IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24-08-2010
CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
S.A.No.31 of 2006 and
C.M.P.No.597 of 2006
1. Sengodagounder
2. Andamuthu .. Appellants.
Versus
K.S.Nallsivam .. Respondent.
PRAYER: Appeal against the judgment and decree, dated 30.6.2003, made in A.S.No.86 of 2003, on the file of the Additional District Court (Fast Track Court No.IV) Erode at Bhavani, confirming the judgment and decree, dated 14.12.2001, made in O.S.No.190 of 1999, on the file of the First Additional District Musif Court, Bhavani.
For Appellants: Mr.N.Manokaran
For Respondent: Mr.T.D.Vasu
JUDGMENT
This second appeal has been filed against the judgment and decree, dated 30.6.2003, made in A.S.No.86 of 2003, on the file of the Additional District Court (Fast Track Court No.IV) Erode, at Bhavani, confirming the judgment and decree, dated 14.12.2001, made in O.S.No.190 of 1999, on the file of the I Additional District Munsif Court, Bhavani.
2. The plaintiffs in the suit, in O.S.No.190 of 1999, on the file of the I Additional District Court, Bhavani, are the appellants in the present second appeal. The defendant in the said suit is the respondent herein. The suit had been filed praying for a decree of permanent injunction.
3. It has been stated by the appellants, who were the plaintiffs in the suit, in O.S.No.190 of 1999, that the first appellant is the father of the second appellant. The respondent is their neighbour. It has been further stated that the suit properties are the ancestral properties of the appellants. The respondent, who is the owner of the property situated in R.S.No.81/1A, had claimed certain rights in the cart track running through R.S.Nos.84/16, 84/8 and 83/17, from Kannimadaipudur Road, to his patta land.
4. On the contrary, in the written statement filed on behalf of the defendant in the suit, who is the respondent herein, it had been stated that he is entitled to use the suit cart track, by way of easement by grant, easement by prescription and easement by necessity, in respect of the lands in R.S.No.83/17.
5. In view of the averments made by the plaintiffs in the suit and the defendant therein, the trial Court had framed the following points for consideration:
1.Whether or not the plaintiff is entitled to the relief of permanent injunction as prayed for?
2. Whether or not there is any cause of action?
3. To what other relief?
6. During trial, the second plaintiff had examined himself as P.W.1. No document had been marked on his behalf. D.W.1 to D.W.3 had been examined on the side of the defendants and Exs.B-1 to B-4 had been marked. Exs.C-1 and C-2 had been marked, as Court documents.
7. In view of the averments made on behalf of the plaintiffs, as well as the defendant and in view of the evidence available on record, the trial Court had found that the defendant had admitted the title of the plaintiffs in respect of the suit properties, except in the property in R.S.No.83/17. Therefore, based on the admission of the defendant the trial Court had granted a decree of permanent injunction in favour of the plaintiffs in the suit. From the oral evidence adduced by the second plaintiff, as P.W.1, the trial Court had found that he had admitted the existence of the cart track, in R.S.No.83/17, for more than 30 to 35 years. He had also admitted that the defendant has the right to use the cart track. Even though the width of the cart track was in dispute, it had been admitted on behalf of the plaintiffs that the defendant has been using the cart track by taking his tractor, tyre carts and sugarcane threshing machine.
8. It had also been found that the plaintiffs had admitted that the suit cart track had been used by the defendants ancestors and that there was no impediment for the defendant to use the same. The trial Court had relied on Exs.B-1 to B-3 to come to its conclusion that there was joint ownership in respect of the property in question. The trial Court had also found that, even though the defendant had claimed his right of using the cart track, having a width of about 36 feet, he had submitted that it would be sufficient, if he was permitted to use the cart track upto 15 feet. As such, the trial Court had granted a decree of permanent injunction in favour of the plaintiffs, in respect of the suit properties, except 15 feet wide cart track, in R.S.No.83/17 of Kannimadaipudur, Periyapuliyur Village,Bhavani Taluk, Erode District.
