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2013 DIGILAW 2756 (MAD)

Govind Singh v. A. Khaja Mohiddin

2013-07-30

G.RAJASURIA

body2013
JUDGMENT : 1. This Second appeal is focussed animadverting upon the judgment and decree dated 21.12.2012 passed in A.S.No.145 of 2012 by the learned II Additional Judge, City Civil Court, Chennai, reversing the judgment and decree of the learned XII Assistant Judge, City Civil Court, Chennai in O.S.No.6053 of 2009. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. Compendiously and concisely, the germane facts absolutely necessary for the disposal of this Second Appeal would run thus: (a) The plaintiff/Khaja Mohiddin filed the suit as against Govind Singh/the defendant seeking the following reliefs as per the amended plaint: "(i) For a permanent injunction restraining the defendant, their man, agents, representatives and whomsover claiming under his from putting up any kind of further construction including raising the pavement either permanent or temporary in nature in the common passage situated on the western side and southern side of the suit schedule property; (ii) For a permanent injunction restraining the defendant, their man, agents, representatives and whomsoever claiming under him from interfering with the plaintiff's peaceful possession, enjoyment and free access of the common passage situated on the western side of the suit schedule property; (iii) for a permanent injunction restraining the defendant, their man, agents, representatives and whomsoever claiming under him from parking Motor Vehicle of any kind in the common passage situated on the western side of the suit schedule property or making any kind of obstruction to the plaintiff; (iv) For a mandatory injunction directing the defendant to remove and demolish the sunshade construction which rests on the first floor in the southern side of suit schedule property of the plaintiff; (v) for a mandatory injunction directing the defendant to remove the raised ground level pavement in the common passage situated on the western side of the suit schedule property; (vi) For a mandatory injunction directing the defendant to remove the construction put up on the southern side of the suit Schedule property which prevents the plaintiff from maintaining the external walls of the suit schedule property; and (vii) For a declaration that pathway situated on the western side of the suit schedule property morefully described in the 'B' Schedule is common for both the plaintiff and the defendant and a consequential relief of mandatory injunction against the defendant to remove the iron/grill gate fixed on 30.03.2011 at the entrance point of the 'B' schedule i.e., on the western side adjacent to the home of the plaintiff." (extracted as such) (b) The gist and kernel of the averments in the amended plaint would run thus: The plaintiff purchased the 'A' scheduled property measuring an extent of 2319 sq.ft. vide the sale deed dated 21.05.1990, Ex.A1 and the vendors retained their remaining property on the southern side of the property sold to the plaintiff. On the western side of the suit scheduled property, there is a common passage which is meant for the use of the plaintiff as well as the vendors of the plaintiff. The clauses in Ex.A1 would contemplate that the said passage situated to the west of the property sold to the plaintiff, should be maintained as common passage and there should not be any obstruction at the instance of either the vendors or the plaintiff. Subsequently, the same vendors sold their said remaining property to the south of the property which was sold to the plaintiff vide Ex.B4, the sale deed dated 20.04.2006 and thereafter, the purchaser namely the defendant caused hindrance to the plaintiff for the use of the said common passage. Hence the suit. (c) Per contra, the defendant filed the written statement and the additional written statement denying and refuting, challenging and impugning the averments/allegations in the plaint. The claim of the plaintiff that the passage is a common one is something antithetical to the clauses contained in Ex.A1-the sale deed in favour of the plaintiff by the vendors. In fact, the same vendors while selling their remaining property to the defendant herein, sold also the said passage in his favour and the plaintiff is having only the right of ingress and egress through the said passage and it cannot be nomenclatured as a common passage. The defendant has not caused any hindrance or created any discomfiture to the proper use of the passage by the plaintiff. Accordingly he would pray for the dismissal of the suit. (d) Issues were set down by the trial Court for trial. (e) Up went the trial, during which the plaintiff/Khaja Mohideen examined himself as P.W.1 and Exs.A1 to A5 were marked; and the defendant/Govind Singh examined himself as D.W.1 and Exs.B1 to B7 were marked. Exs.C1 to C3 were marked as Court documents. 3. Ultimately the trial Court dismissed the suit as against which the appeal was filed by the plaintiff; whereupon the first appellate Court reversed the findings of the trial Court and decreed the suit holding that the passage is a common one. 4. Exs.C1 to C3 were marked as Court documents. 3. Ultimately the trial Court dismissed the suit as against which the appeal was filed by the plaintiff; whereupon the first appellate Court reversed the findings of the trial Court and decreed the suit holding that the passage is a common one. 4. Challenging and impugning the judgment and decree of the first appellate Court, this Second Appeal has been focussed on various grounds. 5. Heard both. 6. To the knowledge of both sides, I formulated the following substantial questions of law: (1) Whether the first appellate Court was justified in holding that the passage is a common one ignoring the specific clauses in the sale deed – Ex.A1 as well as the terms and conditions stipulated in Ex.B4? (2) Whether there is any perversity or illegality in the judgment and decree of the first appellate Court? 