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2018 DIGILAW 1987 (MAD)

T. Gopalsamy v. T. V. Partahsarathy (died)

2018-06-28

K.RAVICHANDRABAABU

body2018
JUDGMENT : 1. Plaintiff is the appellant. He filed a suit for declaration that the 'A' schedule property is a common passage of the plaintiff, the defendants and other owners of the other properties situated immediately north of the 'A' schedule property, for permanent injunction restraining the defendants from interfering with the plaintiff's common possession and enjoyment of the 'A' schedule property and for mandatory injunction directing the first defendant to remove the offending construction shown as 'B' schedule. The trial Court as well as the appellate Court rejected the case of the plaintiff and dismissed the suit. Thus, the present second appeal is filed challenging the concurrent findings rendered by the courts below. 2. The second appeal was admitted by this Court by raising the following substantial question of law:- Whether the courts below are right in holding that Section 13 of the Indian Easements Act is not attracted in this case, overlooking that admittedly the entire plaint schedule properties originally belonged to a common owner, that parties have purchased portions from the common owner and that the plaint 'A' schedule property is the only access to all the sharers to reach their respective portions from the main road? 3. Heard the learned counsel appearing for the appellant. None appeared for the respondents. 4. The case of the plaintiff is that the suit 'A' schedule property is a common passage belonging to the plaintiff, the defendant and others whose properties are admittedly situated north of the 'A' schedule property. According to the plaintiff, the first defendant is not entitled to put up any construction in the 'A' schedule property and therefore, the construction put up by the first defendant shown as 'B' schedule in the said common passage, is liable to be removed and that the defendants must be restrained from interfering with the plaintiff's common possession and enjoyment of the 'A' schedule property. It is his further case that as per family arrangement entered between the family members of vendor of the property purchased by each parties, the 'A' schedule was shown as common property and thus, the plaintiff is also entitled to right of easement by necessity. 5. It is his further case that as per family arrangement entered between the family members of vendor of the property purchased by each parties, the 'A' schedule was shown as common property and thus, the plaintiff is also entitled to right of easement by necessity. 5. Per contra, the case of the defendants is that the 'A' schedule property is not a common property to all the parties, as claimed by the plaintiff and on the other hand, it is the exclusive property of each parties situated at the southern portion of the property owned by the each persons. In other words, the 'A' schedule is only the southern portion of each individual property of the parties and therefore, the plaintiff is not entitled to claim it as a common passage or pathway. 6. Before the trial Court, the plaintiff marked Exs.A1 to A8 and examined PW-1 and PW-2. No document was marked on the side of the defendants, however the first defendant was examined as DW-1. 7. Upon considering the pleadings of the respective parties and the evidence let in by them, the trial Court found that the suit 'A' schedule property is not a common passage and consequently, the plaintiff is not entitled to the relief of declaration and injunction. Accordingly, the trial Court dismissed the suit. The appellate Court also confirmed the findings of the trial Court by specifically observing that the plaintiff has not proved through any documentary evidence to show that the 'A' schedule property is a common passage, except the oral testimony of PW-1. The lower appellate Court found that the 'A' schedule is forming part of the exclusive property purchased by the respective parties under 'A' to 'F' items. The lower appellate Court thus found that the plaintiff having filed a suit for declaration to declare the 'A' schedule as a common passage, is not entitled to claim easementary right over the said property, which plea goes contra to the relief sought for in the suit. Thus, the lower appellate Court dismissed the appeal. 8. The learned counsel for the appellant contended that when the individual property has been purchased by the respective parties from the common owner, easement of necessity has to be looked into in respect of 'A' schedule, even if easement of grant is not available. Thus, the lower appellate Court dismissed the appeal. 8. The learned counsel for the appellant contended that when the individual property has been purchased by the respective parties from the common owner, easement of necessity has to be looked into in respect of 'A' schedule, even if easement of grant is not available. In support of her contention, she relied on the following decisions:- (i) Sevathal @ Lakshmi Ammal vs. Balan, 2003 0 Supreme (Mad) 866 (ii) Murugesa Moopanar vs. Sivagnana Mudaliar, 1997 (I) CTC 348 (iii) Ayyaswami Gounder vs. Munnuswamy Gounder, AIR 1984 SC 1789 9. The plaintiff, who failed to succeed before both the Courts below, has chosen to file the present second appeal by claiming that his right over the 'A' schedule property, at least, should have been considered as one of easement by necessity, even if easement of grant is not available. Though such claim is raised before this Court, the case of the plaintiff before the courts below through his pleading would show that it is totally different and goes contra to the present claim of easementary right. The plaintiff's case before the courts below is that the suit 'A' schedule is a common pathway belonging to him, defendants and other owners. Therefore, it is evident that a common right over the suit 'A' schedule property is categorically claimed by the plaintiff and when such being the case, it is not known as to how the plaintiff can also take a stand that right over the 'A' schedule property is also available to him by way of easementary right. Needless to state that claiming a title over a