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2020 DIGILAW 1316 (MAD)

N. L. Venkatachalam v. A. Rengasamy

2020-08-20

RMT.TEEKAA RAMAN

body2020
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908, against the Judgment and Decree passed by the learned Principal Subordinate Judge, Tiruchirapalli, in A.S.No.106 of 2012, dated 01.04.2013, reversing the judgment and decree of the learned First Additional District Munsif, Tiruchirapalli, in O.S.No.946 of 2004, dated 28.04.2011.) The unsuccessful plaintiff is the appellant herein. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. 3. The appellant/plaintiff has filed a suit in O.S.No.946 of 2004 before the learned I Additional District Munsif, Trichirapalli, seeking the relief of permanent injunction restraining the defendants, their men, agents, servants etc., from in any way obstructing the passage of the plaintiff, their family members, men, agents etc., to the common well and suit properties along the ridge shown as 'AB', 'BCDEF', 'GH', 'IJ', 'BKL' and 'MN' for agricultural purposes along with cattle, power tiller and agricultural produce. 4. The plaint proceeds on the basis that; [a] The plaintiff and the defendants are all Pangalis. The original common ancestor Lakshmanan had four sons. His first son is Onthan; the second son is Adaikkalam; the third son is Nallapethi and the fourth son is Thevan. The plaintiff is the grand son of Nallapethi and he belongs to third branch. The defendants belong to the 1st and 2nd and 4th branches. [b] The sons of the common ancestor divided the family properties about 100 years back. Each of the four branches got 1/4th share in all the family properties. The sharers put up ridges demarcating their shares from others. The have also during channels in their patta lands. The ridges and patta channels are enjoyed in common by all the branches to reach their respective shares and irrigate their shares. [c] There is a well common to both the plaintiff and the defendants situated in Survey No.327/8. The thope belongs to the plaintiff's brother is situated just north of the common well. [d] The only way for the plaintiff to reach the common well is along a ridge 'AB' measuring 3 feet wide branching off from the cart track as shown in the plaint plan. The defendants have also to pass through the land of the plaintiff's brother to reach the well. [d] The only way for the plaintiff to reach the common well is along a ridge 'AB' measuring 3 feet wide branching off from the cart track as shown in the plaint plan. The defendants have also to pass through the land of the plaintiff's brother to reach the well. There is also a passage 10 feet wide at present branching off from the cart track and leading to common well and the houses of the defendants. The plaintiff is using the ridge for access, taking cattle, power tiller and taking harvested crops from the land to the thrashing floor. [e] The defendants have no right to obstruct the passage along the ridges 'BCDEF' 'GH', 'IJ', 'BKL' and 'MN' shown in the plaint plan. The plaintiff is not obstructing the defendants to use the passage and ridges. In case of lands owned in common and later divided, the right to pass along the ridges to reach the shares is created at the time of partition. On 07.06.1999, the defendants attempted to put up constructions near the point 'A' shown in the plan. But, the attempt was thwarted by the plaintiff with the help of nearby people. Hence, the above suit was filed by the plaintiff. 5. The defendants have filed written statement resisting the claim of the quasi easmentary right of the property inter alia contending that [a] The suit is out come of the ill-feelings entertained by the plaintiff against the defendants, who are their Pangalis. By immemorial custom in the village, the ridges are being formed from the lands of the adjacent owners. In such a case, as a matter of convenience but not as a matter of right, people and cattle were allowed to be taken along such ridges, but not carts, vehicles or power-tillers as in particular, the ridges will be only 1 1/2 feet width. No passage of right can be claimed over the ridges. [b] In fact, the plaintiff's brother, who is colluding with the plaintiff, has planted coconut trees, two years back on the ridge north of the common well. The ridges are not of 3 feet in width but only about 1 1/2 feet in width allowing only people and cattle to pass. The 10 feet wide passage referred to in the plaint para 5 solely belongs to the defendants laid in the land of the second