JUDGMENT
V. Kanagaraj, J.
1. The 1st defendant who succeeded before the trial Court in O.S.No.260 of 1983 on the file of the Court of District Munsif, Tuticorin but lost before the Appellate Court- in A.S.No.59/1988 on the file of the Court of Subordinate Judge, Tuticorin has preferred this Second Appeal against the judgment and decree of the appellate Court dated 5.7.1999.
2. The respondent herein has filed the suit for a declaration declaring that the 2nd suit schedule property is exclusively belonging to the plaintiff and the 2nd defendant and consequently restraining the 1st defendant, his agent and servants from interfering with the possession of the house by the plaintiff and the 2nd defendant and for a mandatory injunction directing the 1st defendant to close the doorway mentioned in the 4th schedule house, wall of the plaint 3rd schedule house.
3.The plaintiff states that the suit schedule properties mentioned in items 1 and 2 are two adjacent houses bearing present Door Nos. 29 and 30; that in front of the said two houses the vacant site is used as a common east-west pathway for both houses from 1907; that the entire I schedule properties shown as ABCDEF in the plan annexed with the plaint were originally one contiguous plot measuring 15 1/4 carpenters cubit(41 feet, 11 1/4 inches) east west and 15 carpenters cubit (41 feet 3 inches) north-south; that the entire 1st schedule properties as one contiguous plot, originally belonged to one Sadaya Nadar alias Kadakarayandi Nadar, that the said Sadaya Nadar sold the west half of the 1st schedule properties, that is, the present Door No.29 to Thommai Soosai Saverimuthu Fernandes and his wife – Maria Francis Poovammal Fernandal who are the predecessors-in- interest of the 2nd defendant; that the said Sadaya Nadar sold the eastern half of the I schedule properties, that is, the present Door No.30 to Savarimuthu Fernandex who is the predecessor-in-interest of the plaintiff on 16.8.1907, that the said Saverimuthu Fernandes died leaving behind 3 sons, two of whom conveyed their share in the house to one of the sons, by name Antony Fernando who died leaving behind his wife – Reginal Fernandal and 3 daughters, namely, the plaintiff herein and Ranjithammal Fernandal and Mary Fernandal.
4. The further averments of the plaint are that at the time of plaintiff’s marriage, about 20 years ago, plaintiff’s mother and her two sisters, relinquished their interest in item 2 of I schedule house in favour of the plaintiff; that the plaintiff is absolutely entitled to item 2 of the I schedule and the 2nd defendant to item 1 of the I schedule, that between the plaintiff and the 2nd defendant and their predecessors the vacant site in front of their houses has always been used as a common pathway, right from 1907 when the original owner transferred the eastern half separately, that they have also acquired title to the same by prescription on account of open and continuous user of the same for more than the statutory period, that the 1st defendant has absolutely no manner of right, interest or title to the 2nd schedule pathway, that the 2nd schedule pathway is in the exclusive user and possession of the plaintiff and the 2nd defendant, that the 2nd schedule pathway is the servient tenament only to the two houses in the I schedule, that the same cannot be used to reach any other neighbouring property not connected with the I schedule, that the 1st defendant’s house is situate immediately south of the 2nd schedule pathway, shown as `EGHI’ in the plaint plan; that the said house belonging to the 1st defendant is described in the III schedule in the plaint; that the 1st defendant has demolished his old house and is reconstructing a new house, described in the III schedule which is nearing completion. The original house of the 1st defendant which was demolished had its main entrance towards south; that the 1st defendant has always been using the land south of his house to reach his house, that the 1st defendant has never used the II schedule pathway; that on 1.7.83, all of a sudden, the 1st defendant opened a door way on the northern wall of ground floor of the 3rd schedule house, into the 2nd schedule pathway; that the plaintiff immediately protested to the same, that by opening the said doorway the 1st defendant intended to use the 2nd schedule pathway to which he has no right at all, the 1st defendant had taken the law into his hand and was attempting to use the 2nd schedule pathway in derogation of the exclusive right of the plaintiff and the 2nd defendant to the same; that the said door way is separately described in the 4th schedule in the suit. Hence, the plaintiff filed the suit for a declaration that the 2nd schedule pathway belongs exclusively to the plaintiff and the 2nd defendant and for a mandatory injunction directing the 1st defendant to close the doorway in the northern wall of the 3rd schedule house.
