The Honourable Mr v. The Nilgiri Co-operative printing Press by its Special Officer,Charring Cross, Ootacamund

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 19.7.2007Coram:The Honourable Mr.Justice M.JAICHANDRENS.A.No.755 of 1994N.Boriah .. Appellant/Plaintiff.vs.The Nilgiri Co-operative printing Press by its Special Officer,Charring Cross, Ootacamund .. Respondent/Defendant. The Second Appeal has been filed against the judgment and decree,dated 9.7.1993, passed in A.S.No.28 of 1989, on the file of the DistrictJudge, The Nilgiris at Ootacamund, confirming the judgment and decree,dated 3.8.1989, passed in O.S.No.54 of 1986, on the file of the DistrictMunsif Court, The Nilgiris at Ootacamund. For Appellant : Mr.S.K.Rakhunathan For Respondent : Mr.S.Jayaraman J U D G E M E N TThe Second Appeal has been filed against the judgment and decree,dated 9.7.1993, made in A.S.No.28 of 1989, on the file of the DistrictCourt, The Nilgiris, at Ootacamund, confirming the judgment and decree,dated 3.8.1989, made in O.S.No.54 of 1986, on the file of the DistrictMunsif Court, The Nilgiris at Ootacamund. 2. The plaintiff in the suit O.S.No.54 of 1986, is the appellant inthe present second appeal.The plaintiff had filed the suit before theDistrict Munsif Court, The Nilgiris District, at Ootacamund, praying forthe reliefs of declaration and permanent injunction.3. The brief facts of the case, as stated by the plaintiff, are asfollows:The plaintiff and his brothers are the owners of the land and buildingin R.S.No.1752 measuring 18-3/8. The plaintiff and his brothers hadpurchased the said property in the year, 1966, and when they purchased thesaid property, there were buildings on it some of which were over onehundred years old. The plaintiff had demolished some of the existingbuildings and constructed some buildings in the said property. The easternboundary of the property is the lands in R.S.Nos.1750/1 and 1750/2. https://hcservices.ecourts.gov.in/hcservices/

4. The above mentioned lands in Survey No.1750 belonged to theGovernment. The Government had assigned the lands in Survey No.1750/2 tothe Co-operative Printing Press and in the land in Survey No.1750/1, aPetrol Bunk is in existence. On the western end of Survey Nos.1750/1 and1750/2 and on the eastern boundary of Survey No.1752, there is a pathwayabout 20 feet. The plaintiff and his brothers were using the pathway tohave access to their property belonging to them. The plaintiff and hisbrothers and their predecessor-in-interest as well as the plaintiff'stenants have been using ABCD pathway, shown in the sketch filed along withthe plaint, for over 65 years. Due to the long usage of the suit pathwayby the plaintiff and his brothers and their predecessor-in-interest aswell as the plaintiff's tenants, the plaintiff and his men have the rightby prescription to use the said pathway as well as the right of easementby necessity. 5. The plaintiff had access to his properties only through the suitpathway, as there was no alternate pathway available for the use of theplaintiff. Since the Special Officer in charge of the defendant Press isattempting to block the passage of the plaintiff, the suit had been filed.6. In the written statement filed on behalf of the defendant, it hasbeen stated that the plaintiff had not filed any sale deed, along with theplaint, for an extent of 45 cents in Survey No.1750/2 belonging to thedefendant Press. On 31.1.1972, the Government had allotted a portion ofthe land to the defendant Press, as the Government was the owner of thesaid property and no one else was having any right in the said property. 7. The claim of the plaintiff that the pathway about 20 feet in widthmarked as ABCD in the sketch filed along with the plaint has been underthe usage of the plaintiff for more than 65 years is false. There was nosuch pathway through the property belonging to the defendant. Before theyear, 1966, there were no buildings at the said place and the claim of theplaintiff that he and his predecessors-in-title as well as the plaintiff'stenants have been using the said pathway is false. Therefore, theplaintiff is not entitled to any prescriptive right to use the saidpathway. Since the plaintiff has access to his property from ComercialRoad, there is no need for the plaintiff to use the pathway in theproperty belonging to the defendant. Further, the Special Officer of thedefendant Press had never stated that he would block the pathway at theplace marked as AB. In such circumstances, the plaintiff is not entitledto any right of easement by necessity nor for any prescriptive right.8. Based on the rival contentions, the trial Court had framed thefollowing issues for consideration: "1. Whether an extent of 0.45 cents in S.No.1750/2 was assignedto the defendant?2. Whether there has been a road or pathway of about 20 feeton the western side of the defendant's property? https://hcservices.ecourts.gov.in/hcservices/

