IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03/12/2003
CORAM
THE HONOURABLE MR.JUSTICE A.K.RAJAN
Second Appeal No.5 of 1993
1. Arunachalam Pillai
2. Sundaram Pillai ... Appellants
-Vs-
Sorimuthu Pillai ... Respondent
Appeal against the judgment and decree dated 24.01.1990 made in A.
S.No.21 of 1987, on the file of the Court of the Subordinate Judge, Tenkasi,
against the Judgment and decree dated 29.08.1986, made in O.S.No.520 of 1981
on the file of the District Munsif, Ambasamudram.
!For appellant : Mr.T.M.Hariharan
^For Respondents : Mr.R.Loganathan
:ORDER
This second appeal has been filed against the judgment and decree
dated 24.01.1990, in A.S.No.21 of 1987, on the file of the Court of
Subordinate Judge, Tenkasi, reversing the Judgment and decree in O.S.No.520 of
1981 dated 29.08.1986, on the file of the District Munsif, Ambasamudram.
2. The plaintiff filed a suit for a declaration that pathway referred
to in the plaint as BEFGC as a common pathway and consequentially for
permanent injunction not to interfere with the plaintiff’s use of the pathway.
The case of the defendants is that it is not a common pathway but it is
exclusive property of the defendants. On the basis of the evidence adduced,
the trial Court found that the property referred as BEFGC is not a common
pathway and dismissed the suit On appeal, the first appellate court reversed
the Judgment of the trial Court and decreed the suit as prayed for.
3. Aggrieved against the Judgment and Decree of the first appellate
court, this second appeal has been filed. The substantial question of law
framed in this second appeal is as follows:
“Whether the decree of the lower appellate Court is legally
sustainable in the light of the recitals in Ex.A.1 and the admission of P.W.1
that no right of way is given to him under Ex.A.1 and even the measurements of
the suit II Schedule property are not given thereunder?”
4. The learned counsel appearing for the appellant submitted that the
appellate Court had come to the conclusion that it is a common pathway, on the
basis of the recital in the documents of the defendants to which the plaintiff
was not a party. Further the appellate Court relied only on the
Commissioner’s report and found the pathway as common pathway.
5. The trial Court has found that the plaintiff claims ownership in
the second schedule property (the pathway); he is not asking for easementary
right over this property. The trial Court has found that the plaintiff’s
father who had purchased the schedule-1 of the suit property by the sale deed
Ex.A.1 dated 29.10.1931 from Sankaravadivammal. The suit pathway, (the suit
second schedule property) is referred to in Ex.B.2 as ABCD. The partition
deed between the plaintiff and his brothers and father is Ex.A.3. In Ex.A.1,
the second schedule property is not included. Further the second schedule
property has not been conveyed to anyone in the partition deed Ex.A.3; No one
has been given the right of pathway over this second schedule property. In
Ex.A.1, the second schedule suit property is shown as Western boundary of the
property conveyed and it is referred to as “v’;fs; tifawh bghJeil ghijf;F
fpHf;F”. It is also admitted by the plaintiff that in Ex.A.1, it is not
stated that the right of pathway is granted over second schedule property.
6. From the admission of the plaintiff, the trial Court found that
over the second schedule property neither the plaintiff nor his father had any
interest. In the plaint also, the plaintiff has not stated that he claims
ownership in the second schedule property. But, he claims only the right of
pathway over the property. Further the first defendant’s father had purchased
by a sale deed dated 01.01.1945, the property in second schedule from
Pondikannu Pillai, S/o. Ramalingam Pillai. When the plaintiff claims
easementary right, he must admit that it is the property of another person.
When he claims ownership on the same property, he cannot claim easementary
right. But, the plaintiff has admitted that his claim is only for ownership
and not for easementary right. Therefore, the plaintiff must prove ownership.
But, the documents filed on the side of the plaintiff does not refer to the
pathway; it has not been referred even in the partition deed. The trial Court
found that the plaintiff failed to prove their case and hence dismissed the
suit.