5. When the matter was called the 2nd defendant was absent and ex-parte order was passed.
6. The 1st defendant had filed his written statement stating that the suit filed by the plaintiff is not valid as per law and justice; that the plaintiff is not entitled to the relief sought for in the suit; that the plaintiff’s suit is improper; that the plaintiff cannot seek any relief in the suit on behalf of the 2nd defendant; that the relief of mandatory injunction is not sought for properly in the suit; that the allegations that the 1st defendant has intended to use the 2nd schedule property as the pathway and that the 1st defendant has no right to use the aforesaid pathway and that it would result in great loss and hardship and that loss could not be compensated in monetary terms are all incorrect; that in the suit schedule pathway the 1st defendant has right and possession; that the measurements of the properties and the four boundaries given by the plaintiff are incorrect; that the relief sought for in the suit as well the petition is different; that as per the suit plan and pleadings there was no entrance in the southern side of the house at any point of time for the 1st defendant; that the entrance in the northern side is not the entrance newly put up; that at the time of sale itself in the suit schedule it has been mentioned as half of the pathway; that before 1968 and during the period the 1st defendant has taken on lease as well during the period of tenancy, the 1st defendant used the the suit path way; that before the 1st defendant, Joseph Paviyolammal also enjoyed the suit pathway during the period of othi; that suit pathway was not laid on 1.7.83; that during the period of tenancy at the time of plaintiff’s father onwards, this 1st defendant has used the aforesaid pathway during the period of tenancy ; that the others have given the release deed in favour of the plaintiff is not correct; that the 2nd defendant has purchased the property only within five years; that the 1st defendant has not filed any petition to appoint the Commissioner to look into the physical structure directly; that the lst defendant reserves his right to file additional written statement and hence, the suit has to be dismissed with costs.
7. The Trial Court having framed five issues in O.S.No.260/1983 had permitted parties to record evidence during trial when on behalf of the plaintiff P.Ws.1 to 3 were examined and Exs.A.1 to A.14 were marked on his side. On the side of defendants D.Ws.1 and 2 were examined and Exs.B.1 to B.3 were marked. The report and the plan filed by the Commissioner were marked as Exs.C1 and C 2. The Trial Court, having appreciated these evidence placed on record ultimately dismissed the suit.
8. Aggrieved against the judgment and decree of the Trial Court, the plaintiff preferred A.S.No.59/1988 on the file of the Subordinate Judge, Tuticorin, and the said Court after hearing the parties allowed the appeal. Aggrieved against this, the 1st defendant has preferred the present Second Appeal.
9. At the time of admission the following substantial questions of law have been raised in this second appeal and they are as follows:
(i) Had the lower appellate Court committed material irregularity error apparent on the face of the record in considering the easementary right of common pathway by the 1st defendant in respect of the plaint II schedule property in view of the same owner was in possession of the properties belonging to the 1st & 2nd defendants ?
(ii) Is the lower appellate Court right in believing the plaintiff’s case of common pathway without any material evidence in her favour?
(iii) Has the lower appellate Court committed error in failing to consider the case for mandatory injunction in the absence of any documentary evidence in preventing the construction of the door before filing the suit?
(iv) Had the lower appellate Court erred in not considering the description of the boundaries contained in Ex. B1 ?
(v) Had the lower appellate Court erred in holding that in 1970 the plaint I schedule property and the plaint II schedule properties are one and the same?
(vi) Can the lower appellate Court traverse beyond the jurisdiction and the scope of the appeal in view of Section 15 of the easementary Act ?