defendant. The ridges are not of 3 feet in width but only about 1 1/2 feet in width allowing only people and cattle to pass. The 10 feet wide passage referred to in the plaint para 5 solely belongs to the defendants laid in the land of the second defendant. [c] Neither the plaintiff nor his brother have any right over the passage and this cannot be used by them at any time. The ridge containing the point 'A' solely belongs to defendants 9 and 10 and in their exclusive use and over which the plaintiff has no right or use. [d] The ridge on the eastern side of S.F.No.327/8 has been encroached upon the plaintiff last year and he has put up compound wall on the ridge, in spite of the protests by the defendants. The defendants have never obstructed the usage of the ridge 'MN', though the ridge belongs to the 10th defendant and is situated in his land. When alternative passage is available and has been used all these years, the plaintiff cannot claim any new right over all the ridges. 6. The trial Court has formulated necessary pleadings. On the side of the plaintiff, the plaintiff examined himself as P.W.1 and documents Exs.A.1 to A.10 were marked. On the side of the defendants, 9th defendant was examined as D.W.1 and there is no documentary evidence marked. Exs.C.1 to C.3 were marked as Court exhibits. 7. The trial Court, on consideration of both oral and documentary evidence and also taking note of the evidence in Ex.C.1-Commissioner's Report and Ex.C.2-Commissioner's Plan along with Ex.C.3-Surveyor's Sketch and the measurements contained therein and also taking note of Ex.A.8-Partition Deed, dated 26.10.1972 and the respective written statements of the defendants and the plaint in the earlier suit in O.S.No.640 of 1973 that are marked as Exs.A.3 to A.6, has granted permanent injunction against the defendants in respect of the sketch marked as shown in the Commissioner's Plan-Ex.C.2 and decreed the suit. 8. Aggrieved against the said judgment and decree passed in O.S.No.946 of 2004, the defeated defendants have preferred an appeal in A.S.No.106 of 2012 before the learned Principal Subordinate Judge, Tiruchirappalli. By a judgment and decree dated 01.04.2013, the learned Principal Subordinate Judge, Tiruchirappalli, has allowed the said appeal and hence, the above second appeal has been preferred by the plaintiff before this Court. 9. By a judgment and decree dated 01.04.2013, the learned Principal Subordinate Judge, Tiruchirappalli, has allowed the said appeal and hence, the above second appeal has been preferred by the plaintiff before this Court. 9. During the course of the argument, the following substantial questions of law are framed:- "[A] Whether the admitted facts as regards the rights of the plaintiff require any proof as per the Indian Evidence Act? [B] Whether the Appellate Court has not committed an error in rendering a finding that the Advocate Commissioner has not given the measurement, when the fact remains that he has clearly stated in his report about the measurement of the ridges? [C] Whether the plaintiff is not entitled to the continuous easement as per Section 13 of the Indian Easements Act?" 10. The learned counsel for the appellant/plaintiff would contend that the plaintiff is seeking the relief of quasi easmentary right to take the agricultural produce and the agricultural machinery to his land on the ridges of the defendants' land, since the land is originally belonged to common ancestor Lakshmanan and divided among the four brothers and made submissions in support of the judgment of the trial Court and prayed for allowing of the appeal and restoration of the judgment of the trial Court. 11. Per contra, the learned counsel for the respondents/defendants would contend that in the absence of any Advocate Commissioner's Report showing the length and breath of ridges and also without there being any revenue records to show that during the month of 'Maasi' and 'Purattasi', there was no cultivation in the lands of the defendants and during the said uncultivated period, the plaintiff wants to take the agricultural machineries and other things and also in the absence of any documentary evidence to support the same, the Lower Appellate Court has rightly reversed the judgment of the Trial Court and hence, made submissions in support of the judgment of the Lower Appellate Court and prayed for dismissal of the second appeal by confirming the judgment of the Lower Appellate Court. 