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2004 DIGILAW 1618 (MAD)

Sakunthala v. Ramaswami

2004-11-30

M.THANIKACHALAM

body2004
Judgment :- The first defendant, who was unsuccessful before the courts below, is the appellant. 2. The subject matter of the suit is a small strip of land, which is marked in the plaint plan, comprised in Survey No.1780/2A1 of Ootacamund Town, which lies on the south of the plaintiff's property and to some extent on the north of the first defendant's property. It seems, according to the plaintiff, the defendant had opened two doorways in her property on the northern boundary, in order to have egress and ingress, over the disputed lane. Therefore, the respondent herein as plaintiff has filed the suit for declaration, that the passage lying to the south of his property, coloured blue in the plaint plan, is the private passage, over which a right has been granted only to the plaintiff and other successors in interest of Madhan and Kongan; for mandatory injunction to close the two doors opened on the northern wall of the building belonging to the first defendant, thereby to restore the status quo and for permanent injunction. 3. The main case of the plaintiff/respondent as seen from the averments in the plaint is that the disputed pathway exclusively belonged to the successors in interest of Madhan and Kongan, who owned this property originally, later on sold as house sites to various persons retaining the private passage, only for the purpose of the user by their successors in interest. In this way, it is contended in the plaint, that though the defendant is on the southern side of the pathway, she has no right to use the private pathway, not intended for her, but contrary to the fact, she had opened the doors, thereby attempting to use the private pathway, which was intended only for the users of the said survey number, where it is situated. 4. The appellant/first defendant, resisted the suit on the ground, that even as per the documents relied on by the plaintiff and her predecessors in interest, the passage, for which right was claimed, was intended only for the user by the adjacent owners, including the person like the first defendant, who is owning property, adjacent to the pathway and it was not intended for the exclusive use of owner of the said survey alone, being the successors in interest of Madhan and Kongan. 5. 5. The learned District Munsif, after considering the rival contentions of the parties, as well as the materials placed before him, in a lengthy and elaborate judgment, has come to the conclusion, that the suit pathway was intended only for the successors in interest of Madhan and Kongan, in which the adjacent owner viz., the first defendant has no right of any kind and in this way, he is not entitled to use the pathway also by opening doors on the northern wall of his property. Thus concluding, the suit came to be decreed against the first defendant with costs, which was sought to be assailed by the first defendant before the first appellate court in A.S.NO.41/90 on the file of the District Judge, Ootacamund. 6. The learned District Judge, considering the elaborate and detailed judgment of the learned District Munsif, as well as analysing and assessing the recitals in the documents relied on by the plaintiff, unable to take different view, has confirmed the findings, thereby dismissing the appeal, which is under challenge in this appeal. 7. This Court while admitting the second appeal has formulated the following substantial question of law for consideration. Whether the judgments of the courts below are vitiated by the wrong interpretation of Exs.A2 and A.3. 8. Heard the learned counsel for the appellant, Mr. K. Raghunathan and the learned counsel for the respondent, Mr. B. Ramamoorthy. 9. The only point raised by the learned counsel for the appellant before this Court is whether the words used in Exs.A2 & A3 viz., "adjacent owners of the lands", should include the appellant/first defendant also and in this view, the first defendant being the adjacent owner is entitled to use the pathway also, even as per the recitals in the documents. In other words, it is the contention of the learned counsel for the appellant, that since the owners of the properties adjacent to the pathway has not been specifically excluded, whereas it is said in the documents "adjacent owners of the lands", the first defendant should come within the meaning of 'adjacent owner' and therefore, her right cannot be negatived. 10. 10. The learned counsel for the plaintiff/respondent opposing the above submission submitted, that "the adjacent owners of the lands" referred in Exs.A2 and A3 should have the meaning and reference only with respect to the owners of the lands, who had purchased the properties from the original owners or the successors in interest of Madhan and Kongan. To appreciate the above dispute, assuming it is a question of law, since it warrants interpretation of the above words, we have to see the lie of the lands, who owned the pathway and the remaining portion in the same survey number, adjacent to the pathway. 11. Admittedly, an extent of 20 cents in R.S.No.1780/2A1 originally belonged to Madhan and Kongan of Kenthorai, who had purchased this property under the sale deed dated 25.1.1971, which is marked as Ex.A1. When the owners of the above said extent, conveyed some portions of the above said extent of the land to various third parties, they have set apart a private road commencing from the municipal road and terminating on the eastern end on the said extent of 20 cents. From the original owners, one Mohamed Sultan purchased 7 cents under the original of Ex.A2 on 29.3.1973, from whom the plaintiff/respondent had purchased the said extent including the right over the pathway on 6.7.1974, which is exhibited as Ex.A3. Thus, it is seen prior to 1973, there was no pathway, whether it is private or otherwise. It is not the case of the defendant also that even prior to 1971 or 1973, there was a pathway and the same was used by the first defendant or her predecessors in interest. 