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2002 DIGILAW 461 (MAD)

JABAMANI v. K. MANI CHETTIAR

2002-06-12

M.KARPAGAVINAYAGAM

body2002
Judgment : M. KARPAGAVINAYAGAM, J. ( 1 ) JABAMANI, the appellant herein filed a suit for declaration of easementary right and for mandatory injunction. The trial Court was pleased to dismiss the same. In the appeal filed by the plaintiff/appellant, the appellate Court confirmed the judgment and decree of the trial Court and dismissed the appeal. Challenging the same, the appellant has filed the above second appeal. ( 2 ) WHILE the second appeal was admitted, this Court framed the substantial question of law, which is as follows.-"whether the appellate Court is correct in not having considered the contents of Ex. A17 filed before it in the light of the observation made by this Court in its order in A. A. O. No. 567 of 1984 dated 29. 9. 1986? ( 3 ) IN elaboration of this substantial Question of law, mrs. Nalini Chidambaram, the learned senior counsel appearing for the plaintiff/appellant would vehemently contend that the lower appellate Court has committed a grave illegality in not granting the relief sought for in the suit having held that as per Ex. Al7 the said pathway is a common pathway. ( 4 ) BY way of reply, Mrs. Mala, the learned counsel appearing for the respondent would justify the reasonings given in the judgments rendered by both the Courts below. ( 5 ) I have carefully considered the submissions and scrutinised the records. ( 6 ) IT is not in dispute that the appellant in his suit claimed the relief of declaration regarding the plaintiffs right of easement over the b schedule pathway and for mandatory injunction directing the respondent/defendant to remove the construction in the b schedule. ( 7 ) IT is the specific case of the plaintiff as mentioned in the plaint and as given in the deposition that the b schedule property has been subjected to immemorial, continuous and uninterrupted user as a pathway by the plaintiff and his predecessors-in-title and as such, the plaintiff has prescribed a right of way over the b schedule and consequently, the defend-ant has no right to cause any obstruction on the b schedule property. ( 8 ) THE trial Court on considering the oral and documentary evidence adduced by both concluded that" the plaintiffs right of easement of passage over the b schedule property has not been established and as such, he cannot be entitled to the right of easement as well as the mandatory injunction by the judgment dated 17. 1. 1983 in O. S. No. 309 of 1981. ( 9 ) CHALLENGING this judgment, the plaintiff/appellant filed an appeal before the sub court in A. S. No. 16-of 1983. Pending appeal, he filed I. A. No. 77 of 1984 for filing Adangal extract to show that the b schedule property is a pathway. The appellate Court though admitted the said document as additional evidence, ultimately allowed the appeal and remanded the matter to the trial Court for fresh trial in the light of the additional evidence being adduced. ( 10 ) CHALLENGING the said order, Mani chettiar, the defendant, the respondent herein filed an appeal before this Court in A. A. O. No. 567 of 1984. This Court by the order dated 29. 9. 1986 set aside the order of remand and directed the appellate Court to consider the additional evidence and also give opportunity to the parties to adduce further evidence, if necessary and dispose of the appeal holding that the fresh trial by the trial Court would be unnecessary. ( 11 ) ACCORDINGLY, the appellate Court considered the matter afresh on the basis of the materials already available on record along with ex. A17 and dismissed the appeal holding that the easementary right has not been established by the plain ptiff/appellant. However, the lower appellate Court, on the strength of Ex. A17 observed that the b schedule property is a common pathway and as such, the entire public would be entitled to use the same. ( 12 ) ON the strength of this observation, it is strenuously contended by the counsel for the appellant that having made that observation the lower Court ought to have decreed in favour of the appellant by declaring the right of the appellant to use that pathway to reach his land, namely. a schedule property. ( 12 ) ON the strength of this observation, it is strenuously contended by the counsel for the appellant that having made that observation the lower Court ought to have decreed in favour of the appellant by declaring the right of the appellant to use that pathway to reach his land, namely. a schedule property. ( 13 ) THIS submission, in my view, cannot be accepted, in view of the fact that the right claimed in the suit is only prescriptive right of pathway over the b schedule on the