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2022 DIGILAW 2166 (MAD)

Pavayee v. Nalla Gounder

2022-07-18

C.V.KARTHIKEYAN

body2022
JUDGMENT : (Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree dated 11.07.2003 made in A.S.No. 55 of 1999 on the file of the Sub Court, Sankari, confirming the Judgment and Decree dated 24.02.1999 made in O.S.No. 146 of 1993 on the file of the District Munsif Court, Sankari.) 1. The 4th to 8th defendants in O.S.No. 146 of 1993 on the file of the District Munsif Court, Sankari, are the appellants herein. 2. The suit O.S.No. 146 of 1993 had been filed by the first and second respondents/Nalla Gounder and his son A.N.Muthusamy against three defendants, seeking permanent injunction restraining the defendants from interfering with peaceful possession and enjoyment of the suit Item No.1 of the properties as prescribed in the schedule to the plaint and for a permanent injunction restraining the defendants from destroying or preventing the plaintiffs from using the cart tract as described in Item No. 2 of the schedule to the plaint and for a mandatory injunction to restore the cart track in Item No. 2 of the schedule to the plaint. 3. During the course of trial, the third defendant died and his legal representatives had been brought on record as 4th to 8th defendants. They are the appellants herein. 4. It was the case of the plaintiffs that the property had been purchased by a registered sale deed dated 06.06.1966 and thereafter, the first plaintiff and his another co-sharer had subdivided the entire land of S.No. 280/8 into two equal shares. The plaintiff got the southern half portion of S.No. 280/8. That land was given as Item No.1. It was stated that to access the said lands, the first plaintiff had also been granted right to use a cart track which runs in the border of Item No. 2 property. This right was given even in the sale deed dated 06.06.1966. It was also stated that the defendants had interfered with the usage of such cart track which necessitated the plaintiffs to institute the suit. Further, the defendants had also obliterated to a short distance the cart track which further required the plaintiffs to also seek the relief of mandatory injunction to restore the cart track as it originally was and as a right granted under sale deed dated 06.06.1966. There had been talks of settlement of the issues. But they failed. Further, the defendants had also obliterated to a short distance the cart track which further required the plaintiffs to also seek the relief of mandatory injunction to restore the cart track as it originally was and as a right granted under sale deed dated 06.06.1966. There had been talks of settlement of the issues. But they failed. In view of the reasons stated above, the suit was instituted for the reliefs stated above. 5. After the death of the third defendant, 4th to 8th defendants had been impleaded and the 6th defendant filed a written statement which was adopted by the other defendants. In their written statement, their holding of the lands in S.No. 278/5 and by the 3rd defendant of S.No. 280/10 was asserted. It was stated that the defendants had never called upon the plaintiffs to part with their lands as alleged. It was stated that the right granted under the sale deed dated 06.06.1966 was not valid. The defendants were not parties to the said document and therefore they claimed such grant of right was not binding on them. It was also stated that the vendors to the said document cannot grant rights over the alleged cart track. An Additional written statement was filed by the 7th defendant and it was stated that the cart track existing in Item No. 2 of the property was actually in Kaurveppampatty Village which is adjoining Item No.2 of the property. 6. A brief glance of the schedule given to the plaint would indicate that Item No.1 was in Morur Bit I Village, Sankaritalu, Salem District in S.No. 280/8 Punja hectare measuring 0.88.0. The area under contention was 1.09 acres. Item No.2 of the property was the cart track which runs along the borders in S.No. 278/9, S.No. 278/11, S.No. 278/5 and S.No. 278/10 and reaches the South-East corner of S.No. 280/8. 7. On the basis of the above pleadings, the District Munsif, Sankari, framed the following issues:- “i) Whether there was a cart track as claimed by the plaintiffs?; ii) Whether the defendants had obliterated the cart track as stated in the the plaint; iii) Whether the plaintiffs can seek restoration of such obliterated cart track?; and iv) To what reliefs are the plaintiffs entitled to?” 8. During the course of trial, the second plaintiff was examined as PW-1 and the 7th defendant was examined as DW-1. During the course of trial, the second plaintiff was examined as PW-1 and the 7th defendant was examined as DW-1. The plaintiff marked Exs. A-1 to A-6. Ex.A-1 was the sale deed, dated 06.06.1966, Ex.A-2 was the partition deed dated 02.09.1949, Ex.A-3 was another partition deed dated 07.02.1984, Ex.A-4 were kist receipts, Ex.A-5 was the patta given to Nalla Gounder and Ex.A-6 was the patta given to Gandhappa Gounder. On the side of the defendants, Exs. B-1 to B-5 were marked and they were all medical records of the second defendant Sengodan. The Commissioner's report and two rough sketches were marked as Exs. C-1 to C-3. 