7. The learned Senior Counsel for the defendant would pyramid his argument, which could succinctly and precisely be set out thus: The vendors who sold the property in favour of the plaintiff expressly stipulated in Ex.A1 that the property sold in favour of the plaintiff is situated to the east of the passage measuring a width of 11 feet 5 inches. The clauses in the said sale deed also would go to show that the plaintiff could only use the passage for having ingress and egress to the property sold in favour of the plaintiff. However, the vendors retained the ownership over the passage. Subsequently, under Ex.B4 while the same vendors transferring their ownership over their remaining property including the passage in favour of the defendant stipulated, that the said passage was also the subject matter of sale. At no point of time the defendant caused any hindrance to the use of the passage by the plaintiff. However, the first appellate Court ignoring the salient features and clauses as found embedded in the sale deeds Ex.A1 and Ex.B4, simply held as though the passage happened to be the common passage, warranting interference in the Second Appeal. 8. At no point of time the defendant caused any hindrance to the use of the passage by the plaintiff. However, the first appellate Court ignoring the salient features and clauses as found embedded in the sale deeds Ex.A1 and Ex.B4, simply held as though the passage happened to be the common passage, warranting interference in the Second Appeal. 8. Per contra, in a bid to make mince of the arguments as put forth on the side of the defendant, the learned Senior Counsel for the plaintiff would put forth and set forth her argument, which could tersely and briefly be set out thus: The plaintiff would be satisfied if in stricto sensu the clauses as found embedded in Ex.A1 are adhered to by the defendant who claim to have purchased the said passage from the common vendors. The car of the defendant is being parked obstructing the gate and the passage, which causes discomfiture and inconvenience to the plaintiff in the proper use of the passage. The floor level of the passage was unduly raised by the defendant, which causes the rain water to flow into the defendant's property which is at the proper ground level. A gate was put up by the defendant which also causes discomfiture. Unless a key is provided to him, he will not be able to use the passage freely as and when he likes. 9. I would like to extract the relevant clauses in Ex.A1 as under: "The vendors or the Purchaser herein or their successors in title shall not put up any construction in the 11 feet 5 inches passage situated on the western side of the property herein sold. The Vendors herein covenant that the Purchaser is given the rights to use the passage situated on the western side of the property herein sold, to have access to and enjoyment of the first floor and subsequent floors thereon through the stair case therein. The Purchaser shall use for all other purposes for enjoyment of the ground floor the already existing entrance of the property herein sold abutting the Road on the northern side. The Purchaser shall also have right of the use of the passage belonging to the Vendors for the purpose of maintaining the external walls of the property herein sole like white washing, colour washing, plastering, etc. The Purchaser shall also have right of the use of the passage belonging to the Vendors for the purpose of maintaining the external walls of the property herein sole like white washing, colour washing, plastering, etc. The Purchaser shall not obstruct to the free usage of the passage by parking any vehicle and the vendors shall not prevent the Purchaser from using the passage peacefully as stated above, besides the vendors covenant that the drainage connection from the first floor of the property herein sold, now passing through the passage shall continue to do so. ......" There are certain clauses in Ex.B4, which could also be extracted thus: "....all the part and parcel of the land, building and the pathway situated in Old No.6, New No:11, Thandavarayan Street, Royapettah, Chennai 600 104. Comprised in the Old Survey No:3045 and 3046 Re-Survey No.133 and the Collector's Certificate No:3081, and measuring 1950 sq.ft., or thereabout morefully described in the SCHEDULE herein under ....... ......... SCHEDULE PROPERTY All that piece or part of land at (OLD NO.6), New No.11 Thandavarayan Street, Royapettah, Chennai 600 014, admeasuring about 2000 sq.ft., together with the constructed area of 1800,in a deplated condition, along with the narrow passage running from north to south about 546 sq.ft., within the Registration District of Madras – Chinglepet and the registration sub Distrct of Chennai Central, before SRO Nandanam comprised in R.S.No.131/13." 