7. The appellate Court reversed the finding of the trial Court on the
ground that the dismissal of the suit for the inconsistent plea in the plaint
is not sustainable. It held that the plaintiff sought for relief that he has
a right to approach his property through the second schedule property; He has
not asked for ownership of the entire second schedule property and therefore
only consideration should be as to whether there is easementary right for the
plaintiff.
8. The appellate court finds that at the time of purchase of the
property through Ex.A.1, the plaintiff had no property on the east of the
first schedule property. He had to approach from the northern side to the
first schedule property only through the second schedule property. Therefore,
in Ex.A.1, it is stated that they have to reach the first schedule property
through the second schedule property. For that the appellate Court refers to
the Commissioner’s report and the sketch. The appellate Court has also found
that the plaintiff is not asking for easementary right over the entire
pathway, but only for the purpose of going to the first schedule property.
Therefore, the appellate Court had found that from the east-west road on the
northern side, the plaintiff has to proceed through the second schedule
property and reach the first schedule property.
9. This reasoning of the first appellate Court is not legally
sustainable. There is no evidence to arrive at this conclusion. The
conclusion of the first appellate Court is based on ‘no evidence’. The
Commissioner’s report only shows the physical features; how the property
situate. From that, the Court cannot come to the conclusion that the
plaintiff used the pathway (the second schedule property) to reach the first
schedule property. It is nothing but surmises and imagination by the first
appellate Court. To succeed in the case, the plaintiff must adduce evidence
and prove his case that he got a right of pathway over property referred as
BEFGC. It is a well established principle that the plaintiff must win or fall
on his own pleadings and evidence. But, in this case, there is absolutely no
evidence adduced by the plaintiff to prove his case either of ownership of the
second schedule property or easementary right over the same. Merely on the
basis that the plaintiff had no property on the eastern side of the 1 st
schedule property on the date when he purchased the same, the first appellate
Court had come to the conclusion that the plaintiff had used the second
schedule property to reach his land. This conclusion is not legally
sustainable. It is for the plaintiff to prove his case which the plaintiff
failed to do.
10. A perusal of the evidence adduced as extracted by the trial Court
would show that the plaintiff’s case is inconsistent; the plaintiff claimed
ownership over the second schedule property and not easementary right. The
trial Court had rightly found that the plaintiff has not proved their case.
The basic document through which the plaintiff claims title is Ex.A.1. In
that, the four boundaries of the first schedule property has been referred as
follows:
“South of Ramalingam Pillai’s land, North of Ramalingam Pillai’s land,
West of Ramalingam Pillai’s common wall. East of their common pathway (v’;fs;
tifawh bghJeil ghijf;F fpHf;F)”.
From this, it is clear that the property conveyed under Ex.A.1,
situates on the east of “vendors common pathway”. It does not convey the
right of access or passage in that pathway. The plaintiff now claims the
right of passage in that pathway. For that, it should be proved by evidence
that the plaintiff prescribed easementary right. But, the plaintiff admits in
evidence that he claims only proprietary right in that pathway and not
easementary right. Therefore, the plaintiff has to fail; since he has not
proved title over the pathway. The trial Court has rightly concluded that the
plaintiff did not prove his case. The first appellate Court reversed that
well considered Judgment based on irrelevant consideration. Therefore, the
Judgment of the appellate Court is liable to be set aside and hence set aside.
11. The plaintiff can not be permitted to raise inconsistent pleas.
To claim easement, the defendant must admit the title of the defendant over
the property. If the plaintiff claims easementary right that must be proved
by sufficient evidence by the plaintiff. When the plaintiff admits that he
claimed ownership and not easement and if he fails to prove ownership, he
cannot be allowed to prove easementary right. Ownership and easement are
mutually ex exclusive. Both cannot be pleaded. Therefore, when the plaintiff
claimed ownership, he gives up the plea of easementary right. Ultimately,
when the plaintiff failed to prove ownership, he cannot revive the plea of
easement. In such circumstances, the plaintiff is not entitled for any
relief. The trial Court approached the issue rightly and dismissed the suit.
The reversal of the suit by the appellate Court is erroneous.
12. In the result, the second appeal is allowed. The Trial Court
Judgment and decree is restored. The substantial question of law is answered
in favour of the appellant. With costs.
Index:Yes
Internet:Yes
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