9. On the basis of the oral and documentary evidence, it was found that the plaintiffs had been granted a right to use the particular cart track even in the sale deed marked as Ex.A-1, which was dated 06.06.1966. In the subsequent partition deeds, marked as Exs. A-2 and A-3, such right had been reiterated. It was found as a fact on the basis of the report and the sketch of the Advocate Commissioner that the cart track existed and that in a small portion, the cart track had been obliterated. 10. It was also noticed that the plaintiff's house was situated in S.No. 278/9 and therefore, it was observed, to access that particular house, the plaintiff had a necessity to go via the particular cart track which had been in existence from the date of his purchase in the year 1966. The trial Court came to the conclusion that the plaintiff had perfected usage of the cart track by prescription and long usage and that also out of necessity, the cart track is required for the use of the plaintiff. In effect, the suit was decreed. 11. Thereafter, the defendants then filed A.S.No. 55 of 1999 which came up before the Sub Court, Sankari. By Judgment dated 11.07.2003, the learned Sub Judge once again re-appreciated the evidence available and found as a fact that the sale deed Ex.A-1 had given a necessary right to the respondents before the First Appellate Court/plaintiffs to use the cart track. Further, it was also found that such usage was required by the respondents/plaintiffs access their own house and therefore, there was a necessity to use the said cart track. 12. Further, it was also found that such usage was required by the respondents/plaintiffs access their own house and therefore, there was a necessity to use the said cart track. 12. One further issue was taken up before the First Appellate Court, namely, that the second defendant/Sengodan could not have signed as an attestor owing to his failing eye sight and other medical complications. It is to substantiate that fact, the defendants had filed Exs.B-1 to B-5. However, he had only signed as an attestor to the document and therefore cannot claim knowledge of the document. The finding of the trial Court with respect to prescription and necessity were upheld by the First Appellate Court. In effect, the Appeal was dismissed and the Judgment and Decree of the trial Court was confirmed. 13. The 4th to 8th defendants then filed the present Second Appeal. As stated, pending the Second Appeal, both the plaintiffs who were shown as 1st and 2nd respondents died pending the appeal and their legal representatives were brought on record. The 5th respondent was brought on record as legal representative of the deceased 1st respondent and the 6th, 7th and 8th respondents were brought on record as legal representatives of the deceased 2nd respondent. 14. Heard arguments advanced by Mr. C.A.Raman, learned counsel for Mr. N.Manoharan, on behalf of the appellant and Mr.V.Sekar, learned counsel for the original 1st and 2nd respondents and later for the 5th to 8th respondents, who had been impleaded as legal representatives of the 1st and 2nd respondents/plaintiffs in the suit. 15. The second appeal had been admitted on the following three substantial questions of law:- “1. Whether the Courts below are right in decreeing the suit on the ground that the plaintiffs are entitled to claim easement by prescription, especially when the plaintiffs have claimed title over the suit property under Ex.A1 sale deed?; 2. Are the Courts below are right in inventing a new plea namely easementary right of prescription which was never pleaded by the plaintiffs in the plaint, since the findings are not based on the pleadings and evidence?; and 3. Are the Courts below are right in inventing a new plea namely easementary right of prescription which was never pleaded by the plaintiffs in the plaint, since the findings are not based on the pleadings and evidence?; and 3. Whether the Courts below are right in holding that the defendants are estopped from denying the right of the plaintiffs since, second defendant was one of the attestor in Ex.A2 in view of the law laid down by the Division Bench of this Court in 2003 (1) CTC 745 ?” 