10. Heard both sides.
11. During argument, the learned counsel appearing on behalf of the appellant, besides tracing the facts and the circumstances as pleaded by the parties, would lay emphasis on the Commissioner’s report filed with plan, marked as Exs.C.1 and C.2 and the respondents, having raised no objection for the same and no independent evidence having been let in to the effect that the house having only one door facility on the southern side and not on the northern side of the appellant’s building and that since the construction of the building, as evidenced by the oral evidence of P.W.3, the building of the appellant had door ways on the northern side of his property and that as early as in the year 1961 when the plaint III schedule property was a tiled house and given on mortgage to one Paviyolammal, it had the northern doorway, which the lower Appellate Court has lost sight of, placing reliance on the evidence of P.W.1, further failing to consider the evidence of D.W.2 in the proper perspective and that within 5 days of the construction of the door on the northern side of the plaint III schedule property, the plaintiff has come forward to file the suit seeking for a mandatory injunction besides the said relief.
12. At this juncture, the learned counsel would also cite the judgment (Saraswathi vs S. Ganapathy) , wherein it is held that,
“The factual position was that the appellants, who had only purchased Survey No.7/232 was in possession not only of entire Survey No.7/232 (less 12 sq.ft) but was in possession (without any right) of 350 sq.ft in Survey No.7/229 which was purchased by the 1st respondent. The appellants having only purchased Survey No.7/232 is not entitled to more than 2481 sq.ft. The appellants are now in possession of more than what was purchased by them. The appellants were seeking to claim possession of property which they had never purchased under their sale deed. The High Court has rightly not allowed this”.
13. Laying stress on the legal position that the lower appellate Court could not traverse beyond its jurisdiction in view of Sec.15 of Easementary Act, the learned counsel would pray for allowing the appeal by setting aside the judgment and decree as passed by the first appellate Court.
14. In reply, the learned counsel appearing on behalf of the respondents would submit that the pathway lies out of the property belonging to the plaintiff and the second respondent respectively in Door Nos.30 and 29 and that the vacant site in front of it on the south has been used as common east-west pathway for both the houses for a quite long time, that Door No.28 belongs to the appellant who has no right in the pathway, whereas only the plaintiff and the second defendant are entitled to make use of the vacant site as pathway, that when the appellant wanted to put up the door on the northern side of his house, the suit was filed for declaration and mandatory injunction and the point for consideration is whether the appellant is entitled to the pathway. On such argument, the learned counsel would cite from the judgment of the lower appellate court, the relevant paragraphs tracing the title of the parties. It could be seen that the lower appellate Court, having had its own discussion on various aspects pertaining to the facts and circumstances of the case and in the context of the evidence made available, was only able to arrive at the definite conclusion regarding the first item of properties belonging to the plaintiff and the second defendant and the third items of properties belonging to the first defendant i,e., the appellant herein and as it could be seen in the 12th paragraph of the judgment, the lower appellate Court would arrive at the conclusion that just because the two houses falling in Door Nos.29 and 30 having been sold in favour of two persons, the vacant site falling on the south of it i,e., the second item of the suit property should have been left only for the beneficial use of these two houses and consequently would arrive at the conclusion that the defendant, whose house is on the farther south of the second item of property, is not entitled to make use of the second item of suit property and thus would arrive at the conclusion to hold that the appellant is not entitled to make use of the second item of the suit property as pathway.
15. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for the appellant and the respondents as well, if this Court has to answer the substantial questions of law framed in the context of the facts and circumstances of the case pleaded and in the light of the evidence placed on record, particularly adhering to the nature of litigation and the position of law encircling the whole affair connected to the above appeal, this Court has to say that it is an admitted case by the appellant and the respondents that the first, second and third items of the suit properties have been wholly belonging to and in possession and enjoyment of the members of the one and the same family, originally which came to devolve on their successors, who sold the same to different parties and ultimately, the respondents became the owners of the first schedule and the appellant, for the third schedule suit house and it is the second schedule vacant site, which is in controversy, according to the plaintiff, since the appellant, while reconstructing a house after demolishing the existing one in its place, opened a new door on the northern side of the III Schedule of the suit properties, while the demolished house had no such door facility on the northern side of it facing the II schedule of suit properties viz., the pathway, which according to the respondents, is only meant for their use as pathway and not to the appellant and hence the suit for declaration that the second suit schedule is exclusively belonging to the plaintiff and the second defendant, the respondents herein and consequently for restraining the appellant/first defendant from in any manner interfering with their peaceful possession of houses and a mandatory injunction directing the appellant/first defendant to close the doorway mentioned in the IV Schedule (located on the northern side of the III schedule property).