9. A conjecture reading of the clauses in both the sale deeds Ex.A1 and Ex.B4, would demonstrate and display, connote and convey that the common vendors sold the property described in Ex.A1 in favour of the plaintiff excluding the said passage, however granting certain easementary rights in favour of the plaintiff over the said passage. Subsequently, the said common vendors sold their remaining property as well as the passage in favour of the defendant. It could therefore be discerned and understood that the defendant who stepped into the shoes of the common vendor in respect of the passage and the property situated to the south of the plaintiff's property, should maintain that common passage as such in stricto sensu adhering to the clauses found embodied in Ex.A1. Obviously and axiomatically, without any pint or jot of doubt, the plaintiff was apparently wrong in contending in the plaint that the said passage was a common passage. Obviously and axiomatically, without any pint or jot of doubt, the plaintiff was apparently wrong in contending in the plaint that the said passage was a common passage. The term "common passage" is having a specific connotation of its own in the legal parlance. When a passage is a common passage, both of them would be having joint ownership and the question of easement would not arise at all. An owner cannot hold any easementary right over his property so to say possess dominant heritage over his own property and no more elaboration in this regard is required. However the easement contemplated in Ex.A1 could rightly be described as a "floating easement" as found defined in the eighth edition of Black's Law Dictionary: "Floating easement – An easement that, when created, is not limited to any specific part of the servient estate." 10. The term "easement" is a generic one. Source wise it could be termed as "easement by grant", "easement by necessity", "easement by prescription" etc. Easement by nature wise could be termed as "floating easement", "light-and-air easement" etc. Hence for guidance of the lower judiciary and members of the legal fraternity, I would like to extract hereunder the relevant portion from the Eighth edition of the famous Treatise Black's Law Dictionary. "Access easement – An easement allowing one or more pesons to travel across another's land to get to a nearby location, such as a road. Affirmative easement– An easement that forces the servient-estate owner to permit certain actions by the easement holder, such as discharging water onto the servient estate. Apparent easement– A visually evident easement, such as a paved trial or a sidewalk. Avigational easement– An easement permitting unimpeded aircraft flights over the servient estate. Common easement– An easement allowing the servient landowner to share in the benefit of the easement. Continuous easement– An easement that may be enjoyed without a deliberate act by the party claiming it, such as an easement for drains, sewer pipes, lateral support of a wall, or light and air. Determinable easement– An easement that terminates on the happening of a specific event. Discontinuous easement– An easement that can be enjoyed only if the party claiming it deliberately acts in some way with regard to the servant estate. Determinable easement– An easement that terminates on the happening of a specific event. Discontinuous easement– An easement that can be enjoyed only if the party claiming it deliberately acts in some way with regard to the servant estate. Easement appurtenant– An easement created to benefit another tract of land, the use of easement being incident to the ownership of that other tract. Easement by estoppel– A court-ordered easement created from a voluntary servitude after a person, mistakenly believing the servitude to be permanent, acted in reasonable reliance on the mistaken belief. Easement by necessity– An easement created by operation of law because the easement is indispensable to the reasonable use of nearby property, such as an easement connecting a parcel of land to a road. Easement in gross– An easement benefiting a particular person and not a particular piece of land. Easement of convenience– An easement that increases the facility, comfort, or convenience of enjoying the dominant estate or some right connected with it. Equitable easement– An implied easement created by equity when adjacent lands have been created out of a larger tract. Exclusive easement– An easement that the holder has the sole right to use. Floating easement– An easement that, when created, is not limited to any specific part of the servient estate. Flowage easement– A common-law easement that gives the dominant-estate owner the right to flood a servient esate, as when land near a dam is flooded to maintain the dam or to control the water level in a reservoir. Implied easement– An easement created by law after an owner of two parcels of land uses one parcel to benefit the other to such a degree that, upon the sale of the benefited parcel, the purchaser could reasonably expect the use to be included in the sale. Intermittent easement– An easement that is usable or used only from time to time, not regularly or continuously. Light-and-air easement – A negative easement preventing an adjoining landowner from constructing a building that would prevent light or air from reaching the dominant estate. Mineral easement– An easement that permits the holder to enter the property to remove minerals from it. Navigation easement– An easement giving the federal government the right to regulate navigable waters, even when the regulation interferes with private water rights. Negative easement– An easement that prohibits the servient-estate owner from doing something, such as building an obstruction. Mineral easement– An easement that permits the holder to enter the property to remove minerals from it. Navigation easement– An easement giving the federal government the right to regulate navigable waters, even when the regulation interferes with private water rights. Negative easement– An easement that prohibits the servient-estate owner from doing something, such as building an obstruction. Prescriptive easement– An easement created from an open, adverse, and continuous use over a statutory period. Private easement – An easement whose enjoyment is restricted to one specific person or a few specific people. Public easement– An easement for the benefit of an entire community, such as the right to travel down a street or a sidewalk. Quasi-easement– 1. An easement-like right occurring when both tracts of land are owned by the same person. 