CoramThe Honourable Mr v. Chinna Gounder (Died)2.Nallammal3.Rangasamy4.Ponnayya

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 23-12-2005CoramThe Honourable Mr.Justice N.PAUL VASANTHAKUMARSecond Appeal No.640 of 19951.Ponnan (alias) Palaniappan2.Chellammal...Appellants/DefendantsVs.1.Chinna Gounder (Died)2.Nallammal3.Rangasamy4.Ponnayya...Respondents/Plaintiff(RR-2 to 4 are brought on record as the legal representatives of the deceasedfirst respondent vide order dated23.2.1996 in CMP No.14900/1995)Second Appeal filed under Section 100 of Code of CivilProcedure, against the decree and judgment of the learnedSubordinate Judge, Namakkal, in A.S.No.131 of 1993 dated6.2.1995, confirming that of the learned Additional DistrictMunsif, Namakkal in O.S.No.876 of 1989 dated 28.4.1993.For Appellant :Mr.P.MathivananFor Respondents 2to4 :Mr.N.ManoharanJ U D G M E N TThe unsuccessful defendants, having lost before the Courtsbelow, preferred this second appeal. The sole plaintiff diedpending second appeal and his legal representatives wereimpleaded as respondents 2 to 4 as per the orders of this Courtdated 23.2.1996.2.The brief facts leading to filing of the original suitare that the deceased plaintiff purchased the suit property on23.6.1965 for valid consideration from one Ramasamy Gounder'swife Veerammal and her sons Kuppusamy and Perumal, and eversincethe date of purchase, he was in absolute possession and enjoyment https://hcservices.ecourts.gov.in/hcservices/ of the same. The adjacent land belongs to one Vellaiyan @Karuppanna Gounder, elder brother of the first respondent. Nextto that, lies the land of defendants, on the southern and easternside of plaintiff's land. The specific case of the plaintiff isthat he is the absolute owner of the suit property, enjoying thesame by raising groundnut crops. Such being the case, theplaintiff alleged that on 15.10.1989 the defendants attempted tolay a pathway in the land of the plaintiff by destroying thecrops stood therein. Hence the suit was filed for permanentinjunction restraining the defendants from in any mannerinterfering with the peaceful possession and enjoyment of thesuit property.3.In the written statement filed by the defendants, allthe allegations raised in the plaint are denied. The defendantspurchased the entire land in S.No.310 and an extent of 2.93 acresin S.No.308 of Ramadevan Village from their previous owners inthe year 1978 and 1979 respectively and are enjoying the same.According to the defendants, the said lands have access onlythrough the suit pathway; that the defendants and theirpredecessors were using the suit pathway for the past 60 years;and that, there is no other pathway to reach their lands. Henceit is stated that the defendants have right over the pathway onthe basis of easement by prescription as well as easement bynecessity. The case of the defendants is that in view of theprevious enmity between the plaintiff and the defendants andtaking advantage of the enmity between the first defendant andhis elder brother Karuppanna Gounder, the plaintiff encroachedthe pathway and obstructed the defendants from using the same.These facts, according to the defendants, have been clearlymentioned in the Commissioner's report. Defendants also contendthat the suit is bad for non-joinder of Karuppanna Gounder as anecessary party to the suit.4.On the basis of the plaint and written statement, theTrial Court framed two issues. The deceased plaintiff examinedhimself as PW-1 and two other witnesses were examined as Pws.2and 3, besides marking Exs.A-1 to A-3. On behalf of thedefendants, Dws.1 to 3 have been examined and five documentshave been marked as Exs.B-1 to B-5. The Commissioner's reportand plan were marked as Exs.C-1 and C-2 respectively.5.The Trial Court found that the case of the defendantsthat they were using the suit pathway for the past sixty years isfalse and consequentially granted the relief of permanentinjunction as prayed for by the plaintiff, against which, thedefendants preferred appeal in A.S.No.131 of 1993 on the file ofSub Court, Namakkal. https://hcservices.ecourts.gov.in/hcservices/

6.The first appellate Court, after reassessing the oraland documentary evidence, could not come to a differentconclusion and confirmed the decree and judgment of the TrialCourt by dismissing the appeal. As against the said decree andjudgment, the defendants have approached this Court by filing thepresent second appeal.7.This Court, while admitting the second appeal, framedthe following substantial question of law for consideration,"Whether the Courts below are correct innot going into the question of prescriptiveright, especially where evidence was let into prove the same and also where theappellants have raised the plea ofeasementary right ?"8.The learned counsel appearing for theappellants/defendants argued that even though the suit was filedfor a bare injunction, declaratory relief was granted by thelower appellate Court, which is beyond the scope of the prayer inthe suit and hence the same is unsustainable. The learnedcounsel further states that the Commissioner's report and theevidence of PW-1 were not taken into consideration by the Courtsbelow. It is further submitted that the easement by prescriptioncan be acquired only on the ground of easement of necessity, forwhich no alternative pathway shall be available.9.In turn, the learned counsel appearing for therespondents submitted that the easement by prescription is not atall proved by the appellants and nothing is mentioned about thecart track in Ex.B-1 sale deed. But the learned counsel concedesthat the declaration granted by the lower appellate Court isbeyond the scope of the suit and the said portion of the judgmentalone may be set aside.10.I have considered the arguments of the learned counselsappearing for the appellants as well as the respondents. Ascontended by the learned counsel appearing for the appellants,the suit itself is for permanent injunction restraining theappellants herein/defendants from in any manner interfering withthe peaceful possession and enjoyment of the suit property. Thedeclaratory relief granted by the lower appellate Court isdefinitely not a relief sought for in the suit and no case ismade out for declaration. Therefore the said portion of thejudgment of the lower appellate Court is liable to be set aside.11.As regard the contention of the learned counsel for theappellants/defendants that Ex.C-1 Commissioner's report dated https://hcservices.ecourts.gov.in/hcservices/