12. As disclosed in the sketch attached with the plaint, the plaintiff's property is on the northern side of the pathway, whereas the first defendant's property is on the southern side of the disputed pathway, facing towards south-east existing road, thereby having access also. In between the first defendant's property and the plaintiff's property, the pathway runs from east to west connecting the road on the western side starting from the corner of the plaintiff's property, which is shown in the sketch as 'A'. It is not the case of the first defendant, that she had prescribed some right over the disputed pathway or she is entitled to use the suit property as pathway, on the basis of easement of necessity or something like that. It is not the case of the first defendant, that she had prescribed some right over the disputed pathway or she is entitled to use the suit property as pathway, on the basis of easement of necessity or something like that. It seems, the first defendant had also not purchased any interest over the disputed property and that is why, it seems, she has not produced the title deed for her property, where we could find some reference about the pathway on the northern side, if the first defendant had any right to use the same. Thus it is seen, the first defendant not tracing the title to the suit property under any known source of law or under any document, simply and purely relying upon the recitals in the document, which I have referred supra, claimed her right as adjacent owner. It is not in dispute that the first defendant is adjacent to the disputed pathway. Therefore, she could be called as adjacent owner. Whether the first defendant, being the adjacent owner, is entitled to use the disputed pathway, as a matter of right, alone is to be seen in this case. 13. As per the Law Lexicon 'adjacent' means continguous, close to, or lying by. 'Adjacent and ajoining' means two or three plots of land may be said to be adjacent to the first, while only the second can be said to be adjoining. In this way, the first defendant could be called as adjoining owner, in view of the admitted position that her property is abutting on the south of the disputed pathway. Only taking the generic meaning and grammatical meaning for 'adjacent or adjoining' in this case, right cannot be decided because of the admitted position, that the first defendant had not purchased the property from the original owner of Survey No.1780/2A1. The recital in Exs.A2 & A3 should be read with the intention of the parties, for what purpose a private pathway was set apart and how the parties have proposed to enjoy the same, which could be culled out from the documents themselves. When the original owners of the suit property viz., Madhan & Kongan was owning the entire extent of 20 cents, admittedly, there was no pathway. It seems, they have plotted out and sold specified portions, for the purpose of construction of house. When the original owners of the suit property viz., Madhan & Kongan was owning the entire extent of 20 cents, admittedly, there was no pathway. It seems, they have plotted out and sold specified portions, for the purpose of construction of house. Therefore, it is mandatory on the part of the original owners to provide pathway, for the purchasers, as well as for the proposed purchasers, in the remaining extent. Only in this way, not only at the time of selling a portion of the larger extent, but also contemplating future sale, a covenant has been made in the sale deed, which reads: "B. Mathan B. Kongan the purchaser specifically covenants to keep the 6 ft width of land in the southern part of the extent conveyed here under and delineated and coloured green in the plan appended to this deed of sale vacant as right of way to the adjacent owners of the lands. The vendors specifically covenant to keep the 4 feet width right of way delineated and marked blue in the plan appended to this deed of sale and touching the extent conveyed hereunder so that there will be 10 feet width right of way to be enjoyed by both vendors and the purchasers and also the adjoining owners uptil the entrance of the land retained by the vendors...". The same recital is carried on in Ex.A3 also. In the documents, the wordings "adjacent owners of the lands" referred, must be the owners, who are owning the properties in 20 cents, not only the purchasers as on that date, but also in case future purchasers. The original owners viz., B. Madhan & Kongan had no obligation to provide pathway for the adjacent owners, apart from the purchasers within the area of 20 cents, since the adjacent owner viz., the first defendant's property was not originally owned by Madhan and Kongan. If both the properties had been owned by the same owner, then private pathway is set apart, then only the first defendant shall come within the meaning of 'adjacent owner', which is made under Exs.A2 & A3, not otherwise taking the common meaning of 'adjacent owner'. If there was an obligation on the part of the original owners to provide pathway, then in discharge of that obligation, the recitals have been made, then only it will ensure the benefits to other adjacent owners, not otherwise. If there was an obligation on the part of the original owners to provide pathway, then in discharge of that obligation, the recitals have been made, then only it will ensure the benefits to other adjacent owners, not otherwise. Therefore, it is not the case of the first defendant that her property was also originally owned by Madhan and Kongan from whom the plaintiff had purchased the property. The position being so, taking advantage of the fact that Exs.A2 & A3 recite adjacent owners are entitled to use the private pathway, without any justification and without tracing to any legal right, the first defendant/appellant is not entitled to claim right over the private pathway, intended only for the user of Madhan and Kongan and their successors in interest, in respect of the suit survey number. 14. Both the courts below have elaborately considered these facts and in my considered opinion, unerringly had come to the conclusion, that the first defendant is not entitled to use the suit property, which requires affirmation and confirmation not disturbance. Further though it is said, interpretation of the words involved question of law, considering the facts involved, this may not come within the meaning of substantial question of law. For the foregoing reasons, answering this substantial question of law accordingly, I conclude the appeal is devoid of merit and is liable to be dismissed. The result therefore is, the appeal is dismissed confirming the decree and judgment of the courts below, with costs.