16. A glance had into the plaint pleadings would clearly show that basically the second schedule of the suit properties forming the pathway did not belong either to the plaintiff or to the second defendant and the very case put up by the first respondent and the plaintiff being that between the plaintiff and the second defendant and their predecessors, the vacant site in front of their houses (III schedule) has always been used as a common pathway from 1907 when the original owner transferred the eastern half separately, that they also acquired the title to the same by prescription on account of open and continuous usage of the same for more than the statutory period and that the first defendant, the appellant herein, has absolutely no manner of right, interest or title to the second schedule pathway and that the second schedule pathway is in the exclusive usage and possession of the plaintiff and the second respondent and hence would not only pray for a declaration and a permanent injunction regarding this suit property, but also for a mandatory injunction for removal of the door opened facing the II schedule in the III schedule suit property.
17. On an overall consideration of the factual situation, what comes to be known is that the second defendant, who has got no right and with whom such a right is said to be vested, as claimed by the plaintiff, but inspite of being summoned, he did not come forward to contest the suit, particularly joining hands with the plaintiff, since according to the plaintiff, his case is the case of the second defendant also and the plaintiff has put up not only his case, but also espousing the case of the second defendant.
18. The trial Court, having not only traced the facts and circumstances of the case as pleaded by the parties to the contest, but also having framed proper issues, further permitting the parties to record their evidence, having had its own appreciation of the evidence placed on record so as to arrive at a conclusion to dismiss the suit with costs in respect of the first defendant. The appellant, mainly on the ground that it is an admitted case of the very plaintiff through her evidence let in by P.W.3 that there was already such a door on the northern side of the suit properties and since for some time that door was not made use of, the trial Court’s conclusion is that the first defendant would not become disentitled to the facilities that he had been enjoying as of right throughout, besides his predecessors-in-title and hence would arrive at the firm conclusion that not only the first defendant has to be allowed to make use of the II schedule of the suit properties as pathway for himself and his family members, but also that the plaintiff has no such inviolable right to seek for a restrictive mandatory injunction restraining the appellant from making use of the II schedule of property as pathway and for a mandatory injunction for demolishing or closure of the door opened on the north of the III schedule house. Besides these, the trial Court would also pose a question to the effect that the plaintiff, having been a passive spectator throughout the construction, upon completion of the construction, has come forward seeking a mandatory injunction to close the doorway put up near the wall of the III schedule house which has been shown as IV schedule of suit properties, which is unreasonable and unethical on the part of the plaintiff and that plaintiff is not at all entitled to such a luxurious relief.
19. This Court, whether on facts or in law adhering to the substantial questions of law framed, is of the view that regarding the rights pertaining to make use of the second schedule suit pathway, the plaintiff cannot claim any separate right of pathway nor could she claim such a right as against the first defendant, though the first defendant is not at all entitled to such easementary right over the II schedule of suit property making use of the same as pathway. In case the first defendant is making use of the II schedule of the suit property for any destructive purpose obstructing the rights of the plaintiff, then the plaintiff will have a right to testify the validity of such an exercise of right by the first defendant and definitely the plaintiff cannot eject the first defendant simply stating that for sometimes he did not exercise the right which had been in usage throughout.
20. In short, the plaintiff is not entitled for a declaration as against the first defendant nor to the rest of the reliefs of permanent injunction and mandatory injunction as it has been prayed for in the suit and in fact, the trial Court has rightly decided dismissing the suit with costs on facts and in law, and the first appellate Court has erroneously come to a conclusion for no tangible reasons offered and therefore, the only conclusion that this Court can arrive at is to decide the substantial questions of law against the first respondent and the same are decided accordingly.
21. In result, the above Second Appeal succeeds and the same is allowed with costs throughout;
(ii) the Judgment and decree dated 5.7.1991 rendered in A.S.No.59 of 1988 by the Court of Subordinate Judge, Tuticorin is set aside;
(iii) the judgment and decree dated 14.12.1987 rendered in O.S.No.260/1983 by the Court of District Munsif, Tuticorin, is restored.