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2018 DIGILAW 2688 (MAD)

A. R. Thangavel v. Dhanalakshmi

2018-08-30

T.RAVINDRAN

body2018
JUDGMENT : Challenge in this second appeal is made to the judgment and decree dated 29.09.2004 passed in A.S.No.39 of 2003 on the file of Additional District Judge/Fast Track Court No. 2, Gopichettipalayam reversing the judgment and decree dated 31.12.2002 passed in O.S. No. 177 of 2001, on the file of District Munsif-cum-judicial Magistrate, Sathyamangalam. 2. The second appeal has been admitted on the following substantial question of law. "1. In the face of the covenant in Ex.A2 about the nature of property forming the subject matter of suit common lane, to which the defendant is a party as a vendor, have not the lower appellate court committed an error of law in giving a judgment contrary to such covenant?" 3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. The suit has come to be laid by the plaintiff seeking easementary right over the suit pathway described as A B C D in the plaint plan attached to the plaint and also the consequential reliefs of mandatory injunction and permanent injunction. As per the averments contained in the plaint, it is found that the defendant and her sons were the owners of the property belonging to the plaintiff. It is found that they had sold the same to one Lalitha @ Lalithambal by way of a registered sale deed dated 19.05.1982 and in turn the plaintiff had purchased the same from Lalitha @ Lalithambal by way of a registered sale deed dated 01.02.1984 and thus it is the case of the plaintiff that the suit pathway is the common pathway to the plaintiff as well as the defendant and accordingly she is entitled to use the suit pathway and in as much as the defendant without any authority is disputing the plaintiff's right of using the suit pathway and also put up a gate at the western end of the suit pathway with a view to prevent the plaintiff from having access to the pathway, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs. 5. 5. The defendant has disputed the entitlement of any right over the suit pathway in favour of the plaintiff as projected in the plaint and it is the specific case of the defendant that no right has been conveyed to Lalitha @ Lalithambal by the defendant and her sons in respect of the suit pathway in the sale deed dated 19.05.1982 and therefore she had disputed the plaintiff's claim of right over the suit pathway by way of purchase from Lalitha @ Lalithambal under the sale deed dated 01.02.1984 and hence according to the defendant, the plaintiff is not entitled to have any right whatsoever including the easementary right in respect of the suit pathway and it is further stated that the plaintiff is having access to her property through other ways and accordingly prayed for the dismissal of the plaintiff's suit. 6. In the light of the defence projected , it is for the plaintiff to establish that he is entitled to the easementary right over the suit pathway as projected in the plaint. For sustaining the abovesaid claim, the plaintiff relied upon the sale deeds marked as Exs.A1 and A2. The plaintiff traces the right over the suit pathway on the strength of the purchase of the same from Lalitha @ Lalithambal under the sale deed dated 01.02.1984 marked as Ex.A1. In turn, it is found that Lalitha @ Lalithambal had acquired the property from the defendant and her sons by way of a sale deed dated 19.05.1982 and the certified copy of the same has come to be marked as Ex.A2. On a perusal of Ex.A2, it is found that as rightly determined by the first appellate court, Lalitha @ Lalithambal had acquired the property within the specific boundaries. The said property is found to be lying to the north of the house property belonging to the defendant and her sons as well as the common east west pathway. It is found that by way of Ex.A2, only the property lying to the north of the defendant's property and the common pathway is left to the enjoyment of Lalitha @ Lalithambal. It is found that by way of Ex.A2, only the property lying to the north of the defendant's property and the common pathway is left to the enjoyment of Lalitha @ Lalithambal. In such view of the matter, when under Ex.A2, there is no recital as to the grant of any easementary right in favour of Lalitha @ Lalithambal in respect of the common pathway lying on the southern side for either having access to the property conveyed to her or for enabling her to maintain the southern wall etc., it is seen that no right, whatsoever, had been conveyed to Lalitha @ Lalithambal under Ex.A2 in respect of the common pathway and accordingly it is seen that the common pathway has been intended only for the usage of the defendant and her sons in respect of their house property. Such being the position, however, it is noted that Lalitha @ Lalithambal, while conveying the property to the plaintiff under Ex.A1 sale deed, while describing the same, is found to have conveyed the right inclusive of the east west common pathway in favour of the plaintiff. However, as rightly determined by the first appellate court, when no such right had been granted in favour of Lalitha @ Lalithambal in respect of the east west common pathway under Ex.A2, it does not stand reason as to how she would be entitled to convey any right in favour of the plaintiff inclusive of the right as regards the east west common pathway and thus it is found that the conveyment of right over the east west common pathway by Lalitha @ Lalithambal in favour of the plaintiff under Ex.A1, cannot be legally sustained. The east west common pathway is shown only as the southern boundary of the property conveyed under Ex.A2. While so, Lalitha @ Lalithambal cannot be allowed to convey any right inclusive of the east west common pathway to the plaintiff under Ex.A1. In such view of the matter, it is found that as rightly found by the first appellate court, the plaintiff cannot be allowed to seek any right, whatsoever, including the easementary right in respect of the east west common pathway. 