12. The admitted factual matrix of the case is as follows:- (a) The plaintiff and the defendants are all Pangalis. The original common ancestor Lakshmanan had four sons. His first son is Onthan; the second son is Adaikkalam; the third son is Nallapethi; and the fourth son is Thevan. 12. The admitted factual matrix of the case is as follows:- (a) The plaintiff and the defendants are all Pangalis. The original common ancestor Lakshmanan had four sons. His first son is Onthan; the second son is Adaikkalam; the third son is Nallapethi; and the fourth son is Thevan. The plaintiff is the grandson of Nallapethi and he belongs to third branch. The defendants belong to the first, second and fourth branches. The sons of the common ancestor divided the family properties about 100 years back. Each of the four branches have got 1/4th share in all the family properties. (b) The plaintiff has also exhibited Ex.A.1-Genealogy tree to explain the said relationship between the plaintiff and the defendants. The said relationship has not been denied by defendants. Even though, D.W.1 has denied the said Genealogy tree, he has admitted the relationship in the earlier proceedings. 13. The plaintiff has exhibited Ex.A.4-Certified copy of plaint in O.S.No.640 of 1973 filed by the plaintiff, his son and his brother against the defendants. In the said suit, the suit properties are mentioned as Item Nos.10 to 18 of 'A' Schedule property. According to the plaintiff, the sharers put up ridges demarcating their shares from others and they have also digging the channels in their patta lands and the ridges and patta channels are enjoyed in common by all the branches to reach their respective shares and to irrigate their shares. The defendants have denied the same and there is no serious dispute with regard to formation of ridges, channels, passage and irrigation etc. 14. It is seen from Ex.A.3 is the certified copy of written statement in O.S.No.640 of 1973 filed by one T. Maniyan. Ex.A.5 is the certified copy of written statement in O.S.No.640 of 1973 filed by the first defendant. In the said written statement also at para No.6, he has admitted that the said Lakshmanan had four sons namely, Onthan, Adaikkalam, Nallapethi and Thevan and they divided the properties into four equal shares amongst his four sons. It is also admitted in the written statement at para No.7 of Ex.A.3 and Ex.A.5 that there has been an absolute and unequivocal division in status and properties by mets and bounds between the co-brothers even 18 years ago. 15. It is also admitted in the written statement at para No.7 of Ex.A.3 and Ex.A.5 that there has been an absolute and unequivocal division in status and properties by mets and bounds between the co-brothers even 18 years ago. 15. Thus, from the said admissions made by the defendants in O.S.No.640 of 1973(Ex.A3), it is clear that the sons of the common ancestor Lakshmnan were divided all the properties into four equal shares. Thus, this Court is of the considered view that the suit properties and other properties of common ancestor Lakshmanan were divided into four equal shares and the plaintiff belongs to third branch of Nallapethi and the defendants belongs to the other three branches. 16. It is the case of the appellant/plaintiff that the plaintiff and the defendants are the Pangalis, co-owners and from a common ancestor Lakshmanan, who had four sons, the plaintiff belongs to one branch viz., the third branch whereas the defendants belong to 1st, 2nd and 4th branches and well was common and the defendants are also passing through the lands of the plaintiff to reach the well and there is a common passage of 10 feet width for cart track leading to the common well under the house of the defendants and hence, the appellant/plaintiff prayed for permanent injunction restraining the defendants from using the ridges on the 'BCDEF', 'GH', 'IJ', 'BKL' and 'MN'. 17. According to the defendants, there is an alternate passage available and hence, the appellant/plaintiff cannot claim any new right over all the ridges. 17. According to the defendants, there is an alternate passage available and hence, the appellant/plaintiff cannot claim any new right over all the ridges. Based upon the documentary evidence viz., Ex.A.3-certified copy of written statement in O.S.No.640 of 1973; Ex.A.4-certified copy of plaint in O.S.No.640 of 1973 and Ex.A.5-certified copy of written statement of the first defendant, the trial Court has rightly come to the conclusion that the suit properties were divided equally between the four sons of common ancestor Lakshmanan in all properties and in view of the admissions in the written statement at para No.7 in Ex.A.3 and Ex.A.5, wherein the defendants have admitted that there has been absolute and unequal division of the property by metes and bounds between the co-owners even 18 years ago, the Trial Court has come to the conclusion that the suit property and other neighbouring properties of common ancestor Lakshmanan were divided into four equal shares and the plaintiff belongs to the third branch of Nallapethi and defendants belong to the other three branches. 