16. Even before proceeding any further, it must be stated that both the Courts below had concurrently upheld and recognised the right of the first and second respondents/5th to 8th respondents/plaintiffs to use the cart track as mentioned in Item No. 2 of the schedule to the plaint. Such right has been perfected by prescription, namely by long usage and also since it had been specifically covenanted in Exs. A-1, A-2 and A-3 and more importantly in Ex.A-1 which sale deed was dated 06.06.1966. Both the Courts below had also concurrently held that there was a necessity for the first and second respondents/5th to 8th respondents/plaintiffs to use the cart track out of necessity to go over to their house to S.No. 278/9. It must be mentioned that the land of the plaintiffs were in S.No. 280/80. 17. With respect to the first substantial question of law, since the plaintiffs claimed title under Ex.A-1, the grant of relief of the right to use the pathway by prescription, has to adjudicated. 18. This particular right had been granted by both the Courts below. No doubt, under Ex.A-1, the plaintiffs had been granted a right to use the pathway. But it must also be mentioned that the said pathway moves across various other lands in other survey numbers and finally ends on the south eastern corner of S.No. 280/80 which is the land of the plaintiffs. It pass through the lands in S.No. 278/9, then moves further and then finally on to S.No. 278/11 and then to S.No. 278/5 and then S.No. 278/10. Owing to the fact that the plaintiffs had compulsion to move across those lands over which lands they cannot claim title and the cart track lay in lands which belong to third parties it can be recognised as a pathway used by long usage, namely, by the prescription. Owing to the fact that the plaintiffs had compulsion to move across those lands over which lands they cannot claim title and the cart track lay in lands which belong to third parties it can be recognised as a pathway used by long usage, namely, by the prescription. That is the right granted under Ex.A-1 since the Vendors Ex.A-1 had not retained the lands and have moved over. They had been granted such right and such right is also binding on subsequent purchasers of the lands in the aforementioned S.No. 278/9, 279/11 and 278/10. Moreover since the defendants were not parties to the document, there cannot be easement by grant and therefore, the only issue which had be examined is whether the plaintiffs had been continuously using the said pathway and as that fact had been established, the right of easement by prescription alone can be granted. Therefore, with respect to the first substantial question of law, I hold that the Courts have come to the correct conclusion that it was easement by prescription. 19. The second substantial question of law is whether such easementary right can be granted even though it had not been specifically pleaded in the plaint. 20. A perusal of the plaint reveals that along with the plaint, the plaintiff had filed the document dated 06.06.1966. It is trite to mention that the pleadings not only include the plaint but also the documents filed along with the plaint. In the plaint, it had been very specifically stated that the first plaintiff and his other co-sharer had sub divided S.No. 280/80 and that the first plaintiff was allotted the southern portion. It had also been stated that he was in possession of the same and this has also been stated that the plaintiffs are using and enjoying the right of pathway/cart track. It had been further stated that the defendants own the lands in S.Nos. 280/7, 278/11 and 278/5 and 278/10. The cart track runs in S.No. 278/11, 278/5 and 278/10. It was therefore stated that the plaintiffs' right to continue to use the cart track exists continuously even though the defendants have title over the said land. It had been further stated that the defendants own the lands in S.Nos. 280/7, 278/11 and 278/5 and 278/10. The cart track runs in S.No. 278/11, 278/5 and 278/10. It was therefore stated that the plaintiffs' right to continue to use the cart track exists continuously even though the defendants have title over the said land. It is also stated that the obliteration of the cart track will have to be examined by the Court and it is for that reason, not only was the relief of permanent injunction sought but also the relief of mandatory injunction sought. I therefore hold the plaintiffs had pleaded to the extent possible and more importantly filed all the three documents relied on by him under Exs. A-1 to A-3 along with the plaint and such documents and the recitals of the said documents have to be used and as part and parcel of the plaint. The second substantial question of law is answered that the Courts below were right in granting an easementary right by prescription even though it was not specifically pleaded in the plaint. 