basis of the stand taken by the plaintiff that the b schedule property was used by the plaintiff and his predecessors-in-title as immemorial, continuous and uninterrupted user. ( 14 ) ADMITTEDLY, the a schedule property was purchased in the year 1978. The said document did not refer- to the said pathway, the b schedule property. The suit has been filed in the year 1980. According to the: plaintiff, the plaintiff has been using the said pathway for two years and prior to that, the same had been used by his. predecessors-in-title. Unfortunately, no evidence was adduced by him to prove the same with reference to the enjoyment of the pathway for more than the statutory period. ( 15 ) EASEMENT is a right enjoyed by the owner of a land for the beneficial enjoyment, of which he exercised that right upon another persons land. To acquire the easement of access such a right should have been enjoyed without interruption for 20 years. The plaintiff has therefore to prove such uninterrupted use for 20 years. ( 16 ) BOTH the Courts below on analysing the evidence of P. Ws. 1 and 2 on the side of the plaintiff and D. Ws. 1 to 3 on the side of the defendant, concluded that the said claim of prescriptive easementary right has not been established. It is true that the lower appellate court concluded that it is a common pathway on the basis of Ex. A17. ( 17 ) IT is contended by the counsel for the respondent that Ex. A17 has not been properly proved since no oral evidence has been adduced before the appellate Court where the said document has been admitted as additional evidence to prove the contents of the said document. A17. ( 17 ) IT is contended by the counsel for the respondent that Ex. A17 has not been properly proved since no oral evidence has been adduced before the appellate Court where the said document has been admitted as additional evidence to prove the contents of the said document. ( 18 ) AS a matter of fact, while this Court set aside the order of remand and directed the appellate Court to dispose of the appeal on merits, a specific direction was given to the lower appellate Court to hear the appeal on merits and permit the parties to let in further evidence, if the parties consider it necessary. ( 19 ) ADMITTEDLY, no further evidence was let in to prove the contents of Ex. A17. However, the lower appellate Court gave a finding on the basis of Ex. A17 that it is a common pathway. But, it does not mean that there shall be a decree in favour of the plaintiff when the relief relating to common pathway was not asked for. ( 20 ) IT hag been decided by this Court in arunachalam PILLAI v. RAMU mudaliar (1998 (11) C. T. C. 146 that though the Courts are bound to take into consideration all the rights of the parties, both legal and equitable, as far as possible, they are not at liberty to grant a relief either not prayed for in the plaint, or that does not naturally flow from the ground of claim as stated in the plaint. ( 21 ) WHEN such is the legal position, the lower appellate Court cannot be compelled to give a decree for a new case which was introduced through Ex. A17. It is clear from the above decision cited supra that the jurisdiction of the Court to grant a relief must be based on pleadings and the plaint. ( 22 ) ADMITTEDLY, in this case, the pleading of the plaintiff was only with reference to the prescriptive easementary right. As held by. A17. It is clear from the above decision cited supra that the jurisdiction of the Court to grant a relief must be based on pleadings and the plaint. ( 22 ) ADMITTEDLY, in this case, the pleading of the plaintiff was only with reference to the prescriptive easementary right. As held by. this Court in E. Elumalaichetty v. Naina mudali, to acquire easement by prescription, the user during the statutory period should have been with the animus of enjoying the easement as such in the land of another, and there must be consciousness and acceptance that the title in the land vests with the other and the plaintiff cannot assert title in the land in himself that would militate against the very acquisition thereof. ( 23 ) WHEN the plea of prescriptive easementary right was specifically projected, it is the duty of the plaintiff to establish the same. Both the Courts below on the basis of the factual materials found the said prescriptive easementary right has not been established and as such, I do not find any reason to hold that such a factual finding is wrong. Consequently, it has to be held that the finding given by the appellate Court that the b schedule property is a common pathway would not be of any use for the plaintiff to claim for the prescriptive easementary right. Therefore, the second appeal is dismissed. No costs. Appeal dismissed.