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2015 DIGILAW 2434 (MAD)

Palaniappan v. Nallammal

2015-07-08

PUSHPA SATHYANARAYANA

body2015
JUDGMENT : The plaintiff is the appellant. The suit is filed by the plaintiff for declaration of right of pathway of the plaintiff to reach his land in S.No.115 and the house situate in south-eastern corner of S.No.114 of Mavureddipatti village, Tiruchengode, and for consequential permanent injunction. 2. Originally the lands situate in S.No.116 and 115 of the above said village were commonly owned by one family. The land in S.No.116/4 belongs to the first defendant's husband. There is a cart track running east-west measuring about 20 feet width to reach lands in S.No.115. The plaintiff also had attached the plan describing the suit cart track. The plaintiff being the owner of S.No.115 claimed right of pathway by way of 'easement by grant'. Similarly, S.No.114 is the ancestral property of the plaintiff's family. There was a thatched house on the south-eastern corner of S.No.114 abutting the cart track. Thereafter, the said thatched house was converted into a tiled house in the year 1967 and Door Number of the said house is 4/3A. The plaintiff is residing there with his family. The plaintiff also has obtained service connection and has been living there using the cart track for more than the required statutory period. Hence, the plaintiff claimed 'right of easement' over the cart track by 'prescription'. As there was disturbance from the defendants, the plaintiff had come up with the suit for declaration of his right over the cart track. 3. The suit was resisted by the defendants denying all the claims made by the plaintiff. It is submitted by the defendants that S.No.116/4 belongs to the first defendant's husband. However, the existence of cart track to a width of 20 feet running east-west is denied by the defendants. The defendants further denied the ''easement by grant'' as claimed by the plaintiff. According to the defendants, one Komaravel Gounder owned land in S.No.115, which is on the eastern side of the defendants' land. The said Komaravel was given the right of pathway on the defendant's land as ''easement by necessity''. The lands in S.No.115 and the defendants' land were owned by one and the same person, and subsequently the defendants purchased the land in S.No.116/4 and the said Komaravel purchased the land in S.No.115 and thereafter, the land owned by Komaravel was purchased by the plaintiff. The lands in S.No.115 and the defendants' land were owned by one and the same person, and subsequently the defendants purchased the land in S.No.116/4 and the said Komaravel purchased the land in S.No.115 and thereafter, the land owned by Komaravel was purchased by the plaintiff. As the plaintiff is the owner of S.No.114, which is the adjacent land, and the plaintiff has got right of way through S.No.114 to reach S.No.115, the defendants denied the plaintiff's claim of pathway over S.No.116/4 as not maintainable. Hence, the defendants prayed for dismissal of the suit. 4. Before the trial Court, on the side of plaintiff, the plaintiff examined himself as PW.1 and marked Exs.A1 and A4 and on the side of defendants, the first defendant examined herself as DW.1 and marked Exs.B1 to B4. Advocate Commissioner's report and plan were marked as court documents Ex.C1 and C2. 5. The trial Court after elaborate consideration of the facts and evidence available, decreed the suit permitting the plaintiff to use the 12 feet width cart track to reach his land in S.No.115 and to his house in S.No.114 and granting consequential injunction. Aggrieved by the same, the defendants had preferred A.S.No.45 of 2008 on the file of Subordinate Court, Tiruchengode. The lower appellate court dismissed the suit holding that the plaintiff is not entitled to the relief asked for on the ground that once S.No.115 was attached to S.No.114 by way of purchase, the 'right of easement' claimed by the plaintiff got extinguished. Aggrieved, the above Second Appeal is preferred. 6. At the time of admission, the following substantial question of law was framed for consideration:- “Whether the lower appellate court has committed an error of law in not properly construing the recitals contained in Exs.A1 and A2 granting the right of way over A, B, C cart track and holding that the right conferred by grant under Exs.A1 and A2 is extinguished ?” 7. In order to answer the question of law formulated, it is necessary to examine the documents of title produced by the plaintiff under Exs.A1 and A2. Ex.A2 is a document dated 28.05.1966 under which one Komaravel had purchased the property from Palaniappan Gounder. The property purchased by the said Komaravel is situate in new S.No.115/1 XXX XXX XXX The said property was purchased by the plaintiff herein on 30.06.1994 under Ex.A1. Ex.A2 is a document dated 28.05.1966 under which one Komaravel had purchased the property from Palaniappan Gounder. The property purchased by the said Komaravel is situate in new S.No.115/1 XXX XXX XXX The said property was purchased by the plaintiff herein on 30.06.1994 under Ex.A1. As per Ex.A1, the property purchased by the plaintiff is described as follows:- XXX XXX XXX 8. From the reading of the above two documents, as admitted by the defendants in paragraph-7 of the written statement, one Komaravel Gounder had owned the land in S.No.115. It is also admitted by the defendants that Komaravel had pathway right on the defendants' land as 'easement by grant'. Originally S.No.115 and the lands now belonging to the defendants were owned and possessed by the single owner. Komaravel got the right of 'easement by necessity' on the pathway. As the said fact is admitted by the defendants, when the plaintiff purchased the same under Ex.A1 from the said Komaravel, the right of pathway is also given to the plaintiff by way of 'easement by grant'. Therefore, the defendants cannot dispute the same. The plaintiff also owns S.No.114 and he has been using the pathway by 'easement by prescription'. S.No.114 is abutting the cart track and the plaintiff has been using the same. The plaintiff has been using S.No.116/4 as a cart track to take his cattle, cart and other modern vehicles to reach his house from the year 1967. Therefore, the plaintiff claims the right to use the cart track in S.No.116/4 as 'easement by prescription'. 