P.JYOTHIMANISecond Appeal No.387 of 1995andC.M.P.No.3965 of 20061.Chinna Poojari @ Kandappa Gounder2.Rasi Gounder v. K.Ramasami2.K.Natesan

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 04.04.2007CORAM:THE HON'BLE MR. JUSTICE P.JYOTHIMANISecond Appeal No.387 of 1995andC.M.P.No.3965 of 20061.Chinna Poojari @ Kandappa Gounder2.Rasi Gounder... Appellants/Defendants.Vs.1.K.Ramasami2.K.Natesan... Respondents/Plaintiffs.PRAYER: Second Appeal against the Judgment and decree dated 16.12.1994 andmade in A.S.No.37 of 1994, on the file of Sub Court Sankari reversing theJudgement and decree dated 27.09.1993 and made in O.S.No.578 of 1988, onthe file of District Munsif Court, Sankari. For Petitioners : Mr.K.Duraisamy, S.C. for M/s. Muthumani Duraisamy D.Selvaraj For Respondent.1 : Mr.T.R.Mani, S.C.for M/s.T.M.Hariharan Aruna Ganesh Respondent.2: No appearance.J U D G M E N TThe defendants in the Trial Court are the appellants in the SecondAppeal. The plaintiffs filed the suit for declaration and injunction inrespect of their right to use the suit cart-track for their men,cart andcattle to ingress and egress from their land in Survey No.194/1 and alsofor a permanent injunction from obliterating or disturbing or interferingwith user and enjoyment of the suit cart-track. The suit cart-track ismentioned as A,B,C,D,E,F,G,H,I commencing from Sangari to Trichengode roadEast to West running on the Northern edge of Survey No.188/2 belonging tothe defendants on the point ABC and thereafter running to the point CDEtowards West and passing through the other lands of the defendants on thepoint EFG from North to South towards the Western side and thereafterpassing through Survey No.188/1 in the point GH and to reach Survey https://hcservices.ecourts.gov.in/hcservices/ No.194/1 wherein the plaintiff’s house stated to have been situated at thepoint of I. 2. Admittedly, the defendants are the joint owners of the land inSurvey No.188/2 Sangari Village and Survey No.194/2B and 194/2A. As it isseen in the plaint the claim in respect of these cart-track are made onthree grounds, namely, 1) As mamool pathway for all the land owners in Survey No.188 and 194 ofSangari Village2) The plaintiffs are using the suit pathway to reach their house inSurvey No.194/1 as it is the only path way since no other pathway isavailable and from time immemorial suit cart-track was used for ingressand egress as easement of necessity and 3) On the basis of prescriptive title under Ex.A.7 dated 23.12.1986 asused by the predecessors in title as a demarcated or plan marked pathwayas per the evidence of P.W.1. 3. On the other hand, it was the case of the defendants in the suitthat the property comprised in Survey No.188/2 which is otherwise calledPoocha Goundan Kadu belong to them and the cart-track is their privatecart-track and it does not lead to the plaintiff’s land. The Trial Courthas dismissed the suit on various grounds, namely, the documents of titlerelied upon by the plaintiffs which are of the year 1939 to 1972 marked asExs.A1 to A5 do not refer to the cart-track apart from the finding thatthe plaintiffs have not proved the right by prescription by way of grants.That apart the Trial Court has also found against the plaintiff that onthe death of the first plaintiff even though the second and thirdplaintiffs who are the sons, are on record the daughter was not impleadedas a party and therefore, on the basis of non joinder of necessary partiesalso the suit was dismissed. On appeal filed by the plaintiffs, the FirstAppellate Court has decreed the suit by reversing the judgement of theTrial Court relying upon the admission in the written statement of thedefendants that such cart-track was in existence across the SurveyNos.182/2 and 183/3 to reach the plaintiffs’ property from SangariTrichengodu main road. It is as against the judgement of the FirstAppellate Court the defendants have filed the present Second Appeal. 4. While admitting the Second Appeal this Court has framed thefollowing substantial question of law: "Whether the First Court was right in allowing the appeal onthe ground of easement of necessity when there is analternative pathway for the plaintiff?"5. A reference to the judgement of First Appellate Court shows thatthe appeal was allowed not on the basis of easement of necessity but onother grounds mainly relying upon the FMB sketch marked as Exs.A16 and A17apart from the analysis of the various documents marked as Exs.A22 to A.25and Ex.B.1 that a cart-track has been used by people as mamool cart-track. https://hcservices.ecourts.gov.in/hcservices/

