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2009 DIGILAW 2770 (MAD)

Selvaraj v. Mohammed Thameem & Others

2009-07-29

K.MOHAN RAM

body2009
Judgment :- The unsuccessful plaintiff in O.S.No.5 of 1996 on the file of the Principal District Munsif, Namakkal, who was also unsuccessful in A.S.No.144 of 1996 on the file of the Subordinate Court, Namakkal, has filed the above second appeal. 2. For the sake of convenience the parties are referred to as per their ranking in the suit. 3. The case of the plaintiff in-brief is as follows:- a. The suit property bearing S.No.37/2 belongs to the plaintiff as per the sale deed, dated 7. 1983. Under the land updating scheme, the suit property has been subdivided as S.No.37/2A. The land situated in S.No.37/3 measuring to an extent of 0.4 cents alone belong to the defendants as per the sale deed, dated 9. 1985. Apart from that the defendants are owning the land in S.No.43. Originally the land in S.No.37 was the family property. The land in S.No.43 is not the common family property. In the rough sketch filed along with the plaint, the plaintiffs land is described as P and the land belong to the defendants situated in S.No.37/3 is shown as D. The land belonging to the defendants situated in S.No.43 is shown as D1 and the pathway is marked as XY. The defendants are entitled to use XY pathway only to reach the land in S.No.37/3 and they cannot use the same to reach the land in S.No.43 and XY pathway being common, it cannot be used by the defendants to reach S.No.43. According to the plaintiff, since the defendants tried to take the cart through the XY pathway to the land in S.No.43, the suit has been filed. 4. The defendants contested the suit by filing a written statement inter alia contending as follows:- a. The survey number, as per the UDR scheme, for the suit property has not been properly mentioned. The defendants are not aware of the proceedings that were pending before the High Court. The defendants have got the right over the pathway XY. The defendants have purchased 0.4 cents land from one Devaki under the sale deed, dated 9. 1985. The defendants vendor Devaki was using the pathway XY in S.No.37 to reach the land in S.No.43 and the same is mentioned in the sale deed. Since there is no other alternative pathway to reach the land in S.No.43, the pathway situated in S.No.37 was being used. 1985. The defendants vendor Devaki was using the pathway XY in S.No.37 to reach the land in S.No.43 and the same is mentioned in the sale deed. Since there is no other alternative pathway to reach the land in S.No.43, the pathway situated in S.No.37 was being used. Originally, the width of the pathway was about 10 ft and at present the width of the pathway has been reduced. The defendants have been using the pathway XY to reach the land in S.No.43 for well over a period of 20 years. When the plaintiff himself has admitted that the defendants have the right to use the pathway, he cannot object for using the said pathway to reach S.No.43. On the aforesaid pleadings, the defendants have sought for the dismissal of the suit. 5. After framing appropriate issues, the trial Court has taken up the suit for trial and during trial, on the side of the plaintiff P.Ws.1 and 2 were examined and Exs.A1 to A4 were marked and on the side of the defendants D.W.1 was examined and Ex.B1 was marked. Exs.C1 and C2 were marked as Court exhibits. 6. The Trial Court on a consideration of the oral and documentary evidence adduced in the case rejected the contention of the plaintiff that the defendants can use the pathway only to reach the land in S.No.37/3 and not the land in S.No.43. The trial Court observed that there is no restrictive clause in the sale deed Ex.A2 standing in the name of the defendants. In support of its findings the trial court based reliance on the decision reported in Ayyasami Gounder and Others Vs. Munnuswamy Gounder and Others (1985(1) MLJ (SC) 86). 7. Being aggrieved by that the plaintiff preferred an appeal in A.S.No.144 of 1996 before the Subordinate Court, Namakkal. The lower appellate Court on an independent consideration of the evidence on record concurred with the findings of the trial Court and confirmed the judgment and decree of the trial Court. 8. Being aggrieved by that the plaintiff has filed the above second appeal. The lower appellate Court on an independent consideration of the evidence on record concurred with the findings of the trial Court and confirmed the judgment and decree of the trial Court. 