18. At the risk of repetition, however for the sake of clarity, it is stated that on a perusal of the pleadings and the evidence of P.W.1 and D.W.1, it is seen that the plaintiff has filed a suit for declaration for three item of property shows as suit property in the plaint. All the properties are situated at Poosampatti Village, Srirengam Taluk, Tiruchy District. Ex.A.1 is the genealogy tree and Ex.A.2 is the Rough Plan and Ex.A.3 is the copy of the deposition in O.S.No.2481 of 1991. The plaintiff's property and the defendants' property were originally belongs to one Lakshmanan, who is the great grandfather of both parties. The document Ex.A.1-Genealogy tree is accepted as correct by the defendants. The said Lakshmanan had four sons namely Onthan, Adaikkan, Nallapethi and Thevan. The plaintiff is the grandson of Nallapethi. The first defendant is grandson of Thevan. The second defendant also grandson of the said Thevan through Adaikkan. The third defendant is the grandson of Adaikkan through Lakshmanan. 19. Based upon Ex.A.8-Xerox copy of Partition Deed between the branches of defendants' family dated 26.10.1972, the trial Court has come to the conclusion that there was a partition among the other three branches who are now arrayed as defendants under Ex.A.8-Partition Deed, dated 26.10.1972. The third defendant is the grandson of Adaikkan through Lakshmanan. 19. Based upon Ex.A.8-Xerox copy of Partition Deed between the branches of defendants' family dated 26.10.1972, the trial Court has come to the conclusion that there was a partition among the other three branches who are now arrayed as defendants under Ex.A.8-Partition Deed, dated 26.10.1972. The sum and substance of the right claimed by the plaintiff, as per the appellant's counsel argument is that, it is a right governed under Section 13 of the Easement Act. It is a quasi easementary right given to the sharers, who were divided from a larger extent. In the factual position as described supra, the appellant/plaintiff is a divided sharer from the larger extent owned by the common ancestor Lakshmanan. D.W.1 has admitted that the entire property of common ancestor Lakshmanan is in the hands of the plaintiff and the defendants and their Pangalis. There is no third party, who had said to have acquired any right or title in the said property. Therefore, the entire survey numbers involved in the suits were originally belonged to the common ancestor Lakshmanan and it cannot be disputed by the either parties and thus, this Court finds that the plaintiff being a sharer of the property of one portion of the property of Lakshmanan, who is the common ancestor and in view of Section 13 of the Easement Act, I find that the right of the plaintiff is found to have force. 20. Yet another point is that the ridges were always used in common by all the sharers and the defendants have also admitted the same. Since each sharer has to cultivate the land belonging to their branch only by passing along the common ridges, the recitals of the Partition which clearly defines the right of the Co-sharers over the ridges and the Well. It has been clearly mentioned in the Partition Deed that it is effected mainly for the purpose of modern cultivation with the improved modern Agricultural machines. The well settled principles of law is that when a large extent of land is divided into various portions, then a sharer is entitled to use all the ridges, irrigating channels, passage and common well in all the properties. 21. In this connection, the Advocate Commissioner's Report filed in I.A.No.1257 of 2007 also assumes significance. The well settled principles of law is that when a large extent of land is divided into various portions, then a sharer is entitled to use all the ridges, irrigating channels, passage and common well in all the properties. 