property, either exclusive or common, is certainly different and distinguishable from claiming the right of easement over the said property. Both claims cannot be made based on a pleading assertively made to claim declaratory relief of title over such property. At this juncture, it is better to understand what 'easement' is. Section 4 of the Indian Easement Act, 1882 defines 'easement' as follows:- “4. "Easement" defined - An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. "Easement" defined - An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. Dominant and servient heritages and owner - The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner. 10. Thus, it is evident from the above provision of law that an 'Easement' is a right conferred for the beneficial enjoyment of the Dominant Heritage and the owner of such Dominant Heritage is called dominant owner while the land in which such Easement right is to be exercised is a Servient Heritage and that the owner of such Servient Heritage is called as Servient Owner. 11. When such being the definition of 'Easement' and requirement of law, one who claims the right of easement either by grant or by necessity, has to necessarily satisfy the existence of the Dominant Heritage and Servient Heritage as provided under the above said provision of law. In the absence of such mandatory pleadings with material details, such right of easement cannot be claimed by way of making a passing reference in the pleadings. 12. In this case, I have already pointed out that the categorical case of the plaintiff is that the subject matter pathway is a common pathway belonging to all the parties. Therefore, the right and title in common is claimed by the plaintiff. Such claim of right either absolutely or in common is totally different from claiming the right of easement either by grant or by necessity. Both claims do not go together. Therefore, the contention raised by the appellant with regard to the easementary right is liable to be rejected. 13. In this case, both the courts below have concurrently found that the plaintiff has not marked any document to show that the 'A' schedule property is a common property. Both the courts below have found that except the oral evidence of PW-1, no other evidence was adduced by the plaintiff to prove his case. 13. In this case, both the courts below have concurrently found that the plaintiff has not marked any document to show that the 'A' schedule property is a common property. Both the courts below have found that except the oral evidence of PW-1, no other evidence was adduced by the plaintiff to prove his case. On the other hand, it is the specific finding of the courts below that the 5 feet pathway claimed by the plaintiff as common pathway is only shown as the southern part of the property purchased under Ex.A2. The courts below have also found that Ex.A3 sale deed, which is the title document of the plaintiff, does not refer the 'A' schedule property as a common passage. It appears that the plaintiff is trying to take advantage of the fact that the 'A' schedule property is kept vacant, to claim it as a common passage to all the parties. 14. The plaintiff having filed the suit for declaration and permanent injunction is bound to prove that his claim over the suit 'A' schedule property through the documentary evidence. Both the courts below found that no such document is filed to prove such contention. Even though the plaintiff claims as if in a family arrangement made as early as in the year 1942, between the family members of the common vendor of all the parties, the suit 'A' schedule property was shown as common passage, no such document was filed before the courts below to prove such contention. 15. AIR 1984 SC 1789 (cited supra) is relied on by the learned counsel for the appellant, wherein the plaintiff therein claimed right to take water from a common well through a common channel. The defendant therein admitted the plaintiff's right to enjoy the common well, the common land and common channel. Thus, the Apex Court found that the plaintiff had every right to use the common well and common channel in the absence of any specific pleading regarding prejudice or detriment to the claim of the defendants/respondents. When such being the factual aspects of the matter in the above case, the same is not applicable to the facts and circumstances of the present case, as discussed supra. 16. When such being the factual aspects of the matter in the above case, the same is not applicable to the facts and circumstances of the present case, as discussed supra. 16. Likewise, the other decision relied on by the learned counsel for the appellant reported in 1997 (I) CTC 348 (cited supra) also will not help the appellant, since in the very same order, the learned Judge has specifically pointed out that unless the appellant therein satisfies the ingredients of Section 13 of the Act, which deals with the Easement of Necessity, he cannot succeed in getting the relief in the suit. As I have already pointed out, the relief of easement by necessity was not at all sought for. Even otherwise, the appellate Court has found that the plaintiff is having other alternative pathway. At any event, as I have already pointed out that no necessary ingredients are pleaded seeking for easement by necessity, the above decision is not helping the appellant in any manner. 17. The other decision relied on by the learned counsel for the appellant reported in 2003 0 Supreme (Mad) 866 (cited supra) is also not applicable to the facts and circumstances of the present case, as the facts stated therein are totally different and distinguishable. 18. Considering all these facts and circumstances, it is seen that both the courts below based on appreciation of facts and circumstances, have come to the conclusion that the plaintiff has miserably failed to prove his case. When such factual findings are rendered concurrently by the courts below and in the absence of any perversity on such findings, I do not find any reason to interfere with such concurrent findings. 19. Accordingly, the second appeal fails and the same is dismissed and the question of law raised is answered against the appellant/plaintiff. No costs.