7. In this matter, a commissioner had inspected the property and filed his report and plan marked as Exs.C1 and C2. 7. In this matter, a commissioner had inspected the property and filed his report and plan marked as Exs.C1 and C2. The plaintiff during the course of cross examination has admitted that the defendant's house is located to the south of east west pathway and also admitted that his property is having two door ways on the eastern side as well as two door ways on the western side and also admitted that there is a lane on the northern side. Thus, it is found that as far as the access to his property, the plaintiff is having other ways to reach the same. Accordingly it is found that no right of access has been conferred on the plaintiff's vendor under Ex.A2 by the defendant and her sons and thus the east west pathway is shown only as the southern boundary under Ex.A2. However, under Ex.A1, the vendor Lalitha @ Lalithambal appears to have granted the right in favour of the plaintiff inclusive of the east west common pathway without any authority. When as per the commissioner's report and plan, it is found that a door has been fixed in the suit pathway and he had gained access to the suit pathway only on opening of the said door by the defendant, it is seen that in as much as the suit pathway has been in the exclusive use and enjoyment of the defendant by keeping the same under lock and key by way of putting up of a gate, it is found that the plaintiff had never used the suit pathway at any point of time. Rightly it is noted that as the plaintiff had other access to his property, as admitted by the plaintiff himself during the course of cross examination, there is no need on the part of the plaintiff to have access through the east west pathway and on the other hand, when from the commissioner's report and plan it is found that the defendant's property consists of two houses one in the front portion and the other in the rear portion and the suit pathway serves as an access to the abovesaid house properties lying in the defendant's property, it is found that the east west common pathway is intended only for the enjoyment of the houses located in the defendant's property and accordingly it is found that the defendant and her sons while conveying the property under Ex.A2 in favour of Lalitha @ Lalithambal had not conveyed any right over the said pathway and shown the same only as the southern boundary under Ex.A2. Accordingly, it is found that Lalitha @ Lalithambal would not be having any authority to convey any right in respect of the suit pathway in favour of the plaintiff under Ex.A1. In such view of the matter, as rightly found by the first appellate court, the plaintiff cannot be allowed to seek any right of easement over the suit pathway based upon Ex.A1 sale deed. 8. The plaintiff has not made out clearly as to the nature of the easementary right sought for in respect of the suit pathway. When it is found that the plaintiff had other access to reach his property and when the plaintiff has no necessity to use the pathway for having access to his property and when the plaintiff is also not required to use the suit pathway for maintaining the southern wall and when it is found that the suit pathway is intended only for the enjoyment of the house properties lying in the defendant's property and accordingly the suit pathway has been kept under lock and key by the defendants, it is seen that merely because some pipeline has been noted by the advocate commissioner, fitted in the southern wall, that be itself would not lead to the conclusion that the plaintiff is having right over the east west common pathway as claimed in the plaint. The plaintiff has failed to establish that he has prescribed right over the suit pathway by way of prescription as contemplated under law. The plaintiff has failed to establish the right of easement over the suit pathway on the plea of necessity and the plaintiff has further failed to establish as that he has any other right of easement over the suit pathway. On the other hand, as per Ex.A1, the plaintiff seems to have acquired absolute right in respect of the suit pathway, however, when the said right had not been granted to the plaintiff's vendor under Ex.A2, the conferment of the abovesaid right to the plaintiff under Ex.A1 cannot be sustained in the eyes of law and accordingly, it is found that the first appellate court having taken into account the abovesaid relevant factors and on a proper appreciation of materials placed on record, is found to have set aside the judgment and decree of the trial court and thereby dismissed the plaintiff's suit. 9. In the light of the above discussions, when under Ex.A2, the common pathway is not found to be the subject matter of the property alienated thereunder and the same is only shown as the southern boundary without conferring any right in respect of the same in favour of the plaintiff's vendor, it is seen that the plaintiff cannot be allowed to seek any right over the suit pathway based on Ex.A1 much less the right of easement over the suit pathway as projected in the plaint. In such view of the matter, there is no error in the first appellate court rejecting the plaintiff's case on the proper appreciation of the materials placed on record. Resultantly, no interference is called for in the judgment and decree of the first appellate court in rejecting the plaintiff's case. The substantial question of law formulated in this second appeal is accordingly answered against the plaintiff. 10. In conclusion, the second appeal fails and is accordingly dismissed. No costs. Consequently, connected miscellaneous petition, if any, is closed.