belonging to the other persons are also situate on the cast of the land of the first defendant. The plaintiff cannot lay a claim about the cart track based upon the recitals in the document and at the same time, claim as easement of necessity also. The plaintiff himself had purchased the property in the year 1970 and the suit was filed in the year 1983 and as such, it cannot be concluded that this was used for more than 20 years to claim the easementary right. 12. It is admitted that a Commissioner was also appointed to inspect the property and he had submitted a report and plan marked as Ex.C-1 and C-2. The plaintiff claims that the cart track width is 15 feet whereas the measurement is not mentioned in Ex.A-2 to A-4. The Commissioner inspected the property at 5.00 p.m. on 16.08.1983. The Commissioner categorically stated that on the southern side, there was neither any fence nor ridge. The plaintiff claims that the cart track width is 15 feet whereas the measurement is not mentioned in Ex.A-2 to A-4. The Commissioner inspected the property at 5.00 p.m. on 16.08.1983. The Commissioner categorically stated that on the southern side, there was neither any fence nor ridge. He also admitted the existence of feet pathway in the said place. There are no traces of using as a cart track. D.W.1 stated in the course of cross examination that the officials of the Electricity Board brought the electric poles in the lorry as well as in the tyre cart and only for the purpose of facilitating the same, some of the trees were cut and there are traces of user as a cart track. Now, the place of installation of the electric poles has also been clearly stated under Ex.C-1 and it has not caused any obstruction to the user of the pathway. There is a space of 7 feet in between the two sides and this can be very well used as pathway by the parties. In fact, the right of the plaintiff as the user of the pathway is practically conceded and that is why both the courts below have come to the conclusion that the plaintiff is entitled to only the right of pathway and not any cart track. 13. Learned counsel for respondents 5 to 7 relied on the decision reported in Nithyanandam and other v. The Chairman, TNEB, Madras and others (1994 WLR 445) for the proposition that non obstante clause in section 42 of Electricity Supply Act empowers State Government to confer power upon any public officer or licencee which a Telegraph Authority may possess. The affected parties have got a right to claim compensation from the authorities concerned. Similar view has also been reiterated in B.P. & T. Products v. K.S.E. Board (AIR 1972 Kerala 47). 14. It has also been held in The Supdt. Engineer, TNEB Basin Bridge, Chennai and others v. Thanagaprakasam (1999 (II) CTC 614 = 2000 1 L.W. 556) that individual owning land where Board proceeded with work of constructing concrete bases for installing high posts to draw high tension wires, cannot seek injunction restraining Board from doing so long as it is done in accordance with provisions of Act and sanctioned scheme, such individual can claim damages alone if any sustained by them. 15. 15. It has also been held in The TNEB, Rep, By Its Supdt. Engineer. Madurai Electricity System. Madurai and others v. R. Pandian Pillai ( 1987 MLJ 302 ) that service connection could be given from a nearer electric post-suit by the owner of the land for trespass and causing damage to the cops, also for mandatory injunction for removal of poles-Relief negatived.” 16. It is therefore clear from the aforesaid decisions that the Electricity Board has got authority to install the electric poles wherever necessary for the purpose of giving electricity supply to the customers concerned. The oral and documentary evidence adduced in the case also established that the plaintiff has got only right of way and not any cart track and both the courts below have considered the contentions in proper perspective and there is no illegality or infirmity calling for any interference. Hence the points are answered accordingly. 17. For the reasons stated above, the Second Appeal fails and is dismissed. No costs. It is made clear that the plaintiff is entitled a right of pathway only.