21. The third substantial question of law is with respect to the attestation under Ex.A-2 by the second defendant. In view of the fact that the concurrent finding of the Courts below with respect to easement by prescription and easement by necessity had been upheld by this Court and such finding are not interfered with, this particular question pales into insignificance. The issue whether the second defendant was incapacitated by any medical circumstance from attesting any document is a fact and this Court cannot adjudicate on the same as bot the Courts below had given a concurrent finding. I would also state that the said substantial question of law has become otiose in view of the answers to the other substantial questions of law. 22. The learned counsel for the appellant had relied on 2003 (1) CTC 745 [ K.A.Selvanachi Vs. Dr.S.R.Sekar and another], with respect to this aspect of attestation and that the attestor need not have knowledge of the recitals in the document. It must however be held that in the present case, the plaintiff would not gain any extra advantage by holding that the sale deed was attested nor suffered any disadvantage by holding that the sale deed was not attested by the second defendant. It must however be held that in the present case, the plaintiff would not gain any extra advantage by holding that the sale deed was attested nor suffered any disadvantage by holding that the sale deed was not attested by the second defendant. This is a question of fact which would not affect the conclusion reached in the second appeal. 23. The learned counsel for the appellant then relied on 2008 (17) SCC 491 [Bachhaj Nahar Vs. Nilima Mandal and another], with respect to the pleadings required for easement by prescription. Paragraph No. 20 is as follows:- “The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and defendant's servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used. We may also note that the pleadings necessary for establishing a right of passage is different from a right of drainage or right to support of a roof or right to water course. We have referred to these aspects only to show that a court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence. ” 24. It must be mentioned that the 1st and 2nd respondents/5th to 8th respondents/plaintiffs have come to Court seeking recognition of a right granted under a registered document. They further claimed that they have been using the pathway not only out of necessity but also continuously and without hindrance. These pleadings are sufficient for the grant of reliefs sought. 25. It must be mentioned that the 1st and 2nd respondents/5th to 8th respondents/plaintiffs have come to Court seeking recognition of a right granted under a registered document. They further claimed that they have been using the pathway not only out of necessity but also continuously and without hindrance. These pleadings are sufficient for the grant of reliefs sought. 25. The learned counsel for the appellant relied on 2019 (5) L.W. 230 [ Durairaj & Ors. Vs. Philip], was with respect to easement by necessity. Paragraph 15 is as follows:- “15. As regards the claim of easementary right by way of necessity, when as could be seen from the Commissioner's report and plan, the plaintiff is having access to reach his lands and the same could also be gathered from the evidence of P.W.2 examined on behalf of the plaintiff and in such view of the matter, the plaintiff's claim of easementary right over the alleged suit cart track by way of necessity also falls down and when as above noted the plaintiff has miserably failed to establish that the suit cart track has been in existence and in the enjoyment of his predecessors and himself for more than the statutory period and the plaintiff having miserably failed to establish that there is no other access to reach his lands and on the other hand, when as above pointed out, the plaintiff is having other access to reach his lands, in such view of the matter, in toto, the plaintiff is found to be not entitled to seek any right over the suit property claiming the same as pathway or cart track and that he has been enjoying the same by way of easement, both by prescription and necessity.” 26. In the instant case, it has not been established that the plaintiffs have an alternate pathway. However, the plaintiffs had necessity to access this particular pathway to access their house which was in S.No. 278/9. The facts in the present case are distinguishable and both the Courts below had correctly held that the plaintiffs' suit has to be decreed. 27. In the result, the Second Appeal stands dismissed with costs. The Judgment and Decree of the Trial Court and the First Appellate court are confirmed. As directed by the trial Court, the suit rough sketch would form part of the decree.