6. In view of the same, as rightly contended by the learned SeniorCounsel for the respondents in this appeal, the plea of easement ofnecessity has been given up by the plaintiffs and therefore, thesubstantial question as framed,does not survive resulting in theobligation of framing additional substantial questions of law underSection 100(5) Proviso of the Code of Civil Procedure as follows: "Whether the First Appellate Court was right in allowing theappeal on the basis that the suit cart-track has been used asa mamool pathway apart from relying upon the documents to cometo the conclusion that they are demarcated pathway as it isseen in Exs.A.16 and A.17?"7. Mr.K.Duraisamy, learned Senior counsel appearing for theappellants would submit that Ex.A.7 sale deed dated 23.12.1986 by whichthe plaintiffs have purchased the property from the previous ownerKaliyappan does not mention about the cart-track. That apart it is hiscontention that while the said Ex.A.7 was dated 23.12.1986 the suit wasfiled on 08.01.1987 on the basis that on 05.01.1987 the defendants haveattempted to disturb the possession which was the cause of action and inspite of that the said sale deed dated 23.12.1986 was not filed along withthe plaint. 8. On the other hand, a reference to Ex.A.7 shows that even though itwas stated to have been executed on 23.12.1986 it was registered only on07.01.1987 and therefore, there was no occasion for the plaintiff to filethe document along with the plaint. The learned Senior counsel wouldfurther contend that when Ex.A.7 document uses the word mamool pathwaywhich was included in the schedule and if it forms part of the sale deedfor which also the valuation has been made, it cannot be believed to be amamool pathway. On the other hand, as it is seen in the said Ex.A.7 thevaluation of the pathway at the rate of Rs.250/- was made only inaccordance with the provisions of the Stamp Act for the purpose of paymentof stamp duty. Therefore, it has to be seen as to whether the suitpathway has been used as a mamool pathway for which the plaintiffs have aright by prescriptive title. 9. The learned Senior counsel would further contend by relying uponthe judgement of the Hon’ble Supreme Court reported in 2003(4) SCC 161that in the absence of pleadings, no evidence can be looked into inrelation to those matters by relying upon Order 6 Rule 2 of Code of CivilProcedure. I am afraid that on the facts of this case the above saidjudgement may not have any application, for, the plaint categorically says"the suit cart-track is a mamool pathway for all the land owners in SurveyNo.188 and 194 Sangari Village". Therefore, it is to substantiate thesaid pleading if evidence is let in by the plaintiff the same cannot bedenied by relying upon Order 6 Rule 2 of Code of Civil Procedure. In suchcircumstances, since the plaintiffs’ case, which was also based oneasement of necessity has been given up and the First Appellate Court hasdecided on different issue, the additional documents filed on behalf of https://hcservices.ecourts.gov.in/hcservices/ the appellants/defendants in the Second Appeal stage for the purpose ofproving alternate pathway to the plaintiffs does not arise and therefore,C.M.P.No.3965 of 2006 in S.A.No.387 of 1995 has no relevancy and in viewof the same the said C.M.P. is dismissed. 10. It is seen as per the judgement of the First Appellate Court thaton analyzing the various documents marked on the side of the plaintiffsas Exs.A.22 to A.25 under which the defendants have purchased the variousportions of the properties by mentioning paimash number for which acorrelation statement has been filed under Ex.A.6 to show that they areconnected with the suit properties and the said documents contain theexistence of a cart-track. The Appellate Court has also found that evenunder Ex.B.1 sale deed dated 25.02.1974 by which the second defendant haspurchased the property also contains the clause about the mamool cart-track and therefore has come to the conclusion that the suit cart-trackhas been used as a common cart-track. This aspect was not properlyappreciated by the learned Trial Judge. 