3.5.1990 was not at all considered by the Courts below, the samecannot be accepted in view of the specific statement found inEx.C-1 that even though there was a cart track available, it isnot being used in recent times and there is no iota of evidenceto show that there was running of carts in the said track. It isalso stated therein that in fact, the old cart track was ploughed20 days ago and maize crops were raised therein. According tothe said report, even in the adjacent lands, belonging to thethird parties, there is no cart track, and that the old carttrack has no continuity and in some portions there remains traceof the same was being used as pathway and the carts could nothave been driven in the said route. From the above it is clearthat only after considering the Commissioner's report, the Courtsbelow arrived at the conclusion.12.In fact, there is a factual finding that there is nocart track. In Exs.B-1 and B-2, nowhere the existence ofpathway is mentioned. The lower appellate Court clearly found inparagraph 11 that the defendants failed to prove the existence ofpathway. The said finding is a factual finding based on evidenceand therefore the same cannot be treated as perverse finding.Since the appellants/defendants have failed to prove easementaryright and easement by necessity as pleaded by them, and as thereis an alternative pathway available for them. The claim of theappellants/defendants is not sustainable as Section 13 of theIndian Easements Act, 1882, contemplates the proof of necessity,without which the land cannot be enjoyed. The said section readsthus,"Section 13 – Easements of necessity andquasi easements.- Where one person transfersor bequeaths immovable property to another -(a)if an easement in other immovable property of the transferor or testator isnecessary for enjoying the subject of thetransfer or bequest, the transferee orlegatee shall be entitled to such easement; or(b)if such an easement is apparent and continuous and necessary for enjoying thesaid subject as it was enjoyed when thetransfer or bequest took effect, the transferee or lessee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement; https://hcservices.ecourts.gov.in/hcservices/ (c)if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor orthe legal representative of the testatorshall be entitled to such easement; or(d)if such an easement is apparent and continuous and necessary for enjoying thesaid property as it was enjoyed when thetransfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a differentintention is expressed or necessarilyimplied, be entitled to such easement.Where a partition is made of the jointproperty of several persons,--(e)if an easement over the share of one of them is necessary for enjoying the shareof another of them, the latter shall be entried to such easement; or(f)if such an easement is apparent and continuous and necessary for enjoying theshare of the latter as it was enjoyedwhen the partition took effect, he shall,unless the different intention isexpressed or necessarily implied, be entitled to such easement.The easements mentioned in this sectionclauses (a), (c) and (e) are called easementsof necessity.Where immovable property passes byoperation of law, the persons from and towhom it so passes are, for the purpose ofthis section, to be deemed, respectively, thetransferor and transferee."Further according to section 15 of the Act, a person claiming theright must establish the same and prove that it is enjoyedpeacefully, openly and without interruption for the prescribedperiod prior to two years of filing of the suit. The saidaspects are not proved by the appellants/defendants as held bythe Courts below. Therefore, there is no legal right for theappellants to sustain the Second Appeal. https://hcservices.ecourts.gov.in/hcservices/

13.At this juncture, it is relevant to refer to thefollowing decisions cited by the learned counsel for therespondents.(a)In the decision reported in (1999) 3 SCC 722 (KondibaDagadu Kadam v. Savitribai Sopan Gujar), cited by the learnedcounsel for the respondents, in paragraph 6, the HonourableSupreme Court held that the mere appreciation of the facts, thedocumentary evidence or the meaning of entries and the contentsof the document cannot be held to be raising a substantialquestion of law, and that, where the first appellate Court isshown to have exercised its discretion in a judicial manner, itcannot be termed to be an error either of law or of procedurerequiring interference in second appeal.(b)In the decision reported in 2000 (III) CTC 200 (SubbaReddiar V. Vasantha Ammal) this Court, in paragraph 7 held thatthe High Court under section 100 cannot entertain any argumentsto be advanced outside the purview of the substantial question oflaw framed at the time of admission of the second appeal. Thatapart, both the courts below have concurrently held against theplaintiff in respect of the above issues based on evidence. Itis well settled principle that this Court cannot interfere in theconcurrent findings of facts however erroneous they are. Thesaid principle has been laid down by the Apex Court in thedecision reported 1999 (II) CTC 468 : AIR 1999 SC 2213 (KondibaDagadu Kadam v. Savitribai Sopan Gujar and others).14.The Courts below having given factual findings withregard to the non-availability of easementary right to theappellants/defendants, I could not see any error in the saidfindings and the same cannot be set aside. Hence the decree andjudgment of the Courts below are confirmed, except the portion ofthe first appellate Court's judgment where declaratory relief isgranted.15.In the result, while deleting the relief of declarationgranted by the lower appellate Court, the judgment and decree ofthe lower appellate Court is confirmed and the second appeal isdismissed. No costs.vrSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Sub Judge Namakkal Salem District.2.The Additional District Munsif Namakkal Salem District.3. The Section Officer VR Section High Court Madras.+ One CC to Mr.P.Mathivanan,Advocate SR.No.50689.+ One CC to Mr.N.Manoharan,Advocate SR.No.50943.JE (CO)RSM/6.1.2006S.A.No.640 of 1995