21. In this connection, the Advocate Commissioner's Report filed in I.A.No.1257 of 2007 also assumes significance. In Ex.C.1-Commissioner's Report, he has specifically mentioned the width of the ridges as follows:- "(1) Ridges A.1, A.2 and A.3 in Ex.C.2 is measuring 1/2 feet and 2 feet; (2) Ridges 'A5B' in Ex.C.2 is measuring 4 1/2 feet; (3) Ridges 'BK' rides is measuring 1 feet 11 inches; (4) Ridges on the southern side of 'BK' is measuring 1 feet and 2 feet; (5) Ridges 'KL' is measuring 3 feet 5 inches and 2 feet 3 inches; (6) Ridges in 'B.2, B.2, B.3' is measuring 2 feet; (7) Ridges 'B.3 to B.6' is measuring 1 feet 11 inches; (8) Ridges between 'C D' and 'B.3, B.4' is measuring 1 feet; (9) Ridges 'D E' is measuring 2 feet 2 inches; (10) Ridges on the west of 'D E' is measuring 2 feet; (11) Ridges on west of 'B.4, B.5' is measuring 1 feet 8 inches; and (12) Ridges between 'E.1 to F' is measuring 2 feet 3 inches." 22. From the Advocate Commissioner's Report, the trial Court has come to the conclusion that Lorry and Poclain were taken to their property by the defendants. In the absence of any objection being filed by the defendants as to the Advocate Commissioner's Report, the trial Court is quite right in coming to the conclusion that Lorry and Poclain were taken to the respective lands by the defendants over the suit ridges and the same was found marked in the Advocate Commissioner's Report. In the absence of any objection, the trial Court has rightly incorporated the same and held that the defendants are using the ridges to carry the Lorry and Poclain and accordingly, it is to be held that when the defendants are using the ridges to take the Poclain, on the same footing, they may be allowed during the uncultivable season as contained in the prayer. 23. 23. Yet another issue that is glaring on the face of record is that Ex.A.7-Certified copy of deposition of D. Gunasekaran in O.S.No.683 of 2006, who is the third defendant in the suit and he, in his evidence, has stated that the defendants have laid pipeline for taking water through the plaintiff's property to their property and he has also admitted that the plaintiff is entitled to use the ridges for the purpose of taking agricultural equipments like agricultural produce and fertilizers. Further, from the documentary evidence Ex.A.10-Xerox copy of deposition of Rengasamy in O.S.No.2481 of 1991, it is seen that all the parties to the lis are using the common well and taking water and hence, the trial Court has rightly come to the conclusion that the respective parties are taking easmentary rights over the plaintiff's property and hence, on the same footing, the plaintiff is also entitled to take the agricultural produce and Lorry during the off season on the ridges. Even from the documentary evidence under Ex.A.7, it is clear that the intention between the sharer was to cultivate as per the least or latest ultra model method and accordingly, the finding rendered by the trial Court that the claim of the plaintiff is proved since he has been specifically excluded from inheriting the property belonged to his grandfather, and as such, the plaintiff is entitled to use the ridges shown as 'AB', 'BCDEF', 'GH' and 'IJ', 'BKL' and 'MN to reach his property and common well for agricultural purpose along with cattle, power tiller and agricultural products. Since the right claimed by the plaintiff is not an easement right, as contemplated under Section 13 of the Easement Act and it is only a quasi easement right, thus, the defences raised by the defendants are negatived. 24. In the decision reported in 2017 (1) CTC 662 (Periasamy Gounder and others. vs. Arassapa Gounder), it is held as follows: “The plaintiff is not required to establish usage of Cart-Track by grant and it would not disentitle him to claim relief of Easement of necessity, when same has been established. Therefore, when the plaintiff has established his claim of Easement of necessity, merely because, the plaintiff has not established his case of usage of the suit Cart-Track by grant by itself would not disentitle the plaintiff to claim the relief sought for in the plaint. Therefore, when the plaintiff has established his claim of Easement of necessity, merely because, the plaintiff has not established his case of usage of the suit Cart-Track by grant by itself would not disentitle the plaintiff to claim the relief sought for in the plaint. When the plaintiff has established his case through oral and documentary evidence marked by him and also, when his case has been further sustained by Exs.C1 to 4, it could be seen that other than the suit Cart Track, there is no other Cart Track to enable the plaintiff to reach his house and lands adjoining thereof. As rightly argued by the plaintiff, no claim of any exclusive right over the suit Cart Track is made by the plaintiff, other than the plaintiff's claim of easement of necessity for using Cart Track to have access to his property. Therefore, when the plaintiff has established his claim of easement of necessity, merely because, the plaintiff has not established his case of usage of the suit Cart Track by grant by itself would not disentitle the plaintiff to claim the relief sought for in the plaint. 