9. Aggrieved by the judgment and decree of the trial Court, dated 14.12.2001, made in O.S.No.190 of 1999, relating to the 15 feet wide cart track, in R.S.No.83/17, the plaintiffs in the suit, in O.S.No.190 of 1999, had filed an appeal, in A.S.No.86 of 2003, on the file of the Additional District Court (Fast Track Court No.IV), Erode, at Bhavani.
10. The First Appellate Court, by its judgment and decree, dated 30.6.2003, made in A.S.No.86 of 2003, had confirmed the judgment and decree of the trial Court, dated 14.12.2001, made in O.S.No.190 of 1999.
11. Aggrieved by the judgment and decree of the First Appellate Court, dated 30.6.2003, made in A.S.No.86 of 2003, the plaintiffs in the suit, who were the appellants in the first appeal had filed the present second appeal, before this Court.
12. The second appeal had been admitted by this Court, on 2.2.2006, on the following substantial questions of law:
1. Whether the Courts below erred in law and misdirected themselves in granting cart track right to the extent of 15 feet breadth to the defendant contrary to the report filed by the Advocate Commissioner, in the absence of any other documentary evidence to give such right to use the suit cart track?
2. Whether the Courts below have properly appreciated and applied the principles to find out whether the plaintiff has established his right over the suit property for seeking the relief of interim injunction especially when the defendant has not denied the title of the plaintiff over the suit property?
13. The learned counsel appearing on behalf of the appellants had submitted that the judgment and decree of the Courts below are against law, weight of evidence and the probabilities of the case. He had also submitted that the findings of the First Appellate Court is bad in law for its failure to follow the mandate of order XX Rule 1 of the Civil Procedure Code, 1908. It had also been submitted that the Courts below had failed to note that, admittedly, the lands in R.S.No.83/17 belong to the appellants. While the respondent had claimed certain rights in the cart track, in R.S.No.83/17, he had failed to produce his title deed in respect of the said property. Further, the Courts below ought to have held that it would not be open to the respondent to make contradictory claims stating that his right, in relation to the cart track, in R.S.No.83/17, is to be declared based on easement by grant, easement by prescription and easement by necessity.
14. It had also been submitted that the Courts below had failed to note that `Nilavaiyal cart track cannot be construed, as a common pathway. The Courts below ought to have noticed that the suit cart track had been formed, exclusively, for the use of the appellants. Unless the respondent had marked the relevant documents to prove his right, in respect of the cart track, he would not be entitled to use the same. The suit cart track is a private cart track, which has been in existence for several years and therefore, it has been marked as `Nilavaiyal Pathai in the revenue documents. The Courts below had failed to note that the respondent cannot rely upon the endorsement made in the revenue records to substantiate his claim, unless the right had been specifically conferred on him, by way of a document or by way of right of easement. However, there is no oral or documentary evidence adduced on behalf of the respondent to prove his right over the cart track. The Courts below had failed to note that the report of the Advocate Commissioner had categorically stated that the `AB suit cart track cannot be used, making it clear that the cart track was not in use, either by the respondent, or by any other person.
15. The learned counsel had also submitted that the respondent ought to have proved easement by prescription, by showing that he has been using the suit cart track for more than twenty years. Easement by grant would arise only in the case of the right being created by way of a document. Further, easement by necessity would arise only when there is no alternate cart track for the use of the respondent. When none of the claims had been established, the grant of the concession to the respondent, by the Courts below, to use the cart track, to an extent of 15 feet in width, is not acceptable. When the defendant had admitted the title of the plaintiffs, in respect of the suit properties, mere existence of the cart track, in R.S.No.83/17, cannot be held to be meant for common usage, especially, when it is belonging to the plaintiffs, exclusively. The Courts below had erred in, solely, relying on the report of the Advocate Commissioner, to come to their conclusions in favour of the respondent. No right would accrue to a party to the suit, based on the report of the Advocate Commissioner.