9. The contention of the defendants is that the plaintiff was the owner of the house in S.No.114 and he had been using the cart track to reach his house in S.No.114 and claimed the same as 'right by prescription'. Now the plaintiff had purchased the property from Komaravel in S.No.115 under Ex.A1 in and by which document, the right what was given to Komaravel, viz., using the said cart track, got extinguished as the property of plaintiff in S.No.114 and S.No.115 are adjacent properties, the way available on S.No.114 itself can be used by the plaintiff. Therefore, according to the defendants, the plaintiff claiming right over the 20 feet width cart track running east-west to reach his land in S.No.115, by way of an easement by grant is unsustainable. Therefore, according to the defendants, the plaintiff claiming right over the 20 feet width cart track running east-west to reach his land in S.No.115, by way of an easement by grant is unsustainable. The counsel who appeared for the appellant contended that the finding of the lower appellate court holding that the easement of right of the plaintiff got extinguished in view of the subsequent purchase of the land in S.No.115, which was abutting S.No.114, was incorrect. There is reason in the argument of the appellant. The plaintiff is the owner of S.No.114 and was using the cart track to reach his house. Now by virtue of the purchase under Ex.A1, he is claiming 'easement by grant'. 10. The contention of the respondents is that there is no necessity for the plaintiff to use the land in S.No.116/4 as the plaintiff can conveniently go through the S.No.114 as he has been doing all these days. The first appellate court also had on the same reason held that the plaintiff having purchased S.No.115, which is attached to S.No.114, automatically extinguished the right of 'easement by grant'. This contention of the respondents may not be correct for the reason that if the land in S.No.115, which was purchased from Komaravel has to be sold to any other third party, then the right of pathway cannot be said to be extinguished or the plaintiff cannot create a pathway for such unknown purchaser. If the property purchased by the plaintiff under Ex.A1 was purchased by any third party, then the right of 'easement by grant' given under Ex.A2 would automatically be conveyed to the buyer. In such circumstances, the reasoning of the lower appellate court that the right of 'easement by grant' got extinguished is unsustainable. 11. Section 41. Extinction on termination of necessity : An easement of necessity is extinguished when the necessity comes to an end. 12. From the above section, it is clear that though at the time of purchase of S.No.115 required the way of necessity subsequently the same person became owner of another land over which he can pass by reason of existence of right of way easement of necessity ceases. However, the appellant claims it as a grant. An easement acquired by grant cannot be extinguished on the ground stated in Section 41. Admittedly, the lands were originally owned by one individual. However, the appellant claims it as a grant. An easement acquired by grant cannot be extinguished on the ground stated in Section 41. Admittedly, the lands were originally owned by one individual. When komaravel purchased the property with right of way, the severance of tenement by its owner arose which gave rise to a grant of an easement. When the easement granted is such that it excludes the owner of servient tenement and others from using it, then it is easement by express grant. Easement by grant becomes effective from the time the right is granted. 13. The counsel for the appellant placed his reliance on paragraph-32 of the judgment of this Court reported in 1975 (1) MLJ 251 (R.Sivanandan and others vs. Rajammal and another) , which reads as follows:- “32. Though the learned Judge does not refer to Section 41, it is clear that reference to Section 41 was made before him and that he overruled it. His ruling therefore amounts to this, that an easement acquired by grant cannot be extinguished on the ground stated in Section 41. I respectfully agree. It is true that in that case there was an express provision in the sale deed permitting the plaintiff in that case to open a door. But I have already pointed out that there is no difference in this respect between an express grant and a grant by (necessary implication on a true construction of the deed. “ 14. The counsel for the appellant also placed his reliance on paragraphs 28 and 29 of the judgment of the Hon'ble Supreme Court reported in 2006 (5) SCC 545 (Hero Vinoth (Minor) vs. Seshammal) “28. The question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not anything else. Easement of necessity and quasi easement are dealt with in Section 13 of the Act. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not anything else. Easement of necessity and quasi easement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant in this case that it was to continue only until such time as the necessity was absolute. In fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognized and the servient tenement will be recognized and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Section 13 nor is it extinguished by the statutory provision under Section 41 of the Act which is applicable only to easement of necessity arising under Section 13. 29. An easement by grant does not get extinguished under Section 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case.“ 15. As per the above decision of the Hon'ble Supreme Court, the 'easement by grant' does not depend upon the absolute necessity of it. It is only the acquisition that is relevant. The above decision clearly draws a line between the legal extinction of an easementary right and the right by grant. The easement by necessity would continue so long as the absolute necessity exists, whereas the acquisition by grant cannot be extinguished and it would continue irrespective of the necessity. The report of the Commissioner also supported the case of the plaintiff. The house of the plaintiff has no pathway except the suit pathway, which is evidenced by the report of the Advocate Commissioner. It is also relevant to state that the report of the Commissioner is not objected to by the defendants. In view of the above discussions, the judgment of the lower appellate court holding that the right of 'easement by grant' got extinguished as both the survey numbers belonging to the plaintiff are adjacent lands attached to each other is wrong and the said finding is not sustainable and the same is set aside. 16. In fine, the Second Appeal is allowed. The judgment and decree of the lower appellate court is set aside and the judgment and decree of the trial court is restored decreeing the suit filed by the plaintiff. Consequently, connected Miscellaneous petition is closed. No costs.