2. An obligation or license that relates to land but that is not a true easement. Reciprocal negative easement– An easement created when a landowner sells part of the land and restricts the buyer's use of that part, and, in turn, that same restriction is placed on the part kept by the landowner. Reserved easement– An easement created by the grantor of real property to benefit the grantor's retained property and to burden the granted property. Secondary easement– An easement that is appurtenant to the primary or actual easement; the right to do things that are necessary to fully enjoy the easement itself. Solar easement– An easement created to protect the dominant estate's exposure to the direct rays of the sun. Timber easement– An easement that permits the holder to cut and remove timber from another's property." 11. So far this case is concerned, as per Ex.A1, the easement source wise in favour of the plaintiff, is "easement by grant" and nature of it is a floating easement as well as access easement. 12. The learned Senior Counsel for the plaintiff would stress upon the fact that a bundle of rights was conferred on her client, namely the plaintiff under Ex.A1, and in letter and spirit the same should be respected without any diminution by the defendant who stepped into the shoes of their vendors in respect of the said passage. Scarcely could it be stated that such an argument cannot be accepted and there should not be any dilution of such rights. Scarcely could it be stated that such an argument cannot be accepted and there should not be any dilution of such rights. The approach of the first appellate Court in analysing the sale deeds Ex.A1 and Ex.B4 and arriving at the conclusion to the effect that it was a common passage, in my opinion is nothing but illogical and the same should be set aside and accordingly, it is set aside. 13. Regarding the submission that the floor level of the passage was raised, the learned Senior Counsel for the defendant would submit that it was not deliberately raised so as to cause discomfiture and discomfort to the plaintiff, but it was purely for the purpose having smooth ingress and egress to the properties concerned and not with any mala fide intention. However, the submission made on the side of the plaintiff cannot simply be ignored. By raising the floor level of the passage, obviously there is likelihood of the rain water overflowing on the adjacent property, namely the property of the plaintiff. 14. The learned Senior Counsel for the defendant would submit that his client would take steps to see that it is modified in such a manner that rain water falling on the passage flows only through the passage and reaches the road or the sewage canal. 15. I am of the view that construction of a small ridge or some modification on the floor of the passage would solve the problem and that could be undertaken peacefully and amicably by the defendant immediately. 16. Regarding the existence and use of the gate at the entrance of the passage is concerned, the learned Senior counsel for the defendant would convincingly put forth his argument to the effect, that unless the gate is maintained there, there will be no safety and security for the inmates of both the houses. 17. I could see considerable force in the submission made by the learned Senior counsel for the defendant. However the defendant is expected to have an additional key to the lock concerning the gate and furnish the same to the plaintiff, so that the plaintiff could at any moment have ingress and egress, pass and re-pass through the passage concerned. 18. The learned Senior Counsel for the defendant would submit that the plaintiff should see that the gate is locked after use. 19. 18. The learned Senior Counsel for the defendant would submit that the plaintiff should see that the gate is locked after use. 19. I recollect the maxim: Sic utere tuo ut alienum non laedas: So use your property as not to harm another, as per which both of them should use it in such a manner without causing hindrance or discomfiture to the other. 20. On balance, the substantial question of laws are answered to the effect that the first appellate Court was not justified in holding that the passage is a common one ignoring the specific clauses in the sale deed – Ex.A1 as well as the terms and conditions stipulated in Ex.B4. 21. All told, the judgment and decree of the first appellate Court are set aside and the suit is decreed as follows: - That the suit passage is not a common passage, however the plaintiff is having the right of easement over the suit passage belonging to the defendant as found envisaged in Ex.A1-the sale deed dated 21.05.1990, so as to enable the plaintiff to have access to and enjoyment of the first floor and subsequent floors thereon through the stair case therein; the plaintiff shall also have the right of easement to use the suit passage for the purpose of maintaining the external walls of the property of the plaintiff, like white washing, colour washing, plastering etc. - That neither of the parties shall obstruct the free usage of the suit passage by parking any vehicle. - The drainage connection from the first floor of the plaintiff now passing through the suit passage shall continue to be so. - The defendant is directed to have an additional key to the lock of the gate concerning the suit passage and furnish it to the plaintiff, so that the plaintiff could at any moment have ingress and egress, pass and re-pass through the suit passage. The plaintiff shall see that the said gate is locked after use. - The defendant shall construct a small ridge or effect some modification on the floor of the suit passage so that the rain water does not flow into the plaintiff's property. Accordingly, this Second Appeal is disposed of. No costs. Consequently, connected miscellaneous petitions are closed.