11. In addition to that as rightly contended by the learned SeniorCounsel appearing for the respondent Mr.T.R.Mani, the First AppellateCourt after analyzing Exs.A.22 to A.25 and Ex.B.1 has held that existenceof the mamool pathway has been confirmed by Exs.A.16 and A.17 which arethe field measurement maps. In such circumstances there is no difficultyto come to the conclusion that it was based on the factual position andappreciation of various documents the Appellate Court has come to theconclusion that the suit pathway is a mamool pathway and therefore, thereis no substantial question of law involved in this case at all. 12. However, Mr.K.Duraisamy, learned Senior Counsel appearing for theappellant has raised a point that when the earlier document in respect ofthe property ranging from 1935 to 1975 marked Exs.A1 to A5 have not chosento mention anything about the mamool pathway or cart-track, merementioning of the same under later documents Exs.A.22 to A.25 or B.1cannot be taken as if the presence of mamool pathway has been proved. Ido not agree with the said contention. Even Ex.A.22 to A.25 are relatingto 1957, 1958 and 1974 and as it is rightly pointed out by the learnedSenior Counsel Mr.T.R.Mani appearing for the respondents, Ex.A.1 to A.5are relating to the dominant tenement while Exs.A.22 to A.25 and B1relating to servient tenements which require the stipulation about theexisting passage. It is a settled law that if it is a dominant heritagesuch right even without mentioning explicitly will be deemed to beinherent in the construction of the document. In such cases as it ispointed out under Section 8 of the Transfer of Property Act, 1882 whileeffecting operation of transfers the incidents which are transferredinclude the easement annexed thereto and mentioning of that may not benecessary. But on the other hand if it is servient heritage it is theduty of the seller to disclose as it is seen under Section 55(1)(a) of theTransfer of Property Act which states as follows: "55(1)(a) to disclose to the buyer any material defect in the https://hcservices.ecourts.gov.in/hcservices/ property or in the seller's title thereto of which the selleris, and the buyer is not, aware, and which the buyer could notwith ordinary care discover;"13. Accordingly, if the documents marked under Exs.A.1 to A.4 were ofdominant heritage they do not require the disclosure of the passage andsince Exs.A22 to A.25 and B.1 relate to servient heritage there is adisclosure by the vendor in his interest about the existence of thepathway and that does not mean that there was no common cart-track at allwhich is called as a mamool pathway. In addition to that as correctlypointed out by the learned First Appellate Court the field survey mapmarked as Exs.A.16 and A.17 show the presence of a pathway in the publicrecord and therefore, there is no difficulty to come to the conclusionthat this has been used by public as a mamool pathway. 14. In view of the finding given by the First Appellate Court basedon the latest field measurement map marked as Esx.A.16 and A.17 inaddition to the contents of the document Exs.A.22 to A.25 and B.1 and alsoadmission of D.W.1 about the existence of cart-track, there is nodifficulty to come to the conclusion that ,what is claimed by theplaintiffs is not only a mamool pathway in the suit cart-track, in thesense that it has been used in usual manner but the same has been markedunder the field measurement and therefore, the result public has a rightto use the same. In view of the same the reliance placed by the learnedcounsel for the appellants, on the judgement of this Court reported in1968(1) MLJ 502 to contend that the plaintiff should not be allowed togive evidence in the absence of the pleading has no application for thesimple reason that in respect of the dominant heritage even omission ofpathway is not material, since it is incident to the right transferred andin such circumstances it cannot be said that the party is not entitled tolet in evidence. 15. The further contention raised on behalf of the learned SeniorCounsel for the appellant that while the field map Exs.B.1, B.2 and B.3does not show the suit pathway while Exs.A.16 and A.17 field measurementsketch shows the pathway cannot be said to be contradictory for the simplereason that Exs.B.1, B.2 and B.3 are relating to the old survey plansprior to resurvey while admittedly Exs.A.16 and A.17 are the latest fieldmeasurement maps and therefore, the later survey alone will prevail. Inthese circumstances and in the light of the analysis of evidence anddocuments by the learned First Appellate Judge which are factual innature, I am of the considered view that there is absolutely nosubstantial question of law involves in this case and in view of the same https://hcservices.ecourts.gov.in/hcservices/ the Second Appeal fails and the same is dismissed. No Cost.Consequently, connected C.M.P.is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.nbjTo1. The Subordinate Judge,Sankari, Salem District.2. The District Munsif,Sankari, Salem District.3. The Section Officer, VR Section,High Court, Madras.+ 1 CC To M/s.Muthumani Doraisamy, Advocate SR NO.22056+ 1 CC To M/s.T.M.Hariharan, Advocate SR NO.21461S.A.No.387 of 1995ms[co]Gp/17.4