8. Being aggrieved by that the plaintiff has filed the above second appeal. In the memorandum of grounds of the second appeal, the following questions have been raised as substantial questions of law:- .a. Whether the court below is right in dismissing the suit when there is no prescriptive right of easement to the defendants under Ex.A2 to use the common pathway to reach their separate land in S.No.43 through S.No.37/3? .b. Whether the court below is right in holding that the defendants have right to use common pathway indirectly to reach S.No.43 as the common pathway ends up at S.No.37/3 which is the defendants land as per Ex.A2 and there is no exclusive right under Ex.A2 to use the common pathway to reach S.No.43 in either way? .c. Whether the court below is right in dismissing the suit that the appellant has no right to question the usage of the common pathway by the defendants when there is alteration of easements by the defendants? 9. Heard Mr.M. Sudhakar, learned counsel for the appellant. 10. The learned counsel for the appellant submitted that under Ex.A.2 sale deed, the defendants have been given right to use the common pathway to reach S.No.37/3 and no exclusive right has been given to the defendants to use the common pathway to reach their separate land in S.No.43 and as such the Courts below ought not to have held that the defendants have got the right to use the XY pathway to reach S.No.43. 11. The learned counsel further submitted that since there is no grant of exclusive right to the defendants to use the pathway to reach S.No.43 under Ex.A2, the Courts below ought not to have rejected the case of the plaintiff. The learned counsel further submitted that when the common pathway ends up at S.No.37/3, the Courts below ought not to have extended the use of common pathway to reach S.No.43 by misconstruing the recitals in Ex.A2. 12. I have considered the submissions made by the learned counsel for the appellant and perused the judgments of the Courts below and the decision reported in 1985 (1) M.L.J. (SC) 86 and also the materials available on record. 13. 12. I have considered the submissions made by the learned counsel for the appellant and perused the judgments of the Courts below and the decision reported in 1985 (1) M.L.J. (SC) 86 and also the materials available on record. 13. A perusal of the judgments of the courts below makes it clear that the Courts below have considered the recitals in Ex.A2 sale deed and have held that there is no restrictive clause regarding the use of the pathway XY confining the use of the same to reach the land in S.No.37/3 only. There is also no recital in Ex.A2 sale deed preventing the defendants from using such pathway XY to reach the land in S.No.43. Being common pathway, unless there is any specific pleading regarding prejudice or detriment to the plaintiff, the defendants cannot be prevented from using such pathway to reach S.No.43. The said principle has been laid down in 1985 (1) MLJ (SC) 86. 14. In the said decision, the Apex Court has held as under:- "10. We find considerable force in this contention. In the absence of any specific pleading regarding prejudice or detriment to the defendants/respondents the plaintiffs have every right to use the common land and the common channel. The plaintiffs/appellants were claiming their right on the basis of admitted co-ownership rights which includes unrestricted user, unlimited in point of disposition, and the High Court was not justified in holding that the plaintiffs right to take water was not acquired by any grant from the defendants/respondents or from any other sale deed. The right of co-ownership presupposes a bundle of rights which has been lost sight of by the High Court............. 14. The defendants indeed are adopting a dog in the manager policy. Although, they do not stand to be prejudiced of put to any detriment on their own pleadings, they seek to prevent the plaintiffs from irrigating their lands through the common channel from their exclusive well. There is no other source of irrigation for the plaintiffs." 15. 14. The defendants indeed are adopting a dog in the manager policy. Although, they do not stand to be prejudiced of put to any detriment on their own pleadings, they seek to prevent the plaintiffs from irrigating their lands through the common channel from their exclusive well. There is no other source of irrigation for the plaintiffs." 15. The learned counsel for the appellant fairly submits that there are no pleadings and evidence regarding likely prejudice or detriment to the plaintiff by the use of such pathway by the defendants and in such circumstances, when the Courts below rejected the claim of the plaintiff and came to the conclusion based on the above said decision of the Apex Court, which, in the opinion of this court, is squarely applicable to the case on hand, there is no reason whatsoever to interfere with the judgment and decree of the Courts below. Further, since the substantial questions of law raised are covered by the said decision of the Apex Court, the same can no longer be considered as substantial questions of law. Accordingly, the second appeal fails and the same is dismissed. But, however, there will be no order as to costs.