16. The learned counsel had relied on the following decisions in support of his contentions:
16.1. In Sellappa Goundar and 4 others V. Natesan and 2 others (1998-1-L.W. 654), it had been held that, in a suit for declaration of the plaintiffs right to the use of the suit cart track and for the relief of injunction, it would be necessary to advert to the relevant guidelines contained in the Tamil Nadu Survey Manual of Departmental Rules, which indicate the manner of preparation of the field maps. Merely because a pathway continues in the patta lands of the defendants the plaintiffs cannot claim any absolute right, unless it had been substantiated to be a right by way of easement of necessity or an acquisition of any easement by prescription.
16.2. In Arunachalam Pillai V. Sorimuthu Pillai (2004) 1 M.L.J. 474), it had been held as follows:
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 Commissioners 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 or the second schedule property or easementary right over he same. Merely on the basis that the plaintiff had no property on the eastern side of the 1st 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 so.
11. The plaintiff cannot be permitted to raise inconsistent pleas. To claim easement, the plaintiff 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 easmentary right. Ownership and easement are mutually exclusive. Both cannot be pleaded. Therefore, when the plaintiff claim 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.
16.3. In Khurshed Banoo V. Vasant Mallikarjun Manthalkar (AIR 2003 Bombay 52), it had been held that, merely because no objection has been raised by the defendant to the Commissioners report, it cannot be held that the report had been proved. The Commissioners report cannot, by itself, form the basis of a decree in the absence of any evidence to support the claims made by the plaintiff.
17. The learned counsel appearing on behalf of the respondent had submitted that the conclusions arrived at by the Courts below are based on the evidence available on record. No document had been marked on behalf of the appellants to substantiate their claims, including their title, in respect of the suit properties. On the other hand, the revenue records marked as Exs.B-1 to B-4, on behalf of the respondent, would clearly establish the fact that the property in question was in joint possession of the parties concerned. Further, it had been admitted, on behalf of the appellants, that the respondent and his ancestors had been using the suit cart track for more than 30 years. It had also been admitted that the suit cart track had been used by the respondent, by taking his tractor, tyre carts and the sugarcane threshing machine. In such circumstances, there would be no necessity for the respondent to prove, specifically, that he has been using the cart track, for several years. As such, the right by way of easement of prescription had been proved. Even though the respondent had claimed his right to use the suit cart track entirely, the Courts below had restricted its use by the respondent only to an extent of 15 feet in width. As such, the present second appeal filed by the appellants is devoid of merits and therefore, it is liable to be dismissed.
18. In view of the submissions made by the leaned counsels appearing on behalf of the appellants, as well as the respondent, and in view of the records available before this Court, it can be clearly seen that the Courts below had arrived at their conclusions, based on the evidence available on record. Both the Courts below were right in holding that the respondent is entitled to use the suit cart track, in R.S.No.83/17 of Kannimadaipudur, Periyapuliyur Village, to an extent of 15 feet in width.
19. It is seen that the Courts below had arrived at their conclusions based on the admissions made on behalf of the appellants. It had been admitted that the respondent and their ancestors had been using the suit cart track for a period of 30 to 35 years and that the respondent has been using the said cart track, by taking his tractor, tyre carts and sugarcane threshing machine. While so, it cannot be held that the judgment and decree of the Courts below, in respect of the suit cart track, is erroneous and invalid.
20. The Exs.B-1 to B-4, marked in favour of the respondent, would also show that the respondent had a right to use the cart track in question. Further, it cannot be held that the Courts below had arrived at their conclusions, merely, on the basis of the report of the Advocate Commissioner, as alleged by the learned counsel appearing on behalf of the appellants. Further, no substantial question of law has been raised, for the consideration of this Court, in the present second appeal. As such, the contentions raised on behalf of the appellants cannot be countenanced. In such circumstances, it is clear that the present second appeal is devoid of merits and therefore, it is liable to be dismissed. Hence, it is dismissed. No costs. Consequently, connected civil miscellaneous petition is closed.
csh