3. Whether the plaintiff has perfected title to the suitroad or pathway by prescription? 4. Whether the plaintiff has made any encroachment on theHighways Road?5. To what relief?"9. The trial Court had noted that the plaintiff had prayed for thereliefs of declaration and permanent injunction. With regard to thepassage marked as ABCD in the sketch annexed along with the plaint, theclaim of the plaintiff is that he and his predecessor-in-interest, who hadsold the land to the plaintiff, have been using the suit passage fornearly 65 years. However, the plaintiff had admitted that there are twoother ways to reach his property one through the Coonoor Road and theother through Commercial Road. 10. It has also been stated by the plaintiff that both the alternateways available to have access to his property are only pathways, which arenot wide enough for the use of four wheel vehicles, like, Cars, lorriesetc. The only way through which such vehicles could be taken to reach theplaintiff's property is through the plaint passage. Even though theplaintiff had claimed that certain rights had accrued to him by easementof necessity and by easement of prescription, the plaintiff has not provedby way of oral or documentary evidence that the plaintiff and hispredecessor-in-interest have been using the suit passage for nearly 65years as claimed by the plaintiff. Further, the plaintiff and thewitnesses examined on his behalf have admitted that there are two otheralternate ways to reach his property one through Coonoor Road and theother through Commercial Road. 11. The trial Court had found that the plaintiff has not proved hisclaim of easement by prescription by proving the necessary ingredients toclaim such a right. The trial Court had found that the plaintiff couldhave enjoyed the use of the suit passage only for about 14 years and thatby itself would not help the plaintiff to claim the right of easement byprescription. While it is possible for the plaintiff to know the existenceof the suit passage only from the year, 1972, it has not been proved bythe plaintiff that he and his predecessor-in-interest have been using thesuit pathway for more than 20 years. 12. Further, according to the report of the Advocate Commissioner, thesuit pathway is shown as an open space and there is no evidence to showthat it was a pathway through which the plaintiff and his predecessor-in-interest had access to their property by means of four wheel vehicles,like Cars, Lorries etc. Hence, the trial Court had dismissed the suitfiled by the plaintiff. https://hcservices.ecourts.gov.in/hcservices/

13. Aggrieved by the judgment and decree of the trial Court, dated3.8.1989, the plaintiff had filed an appeal on the file of the DistrictCourt, The Nilgiris, at Ootacamund, in A.S.No.28 of 1989.14. The lower appellate Court had framed the following points forconsideration as to whether the judgment and decree rendered by the trialCourt is to be set aside and as to whether the pathway had existed in thesuit property? 15. While confirming the judgment and decree of the trial Court, thelower appellate Court had found that even though the plaintiff had markedExhibits A.13 to A.15 to prove the existence of the pathway in the suitproperty, the lower appellate Court could not find that the said documentshad shown the existence of the suit pathway. Since there was no mention ofthe 20 feet width of the suit pathway in the said Exhibits marked onbehalf of the plaintiff, the lower appellate Court had found that theplaintiff had not proved his claim based on which he had sought for therelief prayed for in the suit. 16. The lower appellate Court had found that the plaintiff had beenexamined as P.W.1. During the cross-examination, he had admitted that hehad built a building on the southern side of CD portion of the ABCDpathway three years before the filing of the suit. The lower appellateCourt had also found that since the plaintiff had access to his propertyand since the property of the plaintiff in Survey No.1752 is situated onthe eastern side of the commercial Road and south of Ooty Coonoor Road andsince it is adjoining the main road, there would have been no necessityfor the plaintiff to use the suit pathway. In such circumstances, thelower appellate Court had confirmed the judgment and decree of the trialCourt, by its judgment and decree, dated 9.7.1993, made in A.S.No.28 of1989. 17. Being aggrieved by the judgment and decree of the lower appellateCourt, dated 9.7.1993, made in A.S.No.28 of 1989, the plaintiff had filedthe present second appeal in S.A.No.755 of 1994. 18. This Court had admitted the second appeal on the followingsubstantial question of law:"On the facts and circumstances is not the plaintiffentitled to the decree on the basis of prescription, theappellant using the Road-way continuously for over the statutoryperiod?"19. On a perusal of the records available and based on the avermentsmade on behalf of the plaintiff as well as the defendant, it is clear thatthe plaintiff has not proved his right of easement of necessity oreasement by prescription. The plaintiff has not been in a position to show https://hcservices.ecourts.gov.in/hcservices/ that the plaintiff and his predecessor-in-interest have been using thesuit pathway for nearly 65 years as claimed by him. The Courts below havefound that the plaintiff had alternate access to his property. 20. It was also found from the report filed by the AdvocateCommissioner that there was no pathway in the suit property as claimed bythe plaintiff. In such circumstances, the plaintiff has not shownsufficient reasons or cause for this Court to interfere with the findingsof the Courts below. 21. For the reasons stated above, the judgment and decree of theDistrict Munsif Court, The Nilgiris District at Ootacamund, dated3.8.1989, made in O.S.No.54 of 1986, as confirmed by the judgment anddecree of the Subordinate Court, The Nilgiris District at Ootacamund,dated 9.7.1993, made in A.S.No.28 of 1989, cannot be interfered with bythis Court in the present second appeal. Hence, the second appeal standsdismissed confirming the judgment and decree of the Courts below. Nocosts. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.cshTo1. The District Court, Nilgiris at Ootacamund.2. The District Munsif, Nilgiris at Ootacamund.3. The Record Keeper, VR Section, High Court, Madras.+ 1 CC To Mr. S.K.Rakhunathan, Advocate SR NO.44078S.A.No.755 of 1994ra[co]gp/12.11.