25. In yet another Judgment reported in 2019 (2) CTC 397 (Koolan @ Munusamy vs. Chennammal), it is held as follows: “The easement of necessity under Section 13 ensures right of access to parties to Partition. Right of easement does not depend on concessions made by parties to Sale Deed - It exists independent of it. Lack of reference to Cart Track in 1st Defendant's Sale Deed not fatal.” 26. On facts of the case as discussed supra, I find that the above two decisions are in support of the case of the appellant/plaintiff. Thus, in fine, DW.1 in the cross-examination has admitted that no road near the property of A.L. Rengasamy passing existence and the third defendant in the suit has admitted under Ex.A7 that the defendants have laid pipeline for taking water through the plaintiff's property to their property and he has also admitted that the plaintiff is entitled to use the ridges for the purpose of taking agricultural equipments like agricultural produce and fertilizers. Under Exs.A3 and A5, the defendants had admitted that there is a deviation of property amongst other sharers which has been approved in Ex.A7 by the third defendant herein. Under Exs.A3 and A5, the defendants had admitted that there is a deviation of property amongst other sharers which has been approved in Ex.A7 by the third defendant herein. In view of the admitted position and the facts, the admitted facts need not be proved is the settled principle of law. 27. Further more, in view of the specific evidence of the Advocate Commissioner's as extracted in Exs.C1, C2, C3 and there is no other alternate pathway to take the agricultural equipment from the property at the tip of A.L. Rengasamy and hence no other alternative pathway is in existence and in view of the discussion of the facts in the preceding paragraphs coupled with the above two decisions referred supra, the plaintiff is entitled to continuous usage under Section 13 of the Indian Easements Act, 1882, accordingly Substantial Questions of Law A, B and C are answered in affirmative in favour of the appellant/plaintiff. 28. On the contrary, the Lower Appellate Court has reversed the finding of the trial Court by rendering a finding that in Ex.C.1-Advocate Commissioner's Report, Ex.C.2-Commissioner's Plan and Ex.C.3-Surveyor's Sketch, measurement was not given and since in the absence of measurement, the relief of injunction cannot be granted without there being a specific extent of measurement. The reasons assigned by the Lower Appellate Court are palpably wrong on the face of the record. As extracted supra, in Exs.C.1 and C.2, the length and breath and also the measurement of ridges from various points have been duly incorporated by the Advocate Commissioner and the same is also find place in para No.19 of the judgment of the trial Court and hence, I find that the finding rendered by the Lower Appellate Court is perverse, on the face of records and the said finding is per see illegal and hence, the same is liable to be vacated. Accordingly, the said finding rendered by the Lower Appellate Court, on the comments made upon the Advocate Commissioner's Report, is factually erroneous. It appears that the Lower Appellate Court has rendered such a finding without looking into the records. Accordingly, the judgment of the Lower Appellate Court is unsustainable in law and the same is set aside. 29. In the result, [i] The Second Appeal is allowed. [ii] The Judgment and decree passed by the learned Principal Subordinate Judge, Tiruchirapalli, in A.S.No.106 of 2012, dated 01.04.2013, are set aside. Accordingly, the judgment of the Lower Appellate Court is unsustainable in law and the same is set aside. 29. In the result, [i] The Second Appeal is allowed. [ii] The Judgment and decree passed by the learned Principal Subordinate Judge, Tiruchirapalli, in A.S.No.106 of 2012, dated 01.04.2013, are set aside. [iii] The judgment and decree passed by the learned First Additional District Munsif, Tiruchirapalli, in O.S.No.946 of 2004, dated 28.04.2011, are restored. [iv] However, there shall be no order as to costs.